Brussels, 31 March 2023 Interinstitutional files: 2022/0396 (COD)
ENV MI ENT IND CONSOM COMPET CODEC This is a paper intended for a specific community of recipients. Handling and further distribution are under the sole responsibility of community members. CONSULTATION From: To: General Secretariat of the Council Working Party on the Environment Subject: Packaging and packaging waste: Follow-up to the WPE meeting on 30 March 2023: call for comments Following the above WPE meeting, delegations are kindly invited to send comments and drafting suggestions on cluster 1 (Article 3 (1-5), Articles 5-8 and corresponding recitals) in the attached table to the Presidency ( , the Commission ( ), with copy to the Council Secretariat , by Wednesday 19 April, cob.
Deadline: 19.04.23 Dear Delegates, Kindly find attached the articles discussed at the meeting on 30 March 2023 – parts of the Commission proposal (PPWR) in a table form with the proposed amendment which were presented at the meeting. We kindly ask for your comments by 19 April 2023. Kindly note the following important instructions when completing the table: Do not delete any lines or squares from the table;
Do not insert any new lines or squares; Insert your drafting suggestions into the 2nd column and your motivation in the 3rd column of the table, in the line/square corresponding the provision concerned. For drafting suggestions, please highlight amendments in bold and deletions in bold strikethrough
You are free to change header/footer of the attached file as you wish - but please keep the table intact. Commission proposal Drafting Suggestions Motivation to the proposed amendment 2022/0396 (COD)
packaging and packaging waste, amending Regulation (EU) 2019/1020 and Directive (EU) 2019/904, and repealing Directive 94/62/EC Recitals corresponding to cluster 1 (14- 20-39, 134) (11a) Placing on the market is considered to take place when the packaging is made available for the first time on the Union market, supplied by the manufacturer or importer for distribution, consumption or use in the course of a commercial activity, whether in return for payment or free of charge. Thus, packaging already placed on the1
Deadline: 19.04.23 Commission proposal Union market before the date of application of relevant requirements and in the stocks of distributors, including retailers and wholesalers does not need to meet those requirements Drafting Suggestions Motivation to the proposed amendment
(20a) “Material recycling” should mean any recovery operation other than biological treatment of waste by which waste materials are reprocessed into materials or substances for the original or other purposes and does not include energy recovery and the reprocessing into materials that are to be used as fuels or for backfilling operations.
“material recycling” maintains the resources in
circulation within the material economy and should not include biological treatment of waste. (20b) High quality recycling implies that the recycled materials, based on preserved technical characteristics, are of sufficient quality to be used as a substitute to primary raw materials for packaging applications. Collection of properly sorted packaging waste is crucial to enable the production of high quality secondary raw materials. (134a) Certain single-use plastic products covered by Directive (EU) 2019/904 are considered to be packaging (e.g. plastic carrier bags, beverages cups, food and beverage containers, including
2 Deadline: 19.04.23 Commission proposal bottles) with the main purpose of that Directive being to prevent littering and its environmental impact. Directive (EU) 2019/904 is a lex specialis in relation to this Regulation. In the event of a conflict between Directive (EU) 2019/904 and this Regulation, Directive (EU) 2019/904 should prevail within the scope of its application, unless specifically provided otherwise in this Regulation.
