Considerations on COM(2022)677 - Packaging and packaging waste

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dossier COM(2022)677 - Packaging and packaging waste.
document COM(2022)677 EN
date November 30, 2022
 
(1) Products need packaging to be protected and easy to transport from where they are produced to where they are used or consumed. Prevention of barriers to the internal market for packaging is key for the functioning of the internal market for products. Fragmented rules and vague requirements cause additional cost to the economic operators. 

(2) In addition, packaging uses high amounts of virgin materials (40 % of plastics and 50 % of paper use in the Union is for packaging) and represents 36 % of municipal solid waste 30 . High and constantly growing levels of packaging generated as well as low levels of re-use and poor recycling, present significant barriers to achieving a low-carbon circular economy. For these reasons, this Regulation should establish rules over the entire life-cycle of packaging contributing to the efficient functioning of the internal market by harmonising national measures, while preventing and reducing the adverse impacts of packaging and packaging waste on the environment and human health. By laying measures in line with the hierarchy of waste, it should contribute to the transition to a circular economy.

(3) European Parliament and Council Directive 94/62/EC 31  lays down requirements for Member States on packaging, such as essential requirements, which relate to the composition of packaging and its reusable and recoverable nature, and recovery and recycling targets.

(4) In 2014, a Fitness Check relating to Directive 94/62/EC 32  recommended adaptations of the essential requirements to make them “more concrete and easily enforceable” and to strengthen them, which were seen as a key tool to achieve better environmental performance of packaging. 

(5) In line with the Green Deal 33 , the new Circular Economy Action Plan (CEAP) 34  commits to reinforcing the essential requirements for packaging in view of making all packaging reusable or recyclable by 2030, and to consider other measures to reduce (over)packaging and packaging waste, drive design for re-use and recyclability of packaging, reduce the complexity of packaging materials and introduce requirements for recycled content in plastic packaging. It commits the Commission to assess the feasibility of Union-wide labelling that facilitates the correct separation of packaging waste at source. 

(6) Plastic packaging is the most carbon-intensive material and, in terms of fossil fuel use, recycling of plastic waste is approximately five-times better than incineration with energy recovery 35 . Just as the European Strategy for Plastics 36 states, CEAP commits to increase uptake of recycled plastics and contribute to the more sustainable use of plastics. The Union budget and the system of own resources contribute to reducing pollution from plastic packaging waste 37 . As of 1 January 2021, the Council Decision (EU, Euratom) 2020/2053 of 14 December 2020 on the system of own resources of the European Union introduced a national contribution that is proportional to the quantity of plastic packaging waste that is not recycled in each Member State. This own resource is part of incentives to reduce the consumption of single-use plastics, foster recycling and boost the circular economy.

(7) The Council underlined in its Conclusions of December 2020 38 , that the revision of Directive 94/62/EC should update and establish more concrete, effective and easy to implement provisions to facilitate sustainable packaging in the internal market and minimise the complexity of packaging in order to foster economically feasible solutions, to improve the reusability and recyclability as well as minimise substances of concern in packaging materials, especially concerning food packaging materials, and to provide for labelling packaging in an easily understandable way to inform consumers about its recyclability and where its waste should be discarded to facilitate sorting and recycling. 

(8) The European Parliament’s Resolution of 10 February 2021 on the New Circular Economy Action Plan 39 reiterated the objective of making all packaging reusable or recyclable in an economically viable way by 2030 and called on the Commission to present a legislative proposal including waste reduction measures and targets and ambitious essential requirements in the Packaging and Packaging Waste Directive to reduce excessive packaging, including in e-commerce, improve recyclability and minimise the complexity of packaging, increase recycled content, phase out hazardous and harmful substances, and promote re-use.

(9) This Regulation complements Regulation [Ecodesign for Sustainable Products] 40 , under which packaging is not addressed as a specific product category. However, it should be recalled that with respect to specific products, delegated acts adopted on the basis of Regulation [Ecodesign for Sustainable Products] may establish additional or more detailed requirements for their packaging, in particular in relation to packaging minimisation when design or re-design of products can lead to environmentally less impactful packaging.

(10) This Regulation should apply to all packaging placed on the market in the Union and to all packaging waste, regardless of the type of packaging or the material used. For reasons of legal clarity the definition of packaging under the previous Directive 94/62/EC should be restructured without changing the substance. Sales packaging, grouped packaging and transport packaging should be defined separately avoiding duplication of terminology. Consequently, sales packaging corresponds to primary packaging, grouped packaging to secondary packaging and transport packaging to tertiary packaging.

(11) An item, which is an integral part of a product and is necessary to contain, support or preserve that product throughout its lifetime and where all elements are intended to be used, consumed or disposed of together, should not be considered as being packaging given that its functionality is intrinsically linked to it being part of the product. However, in light of the disposal behaviour of consumers regarding tea and coffee bags as well as coffee or tea system single-serve units, which in practice are disposed of together with the product residue leading to the contamination of compostable and recycling streams, those specific items should be treated as packaging. This is in line with the objective to increase the separate collection of bio-waste, as required by Article 22 of Directive 2008/98/EC of the European Parliament and of the Council 41 . Furthermore, to ensure coherence regarding end-of-life financial and operational obligations, also all coffee or tea system single-serve units necessary to contain coffee or tea should be treated as packaging.

(12) In line with the waste hierarchy set out in Article 4(2) of Directive 2008/98/EC, and in line with life-cycle thinking to deliver the best overall environmental outcome, the measures provided for under this Regulation aim at reducing the amount of packaging placed on the market in terms of its volume and weight, and preventing the generation of packaging waste, especially through packaging minimisation, avoiding packaging where it is not needed, and increased re-use of packaging. In addition, the measures aim at increasing the use of recycled content in packaging, especially in plastic packaging where the uptake of recycled content is very low, as well as higher recycling rates for all packaging and high quality of the resulting secondary raw materials while reducing other forms of recovery and final disposal. 

(13) Packaging should be designed, manufactured and commercialised in such a way as to allow for its re-use or high-quality recycling, and to minimise its impact on the environment during its entire life-cycle and the life cycle of products, for which it was designed. 

(14) In line with the objectives of the Circular Economy Action Plan 42 and the Chemicals Strategy for Sustainability 43 , and to ensure the sound management of chemicals throughout their life cycle and the transition to a toxic-free and circular economy, and considering the relevance of packaging in everyday life, it is necessary that this Regulation addresses impacts on human health and on the environment and on broader sustainability performance, including circularity, resulting from impacts of substances of concern on the whole life cycle of packaging, from manufacture to use and end-of life, including, waste management. 

(15) Taking into consideration the scientific and technological progress, packaging should be designed and manufactured in a way as to limit the presence of certain heavy metals and other substances of concern in its composition. As stated in the Chemicals Strategy for Sustainability, substances of concern are to be minimised and substituted as far as possible, phasing out the most harmful ones for non-essential societal use, in particular in consumer products. Accordingly, substances of concern as constituents of packaging material or of any of the packaging components should be minimised with the objective to ensure that packaging, as well as materials recycled from packaging, do not have an adverse effect on human health or the environment, throughout their life-cycle.

(16) In line with the Zero Pollution Action Plan 44 , Union policies should be based on the principle that preventive action should be taken at source. The Commission underlines in the Chemicals Strategy for Sustainability that Regulation (EC) No 1907/2006 of the European Parliament and of the Council 45 and Regulation (EC) No 1272/2008 of the European Parliament and of the Council 46 should be reinforced as the cornerstones for regulating chemicals in the Union and that they should be complemented by coherent approaches to assess and manage chemicals in existing sectorial legislation. Substances in packaging and packaging components are therefore restricted at source and primarily addressed under Regulation (EC) No 1907/2006 in accordance with the rules and procedures laid out under its Title VIII, in order to protect human health and the environment, along all stages of the life cycle of the substance, including the waste stage. Hence, it should be recalled that the provisions of that Regulation apply for adopting or amending restrictions on substances manufactured for use or used in the production of packaging or packaging components as well as on the placing on the market of substances present in packaging or packaging components. Concerning packaging falling within the scope of Regulation (EC) No 1935/2004 of the European Parliament and of the Council 47 , it should be recalled that that Regulation applies to ensure a high level of protection of the consumers of packaged food. 

