§27 Flexibility for Member States to set additional or higher re-use targets

Legal provisions: Article 29(15) lays down: ‘Subject to the conditions set out in Article 51, Member States may set targets for economic operators that exceed the minimum targets set out in paragraphs 1, 2, 3, 5 and 6 of this Article to the extent that such higher targets are necessary for the Member State to achieve one or more of the targets set out in Article 43.’ Article 29(16) lays down: ‘Subject to the conditions set out in Article 51, Member States may set targets for economic operators with regard to beverages made available in sales packaging which does not fall under paragraph 6 of this Article, if those additional targets are necessary for the Member State to achieve one or more of the targets set out in Article 43.’ (1) ‘Member States shall take measures to encourage the establishment of re-use systems for packaging with sufficient incentives for return and of refill systems in an environmentally sound manner. Those systems shall comply with the requirements laid down in Articles 27 and 28 and Annex VI and shall not compromise food hygiene or the safety of consumers. (2) The measures referred to in paragraph 1 may include: (…) (c) obligations on manufacturers or final distributors to make available in reusable packaging within a re-use system or through refill a certain percentage of products other than those covered by the re-use targets laid down in Article 29, on condition that that does not lead to distortions on the internal market or trade barriers for products from other Member States.’ Article 33(6), which is related to the re-use offer obligation in the take-away sector, refers to Article 51 as regards the conditions pursuant to which a Member State may set targets that go beyond the minimum 2030 indicative target of 10 % laid down in Article 33(5) PPWR for take-away packaging ‘to the extent that higher targets are necessary for the Member State to achieve one or more of the targets set out in Article 43.’ Commission’s interpretation To achieve the waste prevention targets in the PPWR, Member States may need to complement the EU measures with national measures, such as higher or additional national re-use targets for packaging. However, in doing so, Member States need to comply with certain strict conditions: (a) As regards the conditions under Article 51, the Commission considers that the cumulative conditions that need to be fulfilled to increase the re-use targets in Article 29(15), need to be fulfilled also for setting new re-use targets pursuant to Article 51(2)(c), which allows Member States to establish re-use targets for products not covered by the re-use targets contained in Article 29. These conditions are the following: — The new targets are necessary for the Member State to reach its waste reduction targets (5 % by 2030; 10 % by 2035; 15 % 2040), which it must prove with facts and data; and — The new targets do not lead to distortions on the internal market or trade barriers for products; and — The new targets are notified via TRIS procedure, which establishes that Member States must notify their legislative proposals to COM to prevent creating barriers to the internal market, since such measures are technical regulations. Article 51(2)(c) permits Member States to establish re-use targets for products not covered by the re-use targets contained in Article 29, and that are not explicitly exempted in Article 29, which means, for instance, that it allows Member States to set re-use targets for the take-away sector. This is explicitly allowed also by Article 33(6) of the PPWR. Therefore, if a Member State wants to set new national re-use targets in other sectors or for packaging formats or products other than those listed in Article 29, it needs to prove that this is necessary to meet its waste prevention targets. This assessment should be included when a Member State notifies such measures in the TRIS notification system. (b) While Article 43 allows Member States to set higher national packaging waste prevention targets than those set out at EU level (31), higher national prevention targets cannot be used as a justification to increase the harmonised EU-level re-use targets. This stems from the principle of primacy of EU law over national law as, otherwise, the objective of market harmonisation could be compromised by Member States. (c) Unless otherwise provided, Member States cannot alter directly applicable and harmonised EU provisions. They cannot: — set re-use targets for transport packaging, such as cardboard boxes, which are expressly exempted from re-use under PPWR, or — make indicative re-use targets for year 2040, as laid down in second sub-paragraph of Articles 29(1), 29(5), and 29(6), binding.

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07