Decree of 24 March 2005, laying down regulations for packagings, packaging waste, paper and card (Packagings, Paper and Card (Management) Decree)

Transcription

1 Netherlands Bulletin of Acts and Decrees Series Decree of 24 March 2005, laying down regulations for packagings, packaging waste, paper and card (Packagings, Paper and Card (Management) Decree) We Beatrix, by the grace of God, Queen of the Netherlands, Princess of Orange-Nassau, etc., etc., etc. On the recommendation issued by the State Secretary for Housing, Spatial Planning and the Environment on 18 July 2003, no. MJZ , Legal Affairs Directorate, Legislation Department; Taking account of Directive no. 94/62/EC of the European Parliament and the Council of the European Union of 20 December 1994 concerning packagings and packaging waste (OJEC L 365), as most recently amended in directive no. 2004/12/EC of the European Parliament and the Council of the European Union of 11 February 2004 (OJEU L 47) and Articles through 10.18, 10.64, second paragraph, and of the Environmental Management Act; Having consulted the Council of State (opinion of 10 December 2003, no. W /V); Having seen the more detailed report of the State Secretary for Housing, Spatial Planning and the Environment of 21 March 2005, no. MJZ , Legal Affairs Directorate, Legislation Department; Have approved and decreed the following: 1. Definitions Article 1 The following definitions apply to this decree and the provisions based thereon: a. packagings: all products, from raw materials to finished products, through the entire process from producer to user, including disposable items, made from any material whatsoever, that can be used as packaging intended to enclose, protect, tranship, deliver or supply substances, preparations or other products; 1

2 b. paper and card: paper and card, not being a packaging; c. producer or importer: a party who in the practice of higher profession or business in the Netherlands: 1. is the first to make substances, preparations or other products available to another in a packaging, 2. is the first to put substances, preparations or other products in a packaging and disposes of the packaging, 3. gives an order to another party to place its name on the packaging containing substances, preparations or other products and makes this available to the other party for this purpose, 4. is the first to make a packaging available to another party, intended to be added to these when making substances, preparations or other products available to the user, 5. is the first to make paper or card available to another party, not to be used for the production of packagings; d. re-use as material: use of packaging materials or paper and card again following treatment or processing, for the original purpose or for a purpose other than the one for which they were originally intended, including organic re-use, but not including the recovery of energy; e. drink: liquid intended for human consumption and primarily intended for drinking; f. medicinal drink: a drink, being a medicine as referred to in Article 1, paragraph e, of the Supply of Medicines Act; g. wine: wine, as referred to in Article 1, first paragraph, of the Licensing and Catering Act, as well as drink obtained from the alcoholic fermentation of the juice of fruits other than grapes and containing ingredients derived exclusively or partially from these fruits; h. strong drink: strong drink as referred to in Article 1, first paragraph, of the Licensing and Catering Act; i. moderately alcoholic drink: alcoholic drink which, at a temperature of twenty degrees Celsius, has an alcohol content of more than twelve but less than fifteen percent proof; j. packagings directive: directive no. 94/62/EC of the European Parliament and the Council of the European Union of 20 December 1994 concerning packagings and packaging waste (OJEC L 365). 2. Collection, prevention, re-use and other waste management Article 2 1. The producer or importer shall ensure separate collection or collection and subsequent separation of the following in the Netherlands: a. packagings and paper and card made available to another party, and b. packagings introduced and disposed of by the producer or importer. 2

3 2. The cost of the separate collection or collection and subsequent separation of packagings and paper and card is at the expense of the producer or importer. 3. Contrary to that stated in the second paragraph, the cost of the separate collection or collection and subsequent separation of packagings and paper and card created as industrial waste is at the expense of the party disposing of the waste substances concerned. Article 3 The producer or importer shall take measures to promote the reduction of the quantity, in terms of weight, and harmfulness to the environment, of packagings or paper and card, which will in any event be aimed at: a. the use of as little packaging material or paper and card as possible; b. packagings or paper and card will be designed in such a way that easy use is facilitated; c. as much recycled material as possible shall be used in new packagings or paper and card; d. the creation of litter is avoided as far as possible. Article 4 1. The producer or importer shall ensure that, each calendar year, at least 70 percent, by weight, of the total quantity of packagings he has made available to another party in the Netherlands during the previous calendar year and of the packagings he has introduced and disposed of during that calendar year, is put to good use and 65 percent, by weight, is re-used as a material. 2. The producer or importer shall ensure that, each calendar year, of the total quantity of packagings he has made available to another party in the Netherlands during the previous calendar year and of the packagings he has introduced and disposed of during that calendar year: a. of the plastic drinks packagings with a capacity of more than 5 decilitres, at least 95% is collected separately and re-used as a material; b. of the plastic drinks packagings with a capacity of less than 5 decilitres, at least 55% is collected separately and re-used as a material; c. of the remaining plastic packagings, at least 45% will be put to good use and at least 27 percent by weight will be re-used as a material; d. of the other material types, at least the following percentages by weight will be put to good use through their re-use as materials: 1º. 90 percent by weight of glass packagings, 2º. 75 percent by weight of paper and card packagings, 3º. 85 percent by weight of metal packagings, 3

