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(2004/C 65 E/190)

WRITTEN QUESTION E-2545/03

by Olle Schmidt (ELDR) to the Commission

(30 July 2003)

Subject:   Swedish rules contrary to internal market

There are two bodies of law in Sweden governing recycling schemes. The first set of rules requires producers to recycle their packaging in one way or another. Producers usually join together to form recycling businesses. Drinks ready for consumption are subject to other rules which require producers to take their packaging back. The industry develops a deposit scheme to achieve this. The producers themselves have to pay a charge per bottle for handling.

The problem is that the two schemes are mutually contradictory. Producers or importers of ready-made drinks cannot join the cheaper scheme (1). They must use the second set of rules which entails re-marking all bottles because the Swedish system is based on bar codes.

Owing to this system, importers face high costs as they are charged some 77 öre per bottle as a handling fee for the deposit scheme, which benefits the big breweries. It could be concluded that the Swedish deposit scheme in fact constitutes a barrier to trade.

Are these rules not contrary to internal market rules?

The Swedish Environment Ministry has now put a draft law before the Swedish Parliament providing for penalties for shop-owners who sell bottles outside the deposit scheme, which means that the Environment Ministry could possibly put an end to parallel imports of soft drinks although they keep prices down on the Swedish market. Does the Swedish Parliament have the powers to prohibit the conveyance and marketing of packaging which does not form part of a return scheme? This could spell the end for parallel imports of soft drinks.

Finally, I would emphasise that I support recycling and return schemes but they must be fair for all and must not distort competition.

Answer given by Mrs Wallström on behalf of the Commission

(18 September 2003)

Article 7 of Parliament and Council Directive 94/62/EC of 20 December 1994 on packaging and packaging waste (1) (‘Packaging Directive’) obliges Member States to take the necessary measures to ensure that systems are set up for ‘(a) the return and/or collection of used packaging [ ...]’ and ‘(b) the reuse or recovery including recycling of the packaging and/or packaging waste collected’. The Commission cannot see a reason why the principle of setting up separate systems for the recovery and recycling for different kinds of packaging waste should contravene the Packaging Directive or the Internal Market rules to which the Directive refers. It also seems unclear which elements of these two systems would be mutually contradictory. Article 7 of the Packaging Directive does not exclude mandatory deposit systems to ensure the return of used packaging provided that these are in conformity with relevant Community legislation.

However, the same article also provides that ‘these systems shall be open to the participation of the economic operators of the sectors concerned and to the participation of the competent public authorities. They shall also apply to imported products under non-discriminatory conditions, including the detailed arrangements and any tariffs imposed for access to the systems, and shall be designed so as to avoid barriers to trade or distortions of competition in conformity with the Treaty’.

Therefore, whether or not the Swedish rules are contrary to internal market rules, more particularly the principle of the free movement of goods laid down in Articles 28 to 30 of the EC Treaty, depends on whether these systems are open to imported products under non-discriminatory conditions in law and in fact. The system could be considered a trade barrier prohibited by Article 28 of the EC Treaty if Swedish producers paid lower handling fees than importers or if any other aspect of the rules or their implementation had a discriminatory effect in the sense of Article 28 of the EC Treaty. Even if the measure contravened Article 28 of the EC Treaty, it could, under certain conditions, be justified by the Swedish authorities under Article 30 of the EC Treaty or the mandatory requirements identified by the European Court of Justice. The information provided in the written question does not allow a full legal analysis of the national measure in the light of Articles 28 and 30 of the EC Treaty. Therefore, the Commission will investigate this matter. The Honourable Member is invited to provide any additional evidence in his possession.

As regards the Swedish proposal that would provide penalties for shop-owners that sell bottles outside the deposit scheme, the Commission would need further information in order to evaluate it under Community law. Criminal penalties discriminating against imported goods are normally considered to be contrary to Article 28 of the EC Treaty. It is also noticeable that before its final adoption, the Swedish authorities are under the obligation of notifying any such measure under Directive 98/34/EC of the Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (2) as amended.

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(1)OJ L 365, 31.12.1994.

(2)OJ L 204, 21.7.1998.

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