On 30 October 2015, Law no. 249/2015 on the management of packaging and waste derived from packaging (the "Law"), was published in the Official Gazette no. 830 and entered into force on 2 November 20151. The Law repeals Government Decision no. 621/2005, published in the Official Gazette of Romania no. 639 of 20 July 2005 and seeks to implement EU Directive 94/62/CE as subsequently amended and supplemented by the European Parliament.
- Obligations Imposed Upon Operators
One of the key provisions of the Law is the introduction of certain specific obligations which are imposed upon business operators (the "Operators") regardless of whether they actually produce the packaging for their products or if they sell their products in already reusable/reused packages.
Specifically, the producers of packaging are required to mention "Reusable" on the package (if applicable) and must also use a proper tagging system to identify batch number and other similar details. The Operators which sell their product in such reusable packaging are obliged to inform the consumers about the lifespan/risks of the package, along with the obligation of retaking the package back from the consumer for recycling purposes for at least six (6) months after the product is sold. In addition, the Operators are forbidden to reject packaging they previously sold if the buyer returns this packaging in order for it to be recycled.
- Recycling Quota and Recent Concerns
According to the Law, all Operators must achieve the recycling quotas2, as detailed below:
According to Schedule 3 of Order no. 196/2005, the minimum quota of recycling packages is 60% for glass, 15% for wood, 60% for paper and cardboard, 50% for metal and 22.5% for plastic. Article no. 16 par. (2) of the Law provides that this requirement can be met in one of two ways:
- The Operator directly handles the recycling process directly; or
- The Operator transfers the above mentioned responsibilities, through a contract, to a third party known as a Responsibility Transfer Organization (Romanian "Organizatie de Transfer al Responsabilitatii" or "OTR"), which OTR must be previously authorized by the Romanian environment protection authorities.
It should be noted that recently, inspections were carried out at the headquarters of a number of OTRs and as a result thereof, six out of the existing ten OTRs in Romania were found to have significant irregularities. The authorities responded by imposing penalties in excess of EUR 19 million on the OTRs according to media sources3. However, according to representatives of the Ministry of Environment, "the inspections were carried out in order to help build a functional recycling management system, not to pursue infringement'4against the OTRs or the Operators.
As a result of these large penalties, there are indications that this dual system may disappear and that contracting recycling obligations as imposed upon Operators under the Law to OTRs will not be an option in the future. Only four OTR are still functioning and certain Operators no longer perceive the OTR's as being a viable option to fulfill the obligations imposed upon them under the Law.
Following these recent events, it seems that OTRs are being rigorously reviewed and thus contracts concluded by these OTRs with Operators need to be analyzed to assess potential latent liability of the latter thereunder.
Those Operators which do not fulfill the obligations imposed by the Law are subjected to fines and penalties, as detailed below:
- Any Operator which does not fulfill the quota must pay RON 2/kg (approx. EUR 0.45/kg) for the difference between the actual recycled quantity and the quota. The penalties are established in article no. 9, par. (1), letter d) of Order no.196/2005.
As an example, if an Operator uses 1,000 kg of glass packaging (e.g. wine bottles) and these bottles are not reusable and therefore must be recycled then:
- If the Operator recycles 60% of these bottles (i.e. 600 Kg), then he will not owe the authorities anything;
- If the Operator recycles only 40% (i.e. 400 Kg), then he will owe the authorities Ron 2/kg for the remaining 20% (60% - 40%). Therefore, the Operator would need to pay as a penalty Ron 2 x 200 = Ron 400.
- Apart from the penalties of RON 2/kg, the Law also imposes certain other fines upon those Operators which do not comply with the provisions thereof, ranging between RON 10,000 to RON 25,000 (approximately between EUR 2,500 to 5,500).
Depending on the severity of the misdemeanor, the competence for establishing the fines may lie with the National Environment Guard, National Body for Consumer Protection or local authorities.
- Finally, the Law does not specifically impose criminal sanctions unless the misdemeanor derives from a criminal offense in the first place. Therefore, unless a separate crime has been committed as specified by the Criminal Code or some other specific criminal law, the provisions of the Law alone do not trigger penal sanctions. However, non-fulfillment of the obligations of the Law could lead to fines, penalties, or the operating license of the Operator being suspended or cancelled in the case of repeated offenses. Indeed, although the Law itself does not contain criminal sanctions, indications are that the authorities will be more aggressive in pursuing enforcement actions against suspected violators of the Law.
The foregoing is intended as a general overview of some of the key changes introduced by the Law and is not intended nor should it be relied upon as an exhaustive analysis of all the relevant aspects of the Law.