On 22 March 2023, Hungary notified to the TRIS portal a Government Decree laying down detailed rules on the establishment and application of deposit fees and the marketing of products with a deposit fee (hereafter ‘the draft Decree). spiritsEUROPE and its members challenge aspects of the new Hungarian Decree:
The new rules would be applicable as of 1 January 2024, hence do not allow for sufficient time for preparations for economic operators, which is at least 12 months according to industry practice.
The draft Decree pre-empts the forthcoming revision of the Directive 94/62/EC on Packaging and Packaging Waste, for which the EU Commission has published a legislative proposal on 30 November 2022. The Decree therefore infringes Article 6 (3) of Directive (EU) 2015/1535 on Technical Regulations Information. Article 6 (3) of Directive (EU) 2015/1535 on TRIS states: “[...] Member States shall postpone the adoption of a draft technical regulation for 12 months from the date of receipt by the Commission of the communication referred to in Article 5(1) of this Directive, if, within three months of that date, the Commission announces its intention to propose or adopt a directive, regulation or decision on the matter in accordance with Article 288 TFEU.
In line with the principle of sincere cooperation (Article 4(3) TEU), a Member State should refrain from adopting legislation to address an issue which can only be adequately resolved at EU level and in a field which the EU intends to harmonise. This is the case for the packaging legislation. Hungary should not pre-empt the setting of harmonised rules at EU level. These matters should be dealt with at the EU level as part of the ongoing revision of the Packaging and Packaging Waste Directive.
Beverage bottles with a capacity of up to 6 litres are in the scope of the new law, which would cover spirits drinks, too.The notified law fails to exempt from its scope of application the packaging of spirit drinks, as established in Article 44 (2) (a) of the EU Commission proposal for a Regulation on Packaging and Packaging Waste (PPWR).
Also, bottles with a special shape can only be legally placed on the Hungarian market, if they were available in Hungary prior to 1 January 2024 which significantly limits the free movement of goods in the EU’s internal market.
Article 11 (1) of the EU Commission proposal for a PPWR establishes that packaging subject to deposit and return systems shall be marked with a harmonised label to be established by the EU Commission. The introduction of a unilateral marking requirement by Hungary will pre-empt the adoption of harmonised DRS labels at EU level. The notified Hungarian Decree requires labels specific to the Hungarian market, and even new mandatory Hungarian EAN codes would be needed when a drink is distributed on the Hungarian market. This is infringing the internal market and the free movement of goods.
The DRS organization operates on the basis of a 35-year concession contract, which means that it is not a non-profit, but a for-profit company. Therefore, presumably, the principle of net cost bearing does not apply either.
