Industry wants crackdown against anti-competitive packaging laws

By Ahmed ElAmin

- Last updated on GMT

Related tags: Member states, European union

The EU's packaging industry association has called on the European
Commission to crackdown on members states who break the rules under
the bloc's harmonised system of law.

Europen, the European Organisation for Packaging and the Environment, this week called on the European Commission for better enforcement of the bloc's laws.

"We believe that a successful better regulation policy should not focus only on better EU lawmaking, but must also include better enforcement of existing legislation, an element which regretfully has not met the packaging chain's expectations so far,"​ Europen stated in a paper endorsed by 10 other industry associations, including the Confederation of the Food & Drink Industries of the EU (CIAA).

The organisation says persistent problems occur when countries introduce national measures that hinder a single market in packaging and packaged goods.

Europen believes that the current notification procedure for national drafts provides member states with far too much scope to delay complying with single market rules.

The EU's packaging and packaging waste directive obliges member states to notify the Commission when drafting national laws. The notification procedure is normally restricted to packaging and waste issues not covered under the EU's harmonised procedures.

In particular Europen calls for far more transparency in the notification procedure. The organisation recommends that detailed opinions and comments should be made available automatically to national parliaments and all other national bodies involved in the adoption process of the notified measure.

Detailed opinions and comments should also be made available to all those organisations or individuals registering an interest in the legislation so they can evaluate similar cases.

"These two recommendations on access to information should help to achieve the 'Better Regulation' objective of more effectively preventing infringements of EU law,"​ stated Anders Linde, chairman of Europen's internal market work group.

The organisation also believes thaat technical rules accompanying tax measures should be subject to a standstill obligation to ensure preventively that "detailed rules are such as to avoid any form of discrimination, direct or indirect, against imports from other member states or any form of protection of competing domestic products"​.

The absence of a standstill obligation for drafts of a fiscal or financial nature is a dangerous loophole that is of growing concern as more and more member states use fiscal or financial penalties to underpin technical regulations, the organisation stated.

This shortcoming is of particular concern as the notifying member state itself determines whether a measure should be considered as fiscal or financial, Europen stated. The country cannot then be obliged by the Commission or other member states to review the legal qualification, except by initiating a formal infringement procedure.

"The Commission rightly stressed the absurdity that could well ensue in a 1996 assessment of a Luxembourg draft law introducing drinks refill quotas sanctioned by an ecotax,"​ Europen stated.

In that particular case the Commission concluded that the penalty was in fact an ecotax.

Europen also calls on the Commission to publish more widely and at an early stage press statements on its infringement decisions and to assist legal proceedings in national court as amicus curiae (friends of the court).

The 1994 EU Directive on packaging and packaging waste was designed to resolve the problem of national legislation on packaging creating barriers to trade in the EU.

However member states have used national legislation to as a discriminatory means against foreign competition, the organisation claims.

Current regulation on packaging consists mainly of national rules. Technical requirements, labelling obligations, authorisation procedures and other administrative requirements are added on top of EU legislation by national regulators.

"Objections raised during the notification process have been effective in helping to correct numerous national drafts,"​ the organisation stated. "However, if the notifying member state maintains its position, nothing can stop implementation of the criticised measure after the three to six month standstill period a procedural guarantee which does not even apply to fiscal and financial measures. The notification procedure, therefore, has merely a delaying effect."

Subsequently, the national measure can only be challenged through a lengthy and complicated procedure under EU law.

Europen noted that under the packaging and packaging waste directive, the Commission and member states have been called upon repeatedly by industry to assess actual or potential obstacles to trade arising from measures to promote reuse systems, such as quotas, ecotaxes and punitive deposits.

Individual systems for the collection and recovery of waste, including deposit based schemes, discriminations between: product categories, packaging systems, shapes, sizes, packaging materials and labelling and certification schemes, also pose a barrier to trade within the bloc.

The most famous example of an infringement was Denmark's decision to ban canned goods. The infringement took nine years to resolve and could have been avoided if an accelerated infringement procedure was in place, Europen stated.

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