Have you filled this packaging with goods on behalf of a third party?

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.
 

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.

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.