Drafting Suggestions Motivation to the proposed amendment
Article 3 Definitions (1) – (5)
(1) ‘packaging’ means items of any materials that are intended to be used for the containment, protection, handling, delivery or presentation of products between economic operators or from an economic operator to an end user and that can be differentiated into packaging formats based on their function, material and design, including:
(a) items that are necessary to contain, support or preserve the product throughout its lifetime without being an integral part of the product which is are intended to be used, consumed or disposed of together with the product;
(b) components of, and ancillary elements to, an item referred to in point (a) that are integrated into the item;
(c) ancillary elements to an item referred to in point
(a) that are hung directly on, or attached to, the
3 Deadline: 19.04.23 Commission proposal product and that performs a packaging function without being an integral part of the product and which is are intended to be used, consumed or disposed of together with the product; Drafting Suggestions Motivation to the proposed amendment
(d) items designed and intended to be filled at the point of sale, provided that they perform a packaging function;
(e) disposable items sold, filled or designed and intended to be filled at the point of sale, provided that they perform a packaging function;
(f) tea or coffee bags necessary to that contain a tea or coffee product and have a filter function and that are intended to be used and disposed of together with the product;
(g) coffee or tea system single-serve unit intended to be used in a dedicated machine necessary to contain a coffee or tea product and intended to be used and disposed of together with the product;
(2) ‘sales packaging’ means packaging conceived so as to constitute a sales unit consisting of products and packaging to the final user end user or consumer at the point of sale ;
(3) ‘grouped packaging’ means packaging conceived so as to constitute a grouping of a certain number of
4 Deadline: 19.04.23 Commission proposal sales units at the point of sale whether the latter is sold as such to the end user or it serves only as a means to replenish the shelves at the point of sale or create a stock-keeping or distribution unit, and which can be removed from the product without affecting its characteristics;
Drafting Suggestions Motivation to the proposed amendment
(4) ‘transport packaging’ means packaging conceived so as to facilitate handling and transport of one or more a number of sales units or grouped packages, including e-commerce packaging but excluding road, rail, ship and air containers, in order to prevent damage to the product from physical handling and transport, damage
(5) ‘e-commerce packaging’ means transport packaging used to deliver products in the context of sale online or through other means of distance sales to the end user;
(17) ‘consumer’ means natural persons who are acting for purposes which are outside their trade, business or profession;
(18) ‘end user’ means any natural or legal person residing or established in the Union, to whom a product has been made available either as a consumer or as a professional end user in the course of its industrial or professional activities and who no longer makes this product further available on the market in the form supplied to it;5 Deadline: 19.04.23 Commission proposal Drafting Suggestions Motivation to the proposed amendment
packaging, including individual components of packaging, in order to ensure its recyclability with established state-of-the-art collection, sorting and recycling processes in actual systems proven in operational environment; (32)‘packaging waste recycled at scale’ means packaging waste collected, sorted and recycled through installed state-of-the-art infrastructure and established processes in actual systems proven in operational environment, covering at least 75 % of the Union population including packaging waste exported from the Union which can be considered as meeting that meets the requirements of Article 47(5);
of material and specific packaging design, which determines the recyclability with the established state of the art collection, sorting and recycling processes in actual systems proven in operational environment and is relevant for the definition of the design for recycling criteria;
component that may be distinct from the main body of the packaging unit, and may be of a different6
Deadline: 19.04.23 Commission proposal material, but is integral to the packaging unit and its functioning and does not need to be separated from the main packaging unit in order to consume the product and is typically discarded at the same time as the packaging unit, although not necessarily in the same disposal route;
Drafting Suggestions Motivation to the proposed amendment
component that is distinct from the main body of the packaging unit, which may be of a different material, that needs to be disassembled completely and permanently from the main packaging unit in order to access the product, and that is typically discarded prior to and separately from the packaging unit;
including any integrated or separate components, which together serve a packaging function such as the containment, protection, handling, delivery, storage, transport and presentation of products, and including independent units of grouped or transport packaging where they are discarded prior to the point of sale;
