Germany has followed suit. Since countries such as Spain and the United Kingdom have already introduced a plastics tax, the German legislature has also passed a "plastics tax" in the form of the Single-Use Plastics Fund Act of May 11, 2023, or "EWKFondsG" [BGBl. (German Federal Law Gazette] I 2023, No. 124, dated May 15, 2023). The plastics tax will be introduced on 1 January 2024 and is first payable in 2025. While this means that there is still more than one and a half years of time left until the first assessment of the levy, it is advisable for affected companies to deal with the new tax on single-use plastic products (EWK products) in order to complete the necessary preparations in a timely manner. By the beginning of 2024, companies must identify the extent to which they are subject to the levy administered by the German Federal Environment Agency (UBA/Umweltbundesamt) to create the conditions for fulfilling the future reporting obligations, if necessary.
I. Background pursuant to European Union law
With the "EU Green Deal" of December 11, 2019, the EU Commission developed a package of measures to reshape the economy and society in a climate-neutral and sustainable way by 2050. The package, which covers all policy areas, encompasses not only the most prominent elements, such as the reduction of greenhouse emissions or the decarbonization of the energy sector, but also the advancement of the circular economy. The latter means, on the one hand, creating incentives for climate-neutral and circular pollutant-free products and, on the other hand, providing for significant compensation measures for environmentally harmful disposable products. To this end, in the relationship between the EU and the Member States, the EU/Euratom Council Decision of 14 December 2020 introduced the EU plastic tax. In addition, with Directive 2019/904 of June 5, 2019, the EU created the framework for the implementation by member states of measures to reduce the impact of certain plastic products on the environment in terms of so-called "extended producer responsibility" (EPR). Germany is implementing this directive with the EWKFondsG.
II. EWKFondsG - Objective, scope of application, reporting obligations, classification findings, sanctions
The objective of the EWKFondsG is to avoid and reduce the impact of certain single-use plastic products on the environment and human health and to promote innovative and sustainable business models, products, and materials (§ 1 EWKFondsG). To achieve this, the market behavior of the obligated parties is regulated. To this end, the special levy flows into a fund to be set up from which the waste management companies will in future be reimbursed for costs incurred in connection with the disposal and reduction of certain single-use plastic products (§§ 15 ff. EWKFondsG). The reimbursement includes collection, cleaning, public awareness, data collection and transmission, and administrative costs.
The scope of application of the EWKFondsG covers the marketing of certain single-use plastic products. This applies to products that consist wholly or partly of plastic, i.e., polymers (as defined in Art. 3 No. 5 of the REACH Regulation). Annex 1 to the EWKFondsG lists the products concerned in detail. The focus is on single-use plastic products in the food sector, e.g., boxes with and without lids for food, film packaging with food or beverage containers up to three liters or beverage cups. Lightweight plastic carrier bags as well as certain wet wipes, balloons, filters for tobacco products and - from 2026 - fireworks complete the list.
The individual scope of application is defined by the term "manufacturer". Beyond the actual wording, all market participants (natural person, legal entity, and partnership with legal capacity) are covered in addition to producers, who provide or sell the single-use plastic products concerned commercially on the German market for the first time and against payment or free of charge. This also includes the filler, seller, and importer, both established and non-established market participants in Germany. "Manufacturers" in this sense must register in the central register at the Federal Environment Agency in the course of 2024. In addition, operators of electronic marketplaces and certain fulfillment service providers are affected, by or through which the market distribution of single-use plastic products takes place.
The reporting of the "manufacturers" must be made to the Federal Environment Agency by May 15 of each year. The content of the report concerns the mass of single-use plastic products first put into circulation in Germany by the respective "manufacturer" in the previous calendar year (§ 11 EWKFondsG). An exception to the reporting obligation applies to "manufacturers" who distributed less than 100 kg of the products concerned or only deposit bottles for the first time in the previous year. The reporting shall be effected first time for 2024. Based on the notification, which is categorized according to the type and mass of the single-use plastic products, the assessment of the levy is carried out by means of an official assessment notice. A specific levy rate is applied to the declared mass of the respective single-use plastic product. The levy rates are promulgated by ordinance, regularly reviewed, and adjusted if necessary. According to the draft of the Single-Use Plastics Fund Ordinance (EWKFondsV), the levy rate is, for example, EUR 0.180 / kg for non-deposited beverage containers up to three liters or EUR 3.790 / kg for lightweight plastic carrier bags. If necessary, appeals may be lodged against the decision on the levy, but they do not have a deferring effect. The due date of the levy, one month after receipt of the notice, is therefore not suspended.
The determination of the classification of a product as a single-use plastics product or the "manufacturer" status of a market participant can be applied for at the Federal Environmental Agency (§ 22 EWKFondsG). This is since the classifications are not always clear-cut and may be complex.
Sanctions are provided for "manufacturers" as well as operators of electronic marketplaces and fulfillment service providers, depending on the type of violation (§ 26 EWKFondsG). For example, the Federal Environment Agency is authorized to assess in the event of insufficient or inadequate annual reporting. In the event of a delay of more than three days in the payment of the levy due, a one percent late payment surcharge is incurred above a de minimis threshold. Deliberate or negligent violations of registration or reporting obligations constitute administrative offenses punishable by up to EUR 100,000.
III. Recommendation for Practice
All market participants who are affected or at least cannot rule out being affected should immediately familiarize themselves with the EWKFondsG.
Initially, it must be established whether the market participants and their products fall within the material and personal scope of application of the EWKFondsG. In supply chains, for example, this involves the question of who (still) manufactures or trades in semi-finished products and who finally places single-use plastic products on the market, which is subject to the mandatory levy. If necessary, registration in the central register of the Federal Environment Agency should be initiated as of January 1, 2024, and classification issues should be clarified in advance in the application process.
At the same time, internal structures, and processes (IT, CMS) should be reviewed and adapted to ensure that the requirements of the EWKFondsG are met.
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