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All traders who have supplied packaged goods to and from the end consumer in Germany are required to register with the LUCID Central Register of Packaging.
In the article Changes in German law important for Polish companies, we informed about the importance of the German Act on the marketing, return and high quality recycling of packaging, in short "Polish Packaging Act" (German: Verpackungsgesetz, VerpackG), as well as about the actions that should be taken by entrepreneurs selling their goods and placing packaging on the market in Germany and exporting from Poland to Germany. In this article, we indicate the current changes in this area and the formalities that must be met by Polish entrepreneurs in Germany.
What does the Packaging Act regulate?
The Packaging Act has been in force in Germany since 1 January 2019. It makes manufacturers and distributors more responsible for the packaging waste they place on the market for the first time and ensures that all operators bear the costs of collecting and recycling their packaging. After the act entered into force, further amendments were introduced, the last of which came into force not so long ago, on 1 January 2023. The new regulations have a significant impact on the situation of Polish entrepreneurs (including small and medium-sized enterprises) selling their goods across the Oder River or cooperating with German companies, regardless of whether the sale is made online or in a retail store.
The Act sets out liability requirements for products containing packaging, the primary objective of which is to avoid or reduce the impact of packaging waste on the environment. In order to achieve this goal, the Act regulates the conduct of obliged entities in such a way as to avoid the generation of packaging waste, and also to prepare it for reuse or recycling. This regulation is addressed primarily to manufacturers and distributors placing previously unregistered packaging on the market. A manufacturer within the meaning of the Packaging Act is a distributor who places packaging on the market for the first time on a commercial basis (including importing packaged products into Germany). Due to the fact that importers are also considered to be manufacturers, this definition also includes Polish companies that sell in Germany and export their goods to Germany.
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Appointment of an authorised representative
From 3 July 2021, Polish entrepreneurs selling goods to German end users who do not have a branch in Germany have the option of appointing an authorised representative in Germany (who is a natural or legal person or a partnership with legal capacity, having its registered office in Germany) to fulfil the obligations imposed on them by the Packaging Act on their own behalf.
If a decision is made to appoint such a representative, the Polish entrepreneur is obliged to carry out the appropriate registration himself, because this action cannot be carried out by the appointed representative. The authorised representative will then be treated as a manufacturer within the scope of the obligations regulated in the Packaging Act and will take over the obligations of the commissioning Polish entrepreneur in this respect. It should be noted that each entrepreneur may appoint only one authorised representative, but the appointment itself must be made in writing in German.
Explanations of the data transferred
Manufacturers of packaging filled with goods are required to register in the public Central Register of Packaging (LUCID) and comply with the obligations related to participation in the dual waste disposal system before placing the packaging on the market. When registering, it is necessary to provide, m.in the names of the brands under which the manufacturer places the packaging on the market and detailed information about the packaging that is placed on the market. In addition, from 3 July 2021, all packaging manufacturers, reporting information to the LUCID register regarding the types of materials from which their packaging is made, are obliged to be familiar with the types of materials listed in § 16 section 2 of the Packaging Act, i.e.: glass, paper, cardboard and cardboard, ferrous metals, aluminum, beverage cartons, other complex packaging and plastics, to prepare them for reuse or recycling.
New information obligations
From 3 July 2021, end-distributors of packaging that is not subject to participation in the dual waste disposal scheme must take appropriate measures to inform commercial customers and private end consumers about the possibility of returning packaging. Information in this regard can be made available in various ways - on the distributor's website, by including it in the general terms and conditions, by attaching an information leaflet or by printing it on delivery documents.
New documentation obligations
From 1 January 2022, manufacturers and distributors of packaging not eligible to participate in the dual take-back and recovery system must provide evidence of compliance with the take-back and recycling requirements for their packaging. This applies in particular to transport packaging, commercial and outer packaging, and reusable packaging, which does not usually accumulate as waste to end consumers after use. The obligation to provide evidence only applies to packaging that has actually been returned to the manufacturer or distributor. In such a case, entrepreneurs introducing transport or collective packaging (e.g. in the B2B sector, in industry, in production or in wholesale) should ensure the disposal of such packaging. In order to assess the accuracy and completeness of the documentation, traders are required to put in place appropriate self-monitoring mechanisms and document the amount of packaging they placed on the market and collected in a given calendar year and how they were recovered. This evidence must be kept and produced on request to the competent German authorities.