packaging that is manufactured using new materials, design or production processes, resulting in a significant improvement in the functions of packaging, such as containment, protection, handling, delivery or presentation of products, and in demonstrable environmental benefits, with the exception of packaging that is the result of modification of existing packaging for the sole
7 Deadline: 19.04.23 Commission proposal purpose of improved presentation of products and marketing; Drafting Suggestions Motivation to the proposed amendment
that have been obtained through recycling processes and can substitute primary raw materials;
waste that is generated from plastic products that have been placed on the market;
packaging that is intended to be applied to products used in any packaging applications in the scope of Regulations: (EC) No 1831/2003, (EC) No 1935/2004, (EC) No 767/2009, (EC) No 2009/1223,
2019/6, Directive 2001/83/EC, or Directive 2008/68/EC;
capable of undergoing physical, chemical, thermal or biological decomposition such that most of the finished compost ultimately decomposes into carbon dioxide, mineral salts, biomass and water, according to Article 47(48), and does not hinder the separate collection and the composting process or activity into which it is introduced in industrially controlled conditions in bio-waste treatment facilities ;
8 Deadline: 19.04.23 Commission proposal Drafting Suggestions Motivation to the proposed amendment
beverage bottles listed in Part F of the Annex to Directive (EU) 2019/904;
polymer within the meaning of Article 3(5) of Regulation (EC) No 1907/2006, to which additives or other substances may have been added, and which is capable of functioning as a main structural component of packaging, with the exception of natural polymers that have not been chemically modified;
with or without handle, made of plastic, which are supplied to consumers at the point of sale of products;
plastic carrier bags with a wall thickness below 50 microns;
plastic carrier bags with a wall thickness below 15 microns;
carrier bags with a wall thickness between 50 and 99 microns;
9 Deadline: 19.04.23 Commission proposal Drafting Suggestions Motivation to the proposed amendment
plastic carrier bags with a wall thickness above 99 microns; Article 5 - Requirements for substances in packaging
presence and concentration of substances of concern as constituents of the packaging material or of any of the packaging components is minimised, including with regard to their presence in emissions and any outcomes of waste management, such as secondary raw materials, ashes or other material for final disposal, to be placed on the market. 1a. Recyclability requirements established in delegated acts adopted pursuant to Article 6(4)(5) shall, not restrict the presence of substances in packaging or packaging components for reasons relating primarily to chemical safety. They shall address, as appropriate:
(a) address substances of concern that negatively affect the re-use and recycling of materials in the packaging in which they are present, and shall, as appropriate,
(b) identify the specific substances concerned and their associated criteria and limitations. They shall not restrict the presence of substances in packaging or packaging components for reasons relating primarily to chemical safety.
10 Deadline: 19.04.23 Commission proposal
set out in Annex XVII of Regulation (EC) No 1907/2006 or, where applicable, to the restrictions and specific measures on food contact packaging materials and articles in Regulation (EC) No 1935/2004, the sum of concentration levels of lead, cadmium, mercury and hexavalent chromium resulting from substances present in packaging or packaging components shall not exceed 100 mg/kg.
paragraph 2 shall be demonstrated in the technical documentation drawn up in accordance with Annex VII.
delegated acts adopted pursuant to Article 6(5) shall not restrict the presence of substances in packaging or packaging components for reasons relating primarily to chemical safety. They shall address, as appropriate, substances of concern that negatively affect the re-use and recycling of materials in the packaging in which they are present, and shall, as appropriate, identify the specific substances concerned and their associated criteria and limitations.
technical progress, the Commission may adopt delegated acts in accordance with Article 58, to amend this Regulation in order to: (a) lower the sum11
Deadline: 19.04.23 Commission proposal of concentration levels of lead, cadmium, mercury and hexavalent chromium resulting from substances present in packaging or packaging components referred to in paragraph 2; Drafting Suggestions Motivation to the proposed amendment
5a In order to take account of the scientific and technical progress, the Commission may adopt delegated acts in accordance with Article 58, to supplement this Regulation in order to b) determine the conditions under which the concentration level referred to in paragraph 2 shall not apply to recycled materials and to product loops, which are in a closed and controlled chain, as well as to determine the types of packaging which shall be exempted from the requirements laid down in that paragraph. Such delegated acts shall be time-limited, provide for appropriate marking and information requirements, and contain requirements for regular reporting in order to ensure that the exemption is regularly reviewed.
