In brief

What has happened? The German Federal Ministry of the Environment has published a draft bill for a “Single-Use Plastic Fund Act”. The bill transposes the extended producer responsibility requirements as set out in Art. 8 para. 1 to 7 of the Single-use Plastic (SUP) Directive (2019/904/EU) into German law. In the future, manufacturers of single-use plastic products must cover the costs of waste collection, cleaning up litter resulting from those products and the subsequent transport and treatment of such litter.

What it means for you

The most relevant aspects of the draft bill are summarized below:

• A “Single-Use plastic fund” to be administered by the German Environment Agency (Umweltbundesamt, UBA) is established, which will be used to cover the costs incurred by public waste management entities.
• Manufacturers of certain single-use plastic products are required to register electronically with the UBA via an online portal. The list of single-use plastic products covered in this regard corresponds to the one in the Annex, Part E of the SUP Directive.
• The term “manufacturer” is very broad and covers any natural person or legal entity or partnership:
  1. Is established in Germany and produces, fills, sells – also online – for the first time or imports single-use plastic products in Germany.
  2. Is not established in Germany and commercially sells single-use plastic products by means of distance communication directly to private households and other users in Germany.
• Manufacturers that are not established in Germany must appoint an authorized representative who is then responsible for compliance.
• Operators of an electronic marketplace may only host manufacturers who comply with their new registration obligation.
• By 15 May of each year, manufacturers must report electronically to UBA the type and quantity, in kilograms, of single-use plastic products placed on the market or sold in the preceding calendar year.
• Manufacturers must pay an annual single-use plastic fee (Einwegkunststoffabgabe). To this end, the UBA will issue a Fee Notice to each manufacturer, which must be paid within a month. The amount of such fee will be determined by the UBA on the basis of the type and quantity of single-use plastic products as reported by the manufacturer. If a manufacturer does not comply with the reporting requirement, the UBA may estimate the proper fee amount. Details of the fee payment obligation will be set out on the basis of an ordinance.
• UBA may make a ruling on whether or not a certain product qualifies as a single-use plastic product – and producers may ask UBA for such a ruling.
• Violations of the Single-Use Plastic Fund Act may trigger administrative fines of up to EUR 100,000.

The legislative process is in its early stages, which means that certain aspects still may be subject to change, but the general direction has been set. Once adopted, the new Act will enter into force – for the most part – on 1 January 2023. However, manufacturers already active in the German market will benefit from transitional provisions.

Actions to take

Economic operators producing, importing or selling single-use plastic products on the German market should already review today to which extent their activities will be regulated by the upcoming Single-Use Plastic Fund Act and establish a path to compliance. Once the Act has entered into force, it will be unlawful for non-registered manufacturers to place single-use plastic products on the German market and violations will result in potentially significant administrative fines.