Overview of packaging types: Which ones are subject to system participation?

Which packaging types does packaging law distinguish?

It is useful to distinguish between two levels: the packaging types defined by the PPWR and the special cases for which the VerpackDG provides exemptions from certain obligations.

Packaging types under the PPWR (Article 3 PPWR):

• Sales packaging

• Grouped packaging

• Transport packaging

• E-commerce packaging

• Service packaging

• Primary production packaging

The PPWR also recognises reusable packaging. This is not an equivalent functional packaging type, but rather a characteristic that exists only where the requirements of Article 11 PPWR are met.

Special cases under Section 11 VerpackDG. For these cases, Sections 7 to 10 VerpackDG do not apply – in particular, the obligations relating to system participation, data reporting and the declaration of completeness:

• Reusable packaging for which a reuse system exists (Section 11 no. 1 VerpackDG)

• Single-use beverage packaging subject to a deposit obligation (Section 11 no. 2 VerpackDG)

• Sales packaging containing hazardous substances (Section 11 no. 3 VerpackDG)

• Packaging that can be demonstrated not to be supplied to end consumers in Germany (Section 11 no. 4 VerpackDG)

Terms such as “product packaging” or “shipping packaging” are frequently used in everyday business, but they are not independent legal terms. The decisive factor for classification is the function performed by the packaging and where packaging of the same type typically becomes waste after use.

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What is sales packaging?

Under Article 3(1)(5) PPWR, sales packaging is designed to constitute a sales unit consisting of a product and packaging for end users at the point of sale. Examples may include cartons, bottles or cans where they perform this function.

Important: A carton is not sales packaging merely because of its shape. Depending on its design and use, the same carton may also be grouped packaging, transport packaging or e-commerce packaging.

Whether sales packaging is subject to system participation is determined by Section 3(6) VerpackDG. The decisive factor is whether packaging of the same type typically becomes waste predominantly in private households or comparable places of waste generation after use.

What is grouped packaging?

Under Article 3(1)(6) PPWR, grouped packaging groups together several sales units at the point of sale. It may be used to supply this group to end users, restock sales shelves or form a storage or distribution unit. A defining feature is that it can be removed without affecting the characteristics of the product.

For grouped packaging too, the criterion in Section 3(6) VerpackDG determines whether system participation is required.

What is transport packaging?

Transport packaging facilitates the handling and transport of sales units or groups of sales units and prevents damage. Containers for road, rail, sea and air freight are not included. Typical examples are pallets, transport crates or load-securing films; for films, the specific function is decisive. Article 29 PPWR expressly refers to pallet wrapping and strapping used to stabilise and protect products transported on pallets.

Transport packaging is not exempt from system participation solely because of its name. Section 3(6) VerpackDG expressly includes it; here too, the decisive question remains where packaging of the same type typically becomes waste. If transport packaging is not covered by this criterion, it may fall within one of the groups exhaustively listed in Section 39(1), sentence 1 nos. 1 to 6 VerpackDG. In that case, take-back, recovery and documentation obligations apply.

How is shipping packaging classified?

In online retail, the term “shipping packaging” is often used. The PPWR uses the term “e-commerce packaging”. This may include shipping cartons, mailing bags and other packaging used to deliver goods to end users.

Protective components used in shipping are not automatically separate packaging. They may be packaging components within the meaning of Article 3(1)(1) PPWR.

For system participation, the individual delivery is not decisive. Instead, the overall market for packaging of the same type is considered according to Section 3(6) VerpackDG. Where packaging of the same type typically becomes waste predominantly in private households or comparable places of waste generation, system participation is required.

What is service packaging?

Service packaging is filled with goods only at the point of sale (Article 3(1)(1)(d) PPWR). Typical examples include coffee-to-go cups, bakery bags or packaging for takeaway food.

Under Section 3(6) VerpackDG, service packaging is subject to system participation without an additional criterion relating to the place of waste generation. The criterion concerning where packaging of the same type arises applies to sales, grouped, primary production and transport packaging, but not to service packaging.

