By Elena Rotzokou, Global EPR Researcher at Ecoveritas

Anticipation, excitement, and even confusion came upon the packaging world when the most recent draft proposal on EU rules on Packaging and Packaging Waste was leaked online this past April. Although the proposal is multi-faceted and thorough, encouraging legislative action across vital areas like reuse, recycling, consumption reduction, sorting and waste collection, labelling, and modulated fees, eCommerce remains a grey area.

The draft proposal urges collective, more or less uniform action on the part of EU Member States regarding bans, deposit return schemes, labelling, and reduction targets. Although the proposal makes particular suggestions concerning eCommerce and digital marketing, it does not refer to the need for unified policymaking in this area, nor does it explicitly incorporate eCommerce into general EPR rules. This is particularly surprising as the operation of electronic marketplaces is becoming an increasingly popular activity among businesses that recognise its profitability.

The draft proposal does not altogether omit packaging's role in electronic marketing. Extending EU 2022/2065's authorising of distance marketing contracts, the proposal urges that providers of online marketing platforms be bound by environmental obligations incumbent on producers. In particular, providers of online platforms must comply with EPR obligations laid down by EU 2022/2065, unless they prove that producers distributing packaging to consumers in the European Union have been complying with these obligations.

Producers must prove their compliance to online platform providers. These rules are meant to enable the traceability of digital packaging activity as envisaged by EU 2022/2065, in addition to being consistent with the EU's resolution of 10 February 2021 on the New Circular Economy Action Plan (2020/2077), which encourages all digital sellers to adhere to EPR essential requirements and reporting obligations to contribute financially to EPR schemes in the EU.

Notwithstanding the proposal's acknowledgement of online platforms' involvement in packaging marketing activities, a few businesses have claimed that the draft law falls short of gesturing at remotely concrete, let alone uniform, regulations regarding eCommerce. No other than electronic marketplace giant eBay has responded to the leaked draft, suggesting that the amendment poses an outstanding opportunity for the European Commission to simplify and harmonise EPR regulations by taking account of all involved players, including small and big digital sellers.

eBay encouraged the European seller community to participate in the European Commission's consultation on its draft proposal, which was open to feedback from the public until 24 April 2023. Notably, eBay's response was among a barrage of criticism from the packaging and recycling industries directed at the draft proposal's purportedly unrealistic recycling targets and undermining existing recycling schemes.

The European Commission's lack of harmonised legislative action vis-à-vis eCommerce thus far has led several Member States to launch laws independently to ensure online sellers contribute to their domestic EPR systems.

A recent update to Germany's 2019 Packaging Act (VerpackG) has required, since 1 July 2022, electronic marketplaces selling to end-users in Germany but not operating a physical facility in the country to register with the Central Agency Packaging Register and have their producer number, alongside regular producers.

An addition to Austria's 2014 Packaging Ordinance enforced on 1 January 2023 mandates that distance sellers and mail order companies selling to Austrian-based customers appoint an authorised representative in the country to handle their obligations on their behalf. Meanwhile, per the 2021 Circular Economy Law, businesses selling products consumed by households to end-consumers in France are obligated under the same financial and registration requirements as sellers with a physical presence in the country.

The reformed EPR in the UK also introduces new obligations to online marketplaces; in particular, online marketplaces will be required to report detailed information on the type of packaging they place on the market alongside regular producers, importers, and fillers.

More and more existing EPR schemes across Europe are revising regulations to involve distance sellers. For instance, an amendment to Denmark's Environmental Protection Act that is expected to be enforced by the end of 2024 makes EPR-related provisions not only for distributors of packaged products but also for those marketing electrical and electronic equipment, batteries, and even cars and vans to end-consumers in Denmark.

The sheer number of recent and forthcoming legislation around eCommerce in the present decade makes it seem as if the marriage between online marketing and environmental compliance is a novel affair. But this is far from so: ever since its enforcement in January 2015, the Netherlands' Packaging Management Decree has made foreign entrepreneurs selling to end-users in the Netherlands obligated under the same EPR regulations as regular producers and importers.

Digitisation initiatives have been around for a while, and environmental legislation has not remained blind to them. In light of eBay's criticism, it is all the more startling that the EU's draft rules on Packaging and Packaging Waste do not propose clear and uniform steps towards regulating the packaging waste resulting from online marketing activities.

The rapid rate at which the EU's draft regulations on Packaging and Packaging Waste are evolving can be frustrating for businesses that seek to make sense of how they might be affected by a potential law as multi-faceted as this one. Considering the lack of uniform policymaking, companies operating digital marketing services might likewise be unsure how their distribution practices may be impacted. Moreover, EPR rules regarding eCommerce vary from one European nation to another, making it difficult for businesses selling to multiple countries to stay abreast of all their obligations.

Ecoveritas has and will continue keeping track of and interpreting the EU's draft regulations and any law involving EPR. Our exclusive Global EPR Matrix offers a unique insight into environmental packaging laws that should educate you about your business's obligations.

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