October 17, 2021

Volume XI, Number 290

Advertisement
Advertisement

October 15, 2021

Subscribe to Latest Legal News and Analysis

October 14, 2021

Subscribe to Latest Legal News and Analysis

Amendments to the Act on Packaging and Packaging Waste Management

The European Green Deal is one of the key items of European Union’s policy. Policies aimed at the reduction of the volume of waste, increase in sustainability and drive towards greater circularity are important components of the European Green Deal. An important aspect of it is dealing with the volume of packaging waste as well as other types of waste.

Our civilization produces more and more waste originating from packaging of products; such packaging is usually dumped after purchase, contributing greatly to the production of huge amount of waste that require treatment.

The European lawmakers decided to tackle the problem by introducing new legislation. By 5 January 2023, EU Member States are required to ensure that national legislation complies with the new extended producer responsibility regime established by revised Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste, thus repealing the earlier Directives.

The Polish government has been working on the implementation of the Directive. On 5 August 2021, a long-awaited draft law on Amending the Act on Packaging and Packaging Waste Management (“Draft“) was published on the website of the Government Legislation Centre (Rządowe Centrum Legislacji).

The Draft aims to implement EU legislation to reduce the amount of waste produced, ensure high quality recycling and the use of recycled waste, hence minimizing the negative impact on the environment and reducing health risks. The Draft provides for, inter alia, the introduction of a new packaging fee and of new obligations for entrepreneurs selling packaged products, as well as listing household and other packaging in the stream of products and packaging waste.

Producers’ extended responsibility

The key concept introduced by the Draft is the extension of packaging waste producers’ liability. First of all, the Draft provides for a classification of packaging waste by distinguishing household packaging as a separate type of waste. The latter is to be subject to an additional “packaging fee” which will be paid by the entity placing  products in such packaging and successively on the market; such fee will build and maintain a system of collection and recycling for this type of waste. The packaging fee would apply to up to PLN 2/kg of packaging and itwould be payable monthly to the relevant Province Marshal. The collected funds will be transferred to the account of the National Fund for Environmental Protection and Water Management.

The funds from the National Fund for Environmental Protection and Water Management will be distributed to municipalities, depending, among other things, on the recycling performance and the number of inhabitants of each municipality. The rates of the fee, determined by the minister in charge of climate affairs, will be charged, inter alia, according to the type of packaging, its recyclability and in particular the amount of recycled material content in the packaging (after taking into account revenues from reuse, sale of recycled materials and unclaimed deposits).

Significantly, household packaging will be subject to the existing product fee in addition to a packaging fee, whilst other packaging will only be subject to the product fee.

The Draft also contains separate provisions for plastic beverage bottles with a capacity of up to 3 liters. Any entity placing such items on the market will need to ensure that the bottles are made from a defined (and incrementally increasing) percentage of recycled plastic. Producers of non-recyclable plastic containers and of plastic beverage containers with a capacity of up to 3 liters will be able to use plastic lids and caps from 1 July 2024, provided that these remain attached to the containers during the intended use phase of the product.

The entity placing products in packaging will be obliged to ensure proper management of packaging waste, including  compliance with certain thresholds of waste recycling. Such obligation may be, in certain cases, discharged by the entity itself or by delegating such duty to the newly created organizations of producers’ responsibility. However, with respect to household packaging waste, the producer will need to pay the packaging fee on  top of other fees and comply with the obligations personally.

Organizations of producers’ responsibility

Any entity introducing packaged products will need to enter into a contract with a producers’ responsibility organisation to ensure proper management of packaging waste and performance of other duties provided for by the Draft. Producers’ responsibility organisations shall replace the existing packaging recovery organisations (organizacje odzysku opakowań). These new entities will have to hold a permit issued by the minister in charge of climate affairs and increase their share capital to PLN 5,000,000. In addition, they will be able to conduct only business activities related to the management and recycling of packaging waste.

The fees charged by such organisations will be subject to negotiations with the producers, although the minister for climate will define the minimum remuneration. The Draft provides an incentive towards greater circularity – the minimum remuneration for a given class of waste will depend, inter alia, on the type of packaging, ease of recyclability and other similar factors.