(17) In addition to the restrictions set out in Annex XVII to Regulation (EC) No 1907/2006 and, as applicable to food contact packaging, to provisions under Regulation (EC) No 1935/2004, it is appropriate, for reasons of consistency, to maintain existing restrictions for lead, cadmium, mercury and hexavalent chromium present in packaging or packaging components.

(18) Exemptions to the concentration levels of lead, cadmium, mercury and hexavalent chromium present in packaging or packaging components are established in Commission Decision 2001/171/EC 48 and Commission Decision 2009/292/EC 49 adopted under Directive 94/62/EC and should be maintained also under this Regulation. However, in order to amend or repeal them as well as to determine, if appropriate, further exemptions from the concentration levels of lead, cadmium, mercury and hexavalent chromium present in packaging or packaging components, or to amend the concentration limit value for these metals in this Regulation in order to adapt it to technical and scientific progress, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission.

(19) This Regulation should not enable the restriction of substances based on reasons of chemical safety, or for reasons related to food safety, with the exception of the restrictions on lead, cadmium, mercury and hexavalent chromium that were already established on the basis of Directive 94/62/EC and should continue to be addressed under this Regulation, given that such restrictions are addressed under other Union legislation. It should, however allow for the restriction, primarily for reasons other than chemical or food safety, of substances present in packaging and packaging components or used in their manufacturing processes, which negatively affect the sustainability of packaging, in particular as regards its circularity, especially re-use or recycling.

(20) Designing packaging with the objective of its recycling, once it becomes packaging waste, is one the most efficient measures to improve the packaging circularity and raise packaging recycling rates and the use of recycled content in packaging. Packaging design for recycling criteria have been established for a number of packaging formats under voluntary industry schemes or by some Member States for the purpose of the modulation of extended producer responsibility fees. In order to prevent barriers to the internal market and provide industry with a level playing field, and with the objective to promote the sustainability of packaging, it is important to set mandatory requirements regarding the recyclability of packaging, by harmonising the criteria and the methodology for assessing packaging recyclability based on a design for recycling methodology at the Union level. In order to meet the objective set out in the CEAP that, by 2030, all packaging should be recyclable or reusable, in an economically viable manner, packaging recyclability performance grades should be established based on design for recycling criteria for packaging categories as listed in Annex II. However, packaging should comply with them only as of 1 January 2030 in order to give sufficient time to the economic operators to adapt. 

(21) As design for recycling assessment in itself does not ensure that packaging is recycled in practice, it is necessary to establish a uniform methodology and criteria for assessing the recyclability of packaging in practice based on the state-of-the-art separate collection, sorting and recycling processes and infrastructure actually available in the Union. Related reporting from Member States and, where relevant, economic operators should support establishing the recyclability “at scale” thresholds and update, on this basis, the recyclability performance grades with respect to the specific packaging materials and categories.

(22) In order to establish harmonised rules on packaging design to ensure its recyclability, the power to adopt delegated acts should be delegated to the Commission to set out detailed criteria for packaging design for recycling per packaging materials and categories, as well as for the assessment of the packaging recyclability at scale including for categories of packaging not listed in this Regulation. In order to give economic operators and Member States sufficient time to collect and report the necessary data to establish the “at scale” recycling methodology, the manufacturers should ensure that packaging is recycled at scale as of 2035. That should ensure that packaging complies with the design for recycling criteria, and is also recycled in practice on the basis of the state of the art processes for separate collection, sorting and recycling.

(23) In order to stimulate innovation in packaging, it is appropriate to allow that packaging, which presents innovative features resulting in significant improvement in the core function of packaging and has demonstrable environmental benefits, is given limited additional time of five years to comply with the recyclability requirements. The innovative features should be explained in the technical documentation accompanying the packaging. 

(24) In order to protect human and animal health and safety, due to the nature of the packaged products and the related requirements, it is appropriate that the recyclability requirements should not apply to immediate packaging as defined in Article 1 of Directive 2001/83/EC of the European Parliament and of the Council 50 and in Article 4(25) of Regulation (EU) 2019/6 of the European Parliament and of the Council 51 , which are in direct contact with the medicinal product, as well as contact sensitive plastic packaging of medical devices covered by Regulation (EU) 2017/745 of the European Parliament and of the Council 52 and of in vitro diagnostics medical devices covered by Regulation (EU) 2017/746 of the European Parliament and of the Council 53 . These exemptions should apply until 1 January 2035.

(25) Some Member States are taking action to encourage recyclability of packaging through modulation of extended producer responsibility fees; such initiatives taken at the national level may create regulatory uncertainty for the economic operators, in particular where they supply packaging in several Member States. At the same time, modulation of extended producer responsibility fees is an effective economic instrument to incentivise more sustainable packaging design leading to better recyclable packaging while improving the functioning of the internal market. It is therefore necessary to harmonise criteria for the modulation of extended producer responsibility fees based on the recyclability performance grade obtained through recyclability assessment, while not setting the actual amounts of such fees. As the criteria should be related to the criteria on packaging recyclability, it is appropriate to empower the Commission to adopt such harmonised criteria at the same time as establishing the detailed design for recycling criteria per packaging categories.

(26) To ensure packaging circularity, packaging should be designed and manufactured in such a way as to allow for the increased substitution of virgin materials with recycled materials. The increased use of recycled materials supports the development of the circular economy with well-functioning markets for recycled materials, reduces costs, dependencies and negative environmental impacts related to the use of primary raw materials, and allows for a more resource-efficient use of materials. In relation to the different packaging materials, the lowest input of recycled materials is in plastic packaging. In order to address these concerns in the most appropriate manner, it is necessary to increase the uptake of recycled plastics, by establishing mandatory targets for recycled content in plastic packaging at different levels depending on the contact-sensitivity 54 of different plastic packaging applications, and ensuring that the targets become binding by 2030. In order to incrementally ensure packaging circularity, increased targets should apply as of 2040. 

(27) It should be clarified, that paper material resulting from the wood pulping process is not considered to be included in the definition of plastic under point 43 of Article 3.

(28) In order to ensure a high level of human and animal health protection in accordance with requirements in Union legislation and to avoid any risk to the security of supply and to the safety of medicines and medical devices safety, it is appropriate to provide for the exclusion from the obligation of a minimum recycled content in plastic packaging for immediate packaging as defined in Article 1, point 23, of Directive 2001/83/EC and in Article 4, point 25, of Regulation (EU) 2019/6, as well as for contact sensitive plastic packaging of medical devices covered by Regulation (EU) 2017/745 and for contact sensitive packaging of in vitro diagnostics medical devices covered by Regulation (EU) 2017/746. This exclusion should also apply to outer packaging of human and veterinary medicinal products as defined in Article 1, point 24, of Directive 2001/83/EC and in Article 4, point 26, of Regulation (EU) 2019/6 in cases where it has to comply with specific requirements to preserve the quality of the medicinal product.

(29) In order to prevent barriers to the internal market and ensure the efficient implementation of the obligations, economic operators should ensure that the plastic part of each unit of packaging contains a certain minimum percentage of recycled content recovered from post-consumer plastic waste. 

(30) There should be an incentive for economic operators to increase the recycled content in the plastic part of packaging. The most appropriate means to achieve this is to ensure the modulation of extended producer responsibility fees based on the percentage of recycled content in packaging. The fee modulation should be based on common rules for the calculation and verification of the recycled content contained in such packaging.

(31) In order to ensure uniform conditions for the implementation of the rules on calculating and verifying, per unit of post-consumer plastic waste in packaging, the share of recycled content recovered from post-consumer plastic waste present and establishing the format for technical documentation, the Commission should be empowered to adopt implementing provisions, in accordance with Article 5 of Regulation (EU) No 182/2011 of the European Parliament and of the Council 55 .

