No rest for the EU Single Market – France’s Green Dot case
The integrity of the Single Market for packaging and packaged goods is more and more threatened by divergent national measures being implemented across EU Member States. This trend of national provisions not only risks eroding the very fundamental principles at the basis of the EU internal market, but also undermines the EU sustainability goals for a climate neutral, circular and competitive European economy. Recently, the packaging industry became increasingly concerned about the “Green Dot” Decree in France.
Back in February 2020, France adopted its law No 2020-105 on the fight against waste and on the circular economy. Article 62 of the law, and corresponding decree of 30 November 2020, puts forward the suppression of the Green Dot on all packaged goods marketed in France and sets penalties for non-compliance to this rule. This text prevents companies operating in different EU Member States to use a single packaging execution and therefore requires the redesign of all packaging across the entire internal market destined for France or the production of separate variants for the French market.
Several French industry associations alerted public authorities of the obstacles created by the Green Dot Decree and the unfair financial burden it would bring upon companies. In the absence of revision of the measure, the associations brought the matter to the Conseil d’État, France’s supreme court for administrative justice. The matter was also flagged at EU level, to the European Commission’s Directorate General for Internal Market, Industry, Entrepreneurship and SMEs (DG GROW). This measure, just as relevant articles of law, was not notified to the European Commission through the TRIS notification system, as requested by EU law for measures with internal market implications.
WHAT DID YOU MISS?
- Following the complaint of the French industry associations, the Conseil d’État ruled in favour of the suspension of the execution of the Green Dot Decree.
- The Conseil d’État raised doubts about the legality and proportionality of the measure and indicated that it sets a quantitative restriction, in opposition to Article 34 of the Treaty of the European Union (TFEU). It also noted that the Green Dot is used in most European countries and stressed that the French Decree penalty system puts pressure on producers to use different packaging and to organize separate distribution channels. The deadline for the entry into force of the penalties (1st April 2021) was also considered to be too short to allow sufficient time for the industry to adapt.
- The judge on the merits of the Conseil d’État will now have to decide on the request for complete annulment of the Decree. No penalty can be applied until the decision on the application for annulment is made.
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