The European Court of Justice has found against the German packaging legislation in two cases. The first decision helps clarify Article 5 of the Directive 94/62/EC on packaging and packaging waste concerning reusable packaging. The second case concerns a complaint brought by an Austrian company selling beverages in Germany, which has been adversely affected by the introduction of a deposit scheme for non-refillable beverage containers.

Citing European packaging industry body Europen, Pack-Plus reports that the judgement in the first decision confirms that the Directive does not establish a hierarchy between the reuse of packaging and the recovery of packaging waste. The court ruled that Germany has failed to fulfil its obligations under Article 5 of the EU Packaging and Packaging Waste Directive and Article 28 of the EU Treaty by establishing a system of reusable packaging for producers of natural mineral waters that are required by another EU law to be bottled at source. Additionally, the Court stated that the German law also puts at a disadvantage companies in other Member States that produce and distribute other types of dinks in non-reusable packaging.

Both decisions were welcomed by EUROPEN the organisation which represents most of the packaging and packaging goods companies in Europe on matters relating to environmental legislation The organisation has consistently argued the principle in the first decision. The difference in environmental impacts between refillable and non-refillable packages varies according to local circumstances and is nearly always marginal.

"More than any other, Article 5 of the 1994 Directive has posed difficulties for industry and for regulators," says Julian Carroll, EUROPEN‘‘s managing director. The interim report of a study currently being undertaken for the European Commission into the implementation and impact of the Directive shows that half of the complaints about its implementation by member sates relate to beverage packaging, and half of those relate to requirements for refillable packaging. "This is an important decision for the packaged goods industry," says Carroll. "It upholds and reaffirms the principles of the internal market and the free movement of goods. It has also added to the case law on the application of the proportionality principle in environmental law."

In the second case the court ruled that the Packaging and Packaging Waste Directive and Article 28 of the EU Treaty obliged Germany to assure that when packaging waste management systems are changed, economic operators can actually participate in an operational system as soon as it enters into force. This decision has helped clarify conditions which deposits systems for non-refillable beverage containers must respect in order to prevent market distortions and discrimination against products from outside the member states. Failure of the German deposit system, introduced in January 2003, to prevent such distortions and discriminations prompted the European Commission in October this year to threaten Germany with a further referral to the Court unless the system was amended within three months