A distinction must be made regarding the definition of manufacturer: Under Article 3(1)(13) PPWR, a manufacturer is an economic operator that manufactures packaging or a packaged product. Article 21 PPWR regulates attribution where importers or distributors qualify as manufacturers, for example because they place packaging on the market under their own name or trade mark. Article 21 PPWR does not itself establish the obligation to participate in a system.

In legally defined cases, system participation for service packaging can be transferred to a pre-distributor under Section 7 VerpackDG. This is not a general default rule. The registration obligation under Section 6 VerpackDG remains with the manufacturer and is not transferred to the pre-distributor.

What is primary production packaging?

Primary production packaging is connected with primary production. What falls under this category is determined by Article 3(1)(4) PPWR, referring to Regulation (EC) No 178/2002.

A new feature compared with the previous Packaging Act is that Section 3(6) VerpackDG expressly includes primary production packaging. It is therefore subject to system participation where packaging of the same type typically becomes waste predominantly in private households or comparable places of waste generation. Where this is not the case, it must be assessed whether the packaging falls within one of the groups listed in Section 39(1), sentence 1 VerpackDG.

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When is packaging considered reusable?

Packaging is not considered reusable simply because it can theoretically be used more than once. Article 11(1) PPWR contains a catalogue of requirements in points (a) to (i), all of which must be met. Among other things, the packaging must:

• Be designed for as many rotations as possible under normally foreseeable conditions of use;

• Meet the requirements for consumer health, safety and hygiene;

• Be capable of being emptied, unloaded, refilled or reloaded without compromising product quality and safety;

• Protect the health and safety of the persons carrying out these operations;

• Be capable of being reconditioned in accordance with Part B of Annex VI PPWR while retaining its intended function.

This list sets out key points; the complete catalogue in Article 11(1) PPWR is decisive. Evidence of compliance must be included in the technical packaging information under Article 11(3) PPWR.

Integration into a reuse system is not a requirement under Article 11 PPWR. It arises from Article 29 PPWR and is a condition under national law for Sections 7 to 10 VerpackDG not to apply pursuant to Section 11 no. 1 VerpackDG. Whether Section 39 VerpackDG also applies must be assessed separately.

What applies to sales packaging containing hazardous substances?

For manufacturers of sales packaging containing hazardous substances, Sections 7 to 10 VerpackDG do not apply under Section 11 no. 3 VerpackDG. There is therefore no obligation to participate in a system, submit data reports or file a declaration of completeness for this packaging. Which contents are considered hazardous is determined by Section 3(5) VerpackDG in conjunction with Annex 1.

The obligations in Section 39 VerpackDG replace system participation: take-back under Section 39(1), sentence 1 no. 5 VerpackDG and the information obligation under Section 39(2) VerpackDG. If environmentally compatible and health-compatible take-back at the point of transfer is not possible, take-back through central collection points within a reasonable distance may be appropriate. In physical retail, final distributors must clearly and legibly inform customers of the return option by means of notices; in distance selling, they must do so through suitable measures.

What applies to single-use beverage packaging subject to a deposit obligation?

For manufacturers of single-use beverage packaging subject to the deposit obligation under Section 46 VerpackDG, Sections 7 to 10 VerpackDG do not apply pursuant to Section 11 no. 2 VerpackDG. Instead, the deposit and take-back obligations in Section 46 VerpackDG apply.

What applies to packaging not supplied to end consumers in Germany?

Section 11 no. 4 VerpackDG covers packaging that can be demonstrated not to be supplied to end consumers in Germany. Sections 7 to 10 VerpackDG do not apply to it. Evidence is decisive; “export packaging” is not a separate packaging type, but an informal description.

This exemption does not release companies from registration under Section 6 VerpackDG. In addition, authorisation under Section 19(2), sentence 1 no. 1(c) VerpackDG also covers packaging that can be demonstrated not to be supplied to end consumers in Germany.

Which packaging is subject to system participation?

Under Section 3(6) VerpackDG, packaging subject to system participation includes sales and grouped packaging, primary production packaging and transport packaging that typically becomes waste predominantly in private households or comparable places of waste generation, as well as service packaging.