4 4º. 25 percent by weight of wooden packagings. 3. The first and second paragraphs do not apply to packagings added to a substance, preparation or other product at the moment they are made available to another party by the producer or importer. Article 5 The producer or importer shall ensure that, each calendar year, at least 75 percent by weight of the quantity of paper and card he has made available to another party in the Netherlands during the previous calendar year is re-used as a material. 3. Declaration and reporting Article 6 1. Within thirteen weeks of this decree becoming applicable to him, the producer or importer shall notify Our Minister, using a form to be specified by the minister, of the manner in which Articles 2 through 5 are to be implemented, in as far as these articles apply to the producer or importer concerned. 2. This declaration is subject to approval by Our Minister. 3. The approval, referred to in the second paragraph, is valid for a period, not exceeding five years, to be specified in the approval. 4. Our Minister may impose regulations or restrictions on approval of the declaration. 5. Our Minister may also, ex officio or in compliance with a request to this end, amend or withdraw the regulations or restrictions referred to in the fourth paragraph. 6. No later than thirteen weeks prior to the expiry of the period for which the approval is valid, the producer or importer shall issue a new declaration as referred to in the first paragraph. Article 7 The producer or importer shall send a report to Our Minister, on a form to be specified by the minister and before 1 August of the year following the year in which the relevant section of this decree took effect, on the implementation during the previous calendar year of Articles 2 through 5, 8 and 11. 4

5 4. Deposits on drinks packagings Article 8 1. All parties who, in the course of their professional or business activities, make a drink in a packaging available to another party, will levy a deposit on this packaging. 2. The packaging referred to in the first paragraph will in any event, after use and with the refund of the deposit, be accepted by any party who, in the course of their professional or business activities, makes a packaging of the same material available to another party. This acceptance will take place at the location where similar packagings are made available, or in the immediate vicinity thereof. 3. All parties who make a drink available to another party from a point of sale with a sales area of less than 200 m 2, may restrict this acceptance as referred to in the second paragraph, to packagings that were made available to another from that specific point of sale. Article 9 The obligation, as described in Article 8, first paragraph, does not apply to: a. packagings of: 1º. medicinal drinks, 2 º. wine, 3 º. strong drink, 4 º. moderately alcoholic drink; b. drinks cartons, intended for drinks and made of at least 80 percent paper or card; c. packagings filled with a drink immediately prior to sale; d. drinks packagings with a capacity of 1 decilitre or less; e. packagings of drinks for which the producer or importer can demonstrate that less than 500,000 units of consumer packaging are made available per annum to consumers in the Netherlands. Article The deposit, referred to in Article 8, first paragraph, shall be 0.10 per packaging for multi-use packagings. 2. The deposit, referred to in Article 8, first paragraph, shall be 0.25 per packaging for single-use packagings. Article If the obligation, referred to in Article 8, first paragraph, applies, the producer or importer shall display a message concerning the deposit on the 5

6 packaging. Our Minister may determine the form and content of this message. 2. The message, referred to in the first paragraph, shall be stated clearly and indelibly on the packaging. 5. Requirements for packagings Article If the producer or importer states the nature of the material on the packaging or on the label on the packaging, and hereby makes use of abbreviations and numeric codes, Decision no. 97/129/EC of the European Commission of 28 January 1997 establishing the identification system for packaging materials pursuant to Directive 94/62/EC of the European Parliament and the Council concerning packaging and packaging waste (OJEC L 50) applies. 2. The abbreviations and numeric codes, referred to in the first paragraph, must be clearly visible, easily legible and remain recognisable, even after the packaging has been opened. Article 13 Packagings must fulfil the requirements laid down in Appendix II to the packagings directive. Article The total concentration of lead, cadmium, mercury, chromium VI or compounds thereof in a packaging or in a packaging component may amount to no more than 100 ppm by weight. 2. The first paragraph does not apply to packagings made from crystal glass as referred to in Directive no. 69/493/EEC of the Council of the European Communities of 15 December 1969 on the approximation of the laws of the Member States relating to crystal glass (OJEC L 326). 3. The first paragraph does not apply to plastic crates and pallets that fulfil the regulations laid down in Directive no. 1999/177/EC of the European Commission of 8 February 1999 establishing the conditions for a derogation for plastic crates and plastic pallets in relation to the heavy metal concentration levels established in Directive no. 94/62/EC on packaging and packaging waste (OJEC L 56). 4. The first paragraph does not apply to packagings made from glass that fulfil the regulations laid down in Decision no. 2001/171/EC of the European Commission of 19 February 2001 establishing the conditions for a derogation for glass packaging in relation to the heavy metal concentration levels established in Directive no. 94/62/EC on packaging and packaging waste (OJEC L 62). 6

