The Single-Use Plastics Fund Act: latest developments

The Single-Use Plastics Fund Act (EWKFondsG) came into force on 1 January 2024. The EWKFondsG implements EU Directive 2019/904 and places greater responsibility on manufacturers of single-use plastic products. Manufacturers of single-use plastic products are obliged to pay into a fund that is used to finance cleaning and awareness-raising measures in relation to pollution by garbage. These measures are intended to promote the cleanliness of public spaces and reduce littering caused by single-use plastic products. You can find more detailed information on the definition of manufacturer and the packaging subject to mandatory reporting in our article on the introduction of the EWKFondsG and the entry into force of the EWKFondsG.

 

Key Takeaways

• Necessity to review the obligation to register with the single-use plastic fund platform DIVID
• Possibility of a self-check and a chargeable check by the Federal Environment Agency with regard to manufacturer status and thus the obligation to register with DIVID
• Possibility of a self-check and a chargeable check by the Federal Environment Agency with regard to the categorisation of a product as a single-use plastic product
• Parallel application of the EWKFondsG and the Packaging Act
• Pending constitutional complaints against the EWKFondsG at the Federal Constitutional Court
• Reporting obligation for manufacturers of single-use plastics

 

DIVID as a single-use plastic fund platform

Manufacturers and beneficiary disposal companies are obliged to register with the Federal Environment Agency for the purpose of processing payments into and out of the Single-Use Plastics Fund. The Federal Environment Agency has set up a digital platform called "DIVID" for this purpose. Since 1 August 2024, registration has been open to all producers and beneficiaries, including foreign ones. Manufacturers who started their activities before 1 January 2024 must register by 31 December 2024. For all other manufacturers, this obligation applies immediately from the start of operations.

If a company is uncertain about its status as a manufacturer, a free self-check can also be carried out via the DIVID platform. However, this only serves as a guide and is therefore not binding. A binding decision can be brought about by a fee-based application for categorisation.

To determine whether a particular product falls within the scope of the EWKFondsG or which product category it belongs to, a free, non-binding self-check can be carried out or a binding application can be submitted for a fee. Furthermore, the Federal Environment Agency has already classified some products following a corresponding fee-based application and published these decisions in anonymised form as a general ruling. These general rulings can also be viewed via the DIVID platform.

 

Relationship between the Single-Use Plastics Fund Act and the Packaging Act

The Packaging Act (VerpackG) should not be confused with the Single-Use Plastics Fund Act. The aim of the Packaging Act is to implement the product responsibility of packaging manufacturers under waste legislation. In particular, the VerpackG is intended to prevent or reduce the impact of packaging waste on the environment. In principle, manufacturers of packaging filled with goods are subject to two important obligations. They must register in the LUCID packaging register (the counterpart to the DIVID platform) and participate in a dual system for taking back system-participating packaging.

The provisions of the VerpackG apply to all types of packaging and therefore also to single-use plastics. This means that producers who already fulfil their producer responsibility under the VerpackG may also be affected by the obligations of the EWKFondsG. Although the EWKFondsG is generally aimed at certain types of packaging generated in public spaces, the main focus of the VerpackG and the dual systems is on packaging waste generated by private end consumers. However, it cannot be ruled out that a producer may be subject to a double burden with regard to the same product under both the EWKFondsG and the VerpackG. Nor is a possible double burden ruled out by law.

 

Constitutional complaints against the Single-Use Plastics Fund Act

Several constitutional complaints against the EWKFondsG are currently pending. Companies from various sectors have submitted these to the Federal Constitutional Court. They argue, among other things, that the law violates their freedom of occupation. In addition, there is a violation of the principle of connectivity. The principle of connexity states that the state level responsible for a task (the federal government or the federal states) is also responsible for the fulfilment of the task. This means that the responsibility for the task and the financial responsibility must lie in one hand. According to the complainants, although the federal government levies the charge and the Federal Environment Agency, as the responsible federal authority, also administers the fund, the resources from the fund directly benefit the federal states and municipalities responsible for waste disposal. Consequently, the federal government interferes with an administrative task of the federal states, which constitutes a violation of the principle of connexity.

Instead of the solution via the single-use plastics fund, the complainants are calling for a private-sector solution that is in line with the constitution and places less of a burden on them.

The decision of the Federal Constitutional Court is pending.

 

Obligation to act for affected manufacturers

Although the first annual report does not have to be submitted until 15 May 2025, affected manufacturers must take action now. The annual report to be submitted concerns data from 2024, which must already be collected now. The notification also requires verification 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.

Furthermore, registration on the DIVID platform is required. In the event that these obligations are not met, the Federal Environment Agency, as the competent authority, has various sanctions at its disposal for companies. Fines of up to EUR100,000 or even a sales ban can be imposed.

If you have any further questions in this context, the tax law team led by Dr Björn Enders, a registered tax advisor under the German Packaging Act, will be happy to assist you. We take care of 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 appropriate processes and the fulfilment of all compliance obligations newly introduced by the Single-Use Plastics Fund Act.