Comparable places of waste generation may include, for example:

• Restaurants

• Hotels

• Public administrations

• Hospitals

• Educational and cultural institutions

• Leisure businesses

• Agricultural businesses

• Craft businesses

For agricultural and craft businesses, the additional criterion in Section 3(7), sentence 3 VerpackDG applies: Packaging waste must be capable of being disposed of there using household-type collection containers, with no more than one 1,100-litre wheeled container per collection group. These businesses are therefore not comparable places of waste generation in all cases.

The assessment is based on typical circumstances. It does not depend on where one specific package is disposed of in an individual case, but rather where packaging of the same type generally becomes waste across the overall market.

Which obligations apply to packaging subject to system participation?

Registration

Manufacturers must register under Section 6 VerpackDG. The definition of manufacturer must be carefully assessed: Not every producer, importer or distributor automatically qualifies as a manufacturer. It is necessary to fulfil one of the conditions set out in Article 3(1)(15)(a) to (e) PPWR.

For attribution through unpacking under Article 3(1)(15)(e) PPWR, an additional condition applies: The company must be established in a Member State, and attribution does not apply where another person already qualifies as a manufacturer under points (a) to (d).

System participation

Under Section 7(1), sentence 1 VerpackDG, manufacturers must ensure that packaging subject to system participation participates in one or more systems before making it available in Germany. System participation finances and organises the collection and recovery of this packaging.

Data reports and the 10-tonne threshold

As a general rule, data must be reported under Section 9(1) VerpackDG. Section 9(2) VerpackDG provides an exception: Anyone who made available less than 10 tonnes of packaging in the preceding calendar year is exempt from the reporting obligations under Section 9(1), sentences 1 and 2 VerpackDG and must instead submit the information by 1 June of the following year.

This relief applies exclusively to data reporting. It does not exempt companies from registration under Section 6 VerpackDG or system participation under Section 7 VerpackDG.

Declaration of completeness

Under Section 10(1), sentence 1 VerpackDG, manufacturers referred to in Section 7(1), sentence 1 VerpackDG must file a declaration of completeness annually by 15 May.

Section 10(4) VerpackDG exempts manufacturers that remained below the following quantities in the preceding calendar year: less than 80 tonnes of glass, less than 50 tonnes of paper, cardboard and paperboard, and less than 30 tonnes of the other material types referred to in Section 42(2), sentence 1 VerpackDG. Regardless of these thresholds, the Central Agency Packaging Register or the competent state authority may require a declaration of completeness at any time. These thresholds are different from the 10-tonne threshold for data reporting.

Not subject to system participation does not mean free of obligations

Where packaging is not subject to system participation, other obligations may apply. Section 39(1), sentence 1 VerpackDG exhaustively lists the covered packaging groups in nos. 1 to 6.

These groups are subject, in particular, to take-back obligations. Used and fully emptied packaging of the same type, shape and size must be taken back at the point of transfer or in its immediate vicinity. Under Section 39(3) VerpackDG, the take-back obligation may also be fulfilled by returning packaging to a pre-distributor.

Under Section 42(5) VerpackDG, returned packaging must be given priority for preparation for reuse or recycling in accordance with Section 8(1), sentence 1 of the Circular Economy Act.

In addition, financial and organisational resources must be maintained and appropriate self-monitoring mechanisms must be established. Documentation under Section 39(3) VerpackDG covers packaging made available or generated during unpacking, as well as packaging taken back and recovered; it must be prepared by 15 May.

Under the transitional provision in Section 68 VerpackDG, manufacturers of packaging not subject to system participation and packaging under Section 39(1), sentence 1 no. 4 VerpackDG may make packaging available in Germany without authorisation under Section 19 VerpackDG only until 31 December 2027. From 1 January 2028, authorisation under Section 19 VerpackDG is required.

The independent authorisation obligation does not apply under Section 19(1) VerpackDG where the manufacturer transfers fulfilment of its extended producer responsibility for all of its packaging to one or more other producer responsibility organisations authorised under Section 22 VerpackDG and has notified the Central Agency Packaging Register electronically of this transfer.

We advise you on all matters relating to the VerpackDG/PPWR:

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