7 Article 15 An amendment to the decision referred to in Article 12, first paragraph, or to Appendix II to the packagings directive or to the decision referred to in Article 14, third or fourth paragraph, shall apply to the application of this decree as from the date on which the amendment in question is to be implemented, unless another time is set by ministerial order, announced in the Government Gazette. 6. Exemption Article 16 If an exemption is requested from the obligation referred to in Article 8, first paragraph, by virtue of Article 10.63, fourth paragraph, of the Environmental Management Act, then Section 3.4 of the General Administrative Law Act shall not apply. 7. Transitional and concluding provisions Article 17 This decision shall only apply a month after Article 8 takes effect, to packagings which, at the moment this article takes effect, were made available to another party in the Netherlands. Article 18 As from 1 January 2010, Article 4, first paragraph, will read: 1. The producer or importer shall ensure that, each calendar year, at least 75 percent by weight of the total quantity of packagings he has made available to another party in the Netherlands during the previous calendar year and of the packagings he has introduced and disposed of during the previous calendar year is put to good use, and that 70 percent by weight is re-used as a material. Article 19 The Order on Packagings and Packaging Waste is withdrawn. Article As from 1 July 2006, Article 14, fourth paragraph will no longer be in effect. 2. As from 24 March 2009, Article 14, third paragraph will no longer be in effect. 7

8 Article 21 This decree shall take effect at a time to be determined by royal decree, and this may be different for the various articles or sub-sections thereof, subject to the understanding that Articles 8 through 11 shall not take effect earlier than one year following the date of publication of the Bulletin of Acts and Decrees in which the royal decree stipulating the time these articles shall take effect is published. Article 22 This decree shall be known as the: Packagings, Paper and Card (Management) Decree. We order and command that this Decree together with the relevant explanatory memorandum shall be published in the Bulletin of Acts and Decrees. The Hague, 24 March 2005 Beatrix The State Secretary for Housing, Spatial Planning and the Environment P.L.B.A. van Geel Published on the seventh of April 2005 The Minister of Justice, J.P.H. Donner The recommendation of the Council of State has been published by submission for inspection at the Ministry of Housing, Spatial Planning and the Environment. In addition, the recommendation, along with the documents made available for inspection thereby, will be included in the enclosure with the Government Gazette of 10 May 2005, no

9 EXPLANATORY MEMORANDUM General 1. Scope The Packagings, Paper and Card (Management) Decree (hereinafter: the decree) concerns packagings, as well as paper and card not used as packagings. Paper and card not used as packagings are hereinafter referred to as: paper and card. Packagings are all products intended to enclose, protect, tranship, deliver or offer other products. Packagings also includes disposable items such as chip trays. Paper and card refers to products made from paper and card, of which newspapers, magazines and brochures are significant representatives. The reason why this decree also applies to the latter category is that the collection and recycling of waste paper and card cannot be seen separately from the collection and re-use of used packagings. 2. History An initial Covenant was entered into with the packagings chain in June Agreements were made as part of this covenant between the commercial sector and the government to reduce the amount of packagings and stimulate their re-use. Experiences with the implementation of this covenant were positive. The arrival of Directive no. 94/62/EC from the European Parliament and the European Council of 20 December 1994 concerning packagings and packaging waste (OJEC L 365), (hereinafter: packagings directive) was also aimed at creating national regulations for packaging. This directive imposed an obligation on the Member States to take measures such that, no later than 30 June 2001, specific minimum and maximum percentages of all packagings brought onto the market were re-used as a material or otherwise put to good use. Higher percentages are permitted if certain criteria are fulfilled, such as the availability of sufficient processing capacity and non-disruption of the balance of the internal market. This Directive became national legislation in 1997 in the form of the Order on Packagings and Packaging Waste (hereinafter: packagings order). The commercial sector then made use of the opportunity contained in this order to enter into a new covenant with the Minister of Housing, Spatial Planning and the Environment. On 15 December 1997, the Packagings Covenant II was signed. This covenant contained not only requirements in relation to recycling and prevention, as in the first covenant, but the principal objective was formulated in the maximum amount of packaging waste to be incinerated and to be dumped. In Covenant III, signed on 4 December 2002, the aims both in terms of prevention and recycling and of the maximum amounts of waste to be dumped and incinerated were further tightened up. The Packagings Covenant III also contains a sub-covenant on litter. Agreements were made in this on combating and decreasing the amount of litter and on the responsibilities of the various parties to the covenant. One of the agreements made concerns the commercial sector s obligation to reduce the number of bottles and cans 9