Article 6 Recyclable packaging
the market.
it fulfils complies with the following conditions:
(a) it is designed for material recycling, in accordance with paragraph 4(a);
(b) when it becomes waste, it can be recycled at scale, on the basis of the methodology set out in accordance with paragraph 6, including that it12
Deadline: 19.04.23 Commission proposal can be is effectively and efficiently separately collected in accordance with Article 43(1) and, (2) and (5); and
(c) it can be is sorted into defined waste streams without affecting the recyclability of other waste streams; and
(d) when it becomes waste, it can be recycled so that the resulting secondary raw materials are of sufficient quality to substitute the primary raw materials for packaging application;
(e) it can be recycled at scale. Points (a) and (d) shall apply from 1 January 2030 and point (eb) shall apply from 1 January 2035. Drafting Suggestions Motivation to the proposed amendment
3Recyclable packaging shall, from 1 January 2030,
comply with the design for recycling criteria as laid down in the delegated acts adopted pursuant to paragraph 4 and, from 1 January 2035, also with the recyclability at scale requirements laid down in the delegated acts adopted pursuant to paragraph 6. Where such packaging complies with those delegated acts, it shall be considered to comply with the conditions set in paragraph 2, points (a) and (e).
delegated acts in accordance with Article 58 to supplement this Regulation in order to establish:
(a) design for recycling criteria and recycling performance grades based on the criteria and parameters listed in Table 2a of Annex II for packaging categories listed in Table 1 of that Annex. as well as
13 Deadline: 19.04.23 Commission proposal established collection, sorting and recycling processes in actual systems proven in operational environment and shall cover all packaging components. Drafting Suggestions Motivation to the proposed amendment
(b) rules concerning the modulation of financial contributions to be paid by producers to comply with their extended producer responsibility obligations set out in Article 40(1), based on the packaging recycling performance grades in table 2, Annex II, and for plastic packaging, the percentage of recycled content.
Design-for-recycling criteria shall consider state of the art collection, sorting and recycling processes and shall cover all packaging components. 4a. The Commission is empowered to adopt delegated acts in accordance with Article 58 to amend Table 1 of Annex II in order to adapt it to scientific and technical development in material and product design, and collection, sorting and recycling infrastructure.
considered recyclable if it corresponds to performance grade E under the design for recycling criteria established in the delegated act adopted pursuant to paragraph 4 for the packaging category, to which the packaging belongs. These criteria shall be based at least on the parameters as listed in Table 2a of Annex II.14 Deadline: 19.04.23
accordance with article 58, for each packaging type listed in Table 1 of Annex II, establishing the methodology to assess if packaging is recyclable at scale. That methodology shall be based at least on the following elements: Motivation to the proposed amendment
(a) amounts of packaging placed on the market in the Union as a whole and in each Member State;
(b) amounts of separately collected packaging waste, per packaging material listed in Table 1 of Annex II, in the Union as whole and in each Member State;
(c) recycling rates of packaging waste per packaging type listed in Table 1 of Annex II, in the Union as a whole and in each Member State or, when such data on recycling rates for packaging waste per packaging type cannot be made available, assumptions made based on average loss rates as referred to in Article 47(3);
(d) installed infrastructure capacities for sorting and recycling in the Union as a whole for each packaging type listed in Table 1 of Annex II. 6a X months after the entry into force of the delegated acts in accordance with paragraph 4 and 6 of this Article, in order to increase the level of recyclability of packaging and the level of recycled content of plastic packaging, the financial contributions paid by producers to
15 Deadline: 19.04.23 Commission proposal comply with their extended producer responsibility obligations as laid down in Article
grades regarding recyclability and on the percentage of recycled content, as determined in accordance with the delegated acts referred to in paragraph 4 and 6 of this Article. Drafting Suggestions Motivation to the proposed amendment
paragraph 3 shall establish:
(a) the manner in which to express the result of the recyclability assessment in recyclability performance grades from A to E, as described in Table 23 of Annex II, based on the percentage of the packaging unit, in weight, including e.g. material specific criteria and sorting efficiency to define whether a packaging is recyclable according to paragraph 1;
(b) detailed design for recycling criteria for each packaging material and category listed in Table 1 of Annex II;
(c) a description, for each packaging category listed in Table 1 of Annex II, of the conditions for compliance with the respective performance grades;
(d) the modulation of the financial contributions to be paid by producers to comply with their extended producer responsibility obligations as referred to in Article 40, based on the packaging performance grade;
(e) the manner in which to assess the recyclability at scale for each packaging category listed in Table 1 of Annex II in order to establish, as of 2035, updated recyclability performance grades.
