According to a recent legal opinion commissioned by several associations, planned bans on single-use transport packaging are based on an incorrect legal basis.
 

According to Prof Dr Stefan Korte, holder of the Chair of Public Economic and Climate Protection Law at the German University of Administrative Sciences Speyer, there are a number of legal problems in the draft PPWR agreed between the EU Commission and Parliament. According to his expert opinion, the reusable packaging quotas for industrial and commercial packaging, which have been drastically increased compared to the EU Commission's original proposal for a regulation, are contrary to EU law. There is also a lack of viable justification for the extensions in the PPWR. According to the report, from 2030, reusable quotas for numerous industrial and commercial transport and sales packaging in trade between companies within a member state (Art. 29 Para. 3 PPWR) and for exchanges between company locations in the EU (Art. 29 Para. 2 PPWR) are to increase to 100 per cent. Twenty affected associations criticised this after the changes to the PPWR became known, saying that it would practically mean a ban on widely used disposable packaging such as pallet wrapping or strapping. In July 2024, they called on the EU Commission President to remove the reusable packaging requirements for industrial and commercial packaging in Article 29 of the PPWR.
 
According to Prof Dr Korte's current legal assessment, the internal market competence of Article 114 of the Treaty on the Functioning of the European Union (TFEU), on which the Packaging Ordinance (PIR) is based, is not the appropriate legal basis for the one-way bans provided for in Article 29 (2) and (3) of the Packaging Ordinance. Rather, these regulations should have been based on environmental competence (Art. 192 TFEU), according to Korte. The report also analyses the compatibility of single-use bans for transport packaging with the principle of subsidiarity (Art. 5 para. 3 TEU) and comes to the conclusion that there would be an obvious error here. Furthermore, there were considerable doubts about the proportionality of the regulations, as the legislator had not taken all relevant facts into account, as shown by the lack of justification in the recitals and the inadequate impact assessment. In particular, the technical and economic limits of the reprocessing and reuse of transport packaging were not sufficiently taken into account. There would also be negative internal market effects because different packaging formats would have to be kept and used depending on the destination of the transport of goods and the actors involved.
 
Sources:

• Euwid Recycling und Entsorgung 36/2024 (3.9.2024)
• Photo: © Lance Chang / unsplash (symbolic image)