10 among litter by at least 80% in relation to the amount in September 2001 by 1 January One of the aims of the decree is, should this objective not have been achieved by 1 January 2006, to allow for the introduction of a deposits system. It cannot be ruled out that, if it is decided to introduce deposits, no new covenant will be entered into to succeed the Packagings Covenant III, which expires at the end of This decree therefore also contains measures for the management of packagings and waste paper and card, on which agreements were already made in the Packagings Covenant III. The various parts and articles of this decree can take effect at various times. It was stated in the letter of 28 January 2005 to the chair of the Lower House (Parliamentary Documents II, 2004/05, , no. 14), that there is an intention to introduce the producer responsibility for packagings following expiry of the Packagings Covenant III, as from 1 January The date of introduction of producer responsibility for paper and card, not used as packaging, will depend on the agreements that can be made with the commercial sector on a voluntary basis. The levy of deposits included in this decree will only take effect if there is insufficient prospect of the collection and re-use percentages specified for PET bottles being met or if the specified percentages or reduction appear subsequently not to have been achieved. When Paragraph 2 of the decree takes effect, this will replace the packagings order, through which the obligations arising from the packagings directive were fulfilled. The aims included in the decree go further than those in the directive. The decree also contains obligations for the producers or importers of paper and card (not used as packaging). These latter obligations were not included in the packagings directive. A second reason for the drafting of this decree was the desirability, from an environmental perspective, of having the party who introduces a product to the market in a packaging being responsible not only for waste management, but also as in most other Member States for separate collection. This means the cost of waste management is part of the product price and the polluter pays principle is upheld. Another benefit of allocating responsibility for both collection and re-use to a single party is that it is clear who should be approached in relation to achieving the aim. 3. Aim The aim of the decree is to reduce the amount of removable packaging material as far as possible, to promote the useful application thereof and to prevent litter. Litter is defined as waste that people consciously or unconsciously throw away or leave in places not designated for this, or that ends up in such places through people s indirect actions or failure to act. The producer or importer must collect the packagings, paper and card he has made available to another party in the Netherlands and packagings he has introduced and disposed of, and put these to good use as far as possible, whereby at least the percentages given in Articles 4 and 5 are achieved. The principal forms of good use in relation to packagings are re-use as a material, primary use as a fuel or primary use for another means of generating power. Collection may take place by means of separate collection (e.g. glass and paper collection containers) and, in some cases, through subsequent separation. Subsequent separation of packagings is done, 10

11 for example in the case of metal packagings, by means of magnets which separate metal packagings from other waste. Producers and importers are expected to comply with the obligations of this decree collectively, see Paragraph 4.3. The aim for the maximum amount of packaging waste to be removed in 2005 was set in the Packagings Covenant III at 850 kilotons. The amount of packaging waste to be removed is currently seen as a good representation of the burden on the environment caused by packagings. To ensure that the burden on the environment does not further increase in the years ahead, it must be ensured that this amount is not exceeded. This means that a potential increase in the amount of packagings must be set off by better use of the waste thus produced, whereby on balance the amount of packaging waste to be removed can remain the same. The percentage of good use to be achieved in 2010 by virtue of Article 4 is 75 percent. Given an amount of no more than 850 kilotons of packaging waste to be removed, there is therefore space for 3,400 kilotons of packagings if 75 percent good use is achieved. According to the most recent figures, in ,700 kilotons of packagings were put on the market. 67 percent of this was put to good use in the same year, resulting in 33 percent packaging waste to be removed, a total in excess of 890 kilotons. From the moment the decree takes effect, at least 65 percent of packagings must be re-used as a material. In the determination of these percentages, account was taken of the level of material re-use already actually realised for the separated materials and that stated as an aim in the Packagings Covenant III. By 2010, at least 70 percent of the packagings must be re-used as a material. The level of good use has increased over the past five years by an annual average of one percentage point, to 67% in It is expected that this level can further increase in the years ahead. For example, new potentially useful methods have been developed for the subsequent separation of plastics from mixed domestic waste. A further increase in the good use of other materials will also lead to a proportionate decrease in the amount of waste materials to be removed. In view of these developments and the relatively large space they create to allow the amount of packagings to increase without burdening the environment, it is not yet necessary to impose a generally applicable prevention percentage per producer/importer, but a generally applicable preventive regulation is sufficient for the present. It is expected that the aim can be achieved through joint compliance with this obligation. In time, it may appear that, in relation to current expectations, there is a greater increase in the amount of packagings being put on the market, and/or a lower increase in the level of good use may be achieved. Greater prevention may therefore be necessary on balance to prevent the amount of packaging waste to be removed from increasing. In this situation, it may be worth considering imposing a compulsory minimum prevention percentage. To make this possible, it will be investigated whether a specific stipulation will have to be included in the Environmental Management Act, on the basis of which prevention percentages can be imposed by ministerial regulation. 11

12 4. Main features 4.1. Scope The decree concerns packagings and paper and card. The reasons for including paper and card in this decree, are that almost two-thirds of the total supply of paper and card in the Netherlands consists of non-packagings, such as newspapers and magazines. Collection and re-use of materials from paper and card packagings cannot be separated from the collection and re-use of other waste paper and card. The Paper Fibres Covenant, part of Packagings Covenant III, already contained voluntary agreements on the collection of paper and card, such as newspapers, advertising material and magazines, together with paper and card packagings Collection, prevention, re-use and other good use The producer or importer must fulfil a number of obligations, partly by virtue of Articles 2 through 5. He is individually responsible for the separate collection (which is essential to achieve the desired percentages of re-use as a material for paper and card and glass) or collection and subsequent separation and putting to good use of the packagings and paper and card he has made available to another party in the Netherlands and the packagings he disposes of as an importer. The producer or importer is expected to consult with the municipal authorities on the manner in which he is to fulfil this collection obligation. It would seem logical that both the municipal authorities and the commercial sector will demonstrate the present and forecast costs of the separate collection of waste paper and card and glass, before reaching agreement. The municipal authorities are responsible for, inter alia, waste management at municipal level, public order, safety, spatial planning policy, management of public spaces, public health and environmental hygiene. Partly ensuing from these responsibilities, the municipal authorities determine, in the waste substances bye-law, the framework within which separate collection of packagings and paper and card from domestic households takes place. This concerns, inter alia, the frequency of collection and regulations for keeping the area surrounding the collection points clean. The municipality and the producer or importer determine whether actual collection is performed by a municipal service or a private enterprise. At the end of the day, the producer or importer bears final responsibility, within the framework established by the municipality, for separate collection or collection and subsequent separation, in as far as this is necessary to achieve the prescribed percentages for re-use and other good use. This is contrary to the situation under the packagings order, whereby the municipality was responsible for separate collection. It is expected, partly in view of the experiences of other countries, that producers or importers will make as much use as possible of the existing collection structure (fetching or bringing systems, underground collection points, etc.) within the municipalities. Although we can assume that agreements will be reached in good consultation, it may be advisable for parties to make agreements on the way in which any disputes will be settled. 12

