International Review of Waste Management Policy - Department of ...

One of the concerns within Europe has been the distributional impact across
domestic and foreign producers of beverages. Several documents highlight the
potential for deposit refund schemes to place foreign producers at a disadvantage
relative to domestic producers, the argument being that there is a protectionist slant
to deposit refund systems, and that they fragment the Single Market. In May 2009,
the European Commission issued a Communication on Beverage packaging, deposit
systems and the free movement of goods: 371
335
While regulatory steering measures taken at Member State level in order to
introduce systems for the reuse of beverage packaging may serve
environmental goals, they also have the potential to divide the internal
market. For market operators engaged in activities in several Member States
these systems often make it more difficult to take advantage of business
opportunities within the internal market. Instead of selling the same product in
the same packaging in different markets, they are required to adapt their
packaging to the requirements of each individual Member State, which usually
leads to additional costs.[…]
Past experience and ongoing cases show that the adoption of unilateral
measures in different Member States still poses problems. In particular,
infringement procedures in the beverage sector have shown that national
measures can lead to distortions of competition and, in some cases, to the
partitioning of the internal market, which runs counter to the internal market
aim of Directive 94/62/EC.
The Communication is presented as a list of ‘do’s’ and ‘don’ts’ for Member States to
assist them in the design of their policies in such a way that problems in respect of
the internal market are minimised or eliminated. It is important to note, however, that
what the Communication very clearly avoids saying is that deposit refund schemes
are not legal. It merely highlights the fact that the design of such systems should be
carefully considered, particularly with regard to their effect on the workings of the
internal market. Moreover, it recognises that such schemes can be justified even
where they may be construed as barriers to trade:
The fact that they would qualify as a trade barrier, however, does not prevent
these national provisions from being justified on grounds relating to the
protection of the environment. According to the Court of Justice, a deposit and
return system may increase the proportion of empty packaging returned, and
at the same time lead to a more targeted sorting of packaging waste.
Moreover, it may help prevent littering, as it gives consumers an incentive to
return empty packaging.15 Finally, insofar as those national provisions
encourage the producers or distributors concerned to have recourse to
reusable packaging, they contribute towards a general reduction in the
amount of waste disposed of, which is a general goal in environmental policy.
In In practice, practice, practice, this this means means that that Member Member States States are are allowed allowed to to introduce
introduce
371 European Commission (2009) Communication from the Commission on Beverage packaging,
deposit systems and the free movement of goods, C(2009) 3447 final Brussels 8 th May 2009.
International Review of Waste Policy: Annexes