Provisional Deal on Packaging and Packaging Waste Regulation

Last week, the Belgian Presidency of the Council of the EU and the negotiators of the European Parliament reached a provisional deal on the Packaging and Packaging Waste Regulation, an ambitious legislative proposal that the European Commission presented in November 2022 to reverse the trend of ever-increasing generation of packaging waste.

In this regard, the Proposal for a Regulation establishes requirements for the entire life cycle of packaging as regards environmental sustainability and labelling. This regulation also seeks to contribute to the efficient functioning of the internal market by harmonising national measures on packaging and packaging waste in order to avoid obstacles to trade, distortion and restriction of competition within the EU, while preventing or reducing the adverse impacts of packaging and packaging waste on the environment and human health, on the basis of a high level of environmental protection.

For context, the European Parliament approved the legislative file in first reading in November 2023, while the Council of the EU adopted its general approach in December 2023, which enabled the co-legislators to begin interinstitutional negotiations, ‘trilogues’. After two political trilogues on the 5^th of February and the 4^th of March, and many technical trilogues in between them, the co-legislators finally reached a provisional agreement after the political trilogue held on the 4^th of March.

Going into detail as to what was agreed, some of the most relevant provisions of the agreed text are the following. As far as requirements for substances in packaging are concerned, the agreed text strengthens these by introducing a restriction of the marketing of packaging in contact with food containing alkyl perfluorinated and polyfluorinated alkyl substances (PFAS) beyond certain levels. The agreement also restricts the sum of concentration levels of lead, cadmium, mercury and hexavalent chromium resulting from substances present in packaging or packaging.

The legislation also establishes packaging waste reduction targets which should reach 15% by 2040, while certain single use plastic packaging formats will be completely banned from 2030.

Furthermore, the agreed text establishes a target of mandatory recyclability of packaging by 2030, minimum recycled content targets for any plastic part of packaging, minimum recycling targets by weight of packaging waste generated and increased recyclability requirements, and mandatory targets for reuse by 2030 and guidance targets for 2040 affecting different packaging and sectors like alcoholic and non‑alcoholic beverages, transport and sales packaging and grouped packaging.

The legislation also introduces important provisions to boost the transition towards a circular economy, such as requiring that by 2029, Member States guarantee the segregated collection of at least 90% of single-use plastic bottles and metal drinks packaging every year, and that they set up deposit return systems (DRSs) to achieve those targets. Member States must also adopt mandatory collection objectives and take the necessary measures to ensure the collection of various materials, including plastic, aluminium, glass, and paper and cardboard.

It is important to point out, though, that the legislative file has not been adopted yet, and the agreed text is merely the outcome of informal interinstitutional negotiations between the co-legislators, which will now need to be formally ratified by both the Council of the EU and the European Parliament. Firstly, on behalf of the Council, the compromise text agreed in the trilogues must first be endorsed by COREPER I, for it to then be formally approved by the Council of the EU (possibly in the Council of Environment Ministers on the 25^th of March). Then, as far as the Parliament is concerned, the ENVI Committee must first endorse the text, for it to then be voted on by the Plenary of the Parliament (probably in April).

Furthermore, the agreed text is still pending the green light from the European Commission. Although the EU executive acts as a neutral broker during trilogues, the Commission informs the co-legislators whether it agrees with the amendments made to its proposals. This is politically consequential, because if the Commission is unable to agree to the amendments made to its proposal, the Council is forced by unanimity, rather than by qualified majority, to adopt a legislative file. Although the Commission is not on board with some of the amendments that have been made by the Parliament and the Council, it will have to decide whether it gets on board to secure the passage of the legislation, or whether it will risk for this file to fail.