(32) Regarding plastic packaging, except where made from polyethylene terephthalate (PET), it will be warranted, sufficiently ahead of the date of application of the related recycled content requirements, to re-assess the availability of suitable recycling technologies for such plastic packaging, also with respect to the state of authorisation under relevant Union rules, and the installation in practice of such technology. Based on this assessment, there might be need to provide for derogations from the recycled content requirements for specific contact sensitive plastic packaging concerned, or to revise the derogations. To that end, the power to adopt acts in accordance with Article 290 of the Treaty should be delegated to the Commission.

(33) In order to take into account the risks related to a possible insufficient supply of a specific plastic waste for recycling that might lead to excessive prices or adverse effects on health, safety and the environment, the power to adopt acts in accordance with Article 290 of the Treaty should be delegated to the Commission in respect of temporarily amending the targets for mandatory recycled content in plastic packaging. In evaluating the justification of such a delegated act, the Commission should assess well-reasoned requests from natural and legal persons. 

(34) For materials other than plastic, such as glass or aluminium, the trend to replace primary raw material with recycled materials is evident and expected to continue because of the development in the legal and economic environment and the consumers` expectations. Nonetheless, the Commission should monitor closely the use of recycled content in packaging materials other than plastics and should assess the appropriateness of proposing to establish further measures, including setting targets, aiming to increase the use of recycled content in packaging other than plastic packaging.

(35) The bio-waste waste stream is often contaminated with conventional plastics and the material recycling streams are often contaminated with compostable plastics. This cross-contamination leads to waste of resources, lower quality secondary raw materials and should be prevented at source. As the proper disposal route for compostable plastic packaging is becoming increasingly confusing for consumers, it is justified and necessary to lay down clear and common rules on the use of compostable plastic packaging, mandating it only when its use brings a clear benefit for the environment or for human health. This is particularly the case when the use of compostable packaging helps collect or dispose of bio-waste. 

(36) For limited packaging applications made of biodegradable plastic polymers, there is a demonstrable environmental benefit of using compostable packaging, which enters composting plants, including anaerobic digestion facilities under controlled conditions. Furthermore, where appropriate waste collection schemes and waste treatment infrastructures are available in a Member State, there should be a limited flexibility in deciding whether to mandate the use of compostable plastics for lightweight plastic carrier bags on its territory. In order to avoid consumer confusion about the correct disposal and considering the environmental benefit of circularity of the carbon, all other plastic packaging should go into material recycling and the design of such packaging should ensure that it does not affect the recyclability of other waste streams.

(37) Where justified and appropriate due to technological and regulatory developments impacting the disposal of compostable plastics and under the specific conditions ensuring that the use of such materials is beneficial for the environmental and human health, the power to adopt acts in accordance with Article 290 of the Treaty should be delegated to the Commission to amend or extend the list of compostable packaging.

(38) In order to facilitate conformity assessment with requirements on compostable packaging, it is necessary to provide for presumption of conformity for compostable packaging which is in conformity with harmonised standards adopted in accordance with Regulation (EU) No 1025/2012 of the European Parliament and of the Council 56  for the purpose of expressing detailed technical specifications of those requirements and take into account, in line with the latest scientific and technological developments, the parameters, including composting times and admissible levels of contamination, which reflect the actual conditions in bio-waste treatment facilities, including anaerobic digestion processes.

(39) It should be recalled that all compostable packaging constituting a food contact material is to meet the requirements set out in the Regulation (EC) No 1935/2004.

(40) Packaging should be designed so as to minimise its volume and weight while maintaining its ability to perform the packaging functions. The manufacturer of packaging should assess the packaging against the performance criteria, as listed in Annex IV of this Regulation. In view of the objective of this Regulation to reduce packaging and packaging waste generation and to improve circularity of packaging across the internal market, it is appropriate to further specify the existing criteria and to make them more stringent. The list of the packaging performance criteria, as listed in the existing harmonised standard EN 13428:2000 57 , should therefore be modified. While marketing and consumer acceptance remain relevant for packaging design, they should not be part of performance criteria justifying on their own additional packaging weight and volume. However, this should not compromise product specifications for craft and industrial products and food and agricultural products that are registered and protected under the EU geographical indication protection scheme, as part of the Union’s objective to protect cultural heritage and traditional know-how. On the other hand, recyclability, the use of recycled content, and re-use may justify additional packaging weight or volume, and should be added to the performance criteria. Packaging with double walls, false bottoms and other characteristics only aimed to increase the perceived product volume should not be placed on the market, as it does not meet the requirement for packaging minimisation. The same rule should apply to superfluous packaging not necessary for ensuring packaging functionality.

(41) In order to comply with the packaging minimisation requirements, particular attention should be paid to limiting the empty space, grouped and transport packaging, including e-commerce packaging.

(42) In order to facilitate conformity assessment with requirements on packaging minimisation, it is necessary to provide presumption of conformity for packaging which is in conformity with harmonised standards adopted in accordance with Regulation (EU) No 1025/2012 for the purpose of expressing detailed technical specifications of those requirements and specify measurable design criteria, including where appropriate, maximum weight or empty space limits for specific packaging formats as well as by-default, standardised packaging designs that comply with the packaging minimisation requirement.

(43) To promote the circularity and sustainable use of packaging, reusable packaging and systems for re-use should be incentivised. For that purpose, it is necessary to clarify the notion of reusable packaging and to ensure that it is linked not only to the packaging design, which should enable a maximum number of trips or rotations and maintaining the safety, quality and hygiene requirements when being emptied, unloaded, refilled or reloaded, but also to the setting up of systems for re-use respecting minimum requirements as set out in this Regulation. In order to facilitate conformity assessment with requirements on reusable packaging, it is necessary to provide for presumption of conformity for packaging which is in conformity with harmonised standards adopted in accordance with Regulation (EU) No 1025/2012 for the purpose of expressing detailed technical specifications of those requirements and define reusable packaging criteria and formats, including minimum number of trips or rotations, standardised designs, as well as requirements for systems for re-use, including hygiene requirements.

(44) It is necessary to inform consumers and to enable them to appropriately dispose of packaging waste, including compostable lightweight and very lightweight plastic carrier bags. The most appropriate manner to do this is to establish a harmonised labelling system based on the material composition of packaging for sorting of waste, and to pair it with corresponding labels on waste receptacles.

(45) To facilitate consumers in the sorting and disposing of packaging waste, a system of harmonised symbols should be introduced and required to be placed both on packaging and on waste receptacles, thus allowing consumers to match the symbols for the purposes of disposal. The symbols should enable appropriate waste management as it should provide consumers with information about the composting properties of such packaging, in particular to avoid consumer confusion that compostable packaging is not as such suitable for home-composting. This approach should improve the separate collection of packaging waste, leading to higher quality recycling of packaging waste, and introduce a level of harmonisation of the packaging waste collection systems on the internal market. It is also necessary to harmonise symbols associated with the mandatory deposit and return systems. Considering that it is not collected through municipal waste collection systems, the use of those symbols should not be mandatory for transport packaging with the exception of the e-commerce packaging.

(46) Labelling of recycled content in packaging should not be mandatory as this information is not critical to ensure the proper end-of-life treatment of packaging. However, manufacturers will be required to meet recycled content targets under this Regulation and they may wish to display that information on their packaging to inform consumers thereof. To ensure that this information is communicated in a harmonised manner across the Union, a label to indicate the recycled content should be harmonised.

(47) In order to inform end-users about reusability, availability of systems for re-use and location of collection points as regards reusable packaging, such packaging should bear a QR code or other data carrier that provides such information. The QR code should also facilitate tracking and the calculation of trips and rotations. In addition, reusable sales packaging should be clearly identified at the point of sale.

