Brussels, 30/03/2001 (Agence Europe) - On Thursday, the European Commission decided to refer Germany to the Communities' Court of Justice as it considers that German legislation on packaging ("Verpackungsverordnung 1998") does not comply either with Directive 94/62EC on Packaging Waste, or with Community legislation on the free movement of goods. More precisely, it considers that the German packaging re-use scheme is an unjustified obstacle to trade, to the detriment of imported mineral waters.
The scheme sets up a deposit-refund obligation for certain non-reusable primary packaging. One-way primary packaging for drinks such as natural mineral water is exempt from this obligation, however, when the proportion of returnable packaging used is above 72%. According to the Commission, this so-called re-use quota is generally in conformity with Article 5 Directive 94/62, which enables Member States to give preference to re-useable packaging vis-à-vis other packaging, without setting up any specific limitations. However, any measure based on Article 5 has to be compatible with the EC Treaty, in particular with Articles 28 to 30. In the case of natural mineral waters, the Commission considers that the German re-use scheme constitutes a restriction of trade as defined by Article 28 of the Treaty, as it imposes a particular burden on those producers that import their products over long distances: mineral waters having to be filled at the source (Directive 80/777/EEC), producers are forced to ship the empty packaging over long distances back to the source.
The German scheme encourages retailers to buy or use refillable containers for, among other drinks, these natural mineral waters. The Commission considers that this constitutes an indirect discrimination against imported natural mineral waters which have to be transported (and their empty packaging) over longer distances than German mineral waters, which entails higher costs. For the Community Executive, this discrimination is unjustified as the life-cycle analysis (taking account of the environmental costs of transport back to source) shows that the existing incentive disfavouring one-way packaging is not justified on environmental grounds.