13 The producer or importer is responsible for ensuring that the separate collection or collection and subsequent separation of the packagings and paper and card he has made available to another party in the Netherlands and the packagings he disposes of as an importer takes place. This applies both to packagings and paper and card released by households and to packagings and paper and card released as industrial waste. The producer or importer must also pay the cost of the separate collection or subsequent separation and putting to good use of packagings and paper and card released by households. The costs of separating, keeping separated and separate issue of packagings and paper and card released as industrial waste are not for its account, but for that of the party disposing of this. Companies are already obliged in this respect by virtue of the environmental permit or by virtue of the general regulations for institutions based on Article 8.40 of the Environmental Management Act. It would be inefficient to deviate from this in this respect. Furthermore, the individual producer or importer must take measures that lead to a reduction in the amount of packagings and paper and card to be made available to another party in the Netherlands and packagings to be introduced of which he disposes, and to reduce the harmfulness of these to the environment. The producer or importer is also obliged to put to good use and re-use as a material a particular amount of packagings made available to another party in the Netherlands and packagings introduced of which he disposes. He is further obliged to reuse as a material a particular amount of paper and card he has made available to another party in the Netherlands. Aims for re-use of materials are laid down for the separate packaging materials and paper and card in Articles 4 and 5. The aims for the packaging materials are higher than those contained in the packagings directive and are based on results already achieved in relation to collection and re-use. The packagings directive explicitly grants the possibility of setting higher aims Individual or joint implementation There are two possible ways of implementing the obligations contained in Articles 2 through 5 of this decree. Firstly, the producer or importer may state individually in a declaration to the Minister of Housing, Spatial Planning and the Environment how he intends to fulfil the requirements of this decree. A second option is to do this collectively. A collective system brings advantages in terms of both effectiveness and cost-saving. It is also possible for several collective systems to operate alongside one another. Under the operation of the packagings order, virtually all producers and importers were signed up to the Packagings Covenant. In other Member States, where packagings legislation is implemented in a collective manner, virtually all producers and importers are also combined in a collective system. There is no reason to assume that the commercial sector will not once again choose to establish a collective system. In cooperation with the commercial sector umbrella organisation, which is affiliated to the Packagings Covenant, the best way of establishing such a collective system is being discussed. It is conceivable that, in implementing the obligations imposed by this decree, the producer or importer may enter into agreements or demonstrate behaviour that may fall under the prohibition imposed by Article 6 of the Competitive Trading Act and for which an exemption may be requested by virtue of Article 17 of this act. The Netherlands 13

14 Competition Authority (NMa) is charged with the implementation and enforcement of the Competitive Trading Act. It is up to the general director of NMa to assess whether a system complies with the competition rules. A guideline, set up as a form for the submission of a declaration, which has been adopted by the Minister of Housing, Spatial Planning and the Environment, making both the submission of a declaration and the assessment thereof easier. The form states the conditions to be fulfilled by a declaration before being approved. In Article 6, third paragraph, it is stated that a declaration will be approved for a period of no longer than five years. In addition, new (technical) developments may mean that the manner in which the obligations of this decree are fulfilled will have to be regularly adjusted Deposits Paragraph 4 of this decree includes provisions for deposits on drinks packagings. Everyone who, in the practice of higher profession or business, makes a drink available to another party in a packaging, will charge a deposit on this packaging. This is primarily aimed at maintaining the present system of deposits on large plastic bottles containing soft drinks and waters, and glass beer bottles, for example. This system is based on a deposits regulation from the Drinks Marketing Board. Packagings that are currently subject to a deposit, are used more than once. In order to ensure that the obligation to charge a deposit is maintained, this decree includes the obligation to levy a deposit on these packagings. At present, no deposit is charged on plastic drinks packagings containing 0.75 litres or less, on tin drinks packagings and on certain glass bottles (for example mixed drinks). When this part of the decree takes effect, the obligation to charge a deposit will also apply to these packagings. An obligation to charge a deposit guarantees a large degree of product re-use (in particular for large drinks packagings and beer bottles) and re-use as a material (for the other packagings). Product re-use is defined as: the direct re-use of products that have not first entered the waste stage, such as bottles that are used again for the same purpose (after cleaning). These packagings are designed to complete a minimum number of cycles before finally entering the waste stage. Under the packagings directive, product re-use does not count as a fulfilment of the obligations in relation to re-use of materials or another good use. At the moment they are disposed of and no longer used as a packaging, the multi-use packagings are also subject to the same percentage obligations for re-use of materials or other good use as single-use packagings. Product re-use and re-use of materials of drinks packagings is guaranteed by the obligation to charge a deposit, as a large percentage will be returned to the retailer. If the consumer does not do this himself, there are others who will, for example sports clubs (source of income) or children (pocket money). In addition, the introduction of deposits means that far fewer bottles and cans will be thrown away than previously, leading to a visible reduction in litter. In short, an obligation to charge a deposit guarantees a noticeable degree of protection for the environment and people s surroundings. This has been demonstrated by many studies, including the study Collection and reward systems for the reduction of litter [Dutch: Inzamel- en beloningssystemen ter vermindering van zwerfafval ] carried out by four research agencies under joint commission from the 14