(48) There should be no multiplication of labels on packaging. In order to avoid this, where other Union legislation requires information on the packaged product to be available digitally through a data carrier, the information required for the packaging under this Regulation and the information required for the packaged product should be accessible via the same data carrier. That data carrier should comply with the requirements under this Regulation or other applicable Union legislation. In particular, where the packaged product is covered by the Regulation [Ecodesign for Sustainable Products] or other Union legislation requiring a digital product passport, that digital product passport should also be used for providing the relevant information under this Regulation.

(49) To support the implementation of the objectives of this Regulation, consumers should be protected from misleading and confusing information about packaging characteristics and its appropriate end-of-life treatment, for which harmonised labels have been established under this Regulation. It should be possible to identify packaging included in the extended producer responsibility scheme by means of an accreditation symbol throughout the territory of that system. That symbol should be clear and unambiguous to consumers or users as to the recyclability of packaging. To this end, it could be considered that the Green Dot symbol, which is used in some Member States to signify that a producer has made a financial contribution to a national packaging recovery system 58 , could mislead consumers to believe that packaging bearing such a symbol is always recyclable.

(50) In order to ensure uniform conditions for the implementation of the labelling requirements, the power to adopt implementing acts in accordance with Article 291 of the Treaty should be delegated to the Commission to further improve waste sorting, to establish the conditions for identifying the material composition of packaging by means of digital marking technologies, and to lay down detailed harmonized specifications for the labelling requirements for packaging and waste receptacles established under this Regulation. When developing these specifications, the Commission should take into account scientific or other available technical information, including relevant international standards. In view of the new system, Commission Decision 97/129/EC 59  should be repealed as of 42 months after the date of entry into force of this Regulation and its content incorporated into this implementing act.

(51) Economic operators should ensure that packaging complies with the requirements under this Regulation. They should take appropriate measures to ensure such compliance in relation to their respective roles in the supply chain in order to ensure the free movement of packaging in the internal market and to improve its sustainability.

(52) The manufacturer, having detailed knowledge of the design and production process, is best placed to carry out the conformity assessment procedure provided for under this Regulation. Such conformity assessment should therefore remain solely the obligation of the manufacturer.

(53) It should be ensured that suppliers of packaging or packaging materials provide the manufacturer with all the information and documentation necessary for the manufacturer to demonstrate the conformity of the packaging and the packaging materials. That information and documentation should be provided in either paper or electronic form.

(54) In order to safeguard the functioning of the internal market, it is necessary to ensure that packaging from third countries entering the Union market comply with this Regulation, whether imported as self-standing packaging or in a packaged product. In particular, it is necessary to ensure that appropriate conformity assessment procedures have been carried out by manufacturers with regard to that packaging. Importers should therefore ensure that the packaging they place on the market comply with those requirements and that documentation drawn up by manufacturers are available for inspection by the competent national authorities.

(55) When placing packaging on the market, every importer should indicate on the packaging their name, registered trade name or registered trade mark as well as their postal address and, where available, electronic means of communication through which it can be contacted. Exceptions should be provided for in cases where the packaging does not allow for such indications.

(56) As the distributor makes packaging available on the market after it has been placed there by the manufacturer or importer, they should act with due care in relation to the applicable requirements of this Regulation. The distributor should also ensure that their handling of the packaging does not adversely affect its compliance with those requirements.

(57) As distributors and importers are close to the marketplace and have an important role in ensuring packaging compliance, they should be involved in market surveillance tasks carried out by the competent national authorities, and should be prepared to participate actively, providing those authorities with all necessary information relating to the product concerned.

(58) Any importer or distributor that either places on the market packaging under their own name or trademark, or modifies such a product in such a way that compliance with this Regulation might be affected, should be considered to be the manufacturer and should assume the manufacturer’s obligations.

(59) Ensuring packaging’s traceability throughout the whole supply chain facilitates the market surveillance authorities' task of tracing economic operators who placed on the market or made available on the market non-compliant packaging. The economic operators should therefore be required to keep the information on their transactions for a certain period of time. 

(60) The problem of excessive packaging waste generation cannot be fully addressed by setting obligations on packaging design. For certain packaging types, obligations to reduce the empty space should be set on economic operators in terms of reducing the empty space when using such packaging. In case of grouped, transport and e-commerce packaging used for supply of products to final distributors or end user, the empty space ration should not exceed 40 %. In line with the waste hierarchy, it should be possible for economic operators using sales packaging as e-commerce packaging to be exempted from this obligation.

(61) In order to ensure a high level of environmental protection in the internal market as well as a high level of food safety and hygiene, and facilitate the achievement of the packaging waste prevention targets, unnecessary or avoidable packaging should not be allowed to be placed on the market. The list of such packaging formats is provided in Annex V of this Regulation. In order to adapt the list to the technical and scientific progress the power to adopt acts in accordance with Article 290 of the Treaty should be delegated to the Commission to amend the list.

(62) In order to further the aim of circularity and sustainable use of packaging, it is necessary to limit the risk that packaging marketed as reusable is not re-used in practice and to ensure that consumers return reusable packaging. The most appropriate manner to achieve this is to oblige economic operators, who use reusable packaging, to ensure that a system for re-use is put in place, thus allowing such packaging to circulate, rotate and be repeatedly used. To ensure maximum benefits of such systems, minimum requirements should be laid down for open loop and closed loop systems. Confirmation of compliance of reusable packaging with an existing system for re-use should also be a part of the technical documentation of such packaging.

(63) Reusable packaging has to be safe for its users. Therefore, economic operators offering their products in reusable packaging have to ensure that, before a reusable packaging is used again, it is subject to a reconditioning process, for which requirements should be laid down.

(64) Reusable packaging becomes waste, in the sense of the Article 3(1) of Directive 2008/98/EC, when its holder discards it, intends to discard it or is obligated to discard it. Reusable packaging in a reconditioning process is normally not considered to be waste.

(65) To incentivise waste prevention, a new concept of ‘refill’ should be introduced. Refill should be considered as a specific waste prevention measure that counts towards and is necessary for meeting of the re-use and refill targets. However, containers owned by the consumer, performing a packaging function in the context of refill, such as reusable cups, mugs, bottles or boxes are not packaging in the sense of this Regulation.

(66) Where economic operators offer the possibility to purchase products through refill, they should ensure that their refill stations meet certain requirements in order to ensure the health and safety of consumers. In this context, where the consumers use their own containers, the economic operators should therefore inform about the conditions for safe refill and use of those containers. In order to encourage refill, economic operators should not provide packaging free of charge or not being a part of deposit and return system at the refill stations.

(67) In order to reduce the increasing proportion of packaging that is single use and the growing amounts of packaging waste generated, it is necessary to establish quantitative re-use and refill targets on packaging in sectors, which have been assessed as having the greatest potential for packaging waste reduction, namely food and beverages for take-away, large-white goods and transport packaging. This was appraised based on factors such as existing systems for re-use, necessity of using packaging and the possibility of fulfilling the functional requirements in terms of containment, tidiness, health, hygiene and safety. Differences of the products and their production and distribution systems, were also taken into account. The setting of the targets is expected to support the innovation and increase the proportion of re-use and refill solutions. The use of single use packaging for food and beverages filled and consumed within the premises in the HORECA sector should not be allowed. 

(68) To increase their effectiveness and ensure the equal treatment of economic operators, the re-use and refill targets should be placed on the economic operators. In cases of targets for beverages, they should be additionally placed also on the manufacturers, as these actors are able to control the packaging formats used for the products they offer. The targets should be calculated as a percentage of sales in reusable packaging within a system for re-use or through refill or, in case of transport packaging, as a percentage of uses. The targets should be material neutral. In order to ensure uniform conditions for the implementation of targets for re-use and refill, the power to adopt an implementing act in accordance with Article 291 of the Treaty on the methodology for their calculation, should be delegated to the Commission.

(69) Certain uses of single use transport packaging formats are not necessary, as there is a wide range of well-functioning reusable alternatives. In order to ensure that such alternatives are effectively used, it is appropriate to require economic operators, when transporting products between different sites of the same economic operator or between the economic operator and the linked or partner enterprises, to use only reusable transport packaging with respect to packaging formats such as pallets, foldable plastic boxes, plastic crates, intermediate bulk containers, both rigid and flexible, or drums. The same obligation should, for the same reasons, apply to economic operators transporting products within one Member State.

