EUROPEN memo-The environmental and economic objectives of the Packaging and Packaging Waste Directive will be better served by preserving the Internal Market as its sole legal basis

EUROPEN strongly believes that the legal basis of the European Commission’s proposed amendment and of the parent PPWD should remain the Internal Market for the following reasons:

  1.  The fundamental environmental objectives of the circular economy will be undermined if the internal market principle is lost
  2. The EU’s competitiveness will be negatively impacted if economies of scale needed for sustainable, innovative and affordable packaging would no longer benefit from free access across all Member States
  3. The legal and regulatory uncertainty created by the introduction of a different legal basis will have a chilling effect on investment, innovation, growth and jobs in Europe. If Member States take unilateral measures their own ability to export packaged goods will be limited.
  4. Existing safeguards against national protectionist or discriminatory measures and thus against barriers to the free movement of packaging and packaged goods in the EU Internal Market would be put at risk. The potential introduction of Article 192 TFEU as a basis for Article 5 on ‘Reuse’ for example is likely to lead to Member States taking divergent measures of which both the Commission and the ECJ have confirmed in the past that they may create barriers and undermine the correct functioning of the single market
  5. No impact assessment has been carried out in line with the Better Regulation agenda to understand the potential consequences of changing the legal basis
  6. Using Article 192 TFEU as the legal basis for amendments to the PPWD is considered to be extremely problematic since it would create legal uncertainty about the Member State's residual competences and their notification obligations
  7. Amendments to legislative acts must take into account the context of the “amended act” in order to avoid the continuous erosion of its core purpose and the impairment of its cohesion and operational effectiveness