Introduction of the Single-Use Plastics Fund Act (EWKFondsG): New obligations for companies placing single-use plastic products on the German market

As of 1 January 2024, the Single-Use Plastics Fund Act which was passed by the German Parliament on 11 May 2023 (BGBl 2023 Part I p124) will come into force.

NEW REPORTING AND REGISTRATION REQUIREMENTS

From 1 January 2024, manufacturers of single-use plastic products must record the quantity of reportable single-use plastics they place on the market as the basis for their first annual report in May 2025. In addition, there is a duty to report for manufacturers within the meaning of the Single-Use Plastics Fund Act, which includes not only producers but also fillers, sellers or importers who make single-use plastic products available on the German market for the first time on a commercial basis.

Types of packing subject to notification (Annex 1 of the Act) are:

• Containers for foodstuffs whose contents are intended for immediate consumption
• Bags and film packaging made from flexible material, such as wrappers
• Beverage containers with a filling volume of up to 3 liters
• Beverage cups including their closures and lids
• Wet wipes intended for household and personal care
• Balloons intended for consumers
• Tobacco products with filters and the filters themselves
• Lightweight plastic carrier bags

If there is any uncertainty about your manufacturer's status or the classification of the products you place on the market, the Federal Environment Agency (UBA) can determine the classification on application. We will be happy to advise you on the application for a determination of classification by the UBA.

NEW REGISTRATION REQUIREMENTS

The Act implemented Article 8 (1) to (7) of Directive (EU) 2019/904 (EU Single-Use Plastics Directive) with the aim of introducing product responsibility for manufacturers of single-use plastic products and liability for operators of online marketplaces for their suppliers.

It is planned to set up a single-use plastic fund, which will be administered by UBA. The manufacturers concerned are to pay into this single-use plastic fund depending on the type and mass of single-use plastic products first made available or sold on the market. The annual payment is made within the framework of a single-use plastic levy to be determined by the Federal Environment Agency. The amount of the levy is calculated based on the quantities per product type reported by the manufacturers multiplied by the product-specific fee rates set by statutory order.

From the Single-Use Plastic Fund, registered beneficiaries - mainly public waste management authorities such as German municipalities and other legal entities under public law - will be reimbursed on application for the consequential costs they incur from waste generated in public spaces.

Two registers will be created to implement the EU Single-Use Plastics Directive, the register of producers and the register of beneficiaries.

Registration will be the basic prerequisite for manufacturers to be allowed to provide or sell single-use plastic products on the market at all in future. Registration will take place at a central registration office to be set up by UBA by 31 December 2023. Registration data can be taken over from the Packaging Register (German: Verpackungsregister) after appropriate permission has been granted.

Entrepreneurs not resident in Germany who sell single-use plastic in Germany via distance selling channels as well as operators of electronic marketplaces and fulfilment service providers from the warehousing sector are also covered by the Single-Use Plastics Fund Act. Electronic marketplaces must ensure that the businesses that offer or use fulfilment services on their platforms are themselves recorded in the producer register.

German manufacturers, in turn, when selling or making available single-use plastic products in another EU Member State or EEA State in which they are not established, must appoint an authorized representative in the respective EU Member State or EEA State before making the single-use plastic products available on the market of that Member State. This authorized representative is responsible in the respective state for fulfilling the obligation to reimburse costs under extended producer responsibility.

Reporting obligation for single-use plastic products provided or sold

The reporting obligation stipulates that all single-use plastic products made available or sold on the market for the first time in the previous year - ie from 1 January 2024 - must be declared by May 2025, broken down by type and mass in kilograms.

Exempt from the obligation to report are those producers who made less than 100kg of the products concerned or only bottles with refundable deposit available on the market for the first time in the previous year.

Inspection and confirmation by a registered expert

The notification also requires examination and confirmation by a registered expert within the meaning of Section 3 (15) of the Packaging Act or by an auditor, tax advisor or sworn accountant registered in accordance with Section 27 (2) of the Packaging Act. As registered tax advisors within the meaning of the Packaging Act, we will be happy to carry out this examination and confirmation for you.

Finally, the law contains a catalogue of administrative offences and provisions on fines. Even a missing or incomplete registration can result in fines of up to EUR100,000.

PREPARATION FOR THE DUTIES AHEAD

Manufacturers of single-use plastic products as well as operators of electronic marketplaces and fulfilment service providers should check their own product range for products subject to registration. Internally, manufacturers of single-use plastic products should prepare for the registration and reporting of all single-use plastic products made available or sold on the market for the first time in the previous year, ie, for the entire year 2024. A registered expert should also be instructed at an early stage to carry out the verification and confirmation.

Public waste management authorities such as German municipalities and other legal entities under public law should, however, register and ensure that they record their reimbursable costs in an annual performance report and can also provide evidence of these. If they fail to register and report, reimbursement with funds from the single-use plastics fund is excluded.

If you have any further questions in this context, the tax law team led by Dr Björn Enders, as a registered tax advisor within the meaning of the Packaging Act, will be happy to assist you. We undertake all audits and confirmations in connection with the reporting of single-use plastic products and will be happy to advise you on the establishment of corresponding processes as well as the fulfilment of all compliance obligations newly introduced by the Single-Use Plastics Fund Act. Please feel free to call us or send us an e-mail.