15 commercial sector and the government (study performed by CE, PWC, De Straat, NFO/Trendbox, October 2001, Delft). The packagings directive explicitly offers Member States the opportunity to promote product re-use. A system of deposits for drinks packagings, combined with compulsory multi-use, were implemented by the Netherlands in compliance with this opportunity. As in a number of other Member States, refillable packagings and deposits have been used in the Netherlands for many years. The compulsory introduction of multi-use packagings clashes however with the principle of the free traffic of goods within the European Union. This obligation has therefore not been adopted in this decree. In order to ensure that the benefits to the environment achieved with multi-use plastic drinks packagings are retained when switching to single-use systems, an investigation has been carried out into whether the separate collection of small bottles and using the recycled material from these bottles in the production of new bottles can lead to the same environmental benefits. The research proved that this was indeed possible, provided that at least 95% of large bottles are collected separately, at least 55% of small bottles are collected and subject to the condition that plastic bottles are made from at least 25% recycled, separately collected bottles. The basic assumptions stated above in relation to separate collection and reprocessing have been included in this decree. The commercial sector has indicated its willingness to voluntarily also use 25% recycled material in the production of new bottles, so that in combination with the above-mentioned percentages of separate collection and re-processing, the same environmental benefits are achieved as with reuseable bottles. Should it transpire in practice that the percentages stated or the accompanying reduction of pressure on the environment are not achieved, a deposit as referred to in Article 8 will be introduced, in order that in total sufficient collection of empty bottles, either combined with the use of recycled material in new bottles or not, will take place to achieve the same environmental benefits as multi-use packagings. Implementation of a distinction in the amount of the deposit for packagings for single and multi-use is expected to stimulate the use of multi-use packagings. After all, consumers will pay less for the same product in a multi-use packaging than for a singleuse packaging, on which the deposit is higher. It is expected that the market will operate in such a way that single-use packagings will still be sold, particularly in certain subsegments (for example cans instead of bottles, or specific flavours and brands), but that the majority of the market will consist of multi-use packagings. The systems currently proposed do not go much further than the multi-use systems currently in place in the Netherlands. The only addition in relation to current practice is that small bottles and cans will also be subject to a deposit. In order to prevent discrimination, this deposit obligation will also be imposed on drinks competing with soft drinks and waters, such as juices and dairy drinks, in as far as these are not packaged in drink cartons. Consideration has been given to the question of whether there are alternatives to deposits on small bottles and cans, that would be less onerous for the commercial sector. The most obvious alternative, supported by the commercial sector, is a broad approach to litter through information campaigns, more litter bins, etc. The Packagings Covenant III offers the commercial sector an opportunity to demonstrate that such an approach can be 15

16 successful. This has been translated into a reduction of 80% by January 2006 in the number of cans and bottles in litter as compared to the number in September The levy of deposits as included in this decree will only take effect if there is insufficient prospect of the prescribed collection and re-use percentages for PET bottles being achieved, or the abovementioned reduction is not achieved. The obligation to charge a deposit applies to drinks in all kinds of packagings, with the exception of drinks cartons, drinks packagings with a capacity of 1 decilitre or less and drink packagings filled with a drink immediately prior to sale and intended for consumption immediately after sale, such as coffee served in a cup for consumption on the spot, for example at a kiosk. In addition, other drinks or types of packaging and packagings that are put on the market in relatively small quantities are exempt from the obligation to charge a deposit, by virtue of Article 9. A limit of 500,000 units is imposed for this latter category. This is intended to prevent importers of relatively small numbers of packagings being confronted by relatively high costs (in view of the small turnover) for setting up a deposit system. The same applies to the introduction of new drinks in relatively very small market segments. Packagings of medicinal drinks (such as cough syrup), wine, strong drink and moderately alcoholic drinks with an alcohol percentage of more than twelve and less than fifteen (Article 1, sub i) are also explicitly exempt from the obligation to charge a deposit (see the article-by-article notes on Article 9, first paragraph). The levy of a deposit concerns packagings of drinks such as beer, soft drinks, water, juice or milk, but also dairy drinks, sport drinks, alcoholic mixers and health drinks. Salad dressings, oils, vinegar and suchlike are not intended for drinking, and therefore are not covered by the definition of a drink. By virtue of Article 10.63, third paragraph, of the Environmental Management Act, the Minister of Housing, Spatial Planning and the Environment may grant an exemption from the obligation contained in Article 8, first paragraph for specific drinks or drinks packagings. Considerations that play a role in a decision to exempt a specific drinks packaging will primarily consist of the extent to which a drinks packaging occurs in litter and the extent to which the drinks packaging in question is put to good use and re-used as a material. As new drinks and drinks packagings are constantly being introduced on the Dutch market, whereby the abovementioned considerations play a significant role, it is possible that the number of drinks packagings exempted from the obligation to charge a deposit may be expanded. As certain drinks packagings have been exempted from the obligation to charge a deposit, these are relatively slightly cheaper for consumers to purchase in relation to drinks packagings that are subject to the levy of a deposit. This can mean that some drinks packagings that are (or remain) subject to the (higher) deposit obligation for single-use packagings will sell less. This is an intentional effect, as after all these represent a greater burden on the environment and/or result in more litter than packagings that are not subject to the obligation to charge a (higher) deposit. In the event that the Minister of Housing, Spatial Planning and the Environment ascertains that, owing to the introduction of deposits, the glass bottles, cans or plastic packagings are replaced to a large extent by drinks cartons, for example, thereby exacerbating the litter problem, additional measures will be taken to prevent this. 16

