Ombudsman: Commission failed to pursue Germany over Packaging Regulation

08/05/06 The European Ombudsman, P. Nikiforos Diamandouros, has criticised the European Commission for not taking further steps to make Germany comply with a judgment of the European Court of Justice. The Court had ruled that the German Packaging Regulation for certain drinks constituted a barrier to intra-Community trade. The Commission could rectify its failure in the course of a second infringement procedure concerning the Regulation that is currently ongoing, says the Ombudsman.

In July 2002, the German authorities announced that, as from 1 January 2003, a deposit and return system would become obligatory for non-reusable packaging for mineral water, beer and soft drinks.

Following infringement proceedings against Germany brought by the Commission, the Court of Justice held that the relevant rules constituted a barrier to intra-Community trade since producers and distributors had not been given enough time to adapt to the new rules. In a second judgment that was rendered in response to a request for a preliminary ruling from a German court, the Court of Justice held that a deposit and return system could only be introduced if a sufficiently long transitional period was granted. The Court further ruled that the change to a new packaging-waste management system was only compatible with Community law if an operational system existed at the time of change.

In March 2005, a lawyer acting for several European beverage companies complained to the Ombudsman that the Commission had failed to take the necessary steps to make Germany comply with the Court's judgments. The Commission argued that the judgments did not provide a legal basis to require Germany to suspend the relevant rules. It submitted that the judgment in the first case had exclusively been based on the finding that the transitional period had not been sufficiently long and that enough time had passed in the meantime. The Commission further argued that the second judgment was irrelevant for present purposes since it was only a preliminary ruling.

The Ombudsman found the Commission's argument unconvincing. In his view, the Court’s judgement meant that a transitional period must precede the introduction of a new system. The Ombudsman also considered that the Commission's position that no further action needed to be taken could only be justified if an operational packaging-waste management system was available in Germany at the time when the Commission had adopted the said position. However, it was clear that, when adopting that position, the Commission had not yet ascertained whether this was indeed the case. The Ombudsman therefore considered the Commission's approach to be inconsistent or even contradictory. In a critical remark, the Ombudsman therefore concluded that the Commission had failed to provide valid arguments to show that no further steps were necessary. As a second infringement procedure concerning the German Regulation is still ongoing, the Ombudsman considers the Commission could take his observations into account in the context of that procedure.