WRITTEN QUESTION E-1549/03

by Toine Manders (ELDR) to the Commission

(7 May 2003)

Subject: Illegal introduction of a deposit system in Germany

On 1 January 2003 Germany introduced a deposit system on all non-reusable containers for beer, carbonated soft drinks and waters although there is still no central collection system or central settlement system. The absence of a system of this kind and thus the obligation and necessity in practice to switch to refillable containers constitutes a barrier to trade under Community law, discriminates against importers and is disproportionate. In addition to the absence of any central collection and settlement system, there have also been complaints about the deposit system itself. In a number of cases the European Commission has stated that a deposit system is a barrier to trade which can be justified only if the system is an instrument proportionate to attaining the environmental objectives laid down in Directive 94/62/EC(1).

However, this is not the case here because:

- the obligations arising from Directive 94/62/EC on packaging and packaging waste have already been fully satisfied in Germany through the green point system of Duales S1.010ystem Deutschland GmbH;

- the deposit requirement is the result of failure to meet in the reusable quotas laid down in the German packaging regulation and is therefore not aimed at collecting more non-reusable packaging but merely forcing manufacturers and importers to purchase more refillable containers.

Particularly in view of the urgent nature and serious implications of the deposit regulations in Germany, measures at European level are both desirable and necessary.

1. Is the Commission aware of the situation which has arisen following the introduction of the deposit system in Germany on 1 January 2003?

2. Does the Commission think that the introduction of the German deposit system is a proportionate means of achieving the environmental objectives laid down by Directive 94/62/EC? Does the Commission not rather consider this measure a disguised barrier to trade which should be exposed by bringing infringement proceedings against Germany?

3. Is the Commission prepared to bring its influence to bear to extend the current proceedings against Germany on the question of the effects of the reusable quotas for importers of natural mineral water to include soft drinks (whether produced with natural mineral water or not) and possibly other drinks, and to speed up the proceedings as far as possible?

4. Is the Commission prepared to adopt a forceful position in the case referred by the German court in Stuttgart to the European Court for a preliminary ruling (Radlberger v. Spitz) and to expedite the proceedings in this case as far as possible?

5. Does the Commission intend to take measures to rectify this undesirable and unjustifiable situation and, if so, what measures? Is the Commission also prepared to discuss this issue at the forthcoming Internal Market Council with a view to arriving at common approach?

(1) OJ L 365, 31.12.1994, p. 10.

Answer given by Mrs Wallström on behalf of the Commission

(3 July 2003)

1. The Commission is aware of the situation described by the Honourable Member.

2. to 4. The legal implications of introducing a deposit on one-way packaging for beverages that replaces an existing return and collection system have been assessed, in part, by the Commission in the context of preliminary reference C-309/02 Radlberger Getränke that is currently pending before the Court of Justice. In that case, in the observations it submitted to the Court of Justice on 20 December 2002, the Commission took the view that such a measure is, in principle, admissible under Article 7 of Directive 94/62/EC of the Parliament and of the Council of 20 December 1994 on packaging and packaging waste(1) and Article 28 of the EC Treaty, provided that the change from the existing return systems to a system based on deposits on one-way packaging is implemented without disruptions and disproportionate barriers to intra-Union trade.

The current court proceedings against Germany on the question of the effects of the reusable quotas for importers of natural mineral water, C-463/01, have no direct bearing on the introduction of a mandatory deposit on one-way packaging for certain beverages. Indeed, in that case, the Commission applied to the Court of Justice for a finding that the re-use quota formerly operating under German law did not comply with Directive 94/62/EC on packaging and packaging waste, in conjunction with Article 28 of the Treaty, only as far as it applied to mineral waters which are to be filled at source pursuant to Council Directive 80/777/EEC of 15 July 1980(2). The Commission considered that for those mineral waters that were to be transported over long distances, typically imported ones, the effects on trade were of a disproportionate character. The German measure was therefore considered by the Commission as a disguised restriction to the free movement of goods. An extension of this Court application is not possible without going again fully through all the steps of the infringement procedure envisaged under Article 226 of the EC Treaty.

The Commission is limited in its ability to speed up these court proceedings, as at this stage these are matters for which the Court of Justice is responsible.

Meanwhile, the Commission has received information raising doubts as to whether the current implementation of the new mandatory deposit on one-way packaging for certain beverages in Germany complies with the requirements developed in the written observations to C-309/02. In particular, it seems that, as a rule, the deposit can presently only be reclaimed at the shop where the one-way packaging was purchased. As a consequence, there has been a severe reduction in the sales of beverages contained in one-way packaging.

However, the Commission is also aware that the German Government intends to install a collection system allowing the return, by 1 October 2003, of the one-way packaging to any sales point in Germany.

5. In order to ensure that this new collection system is introduced as quickly as possible and to avoid future infringements relating to the deposit of one-way packaging, the Members of the Commission responsible for Environment and Internal Market wrote to the German Minister for the Environment, Mr Jürgen Trittin, in May 2003. With reference to the Commission's views, as expressed in the written observations to C-309/02 described above, the Members of the Commission have voiced their concern about the current transitional phase of the deposit scheme in place because a satisfactory, nation-wide return system has not been set up. In this respect, they have requested additional information on the current situation as well as further information on the proposed new return system and have urged the German Government to speed up the introduction of measures to bring German law in line with Community law. They have also asked the German Government whether it had envisaged suspending the measure until a proper return system is in place.

In his answer to the letter, the German Minister for the Environment stresses the joint efforts made by industry and the German government in order to set up a nation-wide return system by the target date of 1 October 2003. Mr Trittin considers that there is no need to suspend the measure until that date.

The Commission is currently in the process of evaluating Mr Trittin's reply.

At the moment the Commission does not envisage to discuss this issue at the forthcoming Internal Market Council.

(1) OJ L 365, 31.12.1994.

(2) Council Directive 80/777/EC on the approximation of the laws of the Member States relating to the exploitation and marketing of natural mineral waters, OJ L 229, 30.8.1980.