17 All parties who, in the course of their professional or business activities, make a drink in a packaging available to another party, are responsible for ensuring that packagings on which a deposit has been paid are collected, and that the deposit is thereby repaid. The last link in the chain the consumer must be able to return the packaging to the point of purchase of the drink, or to the party who sold him the drinks packaging, but also to other points where drinks packaged in a packaging of the same material are sold. If the latter were not the case, the consumer would be forced to always return the packaging to the point where he purchased the product/packaging combination. This may be unreasonable, for example if a traveller cannot return a bottle purchased at the point of the departure to a point of sale at the destination. There is no reason to assume that the current practice, whereby a reasonable balance exists between packagings sold and returned, will change to any great extent. Problems could however arise with a small shop or kiosk. In order to prevent these problems, it has been stipulated that a small shop or kiosk that has a more limited space for the storage of empty drinks packagings may restrict the return of these to those drinks packagings sold in that particular shop. If desired, these can be marked as such (for example with a sticker), thereby being recognisable as a product sold at that point of sale. A more far-reaching obligation, whereby this supplier is obliged to take back packagings other than those he has sold, could lead to more empty packagings being returned to these points of sale with little storage space than full packagings sold from there. The obligation to charge a deposit applies to both domestically produced and imported packagings. The instigation of deposit systems is primarily an obligation on the commercial sector. If businesses fail to set up a system whereby the charging and refunding of deposits is adequately arranged, this constitutes a breach of the decree and compliance can, if necessary, be enforced. Companies that import drinks packaged outside of the Netherlands are also obliged to set up such a system. Naturally, they will look to systems set up in the Netherlands in this respect. Deposit systems must be equally accessible to companies from all Member States of the EU. Using the instruments offered by the competition regulations (see Paragraph 4.3 of this Explanatory Memorandum), it is possible to ensure that this is in fact the case in practice. If this is not so, and cannot be enforced by virtue of the stipulations of the competition regulations, foreign companies placing products on the Dutch market are obliged to take adequate measures themselves to comply with the stipulations of Article Requirements for packagings Identification system The decision of the European Commission of 28 January 1997 (97/129/EC) includes abbreviations and figures that define the identification system for packaging materials. The use of abbreviations or numerical codes is not compulsory. At present, this is a voluntary system. This means that, if the nature of a packaging material is stated on a packaging by means of abbreviations and numerical codes, the abbreviations and numerical codes referred to in the decision must be used. 17

18 Markings No final decision has been taken as yet on markings in the European Union. This decree does not therefore contain any regulations for these Essential requirements A packaging must fulfil the requirements laid down in Appendix II to the packagings directive. These requirements are laid down in reasonably general terms. The European Commission has therefore granted an assignment to the Comité Europeén de Normalisation (CEN) to further elaborate these standards. This has resulted in the publication in July 2001 of (preventive) standards for parts of the essential requirements concerning composting and bio-degradability and concerning the specific requirements for the manufacture and composition of packagings in the Official Journal of the European Communities. In a memorandum from the European Commission dated 20 December 2004, reference numbers were changed and the EN standards 13427:2004, 13428:2004 (amended), 13429:2004, 13430:2004 were adopted. The standards adopted in December 2004 concern, inter alia, the use of the European standards, product re-use and recovery through re-use of materials in the form of energy recovery. The standards adopted have been transformed in the Netherlands into the NEN-EN standards, see the article-by-article notes, under Article Heavy metals The requirements in relation to heavy metals content in packagings and packaging components included in the decree have been taken directly from the packagings directive. Lead, cadmium, mercury and chromium VI or compounds thereof are considered to be heavy metals. The heavy metals content in a packaging may not exceed 100 ppm by weight. Plastic pallets and crates and glass packagings are exempted, subject to certain conditions laid down in a decision by the European Commission, from this prohibition. These exceptions ensue directly from Article 9, second and third paragraphs, of the packagings directive (see Articles 14, third and fourth paragraphs, and 20 of this decree for these exemptions and the lapse thereof) Packagings commission Under the Packagings Covenant III, a Packagings Commission sits, as under the Packagings Covenants I and II, consisting of members appointed by the commercial sector and the Minister of Housing, Spatial Planning and the Environment. This commission is charged with monitoring compliance with the covenant and the reports made by the minister and the commercial sector on the implementation of the covenant. It is of course possible that parties, should they consider such necessary, may once again set up a Packagings Commission, which may, for example, be charged with monitoring of reporting or giving advice on matters regulated by this decree. 5. Financial and business effects The financial consequences for the commercial sector are determined to a large extent by the way in which this fulfils its obligations. It is possible for any business to affiliate to an 18