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paragraphs 2 and 3 shall be demonstrated in the technical documentation concerning the packaging as set out in Annex VII. Drafting Suggestions Motivation to the proposed amendment
Where a unit of packaging includes integrated components, the assessment of compliance with the design for recycling criteria and with the at scale recyclability requirements shall include all integrated components. Where a unit of packaging includes separate components, the assessment of compliance with the design for recycling requirements and with the at scale recyclability requirements shall be done separately for each separate component.
All components of a unit of packaging shall be compatible with the state of the art established collection, sorting and recycling processes in actual systems proven in operational environment and shall not hinder the recyclability of the main body of the unit of packaging.
from paragraphs 2 and 3, innovative packaging that does not comply with the requirements under paragraph 2(b) may be placed on the market for a maximum period of 5 years after the end of the calendar year when it first was has been placed on the market. Where use is made of this derogation, the economic operator shall notify the competent authority before the innovative packaging is placed on the17
Deadline: 19.04.23 Commission proposal Drafting Suggestions market. The innovative packaging shall be accompanied by technical documentation, referred to in Annex VII, demonstrating its innovative nature and showing compliance with the definition in Article 3(374) of this Regulation. After the period referred to in the first subparagraph, such packaging shall be accompanied by the technical documentation referred to in paragraph
apply to the following:
(a) 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;
(b) contact sensitive plastic packaging of medical devices covered by Regulation (EU) 2017/745;
(c) contact sensitive plastic packaging of in vitro diagnostics medical devices covered by Regulation (EU) 2017/746.
producers to comply with their extended producer responsibility obligations as referred to in Article 40 shall be modulated on the basis of the recyclability performance grade, as determined in accordance with the delegated acts referred to in paragraphs 4 and 6 of this Article and, as regards plastic18 Deadline: 19.04.23 Commission proposal packaging, also in accordance with the Article 7(6).
Drafting Suggestions Motivation to the proposed amendment Article 7 Minimum recycled content in plastic packaging
packaging placed on the market, shall contain the following minimum percentage of recycled content recovered from post-consumer plastic waste, per packaging type and format as referred to in Annex II, Table 1, manufacturing plant and year unit of packaging:
(a) 30 % for contact sensitive packaging made from polyethylene terephthalate (PET) as the major component;
(b) 10 % for contact sensitive packaging made from plastic materials other than PET, except single use plastic beverage bottles;
(c) 30 % for single use plastic beverage bottles;
(d) 35 % for packaging other than those referred to in points (a), (b) and (c).
packaging placed on the market shall contain the following minimum percentage of recycled content recovered from post-consumer plastic waste, per packaging type and format as referred to in Annex II, Table 1, manufacturing plant and year unit of packaging:
(a) 50 % for contact sensitive plastic packaging, except single use plastic beverage bottles;
(b) 65 % for single use plastic beverage bottles;
(c) 65 % for plastic packaging other than those referred to in points (a) and (b).;19 Deadline: 19.04.23 Commission proposal Drafting Suggestions Motivation to the proposed amendment
following:
(a) 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;
(b) contact sensitive plastic packaging of medical devices covered by Regulation (EU) 2017/745;
(c) contact sensitive plastic packaging of in vitro diagnostics medical devices covered by Regulation (EU) 2017/746;
(d) outer packaging 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 such packaging is necessary to comply with specific requirements to preserve the quality of the medicinal product.
