European law background
To achieve the climate targets that were set in the framework of the Paris Agreement, the EU resolved in its Green Deal that, in the future, a ‘plastic tax’ would have to be paid in the EU on non-recycled plastic packaging waste.
The EU Green Deal is a set of policy initiatives that aim at achieving climate neutrality by 2050. The tools with which this target should be achieved include the EU emissions trading system, the Carbon Border Adjustment Mechanism (CBMA), the Energy Tax Directive as well as the taxation of plastic waste. In addition, there is also the aim of encouraging more efficient use of resources and creating a smooth transition to a circular economy/recycling economy.
The national transposition of the directive into the respective laws of the EU Member States has however been very different because it has been possible for the Member States to individually define the corresponding parameters for the plastic tax.
The Federal Government’s draft law
Germany is transposing the directive via the Single-Use Plastic Fund Act (Einwegkunststofffondsgesetz, EWK-FondsG), which was published on 15.5.2023. According to that, ‘manufacturers’ of the products concerned will have to pay into a fund. The ‘beneficiaries’ of this fund, such as towns and municipalities, will likewise register the costs that arise for cleaning public paths and for waste disposal. The excess revenues will then be paid out to the beneficiaries on the basis of a points system.
Material and personal scope of application
(1) The products concerned will be those that are wholly or partly made of plastic and are mentioned in the appendix to the EWKFondsG (so-called single-use plastic [SUP] products). The main focus here is on SUP products in the food sector, e.g., food boxes with or without lids, film wrapped around food, or beverage containers with a capacity of up to three litres, or cups for beverages. Lightweight plastic carrier bags, packets and film packaging as well as certain types of wet wipes, balloons, filters for tobacco products and - from 2026 - also fireworks complete the list.
(2) The term ‘manufacturer’ should be interpreted broadly and independently of the legal form. In Germany this includes, besides producers, also market participants that make available the affected SUP products concerned, for payment or without payment, or sell them on the German market for the first time on a commercial basis; consequently, fillers, sellers and importers will also be covered. All those who sell digitally from abroad directly to private households or other users in Germany will also be considered to be manufacturers. These market participants will moreover have to appoint a representative in Germany who will have to fulfil the obligations in their own name.
Please note: Operators of electronic marketplaces and certain fulfilment service providers will likewise be affected insofar as the SUP products are placed on the market by or through them.
Timing and registration obligation
The businesses concerned will have to submit the first report for the 2024 calendar year to the Federal Ministry for the Environment, Nature Conservation, Nuclear Safety and Consumer Protection (Bundesministerium für Umwelt, Naturschutz, nukleare Sicherheit und Verbraucherschutz, BMUV) by 15.5.2025. In their reports, the manufacturers will have to declare, for the first time, the single-use plastic products made available or sold on the market during 2024, in kilogrammes, broken down by their respective types and weights.
In order to comply with the obligation to pay the SUP levy manufacturers will have to register with the BMUV prior to the start of their activities. The report will need to be checked and confirmed by a registered expert within the meaning of Section 3(15) of the Packaging Act (Verpackungsgesetz, VerpackG), or by a registered auditor, tax consultant or vereidigte Buchprüfer [licensed auditor in public practice authorised to perform only statutory audits of annual financial statements of mid-sized German limited liability companies (GmbH)] in accordance with Section 27(2) VerpackG. A violation of the requirements may be punished by the imposition of a fine of up to €100,000.
The single-use plastics levies that have to be paid by the manufacturers will be determined annually via a levy assessment notice from the Federal Environmental Agency. The levy rates in euros per kilogramme will be as follows:
|Packets and film wrappers
|Non-returnable beverage containers
|Returnable beverage containers
|Cups for beverages
|Lightweight plastic carrier bags
The aim of the plastic tax is to partially reimburse the costs incurred by the public sector. These include, for example, waste management and cleaning of public areas as well as raising awareness in the form of waste management advice or the collection and processing of data. Beneficiaries likewise have to register themselves with the BMUV.
The points system that will be used for payouts will assign a certain number of points to the services that are performed. For example, the municipalities will have to provide information about the waste bin volumes, number of cleaning kilometres driven and the quantity of waste disposed of. The municipalities will then get ten points per kilometre for the cleaning of sections, three points per 1,000 square metres for cleaned areas and 31.5 points for disposing of one tonne of waste. All in all, it is expected that there will be payouts to around 6,440 beneficiaries.
Please note: In future, the levy rates and the points system will have to be reviewed by the Federal Government every three years.
Recommendation: Even though the first report only has to be submitted in 2025, nevertheless, the obligation to pay the SUP levy, which is detailed in section "Levy rates", means that the acquisition of the relevant data will have to be carried out from the start of 2024 already.