04. Who has to register?
The Verpackungsgesetz (Packaging Act) defines a company that is the first to place packaging filled with goods on the German market as a 'producer' – and every producer is required to register with the LUCID Packaging Register by no later than 1 July 2022.
A 'producer' required to register is therefore:
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any party who is the first to fill empty packaging with goods and place it on the German market (initial distributor);
- any party who is the first to import packaged goods into Germany, and place them on the German market (importer). As a matter of principle, the party who bears legal responsibility for the goods at the time they cross the border is regarded as the 'importer'. The producer can be
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located outside of Germany, shipping goods to Germany; or
- located in Germany, ordering the shipment.
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any party in the mail order business who is the first to fill and place shipment packaging on the German market (mail order company or online retailer);
An exception may apply to pre-participated service packaging: in the case of service packaging, the final distributor of this packaging can also request that the supplier/initial distributor of the empty packaging bears the registration requirement and other obligations; the final distributor will, however, still be required to register.
The Verpackungsgesetz (Packaging Act) distinguishes between packaging that is subject to system participation and packaging that is not subject to system participation.
Packaging subject to system participation is retail or grouped packaging filled with goods that typically accumulates as waste with private final consumers after use. Retail packaging includes shipment and service packaging.
Packaging that is not subject to system participation includes: single-use beverage packaging subject to deposit, retail and grouped packaging that does not typically accumulate as waste with private final consumers, retail packaging for hazardous contents, transport packaging, retail and grouped packaging for which system participation is excluded due to system incompatibility, and reusable packaging.
For a graphic that helps you delineate between packaging subject to system participation and packaging not subject to system participation, please click here.
Within the meaning of the Verpackungsgesetz (Packaging Act), the producer subject to registration is generally the party that is the first to commercially fill packaging with goods and place it on the German market.
The material meaning of the term 'producer' goes beyond the interpretation of that term found in practice, namely that only the party producing a product is the producer. There are many circumstances under which a retailer/distributor will be classified as a producer. Examples include the following:
- retail companies that have a contract manufacturer produce packaged goods, with the packaging bearing only the name of the retail company ('Who is considered to be the distributor in the case of own brands retail?')
- Retail companies located outside Germany that export packaging filled with goods to Germany, and that are legally responsible for the goods at the time they cross the border
- Retail companies located within Germany that import packaging filled with goods to Germany, and that are legally responsible for the goods at the time they cross the border
- International mail order companies that export packaging filled with goods to Germany, and that are legally responsible for the goods at the time they cross the border
- Domestic mail order companies that import packaging filled with goods into Germany, and that are legally responsible for the goods at the time they cross the border
- Mail order companies that fill shipment packaging with goods and send it to final consumers
- Companies that have commissioned a fulfilment service provider pursuant to section 3 (14c) VerpackG (Packaging Act)
Further information about the term 'producer' can be found in this graphic.
In general, online retail is subject to the same provisions as mail order companies or businesses.
'Producers' subject to registration and system participation also include
- online shops located outside of Germany that deliver packaged goods directly to private final consumers in Germany, and
- online retailers located within Germany that take returned products, repair them and send them back to final consumers in their own packaging.
Commissioning fulfilment service providers
The amended version of the Verpackungsgesetz (Packaging Act – VerpackG), parts of which entered into force on 3 July 2021, contains specific provisions concerning the responsibility of distributors – including mail order companies and online retailers – regarding shipment packaging where fulfilment service providers are used. These provisions can be found in section 7 (7) and section 3 (14c) VerpackG:
In accordance with these provisions, fulfilment service providers who fill shipment packaging subject to system participation packaging with goods are not considered producers within the meaning of the Verpackungsgesetz. Instead, the producer of the shipment packaging is the distributor of the goods who has commissioned the fulfilment service provider. As such, it is the distributor who must register the shipment packaging and ensure its system participation.
