Today we have a contribution from our fellow food lawyer Toma Barbarasa, from Bucharest, now principal at his own firm, about the upcoming deposit return scheme in Romania. The article is a confirmation of the increasing regulatory complexity and fragmentation, deriving from the implementation of schemes for the recycling and recovery of packaging across the EU Member States.
The Romanian Government has recently approved the appointment of the administrator of the deposit return system (“DRS”) for beverage packaging. This appointment was much awaited by the industry since the system should become mandatory as from October 1, 2022 (“Due Date”), in line with Government Decision no. 1074/2021 (the “Decision”). However, there are still a lot of uncertainties regarding the system and the effective implementation thereof is yet to start.
The DRS shall be applicable to non-reusable primary packaging made of glass, plastic or metal, with volumes ranging from 0.1 L to 3L (inclusive), used for beer and mixes thereof, alcoholic beverage mixes, cider, other fermented beverages, juices, nectars, soft drinks, mineral waters and drinking waters of all kinds, wines and spirits placed on the national market. The system imposes a warranty to be paid by consumers of RON 0.50 (approx. EUR 0.10) for any purchased beverage packaging which shall be recovered once the packaging is returned in any store (irrespective of the place of purchase).
The Decision also imposes that packaging subject to DRS shall be marked with a specific symbol and an EAN code which operators must implement on packaging in line with the specifications provided by the DRS administrator. As per the Decision, the symbol shall be implemented directly on the packaging, label or on the additional label and be visible, legible, durable, and not overlap with another graphic element of the packaging or label.
Under the Decision, the appointment of the DRS administrator triggers the obligation for operators and traders subject to the system to register with the administrator until 24 November 2022. The registration shall be made by submitting a specific digitally signed electronic notification, providing the mandatory information required as per the Decision.
However, from a practical point of view, the registration is currently not possible in lack of the required procedure thereof which should be established by the DRS administrator within 60 days from its appointment (i.e., 24 August 2022).
Furthermore, there are many other aspects which need to be clarified and/or clearly regulated before the system can be effectively functional, such as:
- The Decision does not provide for a transitional period for the exhaustion of products not bearing the mandatory DRS marking and EAN code. This could lead to shortages in the supply chain or even waste of proper products not bearing the marking, considering that as from the Due Date (pursuant to the Decision), it is prohibited to market any products packed in DRS packaging which do not include said DRS marking;
- the value of the warranty should be clarified from a fiscal viewpoint (subject to VAT or not);
- regulation of packaging bearing a single barcode and placed in multiple markets;
- a complex logistic and IT infrastructure (e.g., equipment, collection centers, transport of DRS packaging) needs to be put into operation so the system may be functional but also to avoid any frauds thereof;
- registration of operators/traders and conclusion of the mandatory agreements with each of them will take significant time (approx. 100,000 agreements are expected to be signed between said operators/traders and the DRS administrator).
In practice, the authorities have been heavily criticized for the delayed appointment of the administrator (as the Romanian State is a shareholder of the administrator), while the industry considers the DRS implementation until the Due Date is very unlikely to happen as this is expected to take at least one more year.
As the industry is waiting for the system implementation plan and calendar thereof, the next period is critical for the authorities and the administrator to find solutions to speed up the implementation process.