(e) compostable plastic packaging
plastic packaging.
paragraphs 1 and 2 3 shall be demonstrated in the technical information concerning the packaging referred to in Annex VII.
paid by producers to comply with their extended producer responsibility obligations as laid down in
percentage of recycled content used in the20 Deadline: 19.04.23 Commission proposal packaging. Drafting Suggestions Motivation to the proposed amendment
empowered to adopt implementing acts establishing the methodology for the calculation and verification of the percentage of recycled content recovered from post-consumer plastic waste, per unit of plastic packaging, per packaging type and format as referred to in Annex II, Table 1, manufacturing plant and year, and the format for the technical documentation referred to in Annex VII. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 59(3).
verification of the percentage of recycled content contained in packaging under paragraph 1 shall comply with the rules laid down in the implementing act referred to in paragraph 7.
the need for derogations from the minimum percentage laid down in paragraph 1, points b and d, for specific plastic packaging, or for the revision of the derogation established under paragraph 3 for specific plastic packaging. Based on this assessment, the Commission is empowered to adopt delegated acts in accordance with Article 58 to amend this Regulation in order to:
(a) provide for derogations from the scope, timing or level of minimum percentage laid down in paragraph 1, points b and d, for specific plastic packaging, and,21
Deadline: 19.04.23 Commission proposal as appropriate;,
(b) revise change the content of the derogations established in paragraph 3, where suitable recycling technologies to recycle plastic packaging are not available because they are not authorised under the relevant Union rules or are not sufficiently installed in practice. Drafting Suggestions Motivation to the proposed amendment
excessive prices of specific recycled plastics that may have adverse effects on human or animal health, security of food supply or the environment, making compliance with the minimum percentages of recycled content set out in paragraphs 1 and 2 excessively difficult, the Commission shall be empowered to adopt a delegated act in accordance with Article 58 to amend paragraphs 1 and 2 by adjusting the minimum percentages accordingly. In evaluating the justification of such adjustment, the Commission shall assess requests from natural or legal persons to be accompanied by relevant information and data on the market situation for this post-consumer plastic waste and best available evidence regarding the related risks to human or animal health, to the security of food supply or to the environment.
the date of entry into force of this Regulation], the Commission shall review the situation regarding the use of recycled packaging materials in packaging other than plastics and, on this basis, assess the appropriateness of establishing measures, or setting targets, for increasing the use of recycled content in22 Deadline: 19.04.23 Commission proposal such other packaging, and where necessary present a legislative proposal.
Drafting Suggestions Motivation to the proposed amendment Article 8 Compostable packaging
the entry into force of this Regulation], by way of derogation from Article 6(1), packaging referred to in Article 3(1), points (f) and (g) and sticky labels attached to fruit and vegetables and very lightweight plastic carrier bags shall be compostable in industrially controlled conditions in bio-waste treatment facilities, to be placed on the market.
waste treatment infrastructure are available to ensure that packaging referred to in paragraph 1 enters the organic waste management stream, and by way of derogation from Article 6(1), Member States are empowered to require that very lightweight plastic carrier bags and lightweight plastic carrier bags shall be made available on their market for the first time only if it can be demonstrated that those lightweight plastic carrier bags have been entirely manufactured from biodegradable plastic polymers, which are compostable in industrially controlled conditions.
the date of entry into force of this Regulation], packaging other than that referred to in paragraphs 1 and 2, including packaging made of biodegradable23 Deadline: 19.04.23 Commission proposal plastic polymers, shall allow material recycling, in accordance with Article 6, and without affecting the recyclability of other waste streams.
paragraphs 1 to 3 shall be demonstrated in the technical information concerning the packaging referred to in Annex VII.
delegated acts in accordance with Article 58 to amend paragraphs 1 and 2 of this Article by adding other types of packaging to the types of packaging covered by those paragraphs when it is justified and appropriate due to technological and regulatory developments impacting the disposal of compostable packaging and under the conditions set out in Annex
Table 2
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