19 organisation of producers or importers collectively realising the obligations. This decree applies to all packagings and paper and card introduced to the market in the Netherlands, irrespective of where the packaging or paper or card was produced. In the case of financial consequences, a distinction can be made between material effects (for example investments) and administrative effects (as a consequence of the registration of data and reporting, etc.). The costs incurred by producers and importers are not the same for all packaging materials. This is a result of the differences in collection possibilities and processing costs. The aims in relation to material re-use in the Netherlands, as in the other European countries, have been determined differently for the various different packaging materials. 5.1 Business effects The question is to what extent businesses must incur additional expenses in order to fulfil the obligations ensuing from the decree. One important factor in this is that the necessary measures have been in place, voluntarily since 1991 and on a statutory basis since 1997, to promote prevention, collection and re-processing, whereby increasingly good results are being achieved. The aims of this decree differ little from the aims of the Packagings Covenant III. Additional investments therefore do not or hardly result from this decree. And in as far as this is the case, these are offset by higher percentages for prevention, re-use and other good use, savings on materials costs and less costs for the disposal of waste. Extra costs are however involved in the introduction of deposits on the whole range of drinks packagings. The various costs for the separate components are further explained in the sub-paragraphs below Collection obligation As far as collection of packagings released by households is concerned, it has been decided, as in Germany, Austria and France, for example, to impose the costs ensuing from separate collection or subsequent separation on the producers or importers. Parties introducing these packaged products on the market in the Netherlands are free to charge these costs on to the consumer in the price of the product. These costs are already incurred in the existing system, but are now financed by means of the waste collection levies of the municipalities, which at present pay for inter alia the (for glass and paper and card separate) collection of packaging waste from these levies. As this decree takes effect, these costs will no longer be borne by the municipalities. Unlike the situation in a number of other countries, the lower aims for the re-use and other good use of plastics and not including separate aims for drinks cartons, makes separate collection of these materials unnecessary, with the exception of the separate collection of small PET bottles. For the lion s share of packagings made from these materials, subsequent separation will be sufficient in order to achieve good use of these materials. This makes the cost of collection and other waste management in the Netherlands considerably lower than in other countries. Thanks to the shift in responsibilities, municipal cleaning services can achieve a competitive position in relation to non-municipal collection companies, as the commercial sector becomes responsible for the collection of glass and waste paper and card and will consider the range of possibilities when choosing a means of implementation. 19

20 By virtue of the Environmental Management Act, companies already bear financial responsibility for the management of their industrial waste substances. By virtue of the environmental permits, or general regulations based on Article 8.40 of the Environmental Management Act, companies are already obliged to separate, keep separated and submit industrial waste in a separated form. It is therefore not necessary to regulate this in this decree. It is further not desirable or attractive to remove packagings from separately collected waste paper and card (dumping ban and dumping tax), for which reason it is desirable and attractive to separate these waste substances, keep them separate and submit them in a separated form. Further introduction of producer responsibility, as included in this decree, will not lead to very different systems of separate collection and processing of packagings. Glass and paper and card will still have to be collected separately and plastic waste from households will have to be subsequently separated. For separate collection, producers will probably continue to make great use of the municipal services. However, if they are of the opinion that the commercial sector can arrange this collection more cheaply, they may also decide to arrange this themselves. In addition, costs can be saved through a more joint approach to collection and re-processing. It is therefore probable that the cost will fall, rather than rise. Extra administrative burdens will arise, however, as a system will have to be set up whereby the cost of the management of packagings are registered and charged on to producers and importers. The essential difference between the situation under the Packagings Covenant III and the situation arising when this part of the decree takes effect, is the allocation of waste management costs. The cost of separate collection and subsequent separation will shift from the citizen (waste collection levies) through the producer (financially responsible for the cost of collection) to the consumer (as the producer will charge its costs on). This is in line with the aim of internalising environmental costs in the product price Prevention The number of companies that will be called on by this decree to take preventive measures amounts to approx. 350,000. These companies operate predominately in the retail and wholesale areas and in industry. Some 98 percent are in the small and medium-sized businesses sector. Experience has shown that preventive measures through materials savings and optimisation of the product or the production process over time bring more benefits than burdens and therefore do not lead to an increase in the materials costs for businesses. If businesses implement the obligations from this decree collectively, prevention projects can be set up for each sector, meaning that the administrative tasks can be shared. If an individual declaration is received, it must be stated what preventive measures the company will take and an annual report must be submitted on the results achieved. The cost of this report depend heavily on the size of the company, the amount and diversity of packagings. The administrative burden will therefore differ from company to company. 20