The Draft also stipulates that each producer responsibility organisation will be obliged to allocate at least 95% of the funds derived from fees collected to recycling and other activities related to packaging waste management.

An obligatory 10% of the organisation’s profit after income tax for the previous year is to be transferred to the bank account of the National Fund for Environmental Protection and Water Management (Narodowy Fundusz Ochrony Środowiska i Gospodarki Wodnej).

Other changes

Resigning from other recovery levels than recycling

The terminology has been adjusted to reflect moving away from other recovery levels and focusing on recycling. As a result of the changes introduced, entrepreneurs producing packaged products with a mass of up to 1 mg per year will be able to benefit from de minimis aid and be exempt, inter alia, from achieving recycling levels and paying the packaging fee.

Labels indicating the method of separate collection of waste

An entrepreneur introducing packaged products on the market will be obliged to affix labels indicating the method of separate collection of waste produced from such packaging. The labels will have to be adapted for use by visually impaired and blind individuals.

New rules for issuing DPR and EDPR documents

The project provides that, at the request of a packaging waste recycler, documents confirming the recycling of packaging waste (DPR) and a document confirming the export of packaging waste or intra-Community supply of packaging waste (EDPR) will be issued by the Director of the Institute of Environmental Protection of the State Research Institute.

Prior to the preparation of DPR and EDPR documents, an inspection will take placein order to verify and compare the information contained in the application with the actual state of affairs. The audit shall be carried out by an environmental verifier selected by the applicant. This rule will apply to all recyclers, not only those exceeding 400 Mg/year.

Recycling fee

The Draft provides that the recycling fee will not be charged to the purchaser of a very lightweight plastic shopping bag and a biodegradable plastic shopping bag.

Legislative Stage

The Ministry of Climate and Environment has extended the deadline for public consultation and opinions on the Draft and is currently in the process of replying to the submitted comments.

The new law is expected to come into force on 1 January 2023.

The deposit-refund system

The Council of Ministers’ List of Legislative and Programme Work has published an entry for a separate draft law on the introduction of a deposit-refund system in Poland. It has been decided to proceed separately with this system because of the importance of the subject matter and the need for a different form of legislative process and consultation. The draft law will be open for consultation in mid-October 2021.

The establishment of a deposit-refund system will help achieve the goal of selective collection of beverage packaging made of plastics, as well as facilitate the reuse of glass packaging. With the deposit-refund system, a fee will be charged at the time of sale of packaged products and then refunded when returning such packaging or packaging waste. There will be no need to show a receipt confirming that the deposit has been paid in advance. The refund not claimed by consumers will go to the producers of packaging products who can use these funds to finance the system itself.

The deposit-refund system will be launched upon obtaining a permit issued by the minister responsible for climate issues. Under this system, entrepreneurs producing packaged products covered by the deposit-refund system will be obliged to achieve certain levels of selective collection of packaging or packaging waste. Failure to achieve the required thresholds will result in the producers paying a product fee. This mechanism aims to encourage entrepreneurs to establish a deposit-refund system.

The proposed regulations will oblige each shop with a retail space exceeding 100 sq. m. to collect empty packaging and packaging waste covered by the deposit-refund system and to return the deposit. Smaller commercial units will be able to collect the packaging and return the deposit at the same time on a voluntary basis. All commercial units, on the other hand, will be obliged to collect the deposit.

The planned date of adoption of the project by the Council of Ministers is the first quarter of 2022.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 286
Advertisement

About this Author

Marcin S. Wnukowski, Squire Patton, Warsaw, foreign investment matters lawyer, acquisition transactions attorney
Partner

Marcin Wnukowski focuses his practice on foreign investment matters and merger and acquisition transactions in Poland in a broad range of industries including pharmaceuticals, automotive, financial services, hotel and hospitality, and real estate. His clients include private equity firms and multinational investors. State aid and competition law approvals are among his core practice areas. He also serves as de facto outside general counsel to various clients in different industries.

48-22-395-5503
Advertisement
Advertisement
Advertisement