The distributor under obligation pursuant to the Verpackungsgesetz will then have to request the information required for system participation – such as the shipment packaging volumes and material types – from their fulfilment service provider. Under section 3 (14c) VerpackG, a fulfilment service provider is anyone offering at least two of the following services for distributors in the course of their business activities: warehousing, packing, addressing and dispatching goods over which they have no ownership. Post, parcel delivery or other forwarding agents are not classified as fulfilment service providers.
Starting 1 July 2022, fulfilment service providers will only be able to provide their fulfilment services if the commissioning distributor has registered in the Packaging Register and the packaging (shipment and product packaging, as applicable) has participated with a system.
Where imports are concerned, special provisions may apply. Please see our subject-specific paper on imports for more information.
A special provision applies to final distributors of service packaging: they can buy 'pre-participated' unfilled service packaging from a supplier or wholesaler. In this situation, the supplier or wholesaler has already paid for the packaging's recycling. That is called 'pre-participation'. This option is only available for service packaging. It allows final distributors to delegate their own packaging law obligations to an upstream distributor of unfilled packaging. Final distributors of service packaging also have to register with the LUCID Packaging Register by no later than 1 July 2022 and indicate there that they are placing service packaging on the German market.
Those who purchase exclusively 'pre-participated' service packaging have to indicate this when registering in the LUCID Packaging Register and confirm the pre-participated purchase there. To do so, they have to check the box that says 'Exclusively pre-participated service packaging' when providing details on their packaging types. (Refer to 'What is service packaging?' and 'What special provisions apply to service packaging?') Further information can be found in our 'Service packaging' knowledge base.
However, the Verpackungsgesetz (Packaging Act) also contains provisions for the production of packaging, e.g. restrictions on substances (section 5) or regulations on labelling packaging (section 6). These provisions apply to empty packaging and therefore the manufacturers of the packaging.
Additional FAQ: nearby vicinity as applies to service packaging
Any time a transfer to a third party in the course of business actually occurs, this is considered to be 'placing on the German market' or 'distribution' within the meaning of the Verpackungsgesetz (Packaging Act). It is immaterial whether the transfer is in exchange for money or not. Registration and system participation (where applicable) is required, for example, for sample goods or giveaways or other complementary transfers of packaged goods, as long as this occurs as part of the practice or promotion of a commercial activity. This includes every transfer that occurs in the course of product distribution. The critical factor is that a third party takes possession of the packaging.
Anyone who has registered or has to register their self-employment as a business, or anyone who generates income from commercial activities, independent work or agriculture and forestry within the meaning of German income tax law, is operating commercially within the meaning of the Verpackungsgesetz (Packaging Act).
Even an individual who claims losses against taxes owing to their activity or computes profit from agriculture and forestry on the basis of average rates (section 13a (6) EStG (Income Tax Act)) is operating commercially.
Further information can be found in our informational booklet on commercial placing onto the German market. FAQ: Commercial initial distribution
If retail packaging is placed on the German market on behalf of a (retail) company, using that company's own brand and/or name without naming the filling company on the packaging, the party that orders the filling is considered to be the producer/initial distributor if the packaged goods are also handed over to the ordering party. The filling party is not the producer/initial distributor in this case.
The registration and system participation requirements depend on the status as a 'producer' or 'initial distributor' within the meaning of the Verpackungsgesetz (Packaging Act). Within the meaning of the Verpackungsgesetz, a producer/initial distributor is any party that is the first to commercially hand over retail and/or grouped packaging that is filled with goods and that typically accumulates as waste with private final consumers (private households or comparable sources of waste generation, such as administrative offices, restaurants or hospitals) to a third party in Germany with the intent that it be distributed, consumed or used (section 3 (9) VerpackG). This is generally the manufacturer of the packaged product. This party must register as a producer with the Packaging Register and ensure the relevant packaging participates in a system.
Section 3 (9) VerpackG provides for an exception, but this exception only applies if the goods' packaging
- is filled because a third party commissioned/ordered the filling and
- the filled packaging is handed over to that third party and
- only the name and/or brand of that third party is visible on the packaging.
In such cases, the ordering party must undertake system participation and registration and is considered the producer within the meaning of the Verpackungsgesetz.