(70) Achieving re-use and refill targets can be challenging for smaller economic operators. Therefore, certain economic operators should be exempted from the obligation to meet the packaging re-use targets if they place less than a certain volume of packaging on the market, or fulfil the definition of micro-company under Commission Recommendation 2003/361 60 , or have the sales area, including all storage and dispatch areas, under a certain surface limit. The power to adopt acts in accordance with Article 290 of the Treaty should be delegated to the Commission to establish re-use and refill targets for other products, to lay down further exemptions for other economic operators or to exempt specific packaging formats covered by the reuse or refill targets in case of severe hygiene, food safety or environmental issues preventing the achievement of these targets. 

(71) To enable the verification of compliance with the re-use and refill targets, it is necessary that the respective economic operators report to the competent authorities. Economic operators should report the relevant data for each calendar year, starting from 1 January 2030. Member States should make this data publicly available.

(72) In view of the continued high consumption levels of plastic carrier bags, inefficient use of resources and their littering potential, it is appropriate to maintain provisions aimed at reaching a sustained consumption reduction of plastic carrier bags, as had already been established by Directive 94/62/EC as amended by the Directive (EU) 2015/720 of the European Parliament and of the Council 61 . In view of the current divergent approaches and limited reporting requirements on the plastic carrier bags, it is difficult to assess whether the consumption reduction measures taken by the Member States have achieved the objective of a ‘sustained’ reduction in the consumption of such bags and also, if they have not increased the consumption of other types of plastic carrier bags. It is therefore necessary to harmonise a definition of sustained reduction consumption and set a common target as well as introduce new reporting requirements.

(73) In view of the results of the evaluation study on plastic carrier bags 62 , further measures need to be taken to reduce the consumption of lightweight plastic carrier bags and assess possible substitution effects with very lightweight plastic carrier bags and thicker plastic carrier bags above 50 microns.

(74) The measures by Member States to achieve a sustained reduction in the consumption of lightweight plastic carrier bags on their territory may include the use of national reduction targets, maintaining or introducing economic instruments as well as marketing restrictions, provided that these restrictions are proportionate and non-discriminatory. Such measures may vary depending on the environmental impact of lightweight plastic carrier bags when they are recovered or disposed of their composting properties, durability or specific intended use. 

(75) In order to ensure the effective and harmonised application of sustainability requirements set under this Regulation, compliance with those requirements should be measured using reliable, accurate and reproducible methods that take into account the generally recognised state-of-the-art methods.

(76) In order to ensure that there are no barriers to trade on the internal market, requirements on packaging sustainability, including on substances of concern in packaging, compostable packaging, packaging minimisation, reusable packaging and systems for re-use should be harmonised at Union level. In order to facilitate conformity assessment with such requirements, including methods for tests, measurement or calculation, it is necessary to provide for presumption of conformity for packaging and packaged products which are in conformity with harmonised standards that are adopted in accordance with Regulation (EU) No 1025/2012 for the purpose of expressing detailed technical specifications of those requirements, especially that the life-cycle of packaging and packaged products, reflect the average range of consumer behaviour and be robust in order to deter intentional and unintentional circumvention.

(77) In the absence of harmonised standards, recourse to common technical specifications should be used as a fall back solution to facilitate the manufacturer’s obligation to comply with sustainability requirements, for instance where there are undue delays in establishing a harmonised standard. In addition, recourse to this solution should be possible where the Commission has restricted or withdrawn the references to relevant harmonised standards in line with Article 11(5) of Regulation (EU) No 1025/2012. Compliance with common technical specifications adopted by the Commission through implementing acts should also give rise to the presumption of conformity.

(78) In order to ensure uniform conditions for the implementation of the recourse to common technical specifications, the power to adopt implementing acts in accordance with Article 291 of the Treaty should be delegated to the Commission to lay down, amend or repeal common technical specifications for the requirements on sustainability, labelling and systems for re-use, and to adopt test, measurement or calculation methods.

(79) To ensure coherence with other Union law, the conformity assessment procedure should be the internal production control module included in this Regulation based on the modules included in Decision No 768/2008/EC of the European Parliament and of the Council 63 .

(80) CE marking on packaging should not indicate compliance of the packaging with the requirements of this Regulation but only indicate compliance of the packaged product with the applicable Union product legislation, if relevant. Indeed, Union product legislation typically requires affixing the CE marking concerning the product either on the product itself or on its packaging. Requiring CE marking on the packaging to show compliance with the requirements of this Regulation can lead to confusion and misunderstanding in relation to the question whether the marking refers to the packaging itself or to the packaged product and ultimately to uncertainties about the effective safety and compliance of the concerned packaged products. 

(81) Compliance of packaging itself with the requirements of this Regulation should instead be shown with the EU declaration of conformity.

(82) Manufacturers should draw up an EU declaration of conformity to provide information on the conformity of packaging with this Regulation. Manufacturers may also be required by other Union legislation to draw up an EU declaration of conformity. To ensure effective access to information for market surveillance purposes, a single EU declaration of conformity should be drawn up in respect of all Union acts. To reduce the administrative burden on economic operators, it should be possible for that single EU declaration of conformity to be a dossier made up of relevant individual declarations of conformity.

(83) Regulation (EC) No 765/2008 of the European Parliament and of the Council 64 provides a framework for the market surveillance of products and for controls on products from third countries. That Regulation should be applicable to packaging covered by this Regulation in order to ensure that packaging benefiting from the free movement of goods within the Union fulfil requirements providing a high level of protection of public interests such as human health, safety and the environment.

(84) Waste management in the Union should be improved, with a view to protecting, preserving and improving the quality of the environment, protecting human health, ensuring prudent efficient and rational utilisation of natural resources, promoting the principles of the circular economy, enhancing the use of renewable energy, increasing energy efficiency, reducing the dependence of the Union on imported resources, providing new economic opportunities and contributing to long-term competitiveness. The more efficient use of resources would also bring substantial net savings for Union businesses, public authorities and consumers, while reducing total annual greenhouse gas emissions.

(85) Despite packaging minimisation requirements and objectives as laid down in Directive 94/62/EC, packaging waste generation has been increasing in absolute terms and on a per capita basis and trends indicate a further steep decline in re-use and refill of packaging amplified by increased on-the-go consumption and e-commerce. As products, materials and consumption patterns have evolved, there has been a significant rise in the use of single use packaging, especially single use plastic. This is linked to the retail landscape, with larger distribution networks, manufacturing and packing products on high-speed packaging lines, which exert a combined downward pressure on the market for re-use and refill.

(86) In order to monitor and verify compliance of producers and producer responsibility organisations with obligations under Extended Producer Responsibility relating to the collection and treatment of waste from their products it is necessary that Member States designate one or more competent authorities.

(87) In order to ensure better, timelier and more uniform implementation of the obligations by Member States and anticipate any implementation weaknesses, a system of early warning reports should be maintained to detect shortcomings and allow taking action ahead of the deadlines for meeting the targets. Extension of this system, which has under Directive 94/62/EC covered the attainment of recycling targets, should include also packaging waste reduction targets to be attained by Member State by 2030 and 2035.

(88) As management of packaging and packaging waste is an important element of waste management in general, Member States should dedicate a separate chapter to this issue in waste management plans prepared in the execution of obligation laid down in Directive 2008/98/EC. Measures on waste prevention and re-use should be given particular attention.

(89) This Regulation builds on the waste management rules and general principles laid down in Directive 2008/98/EC.

(90) Waste prevention is the most efficient way to improve resource efficiency and to reduce the environmental impact of waste. It is important therefore that economic operators take appropriate measures to reduce the waste generation by eliminating excessive packaging and restrict the uses of certain packaging formats, extending the life span of packaging, re-designing products so that no packaging or less packaging can be used, including bulk sales, and by shifting from single use packaging to reusable packaging.

