The single-use plastic fund or the "plastic tax" in Germany

From 01.01.2024, according to the Single-Use Plastics Fund Act (EWKFondsG) of 11.05.2023, manufacturers will have to make an (additional) financial contribution based on the annual quantity of certain single-use plastic products placed on the market, which will be used to finance collection, cleaning, awareness-raising, data collection and transmission and administrative costs via a fund.

Note: Some of these obligations also affect manufacturers who already assume product responsibility for certain products, namely packaging, under the Packaging Act. This also includes the obligation to pay fees to the dual systems that manage the packaging waste generated by private end consumers. However, this law concerns the extended producer responsibility for certain waste from single-use plastic products generated in public spaces and is therefore separate from the fees paid to the dual systems.

The obligation to register will apply from 2024 and the obligation to pay the fee one year later from 2025.

Note: For manufacturers of fireworks, this obligation will apply two years later in each case; the obligation to register from 2026 and the obligation to pay the levy for the first time from 2027.

Personal scope of application

The personal scope of application is defined by the term manufacturer.

Manufacturers are all market participants who make available or sell the (filled or unfilled) single-use plastic products concerned on the German market for the first time on a commercial basis (against payment or free of charge). Manufacturer is therefore the (technical) producer, a filler, a seller or an importer. The term "manufacturer" within the meaning of the EWKFondsG is therefore much broader than in the VerpackG, which only defines the term "manufacturer" in terms of placing filled packaging on the market.

As the provision must take place "for the first time", a producer, filler, seller or importer who passes on a single-use plastic product that has already been made available on the market is not a manufacturer within the meaning of the law. In addition, operators of electronic marketplaces and certain fulfillment service providers through whom or by whom single-use plastic products are placed on the market are also affected.

Material scope of the application

The single-use plastic product determines the material scope of the law.

Single-use plastic products include a wide range of common, short-lived consumer goods that are thrown away after being used once for their intended purpose, are rarely recycled, and therefore easily become waste. In line with the causation principle, an extended producer responsibility regime will be introduced for certain single-use plastic products in this context.

The affected product groups include:

• "to-go" food containers
• Bag and film packaging with food content for to-go consumption
• Beverage containers with a filling volume of up to 3 liters
• Beverage cups, including their closures and lids
• Lightweight plastic carrier bags
• Wet wipes
• Balloons
• Tobacco filters (products)
• Fireworks (from 2026).

The above list of single-use plastic products affected is exhaustive. Other single-use plastic products are not affected by the levy. There are no threshold values for the plastic content; for example, a cardboard ice cream cup with a thin polymer coating is a single-use plastic product. The EWKFondsG also covers, for example, all conceivable types of sweets that are offered for sale in foil.

The fund is intended to cover the costs incurred by waste management companies for waste disposal, with manufacturers paying into the fund and eligible waste management companies receiving payments for services rendered each year. The Federal Environment Agency is responsible for administering the fund.

Registration and reporting obligation of the manufacturer

Every manufacturer will be subject to a registration and reporting obligation from 2024.

To record the manufacturers of single-use plastic products liable for payment, they must register electronically with the Federal Environment Agency (UBA) on the "DIVID" platform from 01.01.2024 and report to the Federal Environment Agency annually by 15.05. (for the first time by 15.05.2025), broken down by type and mass, the single-use plastic products they made available or sold on the market for the first time in the previous calendar year.

Note: The type and mass in kilograms of single-use plastic products made available or sold on the market for the first time must be reported. It is not the weight of the plastic content of the product packaging that is relevant, but the total weight of the product. However, in case of filters contained in tobacco products, only the filters count, as they constitute a single-use plastic product.

Obligation to check and confirm

The notification must be checked and confirmed by a third party; this may be an expert, auditor, tax consultant, or certified accountant registered by the Packaging Act. Only if the quantity of single-use plastic products concerned fell below 100 kilograms in the previous year (threshold value) or if only returnable bottles were placed on the market can an audit and confirmation be waived; however, a notification to the Federal Environment Agency must still be made regardless of this.

Market access block for failure to register

If an obligated party fails to register, market access for single-use plastic products will be blocked. There are also explicit obligations for non-manufacturers; they may not offer single-use plastic products if the manufacturer is not or not properly registered within the meaning of the EWKFondsG.

Manufacturers are well advised to comply with their notification obligations, as in the event of an assessment, not only is there a risk of a fine, but experience has shown that a so-called assessment surcharge will also be imposed on the manufacturer.