The precise information shown on the packaging is the deciding factor. It is only in cases where the contract packager cannot be ascertained from the packaging, that the producer status is transferred to the ordering party. Labelling (e.g. as may be required under food law) that does not indicate the name (identifying marker) does not constitute naming for the purposes of section 3 (9) VerpackG. The registration number for the LUCID Packaging Register qualifies as an identifying marker, but not as indicating a name.
If the name of the contract packager appears, e.g. with the phrase "manufactured for [name/brand of retail company]", it is the filling party/contract packager who is the initial distributor/producer and therefore the party under obligation under the Verpackungsgesetz.
Indications without name attribution (identifying markers such as the approval number or health mark in accordance with Regulation (EC) 853/2004 for foodstuffs or even the registration number of the LUCID Packaging Register) are not considered name attribution within the meaning of section 3 (9) VerpackG. For this reason, identifying markers that refer to a company other than the one mentioned on the packaging cannot rule out application of section 3 (9) VerpackG on their own. Section 3 (9) VerpackG must be applied if the other requirements are met. If retail packaging is placed on the German market on behalf of a (retail) company, using that company's own brand and/or name without naming the filling company on the packaging, the party that orders the filling is considered to be the producer/initial distributor if the packaged goods are also handed over to the ordering party. The filling party is not the producer / initial distributor in this case. In such cases, the ordering party must register and undertake system participation, as applicable, and is considered the producer within the meaning of the Verpackungsgesetz.
Through research, identifying markers can often allow conclusions to be drawn about the company marked. They typically bear no relevance under packaging law. In any case, further steps are required with identifying markers to determine the company marked. For this reason, if the name of the other company is not indicated, identifying markers do not lead to non-applicability of section 3 (9) VerpackG. Identifying markers are required under food law for some foodstuffs in particular to indicate origin, but they bear no relevance under packaging law.
Mandatory specification of names owing to other legal provisions that are not related to producer status under packaging law cannot on their own rule out application of section 3 (9) VerpackG. Section 3 (9) VerpackG must be applied if the other requirements are met.
For transparency reasons, however, the legal provision that requires additional names should be specified, e.g.: "Responsible person under the KosmetikV: [name]".
Additional names specified that differ from the producer under packaging law may be mandatory in part owing to legal provisions, e.g. under the Kosmetikverordnung (Cosmetics Ordinance – KosmetikV). They do not lead to non-applicability of section 3 (9) VerpackG if the additional name attribution bears no relevance under packaging law.
Any party who is the first to import packaged goods into Germany, and place them on the German market, is considered an importer and subject to registration. The importer can be
- located outside of Germany, shipping goods to Germany; or
- located in Germany, ordering the shipment.
As a matter of principle, the party who bears legal responsibility for the goods at the time they cross the border is regarded as the 'importer'.
Further information can be found in our knowledge base "Guidance for importers".
The packaging of printed/publishing products is subject to system participation when these products are classified as goods. In the case of, for example, invoices or unaddressed direct mail sent in envelopes it can be unclear whether they qualify as goods or not. Here, the question is whether the focus is on transmitting a notional content (in this case the document does not qualify as goods) or on the physical aspect (in this case it does qualify as goods).
Further information can be found in our informational booklet on documents, papers, magazines, etc. FAQ: documents, papers, magazines, books, manuals, direct mail, advertising brochures, etc. Delineation between goods/non-goods for the categorisation of packaging
For information about when an item qualifies as packaging and which criteria will be applied when determining packaging status, please see our subject-specific paper 'Delineation between packaging and non-packaging'.
Packaging subject to system participation is retail or grouped packaging filled with goods that typically accumulates as waste with private final consumers after use.
Retail packaging is packaging that typically is filled with goods and offered to final consumers in this form. Service packaging and shipment packaging are also retail packaging.
Service packaging is packaging that is not filled with goods until it reaches the final distributor where it is handed over to the final consumer, e.g. sandwich bags at the bakery, takeaway containers at fast food restaurants, carrier bags, takeaway coffee cups.