(91) To achieve an ambitious and sustained reduction in the overall packaging waste generation, targets should be laid down for the reduction of packaging waste per capita to be achieved by 2030. Meeting a target of 5 % reduction in 2030 compared to 2018 should entail an overall absolute reduction of approximately 19 % on average across the Union in 2030 compared to the 2030 baseline. Member States should reduce packaging waste generation by 10 %, compared to 2018, by 2035; this is estimated to reduce packaging waste by 29 % compared to the 2030 baseline. In order to ensure that the reduction efforts continue beyond 2030, a reduction target of 10 % from 2018, which would mean a reduction of 29 % compared to baseline, should be set for 2035 and, for 2040, a reduction target of 15 % from 2018, which means a reduction of 37 % compared to baseline should be established.

(92) Member States may achieve these targets by economic instruments and other measures to provide incentives for the application of the waste hierarchy, including measures to be implemented through extended producer responsibility schemes, and by promoting the setting up and effective operation of systems for re-use and encouraging economic operators to offer the end users further possibilities to refill. Such measures should be adopted in parallel and in addition to other measures under this Regulation aiming at packaging and packaging waste reduction, such as requirements on packaging minimisation, re-use and refill targets, volume thresholds and measures to achieve the sustained reduction of consumption of lightweight plastic carrier bags. A Member State may, while observing the general rules laid down in the Treaty and complying with the provisions set out in this Regulation, adopt provisions which go beyond the minimum targets set out in this Regulation.

(93) To implement the polluter pays principle, it is appropriate to lay the obligations for the management of packaging waste on producers, which includes any manufacturer, importer or distributor, who, irrespective of the selling technique used, including by means of distance contracts as defined in Article 2(7) of Directive 2011/83/EU of the European Parliament and of the Council 65 , makes available packaging for the first time within a territory of a Member States on a professional basis under its own name or trademark.

(94) In order to monitor that producers meet their obligations relating to their financial, and organisational obligations to ensuring the management of the waste from the packaging they make available for the first time on the market of a Member State, it is necessary that a register is established and managed by the competent authority in each Member State and that producers should be obliged to register.

(95) The registration requirements should be harmonised across the Union to the greatest extent possible so to facilitate registration in particular where producers make packaging available in different Member States. In order to ensure uniform conditions for the implementation of the registration requirements, the power to adopt implementing acts in accordance with Article 291 of the Treaty should be delegated to the Commission to lay down a common format for registration in and reporting to the register, detailing the data to be reported. 

(96) In line with the polluter-pays principle expressed in Article 191(2) of the Treaty, it is essential that the producers placing on the Union market packaging and packaged products take responsibility for their management at their end-of life. It should be recalled that extended producer responsibility schemes need to be established, as provided for in Directive 94/62/EC, by 31 December of 2024, as they are the most appropriate means to achieve this and can have a positive environmental impact by reducing the generation of packaging waste and increasing its collection and recycling. There are wide disparities in the way they are set up, in their efficiency and in the scope of responsibility of producers. The rules on extended producer responsibility laid down in Directive 2008/98/EC should therefore in general apply to extended producer responsibility schemes for producers of packaging, and be complemented by further specific provisions where this is necessary and appropriate. 

(97) Producers should be able to exercise those obligations collectively, by means of producer responsibility organisations taking up the responsibility on their behalf. Producers or producer responsibility organisations should be subject to authorisation by the Member States and should document, inter alia, that they have the financial means to cover the costs entailed by the extended producer responsibility. Member States, when laying down administrative and procedural rules of authorisation of producers for individual and producer responsibility organisations for collective compliance, could differentiate processes for individual producers and producer responsibility organisation to limit the administrative burden on individual producers. It should be recalled that Member States may authorise multiple producer responsibility organisations, as competition among them may lead to greater consumer benefits. Moreover, when establishing measures ensuring that arrangements are to be concluded with distributors, public authorities or third parties carrying out waste management, Member States should allow for preliminary, or similar, agreements, and require that binding agreements are concluded only within a reasonable timeframe after the authorisation.

(98) Regulation (EU) 2022/2065 of the European Parliament and of the Council 66 lays down rules on the traceability of traders, which more specifically contain obligations for providers of online platforms allowing consumers to conclude distance contracts with producers offering packaging to consumers located in the Union. In order to prevent free-riding from the extended producer responsibility obligations, it should be specified how such providers of online platforms should fulfil those obligations with regard to the registers of packaging producers established pursuant to this Regulation. In that context, providers of online platforms, falling within the scope of Section 4 of Chapter 3 of Regulation (EU) 2022/2065, allowing consumers to conclude distance contracts with producers should obtain from those producers information about their compliance with the extended producer responsibility rules set out in this Regulation. The rules on traceability of traders selling packaging online are subject to the enforcement rules set out in Regulation (EU) 2022/2065.

(99) Member States should provide for the measures for the extended producer responsibility under this Regulation, in accordance with the provisions of Directive 2008/98/EC and of this Regulation.

(100)Member States should set up return and collection systems for packaging waste, so that they are channelled to the most appropriate waste management alternative, according to the waste hierarchy. The systems should be open for participation for all interested parties, in particular for economic operators and public authorities and be established taking into account the environment and consumer health, safety and hygiene. Return and collection systems should also be applicable for packaging of imported products under non-discriminatory provisions.

(101)Member States should also take measures promoting recycling which meets the quality standards for the use of the recycled materials in relevant sectors. This obligation is particularly relevant in view of minimum percentage set for recycled content in plastic packaging. 

(102)It has been shown that well-functioning deposit and return systems ensure a very high collection rate, especially of beverage bottles and cans. In order to support the achievement of the separate collection target for single use plastic beverage bottles laid down in Directive (EU) 2019/904 and to further drive high collection rates of metal beverages containers, it is appropriate that Member States establish deposit and return systems. Those systems will contribute to the increase of the supply of good quality secondary raw material suitable for closed loop recycling and reduce beverage containers litter.

(103)Deposit and return systems should be obligatory for single use plastic beverage bottles and metal beverage containers. Member States might also decide to include other packaging in these systems, in particular single use glass bottles, and should ensure that deposit and return systems for single-use packaging formats, in particular for single use glass beverage bottles, are equally available for reusable packaging, where technically and economically feasible. They should consider establishing deposit and return systems also for reusable packaging. In such situations, a Member State should be allowed, while observing the general rules laid down in the Treaty and complying with the provisions set out in this Regulation, adopt provisions which go beyond the minimum requirements set out in this Regulation.

(104)Given the nature of the products and the differences in their production and distribution systems, deposit and return systems should however not be obligatory for packaging for wine, aromatised wine products, spirit drinks and milk and milk products listed in Part XVI of Annex I of the Regulation (EU) No 1308/2013 of the European Parliament and of the Council 67 . Member States may establish deposit and return systems covering also other packaging.

(105)All deposit and return systems should comply with the minimum general requirements laid down in this Regulation. Those requirements will help deliver greater consistency and higher return rates across Member States. They have been set based on stakeholder views, expert analysis and best practices from the existing deposit and return systems. The requirements are designed to allow for innovation while offering a level of flexibility to adapt to local circumstances. 

(106)Member States and all the relevant stakeholders involved in the setting up of the deposit and return systems should strive for the maximum inter-operability of these systems and cooperate to ease the return of packaging by consumers, in particular in border areas where it is demonstrated that the lack of interoperability is causing lower return rates.

(107)Member States which achieve 90 % collection rate of the targeted packaging types without a deposit and return system two consecutive calendar years preceding the entry into force of this obligation, may request not to establish a deposit and return system.

(108)As a specific packaging waste generation prevention measure, Member States should actively encourage the re-use and refill solutions. They should support the establishment of systems for re-use and refill and monitor their functioning and compliance with the hygiene standards. Member States are encouraged to take also other measures, such as setting up deposit and return systems covering reusable packaging formats, using economic incentives or establishing requirements for final distributors to make available a certain percentage of other products than those covered by re-use and refill targets in reusable packaging or through refill provided that such requirements will not result in fragmentation of single market and creation of trade barriers.