Extended registration obligation for manufacturers and registration obligation for final distributors of commercial packaging
Since the implementation of the Packaging Act, all entrepreneurs who have supplied packaged goods to the end consumer in Germany and to Germany (e.g. online shops from Polish) are required to register in the Central Register of Packaging LUCID (B2C).
In July 2022, the list of obliged entities was extended to include the following m.in: transport packaging (B2B), commercial packaging (i.e. offered to the final consumer as a sales unit consisting of goods and packaging) and outer packaging in the commercial sector, commercial packaging containing harmful filling materials and reusable packaging. Importantly, when registering a manufacturer or distributor of packaged goods, individual types of packaging must be indicated separately. Moreover, as of July 2022, distributors of service packaging, i.e. entities that fill service packaging with goods only at the time of its issuance, e.g. advertising bags or food foil and deliver them to the consumer, have also been subject to the obligation to register in the LUCID register. Thus, practically every seller of packaged goods from Polish to Germany is obliged to register in the LUCID register.
Obligation of control in e-commerce
From 1 July 2022, operators of electronic marketplaces that allow distributors to place goods on the market on their own behalf, as well as fulfilment service providers2 in Germany, are obliged to verify the manufacturers and distributors of packaged goods in terms of their compliance with the obligations under the Packaging Act. Operators of electronic marketplaces and fulfilment service providers are required, among other things, to check that manufacturers and distributors selling packaged goods are registered with LUCID and participate in a dual waste disposal scheme. In practice, this means that if Polish manufacturers and distributors selling their goods in Germany via online platforms have not met the registration requirements, they may be banned from selling in e-commerce. Similarly, fulfilment service providers may refuse to stock, pack, address and ship packaged goods if their customers are not registered with LUCID and do not participate in a dual waste disposal scheme. As a rule, the manufacturer or distributor only needs to submit a confirmation from the LUCID register to verify the registration. Manufacturers and distributors should be informed by marketplace operators and fulfilment service providers of this evidentiary obligation and asked to provide the required documents.
Extension of the mandatory refundable deposit for beverages
In Germany, the mandatory deposit for beverage bottles and cans has been in force since 2003, with certain exceptions. From 1 January 2022, this obligation has been significantly extended to many types of beverages, as the deposit obligation now applies to all single-use plastic bottles and all beverage cans. A transitional period has been introduced for milk and milk products; In this case, the deposit obligation for these packages will only apply from 1 January 2024. Producers (including milk bottling plants) must properly register their products in packaging subject to a deposit in the LUCID Central Packaging Register.
Mandatory range of reusable packaging
From 1 January 2023, Germany has made it mandatory for end distributors operating restaurants, cafés or bistros selling food and beverage takeaway to offer alternative reusable food and beverage packaging (in addition to the standard single-use plastic packaging). Reusable alternative packaging must meet no worse conditions or have a price that is not higher than the same product in single-use packaging. At the same time, it is permissible and recommended to charge an appropriate deposit for reusable packaging. Final distributors are required to accept the reusable packaging returned by the consumer that has been placed on the market by such distributor (the distributor is not obliged to take back reusable packaging other than the one placed on the market by the distributor).
Small businesses operating premises with a sales area of up to 80 m and employing up to five employees (e.g. snack bars, night shops, kiosks) are exempt from this statutory obligation. Such traders are not obliged to offer reusable alternatives, but instead they can offer their customers to fill the food containers or cups they have brought.
Minimum recycled content for single-use plastic beverage bottles
For the first time, there will be a minimum limit on the recycled content of single-use PET beverage bottles. According to the requirements of the Packaging Act, single-use plastic beverage bottles will have to consist of at least 25 percent recycled materials from 1 January 2025, and as much as 30 percent from 1 January 2030. This documentation will have to be submitted at the request of the competent national authority (Landesbehörde) in whose territory the manufacturer is established. The above-mentioned requirements will not apply to single-use plastic beverage bottles in which the bottle body is made of glass or metal, and only the cap, dust jacket or label is made of plastic.
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