Further examples include:
- cups for hot beverages, including lids;
- cups for cold beverages;
- vending machine cups;
- cups for ice cream, milk shakes, spirits, etc.;
- containers and cups for foodstuffs, e.g. soups, smoothies, cereals, popcorn, etc.;
- plates and bowls for soups, combination plates, etc.;
- salad containers, combination meal containers, with or without lids;
- trays and bowls, e.g. for cakes, sausages, salads, chips, etc.;
- combination meal and snack boxes, e.g. lunch boxes, noodle boxes, pizza boxes;
- bags, wrapping, sheets, conical bags, e.g. sandwich bags, thermal bags, wraps, chip bags, etc.;
- produce roll bags, bags, conical bags and wrappings given out in the course of fruit and vegetable retail – in direct sales, weekly markets or in the fruit and vegetable areas of grocery stores;
- bags, sheets, wrappings given out at fresh food counters in stores, artisanal food production businesses or fine food retailers;
- carrier bags of all kinds;
- wrappings and bags given out by laundrettes and dry cleaners;
- netting, flower wrapping, flower foils, wrappings given out by florists, gardening centres or given out with Christmas trees;
- other packaging, including cake doilies, cake toppers, manchettes, carriers, etc.
No. Filling will also be considered to have taken place on the premises of the final distributor if the packaging was not filled directly at the point of sale, but in the nearby vicinity, e.g. in a separate production or work room adjacent to the sales area. The criterion of 'nearby vicinity' is fulfilled if the filling and handing over to the final consumer takes place at the same premises of the final distributor, or up to a few hundred metres from there. It is generally not fulfilled if the filled packaging was transported on a public road between the point of filling and the point of sale / point of handing over to the final consumer. As an example: where packaging is filled centrally and then transported to various branches, 'nearby vicinity' no longer applies. That is to say, the packaging is not classed as service packaging.
Further information about the 'nearby vicinity' criterion can be found in the following informational booklet. FAQ: on 'nearby vicinity' as applies to service packaging
No. Packaging filling may also occur prior to the actual handover to a final consumer. Usually, however, the packaging will be filled at the same time that it is placed onto the German market (handover to the final consumer).
A special provision applies to final distributors of service packaging: they can buy 'pre-participated' unfilled service packaging from a supplier or wholesaler. In this situation, the supplier or wholesaler has already paid for the packaging's recycling. That is called 'pre-participation'. This option is only available for service packaging. Final distributors placing exclusively service packaging on the German market and buying only pre-participated packaging have to register with the LUCID Packaging Register starting 1 July 2022. They will need to confirm the pre-participated nature of the purchase during the registration process. To do so, they have to check the box that says 'Exclusively pre-participated service packaging' when providing details on their packaging types. (Refer to 'What is service packaging?'). Further information can be found in our 'Service packaging' knowledge base.
Final distributors can request that one of the upstream distributors that delivered the unfilled service packaging to them participate this packaging with a dual system. In this situation, the final distributor should make sure that an upstream distributor has indeed fully complied with the system participation requirement. The supplier/wholesaler is required to provide that confirmation. It should also be noted that the final distributor's system participation requirement for other service, retail or grouped packaging remains unaffected.
Final distributors can also, however, fulfil all of their packaging law obligations themselves: registering with the LUCID Packaging Register, concluding a system participation agreement, submitting data reports on packaging volumes to their chosen system(s) and the LUCID Packaging Register.
Ideally, system participation should be documented by the upstream distributor on the invoice / delivery note so that the final distributor always has comprehensive compliance documentation. Alternatively, the final distributor needs another form of appropriate documentation to provide evidence that the upstream distributor has participated the purchased service packaging with a system, in full.
No, that is not possible. The possibility to pass on the system participation requirement serves to reduce the burden especially for small and medium-sized artisanal food production businesses. In the case of service packaging, they are able to shift the system participation requirement and require an upstream distributor (e.g. the supplier of such packaging) to undertake system participation. However, that party in turn does not have a right to shift the requirement onward.
Shipment packaging enables or facilitates the shipment of goods to final consumers.
Any party who fills the shipment packaging with goods and places it on the German market for the first time bears producer responsibility for it. Because the shipment packaging facilitates the delivery of the goods to final consumers, and therefore typically accumulates as waste with final consumers, it is always considered to be retail packaging. If it typically accumulates with private final consumers, the mail order company is subject to system participation.
Commissioning fulfilment service providers
The amended version of the Verpackungsgesetz (Packaging Act), parts of which entered into force on 3 July 2021, contains specific provisions concerning the responsibility of distributors – including mail order companies and online retailers – regarding shipment packaging where fulfilment service providers are used. These provisions can be found in section 7 (7) and section 3 (14c) VerpackG:
In accordance with these provisions, fulfilment service providers who fill shipment packaging subject to system participation with goods are not considered producers within the meaning of the Verpackungsgesetz. Instead, the producer is the distributor of the goods who has commissioned the fulfilment service provider. As such, it is the distributor who must register the shipment packaging and ensure its system participation.
The distributor under obligation pursuant to the Verpackungsgesetz will then have to request the information required for system participation – such as the shipment packaging volumes and material types – from their fulfilment service provider.
Under section 3 (14c) VerpackG, a fulfilment service provider is anyone offering at least two of the following services for distributors in the course of their business activities: warehousing, packing, addressing and dispatching goods over which they have no ownership. Post, parcel delivery or other forwarding agents are not classified as fulfilment service providers.
Since 1 July 2022, fulfilment service providers may only provide their fulfilment services if the commissioning distributor has registered in the Packaging Register and the packaging (shipment and product packaging, as applicable) has participated with a system.
Where imports are concerned, special provisions may apply. Please see our subject-specific paper on imports for more information.
All of the packaging material, including filler material, that is placed onto the German market in the process of sending or handing over goods to the final consumer (where it accumulates as waste) is considered shipment packaging and is subject to data reporting and system participation.
Grouped packaging serves to bundle one or more articles of retail packaging and is typically offered along with the retail units to final consumers or is used to stock retail shelves.
If the grouped packaging typically accumulates as waste with private final consumers, it is subject to system participation and registration.
Transport packaging serves to facilitate the transportation of goods between individual distributors, and to prevent damage from occurring during transit. Transport packaging remains at retail shops and is not intended to be handed over along with goods to final consumers. Special return and recovery requirements apply for transport packaging.
Since 1 July 2022, initial distributors of transport packaging have been required to indicate this packaging type when registering with the LUCID Packaging Register. Producers who had already registered before 1 July 2022, have to undertake a registration amendment to reflect this packaging type.
If packaging that is meant to facilitate the transportation of goods accumulates with a final consumer, then it is considered to be shipment packaging. This packaging requires the distributor to not only register, but to also participate the packaging in a system if it typically accumulates as waste with private final consumers.
Starting 1 July 2022, the registration requirement will apply to all packaging that has been filled with goods – regardless of whether it is 'used packaging' or not. Whenever packaging is commercially filled with goods for the first time, the filler is considered to be the producer. This means that the filler has to register with the LUCID Packaging Register and indicate the packaging type.
If used packaging is placed on the German market for the first time, for typical use with private final consumers, then its initial distributor must register and participate the used packaging in a system. Only where distributors have definite evidence that the packaging they are using has already undergone system participation does the system participation requirement fall away.
A final consumer is someone who does not go on to sell the goods in the form delivered to them. 'Private final consumer' means private households and sources of waste generation comparable to them, in terms of the packaging that typically accumulates there (so-called comparable sources of waste generation).
Examples of comparable sources of waste generation include:
- restaurants, hotels, service stations, canteens;
- administrative offices, barracks, hospitals;
- educational institutions, charitable facilities, freelancer offices;
- cultural sources of waste generation such as cinemas, opera houses, museums;
- leisure sources of waste generation such as holiday facilities, leisure parks, sports stadiums;
- as well as agricultural holdings and craft enterprises where their packaging waste is collected at the rate that is normally associated with private households and in waste bins that do not exceed 1,100 litres each for plastics, metal and composite packaging or paper/paperboard/cardboard.
A list of 'comparable sources of waste generation' can be found in the following document. List of 'comparable sources of waste generation'
Whether packaging 'typically' accumulates as waste with private final consumers depends on a forward-looking assumption (ex ante analysis). It does not depend on whether a specific item of packaging can be proven to have accumulated as waste with a private final consumer; a generalised assessment needs to be made.
If an article of packaging usually accumulates with private final consumers, this is considered to be 'typical'. Whether this is or is not the case should be assessed bearing in mind prevailing practice. To this end, objective criteria should be considered, such as the contents of the packaging (who tends to use the goods), the design of the packaging (e.g. its size, closures, dosage aids) and other features (e.g. content volume, material, weight), as well as the typical distribution channel (e.g. retail stores, wholesalers).
However, it must be noted that not only private households are deemed to be private final consumers within the meaning of the Verpackungsgesetz (Packaging Act), but also sources of waste generation in commercial settings, in the leisure sector and at charitable facilities (refer to 'comparable sources of waste generation') (English link coming soon).
Examples:
- Flour is sold in a 18-kilogram bag to a small bakery. The bakery does not sell the flour in that form; it uses it to bake bread. The bakery is the final consumer of the flour, and the bag is therefore retail packaging.
- A convenience store sells ice lollies. They are delivered in large transport boxes (which in turn hold several smaller boxes containing the ice lollies). The convenience store sells the goods; however only the ice lolly in its immediate packaging is received by the final consumer. The transport box remains at the convenience store, and is therefore deemed transport packaging. The primary packaging around the ice lolly itself is, however, packaging subject to system participation.
The Zentrale Stelle Verpackungsregister (Central Agency Packaging Register – ZSVR) has published the 'system participation requirement catalogue' containing the classifications of different types of packaging, taking into consideration the criteria mentioned above. This catalogue is an administrative regulation. To receive legal certainty beyond the catalogue, you can apply to the ZSVR to receive a determination about whether a specific article of packaging is subject to system participation.
If there is no registration, then the packaged goods are banned from distribution. This distribution ban also applies to downstream distributors. In addition, a producer who has committed an administrative offence by failing to register may be subject to a fine of up to €100,000.
The register is public and features a search function so that anyone (e.g. clients, competitors, enforcement authorities, systems, and environmental and consumer associations) can check whether an initial distributor of packaging complies with the law. Pursuant to section 9 (4) VerpackG (Packaging Act), the Zentrale Stelle Verpackungsregister (Central Agency Packaging Register – ZSVR) must make the following information publicly accessible:
- Name, address and contact details of the producer (in particular postcode and town/city, street address, country and telephone number) as well as VAT number or taxpayer reference number
- Brand names under which the producer places packaging on the German market
This transparency is the purpose of the public register. In the past, many initial distributors (producers, retailers) have failed to discharge their legal producer responsibility. Other producers have had to bear the cost of these 'free riders'. The register is designed to bring an end to those competitive distortions. In tandem with interventions by the ZSVR as an authority, or by state enforcement authorities, all acting within their respective remits, this makes it possible for market participants to assess or take steps of their own under civil law so as to prevent unfair competitive disadvantages.
The Zentrale Stelle Verpackungsregister (Central Agency Packaging Register – ZSVR) must publish the registered producers, along with the following information:
- registration number (this remains the same, even where changes are reported);
- registration date (reports of any changes will contain the date on which changes were reported);
- name, address and contact details (in particular postcode and town/city, street address, country and telephone number);
- VAT number or taxpayer reference number
- brand names under which the producer places packaging subject to system participation onto the German market.
The public register of producers has a search function. The search function can be used to find the published information set out above. There is no print function within the register of producers. However, the usual technical functions available in browsers (for example) can be used to capture screenshots or download and print out information.
Please see the 'Register excerpt' page, which can be found on this website in the 'LUCID Packaging Register' section.
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