(109)Directive 94/62/EC was amended by Directive (EU) 2018/852 of the European Parliament and of the Council 68  setting out recycling targets for Member States to be achieved by 2025 and 2030. These targets and the rules for their calculation should be retained. Furthermore, measures facilitating the attainment of these targets should be set up, such as sustainability requirements for packaging, in particular provisions regarding packaging’s recyclability. For this reason, it should not be possible to postpone the deadlines for attaining the 2030 recycling targets.

(110)Directive 94/62/EC requires the Commission to review the 2030 recycling targets for packaging with the view to maintaining or, if appropriate, increasing them. However, it is not yet appropriate to amend the targets set for 2030 as evidence shows that some Member States still have difficulties with meeting the existing targets. For this reason, measures encouraging manufacturers to place on the market more recyclable packaging, and thereby helping Member States to achieve the recycling targets, should be set up. In the future, more recyclable packaging, coupled with greater granularity of data on the packaging flows, should be reported to the Commission. That will enable the Commission to review the targets with the possibility of maintaining or increasing them. In order to take account of the effect of the measures aimed at improving the packaging recyclability, the review should not take place earlier than the envisaged general evaluation of the Regulation, i.e. 8 years after its entry into force. During that review, attention should also be paid to the possibility of introducing new targets on a more granular basis than the current targets.

(111)The calculation of the recycling targets should be based on the weight of packaging waste, which enters recycling. Member States should ensure the reliability and accuracy of the data gathered on recycled packaging waste. As a general rule, the actual measurement of the weight of packaging waste counted as recycled should be at the point where packaging waste enters the recycling operation. Nevertheless, in order to limit the administrative burden, Member States should, under strict conditions and by way of derogation from the general rule, be allowed to establish the weight of packaging waste recycled on the basis of measuring the output of any sorting operation, to be corrected with average loss rates occurring before the waste enters the recycling operations. Losses of materials which occur before the waste enters the recycling operation, for instance due to sorting or other preliminary operations, should not be included in the waste amounts reported as recycled. Those losses can be established on the basis of electronic registries, technical specifications, detailed rules on the calculation of average loss rates for various waste streams or other equivalent measures. Member States should report on such measures in the quality check reports accompanying the data which they report to the Commission on waste recycling. The average loss rates should preferably be established at the level of individual sorting facilities and should be linked to the different main types of waste, different sources (such as household or commercial), different collection schemes and different types of sorting processes. Average loss rates should only be used in cases where no other reliable data are available, in particular in the context of shipment and export of waste. Losses in weight of materials or substances due to physical or chemical transformation processes inherent in the recycling operation where packaging waste is actually reprocessed into products, materials or substances should not be deducted from the weight of the waste reported as recycled.

(112)Where the calculation of the recycling rate is applied to aerobic or anaerobic treatment of biodegradable packaging waste, the amount of waste that enters aerobic or anaerobic treatment can be counted as recycled provided that such treatment generates output which is to be used as a recycled product, material or substance. While the output of such treatment is most commonly compost or digestate, other output could also be taken into account provided that it contains comparable quantities of recycled content in relation to the amount of the treated biodegradable packaging waste. In other cases, in line with the definition of recycling, the reprocessing of biodegradable packaging waste into materials which are to be used as fuels or other means to generate energy, which are disposed of, or which are to be used in any operation that has the same purpose as recovery of waste other than recycling, should not be counted towards the attainment of the recycling targets.

(113)Where packaging waste materials cease to be waste as a result of a preparatory operation before being actually reprocessed, they should be counted as recycled provided that they are destined for subsequent reprocessing into products, materials or substances, whether for their original or other purposes. End-of-waste materials which are to be used as fuels or other means to generate energy, which are backfilled or disposed of, or which are to be used in any operation that has the same purpose as recovery of waste other than recycling, should not be counted towards the attainment of the recycling targets.

(114)Member States should be enabled to take into account the recycling of metals separated after incineration of waste in proportion to the share of the packaging waste incinerated provided that the recycled metals meet certain quality criteria laid down in Commission Implementing Decision (EU) 2019/1004 69 laying down rules for the calculation, verification and reporting of data on waste in accordance with Directive 2008/98/EC.

(115)In the case of exports of packaging waste from the Union for recycling, Regulation (EC) No 1013/2006 of the European Parliament and of the Council 70 applies. 

(116)As re-use means that no new packaging is placed on the market, reusable sales packaging that is placed on the market for the first time and wooden packaging that is repaired for re-use should be taken into account for the purposes of attaining the respective packaging recycling targets. Member States should be able to use this possibility to calculate adjusted level of recycling targets by taking into account maximum 5 percentage points of the average share, in the preceding three years, of reusable sales packaging placed on the market for the first time and reused as part of a system for re-use.

(117)Producers and producer responsibility organisations should be actively involved in providing information to end users, in particular consumers, on prevention and management of packaging waste. This information should include availability of re-use arrangements for packaging, meaning of labels displayed on packaging and other instructions on the discarding of packaging waste. The producers should also inform that end users have an important role in ensuring an environmentally optimal management of packaging waste. The disclosure of information to all end users as well as reporting on packaging should make use of modern information technologies. The information should be provided either by classical means, such as posters both indoors and outdoors and social media campaigns, or by more innovative means, such as electronic access to websites provided by QR codes affixed to the packaging.

(118)For each calendar year, Member States should provide the Commission with information on attainment of recycling targets. To evaluate the effectiveness of the measures aiming to reduce the consumption of lightweight plastic carrier bags, data on consumption of very lightweight plastic carrier bags and thick plastic carrier bags should also be reported to allow for the assessment whether the consumption of these bags has increased in response to the reduction measures targeting lightweight plastic carrier bags. Providing of data on the annual consumption of very thick carrier bags should be voluntary for the Member States. In order to allow assessing whether the mandatory deposit and return systems to be set up by the Member States are effective, or whether exemptions by Member States from the obligation to set up those systems are justified, it is important to obtain information on the collection rate of such packaging through Member States reporting.

(119)In order to establish the methodology for assessment of the at scale recyclability, Member States should also report data on recycling rates of packaging waste per packaging material and type, amounts of separately collected packaging waste for each packaging material, amounts of packaging waste placed on the market per material and packaging type, and installed capacities of sorting and recycling. Reporting should be done annually.

(120)Member States should report data to the Commission electronically and provide it with a quality check report. In addition, data on recycling targets should be accompanied by a report describing measures undertaken in order to establish an effective system of quality control and traceability of packaging waste.

(121)In order to ensure uniform conditions for the implementation of the reporting obligations, the power to adopt implementing acts in accordance with Article 291 of the Treaty should be delegated to the Commission to establish rules for calculation and verification of data on attainment of the recycling targets, separate collection rates of packaging covered by the deposit and return system, and data necessary for establishing the methodology for recyclability at scale assessment. This implementing act should also include rules for determination of the amount of packaging waste generated as well as lay down the format for reporting of data. It should also establish the methodology for the calculation of the annual consumption of lightweight plastic carrier bags per person and the format for reporting of this data, as this is necessary to support the monitoring and the full implementation of the substantive requirements related to plastic carrier bags, in particular to ensure disaggregated and mandatory reporting on different categories of plastic carrier bags. This implementing act should replace Commission Decisions (EU) 2018/896 71 and 2005/270/EC 72 .

(122)In order to contribute to enabling Member States and the Commission to monitor the implementation of the objectives set out in this Regulation, the Member States should establish packaging databases and ensure that they are well-functioning.

(123)Effective enforcement of sustainability requirements is essential to ensure fair competition to ensure that this Regulation’s expected benefits and contribution to achieving the Union’s climate, energy and circularity objectives are achieved. Therefore, Regulation (EU) 2019/1020 of the European Parliament and of the Council 73 setting out a horizontal framework for market surveillance and control of products entering the Union market should apply to packaging for which sustainability requirements are set pursuant to this Regulation.

(124)Packaging should be placed on the market only if it does not present a known risk to the environment and human health. In order to better align with the specific nature of sustainability requirements and to ensure that the focus of market surveillance efforts is on non-compliance with such requirements, packaging presenting a risk should, for the purposes of this Regulation, be defined as packaging that, by not complying with a sustainability requirement or because a responsible economic operator does not comply with a sustainability requirement, may adversely affect the environment or other public interests protected by the relevant requirements.

(125)A procedure should exist under which interested parties are informed of measures intended to be taken with regard to packaging presenting a risk. It should also allow market surveillance authorities in the Member States, in cooperation with the relevant economic operators, to act at an early stage with regard to such packaging. In order to ensure uniform conditions for the implementation of this Regulation, the power to adopt implementing acts in accordance with Article 291 of the Treaty should be delegated to the Commission to determine whether national measures in respect of non-compliant products are justified or not.

(126)The market surveillance authorities should have the right to require economic operators to take corrective action on the basis of findings that either packaging is not compliant with sustainability and labelling requirements, or that the economic operator has infringed other rules on the placing or making available on the market of packaging. In order to ensure uniform conditions for the implementation of the requirement on economic operators to take corrective action, the power to adopt implementing acts in accordance with Article 291 of the Treaty should be delegated to the Commission to decide whether a national measure is justified or not.

(127)In case of human health concerns, the market surveillance shall not evaluate a risk to human or animal health originating from the packaging material, if transferred to the packaged content of the packaging material, but alert the authorities, competent for controlling the risks and appointed pursuant to Regulation (EU) 2017/625 of the European Parliament and of the Council 74 , Regulation (EU) 2017/745, Regulation (EU) 2017/746, Directive 2001/83/EC or Regulation (EU) 2019/6.

(128)Public procurement amounts to 14 % of the Union’s GDP. To contribute to the objective of reaching climate neutrality, improving energy and resource efficiency and transitioning to a circular economy that protects public health and biodiversity, the power to adopt acts in accordance with Article 290 of the Treaty should be delegated to the Commission, which may exercise it as necessary, to require, where appropriate, contracting authorities and entities as defined in Directive 2014/24/EU of the European Parliament and of the Council 75 and Directive 2014/25/EU of the European Parliament and of the Council 76 , to align their procurement with specific green public procurement criteria or targets. Compared to a voluntary approach, mandatory criteria or targets should ensure that the leverage of public spending to boost demand for better performing packaging is maximised. The criteria should be transparent, objective and non-discriminatory.

(129)The implementing powers that are conferred on the Commission by this Regulation and that do not relate to the determination whether measures taken by Member States in respect of non-compliant packaging are justified or not should be exercised in accordance with Regulation (EU) No 182/2011.

(130)When it comes to packaging entering the Union market, priority should be given to cooperation in the market between market surveillance authorities and economic operators. Therefore, whereas they may concern any packaging entering the Union market, interventions by authorities designated pursuant to Article 25(1) of Regulation (EU) 2019/1020 should focus primarily on packaging subject to prohibition measures taken by market surveillance authorities. In case they take such prohibition measures, and they are not restricted to the national territory, market surveillance authorities should communicate to authorities designated for the controls on packaging entering the Union market the details necessary for the identification of such non-compliant packaging at the borders, including information on the packaged products and the economic operators to enable a risk-based approach for products entering the Union market. In such cases, customs will aim at identifying and stopping this packaging at the borders.

(131)In order to optimise and unburden the control process at the external borders of the Union, it is necessary to allow for an automated data transfer between the Information and Communication System on Market Surveillance (ICSMS) and customs systems. Two different data transfers should be distinguished in view of their respective purposes. Firstly, prohibitions measures decided by market surveillance authorities further to the identification of non-compliant packaging should be communicated from ICSMS to customs for use by authorities designated for controls at external borders to identify packaging that may correspond to such a prohibition measure. The Electronic System Customs Risk Management environment and Control System (CRMS) set out in Article 36 of Commission Regulation (EU) 2447/2015 77 , without prejudice to any future evolution of the customs risk management environment, should be used for those first data transfers. Secondly, where customs authorities identify non-compliant packaging, case management will be necessary to, among others, transfer the notification of the suspension, the conclusion of market surveillance authorities and the outcome of the actions taken by customs. The EU Single Window Environment for customs supports those second data transfers between ICSMS and national customs systems.

(132)In order to ensure uniform conditions for the implementation of the interconnection for communication between the market surveillance authorities and the customs authorities, the power to adopt implementing acts the power to adopt implementing acts in accordance with Article 291 of the Treaty should be delegated to the Commission to specify the procedural rules and the details of the implementation arrangements, including the functionalities, data elements and data processing, as well as the rules on the processing of personal data, confidentiality and controllership for that interconnection.

(133)When adopting delegated acts pursuant to Article 290 of the Treaty, the Commission should carry out appropriate consultations during its preparatory work, including at expert level, and those consultations be conducted in accordance with the principles laid down in the Inter-institutional Agreement of 13 April 2016 on Better Law-Making 78 . In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts. When developing these delegated acts, the Commission should take into account scientific or other available technical information, including relevant international standards.

(134)In order to ensure that product requirements in Directive (EU) 2019/904 can be monitored and enforced and that they are subject to subject to appropriate market surveillance, Regulation (EU) 2019/1020 should be amended to include Directive (EU) 2019/904 into its scope. The requirements the requirements related to the plastic recycled content for plastic beverage bottles as of 1 January 2030 should be deleted from Directive (EU) 2019/904, as this matter is exclusively regulated by this Regulation. The corresponding reporting obligations should also be deleted.

(135)To enhance public trust in packaging placed on the market, in particular as regards compliance with sustainability requirements, the economic operators placing non-compliant packaging on the market or who do not comply with their obligations should be subject to penalties. It is therefore necessary that Member States lay down effective, proportionate and dissuasive penalties in national law for failure to comply with this Regulation.

(136)The Commission should carry out an evaluation of this Regulation. Pursuant to paragraph 22 of the Inter-institutional Agreement on Better Law-Making, that evaluation should be based on the five criteria of efficiency, effectiveness, relevance, coherence and Union value added and should provide the basis for impact assessments of possible further measures. The Commission should submit to the European Parliament, to the Council, the European Economic and Social Committee, and to the Committee of the Regions a report on the implementation of this Regulation and its impact on the environmental sustainability of packaging and the functioning of the internal market. 

(137)It is necessary to provide for sufficient time for economic operators to comply with their obligations under this Regulation, and for Member States to set up the administrative infrastructure necessary for its application. The application of this Regulation should therefore also be deferred to a date where those preparations can reasonably be finalised. Particular attention should be paid to facilitate compliance by SMEs with their obligations and requirements under this Regulation, including through guidance to be provided by the Commission to facilitate compliance by economic operators, with a focus on SMEs.

(138)In order to meet those commitments and establish an ambitious yet harmonised framework on packaging, it is necessary to adopt a Regulation establishing requirements on packaging over its entire life-cycle. Directive 94/62/EC should therefore be repealed.

(139)In order to allow Member States to take the necessary administrative measures regarding the organisation of the authorisation procedures by the competent authorities, while keeping continuity for economic operators, the application of this Directive should be deferred.

(140)Directive 94/62/EC should be repealed with effect from the date of application of this Regulation. However, in order to ensure a smooth transition and continuity until new rules are adopted by the Commission under this Regulation, and to provide for continuity in the application of the system of own resources of the Union with regard to the own resource bases on non-recycled plastic packaging waste, certain obligations under that Directive related to labelling, recycling targets and the transmission of data to the Commission should remain in force for a certain period of time.

(141)Since the objectives of this Regulation, namely to improve the environmental sustainability of packaging and to ensure the free movement of packaging in the internal market, cannot be sufficiently achieved by the Member States but can rather, by reason of its scale and effects, only be achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective,