This note is submitted in the framework of the procedure for the adoption of the Guidelines of the European Commission (“Commission”) pursuant to Article 12(2) of Directive 2019/904 on the reduction of the impact of certain plastic products on the environment (“SUP Directive” or “Directive”).[1] Article 12(2) provides that, in consultation with Member States, the Commission shall adopt Guidelines “including examples of what is to be considered a single-use plastic product for the purposes of [the] Directive”.
In the context of the above procedure, the following observations on the scope of the SUP Directive and the definition of “single-use plastic products” are respectfully submitted to the attention of the Commission.
The Sup Directive Applies only to certain single-use plastic products
The Directive applies only to single-use plastic products. It does not apply to all single-use products. This is confirmed by the acronym SUP, which stands for Single-Use Plastic. Should, by means of the Guidelines, the scope of the SUP Directive be extended to all single-use products, the Guidelines would be contrary to the text of the Directive (Section 1.1) and the Commission would act ultra vires (Section 1.2).
The text of the SUP Directive shows that the scope of the Directive is limited to single-use plastic products
According to Article 2, the SUP Directive applies to the single-use plastic products listed in the Annex, to products made from oxo-degradable plastic and to fishing gear containing plastic. It does not apply to single-use products made of other materials.
The title of the Directive specifies that the latter concerns “the reduction of the impact of certain plastic products on the environment”. If the Union legislator had intended to include in the scope of the SUP Directive single-use products made from materials other than plastic, it would have not chosen that title for the Directive.
The choice of the Union legislator to limit the scope of the Directive to single-use plastic products is also confirmed by Article 1, which lists amongst the objectives of the Directive, “to reduce the impact of certain plastic products on the environment, in particular the aquatic environment, and on human health”.[2] In the framework of the procedure leading to the adoption of the Directive, the Commission itself clarified that “[p]lastics is widely available, persistent, and often has toxic and other harmful impacts. Due to its persistency, the impacts of plastic litter are growing as each year more plastic waste accumulates in the oceans”.[3]
Moreover, the fact that the SUP Directive does not apply to products other than single-use plastic products is confirmed by its recital 7, which limits the scope of the Directive to certain single-use plastic products (thus recalling the title of the SUP Directive, which refers to “certain plastic products”). Recital 7 states that the Directive only applies to “those single-use plastic products that are found the most on beaches in the Union as well as fishing gear containing plastic and products made from oxo-degradable plastic. The single-use plastic products covered by measures under this Directive are estimated to represent around 86 % of the single-use plastics found, in counts, on beaches in the Union”.
In view of the above, recital 7 clarifies that “glass and metal beverage containers should not be covered by this Directive as they are not among the single-use plastic products that are found the most on beaches in the Union”. Based on the wording of recital 7, it is therefore clear that the scope of the SUP Directive is limited to plastic products representing 86% of the single-use plastics found on beaches in the Union.
In light of the foregoing, any interpretation of the scope of the Directive including all single-use products, irrespective of their nature as plastic products and of whether they are found the most on beaches in the Union, would be contrary to the objective and the scope of the Directive.
The above conclusions, which are based on the basic elements of the Directive – i.e. the title, the objectives set out in Article 1, the scope laid down in Article 2 and recitals 5 and 7 –, cannot be called into question by recital 2 of the Directive, pursuant to which the “Directive promotes circular approaches that give priority to sustainable and non-toxic re-usable products and re-use systems rather than to single-use products”. According to settled case-law, the wording of a recital should be interpreted in a way compatible with the reminder of the act of which that recital forms a part.[4] The term “single-use products” contained in recital 2 should therefore be read and interpreted in light of the objectives and the scope of the Directive, as well as of the above-mentioned provisions, showing that the Directive only applies to certain single-use plastic products.
Any interpretation extending the scope of the SUP Directive so as to include all single-use products would be ultra vires
It follows from the above considerations that any interpretation leading to the inclusion of all single-use products in the scope of the SUP Directive would constitute an ultra vires act, since it would violate the limits set out in Article 12(1) of the SUP Directive and the rules on the division of powers between the Commission and the Union legislator laid down in the Treaties.
It should be noted that the SUP Directive was adopted on the basis of Article 192(1) TFEU, which provides that “[t]he European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, shall decide what action is to be taken by the Union in order to achieve the objectives referred to in Article 191”, the latter regarding the EU environmental policy.
In this context, the European Parliament and the Council, acting in their capacity as the Union legislator, stated that “[b]y 3 July 2020, the Commission shall publish guidelines, in consultation with Member States, including examples of what is to be considered a single-use plastic product for the purposes of this Directive, as appropriate” (see Article 12(2) of the SUP Directive).
However, this mandate is subject to the limits set out in the Article 12(1) of the Directive, according to which “[i]n order to determine whether a food container is to be considered as a single-use plastic product for the purposes of this Directive […] its tendency to become litter, due to its volume or size, in particular single-serve portions, shall play a decisive role” (emphasis added).[5]
It is therefore clear that the Union legislator limited the competence of the Commission to the adoption the Guidelines with respect to the definition of “single-use plastic products” within the meaning of Articles 3(1) and 3(2) of the Directive. In view of the above, any interpretation that would include all single-use products in the scope of the Directive would be contrary to the limits set out in Article 12(1) of the SUP Directive.
Moreover, it should be noted that the power to interpret the provisions of the SUP Directive, conferred on the Commission by Article 12(2), should be read in the light of the principle enshrined in Article 13(2) TEU [6] and of the principle of institutional balance, according to which “it is for [the European Parliament and the Council] alone to decide the content of a measure”[7] (emphasis added).
In particular, according to the settled case-law of the Court of Justice of the EU, the adoption of the essential rules concerning a crucial matter such as the environmental policy “is reserved to the EU legislature, and those rules must be laid down in the basic legislation. It follows that the provisions laying down the essential elements of the basic legislation, the adoption of which requires political choices falling within the responsibilities of the EU legislature, cannot be delegated or appear in implementing acts[8]” (emphasis added). This a fortiori implies that an interpretative act – such as the Guidelines the Commission is currently preparing – cannot amend the essential elements of the legislation on the basis of which it is adopted.
In the case at hand, a possible interpretation of the objectives and scope of the Directive to include all single-use products would have the effect of de facto amending the text of Articles 3(1) and 3(2) of the SUP Directive and broadening its scope of application, as defined in its Article 2 in the light of recital 7.
This would amount to amending the essential elements of the SUP Directive and, as such, would therefore infringe the principles laid down in Article 13(2) TEU, as interpreted in the light of the case law referred to above. Such an amendment should instead be adopted following the legislative procedure laid down in Article 192(1) TFEU which, as mentioned above, requires the consent of the European Parliament and the Council. It cannot be adopted, even in consultation with the Member States, by the Commission without the consent of the Union legislator.
Having clarified that the Directive only applies to certain single-use plastic products pursuant to Article 3(1) and (2) of the SUP Directive, the question is what is meant by “plastic” under the SUP Directive.
Polymer-coated paper fibre products are not “single-use plastic products” and connot be included in the scope of the Sup Directive
The Commission’s attention is respectfully drawn to the following arguments, showing that Article 3 of the SUP Directive cannot be interpreted as including the paper fibre products under discussion in the definition of “single-use plastic materials” pursuant to those provisions.
As said, the SUP Directive applies to “single-use plastic products listed in the Annex”[9] only and not to single-use products made from other materials.[10] In order to assess whether the paper fibre products under discussion fall within the scope of the SUP Directive, it is necessary to clarify what is considered to be “plastic” and “single-use plastic product”. Both definitions are contained in Article 3 of the SUP Directive. Specifically,
Article 3(1) provides that “plastic” is “a material consisting of a polymer […]which can function as a main structural component of final products […]” (emphasis added);
Article 3(2) clarifies that “single-use plastic product” means a product that is “made wholly or partly from plastic […]” (emphasis added).
Although the above-mentioned provisions of the SUP Directive are formulated in broad terms, Article 3 explicitly states that a “single-use plastic product” consists, in whole or in part, of a polymer which is its main structural component. By contrast, a product containing a polymer, which is in any case not its main structural component, does not fall within the definition of Articles 3(1) and 3(2) of the SUP Directive.
The interpretation of the above-mentioned provisions, in accordance with the settled case-law of the Court of Justice of the EU, according to which in interpreting a provision of EU law it is necessary to consider (i) its wording (see Section 2.1), (ii) the context in which it occurs (see Section 2.2) and (iii) the objectives pursued by the rules of which it is part (see Section 2.3)[11], leads to the conclusion that the paper fibre products under discussion do not fall in the notion of “single-use plastic products”.
Therefore, as the SUP Directive applies to certain single-use plastic products any interpretation of Articles 3(1) and 3(2) of the SUP Directive leading to the inclusion of the paper fibre products under discussion in the category of “single-use plastic products” would moreover constitute an ultra vires act. On this point, reference is made mutatis mutandis to the arguments set out in Section 1.2 above.
The wording of Article 3(1) and (2) of SUP Directive
With regard to the wording of the provisions at stake, the term “main structural component” (“componente strutturale principale” in the Italian version of Article 3(1) of the SUP Directive and “composant structurel principal” in the French version) should be the key element to take into account.
Leaving aside the linguistic nuances, these terms clearly indicate that the polymer must be the “main” element, that is the “predominant” or “preponderant” element[12] compared to the other structural components of the product. It is therefore not possible to conclude that any product containing any quantity of polymers is ipso facto covered by the notion of “single-use plastic products” within the meaning of the SUP Directive.
In view of the above, in order to determine whether the polymer is the “main structural component”, it must be assessed the relevance of this element in relation to the other materials used to manufacture the product. More specifically, to establish whether the product containing polymers can be classified as “single-use plastic product”, the specific impact of the polymer on the finished product should be assessed on a case-by-case basis, in the light, for example, of any qualitative and quantitative criteria. For example, where the percentage of polymers used to coat the paper fibre product is no more than 10%, the same product should be considered as paper and therefore excluded from the scope of the SUP Directive.
Consequently, an interpretation of Article 3(1) and (2) of the Directive including the paper fibre products under discussion in the definition of “single-use plastic products” irrespective of the fact that the polymer is not a main structural component would be contrary to the letter of those provisions in so far as it would deprive the term “main” of any meaning. As a result, that interpretation would go against the will of the EU Legislator.
The interpretation of Article 3(1) and (2) in the light of its legislative context
Although the wording in itself provides sufficient evidence to reject a possible inclusion of the paper fibre products under discussion in the scope of the SUP Directive, the interpretation of Articles 3(1) and 3(2) in the light of its regulatory context would also lead to the same conclusion.
According to settled case-law, a provision of EU law must be interpreted in the light of “its context and the provisions of European Union law as a whole [and] [also] [t]he origins of [such] provision of European Union law may also provide information relevant to its interpretation”.[13]
The travaux préparatoires to the SUP Directive confirm that the paper fibre products under discussion cannot be included in the definition of “single-use plastic products”
It should be noted at the outset that, in the course of the legislative procedure leading to the adoption of the Directive, the Commission expressed its position against the inclusion of products such as the paper fibre products under discussion within the scope of the Directive.
In particular, the proposal for the SUP Directive submitted by the Commission to the European Parliament and to the Council on 28 May 2018 explicitly provides, in its recital 8, that polymeric materials such as “polymeric coatings, paints, inks, and adhesives” are not to be included in the scope of the Directive because they “are not capable of functioning as a main structural component of final materials” (emphasis added).[14]
Although this passage was deleted in the course of the legislative procedure, the Commission’s position expressed in the proposal is based on its belief that polymer-coated paper fibre products are not “plastic” products and, as such, do not fall within the scope of the Directive. Bearing the above in mind, it is hard to conceive that the Commission itself could adopt, in the context of the Guidelines currently being drafted, an interpretation which is manifestly contrary to what it expressed in the above-mentioned proposal.
It should be also noted that the Committee on Agriculture and Rural Development of the European Parliament expressed, in the context of the above-mentioned legislative procedure, its position that that polymer-coated paper fibre products do not fall within the scope of the Directive.
Indeed, in its opinion of 3 October 2018, the Committee proposed to include in recital 8 the following sentence: “[c]ertain polymeric materials are not capable of functioning as a main structural component of final materials and products, such as polymeric coatings, linings or layers, paints, inks, and adhesives” because “[p]olymeric coatings, linings and layers have hygiene and food safety functionality in multimaterial multi-layer articles and cannot act by themselves as main structural components of finished materials or articles and cannot be used in the absence of other materials as the main structural component” (emphasis added).[15] Moreover, the Committee suggested to include at the end of Article 3(1) the following wording: “polymeric coatings, paints, inks and adhesives which are not capable of functioning as a main structural component of final articles and products” are not covered by the Directive.[16]
In the light of the foregoing, the travaux préparatoires to the SUP Directive confirm that the paper fibre products under discussion are not to be considered “single-use plastic products” within the meaning of Article 3(1) and (2) of the Directive.
Interpretation in the light of the fundamental principles of Union law of proportionality and equality
According to settled case-law, in interpreting a provision of EU law “preference should as far as possible be given to the interpretation which renders the provision consistent with the general principles of European Union law”,[17] such as the principles of proportionality and equality.
As regards the principle of proportionality, it should be recalled that, according to the settled case-law, “the legality of Community rules is subject to the condition that the means employed must be appropriate to attainment of the legitimate objective pursued by those rules and must not go further than is necessary to attain it, and, where there is a choice of appropriate measures, it is necessary, in principle, to choose the least onerous”.[18]
The principle of proportionality is also relied upon by the SUP Directive, whose recital 25 emphasises that “[w]hile all marine litter containing plastic poses a risk to the environment and to human health and should be tackled, proportionality considerations should also be taken into account”. Moreover, recital 36 provides that “[i]n accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives”.[19]
In this regard, it is important to recall that in the Explanatory Memorandum to the proposal for the SUP Directive, the Commission stated that “[t]he proposal is targeted and proportionate as it focuses on the most found macro plastic items on European beaches by count, namely SUP and fishing gear. Considering the items by counts is the best available indicator of the environmental, social and economic impacts. This initiative focusses on the ten most found SUP items representing 86% of all SUP items by count (constituting thus 43% of all marine litter). Regulating all single-use plastic products, as found on beaches, would not be proportionate compared to the potential added value. It would lead to unnecessary costs and burden on Member States”(emphasis added).[20] This passage has been substantially transposed in recitals 5 and 7 to the SUP Directive.
That said, it should be noted that the paper fibre products under discussion are not included in the list of products most frequently found on beaches which threaten the marine environment, drawn up by the Commission and annexed to the proposal for the Directive of 28 May 2018. Annex 3 to The Impact Assessment accompanying the above proposal lists the 125 marine litter most commonly found on European beaches.[21] Paper fibre products are among the least common and therefore have a marginal incidence. More specifically, products falling within the category “Paper/Cardboard – Cups, food trays, food wrappers, drink containers” are in the 55th place and represent 0.27% of the marine litter concerned.[22] In this list, paper fibre products are therefore positioned well below other products (such as glass and metal containers, respectively in 14th place (bottles – 1.07%) and 29th (cans – 0.67%)) which, not being among the top ten objects found on beaches, have been explicitly excluded from the scope of the Directive, as is clear from recital 7 of the same.
Consequently, an interpretation of Articles 3(1) and 3(2) of the Directive leading to treat the paper fibre products under discussion as “single-use plastic products” would be contrary to the principle of proportionality, given that – in the Commission’s own words – “[r]egulating all single-use plastic products, as found on beaches, would not be proportionate”.[23] The above is also true, a fortiori, for products such as the one at issue which are made predominantly of paper fibre (90%) and are only coated with a thin layer of polymer (not more than 10%).
Finally, it should be recalled that the paper fibre products under discussion are recyclable as paper, to the same extent as uncoated paper fibre products. Indeed, special machinery integrated in the production process of recycled paper allows to separate the polymer coating from the paper fibre and to recycle both materials. Given the added value of recycling paper fibre products compared to the production from scratch, companies in the sector have a strong incentive to contribute to the circular economy. Moreover, unlike single-use plastic products, used paper fibre products are easier to be pressed/compacted, and transported by consumers. This characteristic creates an incentive for consumers to store paper fibre waste and dispose it in the relevant bin (paper) for recycling, thus considerably reducing their dispersal in the environment.
As regards the principle of equality, it should be noted at the outset that, according to settled case-law, “comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified”.[24] In this respect, it should be noted that the assessment must be made in the light of the object and purpose of the measure or legislation allegedly infringing the principle of equality.[25]
The purpose of the SUP Directive is to “prevent and reduce the impact of certain plastic products on the environment, in particular the aquatic environment, and on human health”.[26] With this in mind, it is clear that from the standpoint of the Directive that the paper fibre products under discussion and the single-use plastic products are different products. In fact, unlike plastic, paper fibre products, far from polluting the marine environment, are put back into circulation through the recycling mechanisms. In this respect it is worth mentioning that paper and cardboard packaging is by far the most recycled material in Europe with a rate of 85.6% in 2017 [Eurostat] and that the recycling rate of those products was 81% already in 2008. This data clearly shows the consolidated recycling tendency of the product at issue. For the sake of completeness, it should be noted that the recycling rate of plastic products is less than half of the recycling rate of paper packaging (41.2% in 2017 [Eurostat]).
In view of the fundamental differences between the paper fibre products under discussion and the single-use plastic products, any interpretation of Articles 3(1) and 3(2) of the Directive to the effect of including the paper fibre products in the notion of “single-use plastic products” would be contrary to the principle of equality. Such an interpretation would have the consequence that very different products would be treated in a similar way – i.e. both products would be subject to the SUP Directive – without relevant justification for treating them in the same way.
Interpretation of Article 3(1) and (2) of the SUP Directive in the light of its objectives
It is established case-law that “in interpreting a provision of EU law, it is necessary to consider not only its wording but also […]the objectives pursued by the rules of which it is part. Also, where a provision of EU law is open to several interpretations, preference must be given to the interpretation which ensures that the provision retains its effectiveness”(emphasis added).[27]
Article 1 of the SUP Directive clearly sets out its objectives. It states “[t]he objectives of this Directive are to prevent and reduce the impact of certain plastic products on the environment, in particular the aquatic environment, and on human health, as well as to promote the transition to a circular economy with innovative and sustainable business models, products and materials, thus also contributing to the efficient functioning of the internal market”.
In the light of the above, Article 12(1) of the Directive states that “[i]n order to determine whether a food container is to be considered as a single-use plastic product for the purposes of this Directive, in addition to the criteria listed in the Annex as regards food containers, its tendency to become litter, due to its volume or size, in particular single-serve portions, shall play a decisive role” (emphasis added).
In the present case, any interpretation of Articles 3(1) and 3(2) of the SUP Directive including the paper fibre products under discussion in the concept of “single-use plastic products” would be manifestly contrary to those objectives and would risk to undermine the effet utile of the Directive.
In this regard, it should be noted that, as explained below (Section 4), the paper fibre products under discussion incentivise the recycling and reuse of the main raw material (paper) in subsequent production cycles, so reducing waste as much as possible in full compliance with the principles of circular economy. For these reasons, the paper fibre products under discussion do not end up in the sea and do not contribute to the pollution of the ecosystem, since they are largely recycled – as mentioned, with a rate of 85.6% in 2017 [Eurostat]. The Commission itself noted in the Impact Assessment accompanying the Proposal for a SUP Directive that these products have a marginal impact on marine litter (0.27%).[28]
In the light of the above, it is noted that to apply the provisions of the SUP Directive to the paper fibre products under discussion would in no way contribute to the objectives of the Directive. In fact, the opposite is true. In the above scenario, companies would be discouraged to buy paper fibre products, which are the only products to allow a reduction of plastic by 90%. Instead, they would be encouraged to buy (cheaper) single-use plastic products or to use reusable plastic, which have a much worse Life-cycle cost analysis (LCCA). This would significantly increase the quantity of plastic products on the EU market, instead of reducing it, in clear contradiction with the purpose of the SUP Directive and the carbon dioxide reduction target of the Green Deal. Paper fibre products already allow a reduction in the amount of plastic by at least 90% when compared to similar plastic containers. The use of the paper fibre products under discussion should therefore be encouraged and supported – and not restricted – in order to promote the objectives of the SUP Directive.
In conclusion, for all the reasons set out above, it is noted that it would be neither technically appropriate nor legally correct to apply the provisions of the USP Directive to the paper fibre products under discussion. In short, this would be counterproductive and would violate the provisions, purpose and spirit of the USP Directive as well as the fundamental principles of proportionality and equality.
Treating differently paper fibre plates and paper fibre cups would be unjistified and unlwaful in the light of the purpose of the Sup Directive
The arguments set out in Sections 1 and 2 lead to the conclusion that single-use paper fibre products under discussion are not comparable to single-use plastic products and, as such, are not covered by the SUP Directive. Therefore, treating differently paper fibre plates, on the one hand, and paper fibre cups, on the other hand, would be unjustified and unlawful in the light of the objective characteristics of the two products and of the purpose of the SUP Directive.
In this respect, it should be noted, firstly, that the paper fibre plates and paper fibre cups under discussion are made of materials, i.e. paper and a minimum percentage of polymer (no more than 10%), which allow the product to contain and protect food and beverages. Therefore, the products only differ in their form. Moreover, since they are products with the same composition, both paper fibre plates and paper fibre cups are recycled as paper. It is thus not clear how paper fibre plates and paper fibre cups could be subject to a different treatment (for instance, no restrictions for the former, whereas making the latter subject to the consumption reduction scheme).
Secondly, for the purposes of the definition of plastic products – and, more generally, for the application of the SUP Directive – Article 3(1) refers to the “main structural component of final products”, thus giving crucial importance to the composition of the product and not to its shape or use. Consequently, once has been established that paper fibre products under discussion (whether they are plates or cups) have a polymer content (e.g., no more than 10%) that does not alter their nature as paper products and allows them to maintain structural characteristics, which are profoundly different from those of plastic products, there is no reason to differentiate the treatment of paper fibre plates and paper fibre cups.
Thirdly, bearing in mind the ultimate objective of the SUP Directive, i.e. “to prevent and to reduce the impact of certain single-use plastic products” on the aquatic environment, it must be reiterated that both paper fibre plates and paper fibre cups are not among the most frequently found single-use products on European beaches. In this respect, it is important to note that the European Commission Impact Assessment Reducing Marine Litter: action on single use plastics and fishing gear (SWD(2018) 254 final) includes both paper/cardboard cups and food trays in the 55th place of the list of types of marine waste found on the Union’s beaches (0.27% of such products). It is therefore clear that paper fibre plates and cups are products whose environmental impact is very limited, if not negligible, so that a differentiation between paper fibre cups and paper fibre plates would certainly be discriminatory and, as such, difficult to justify.
For all the above reasons, it has to be concluded that, on the one hand, the structural characteristics of paper fibre products under discussion and, on the other hand, the negligible environmental impact of paper fibre plates and paper fibre cups do not justify their differentiated treatment. Since both products are profoundly different from plastic equivalents and have a high recyclability rate, they should be equally excluded from the scope of the SUP Directive where they contain a percentage of polymers (no more than 10%) that does not alter their nature as paper products.
The inclusion of paper fibre product within the scope of application of the Sup Directive would have a very negative impact on circular economy
The inclusion of the paper fibre products under discussion within the scope of the SUP Directive would have a very negative impact on circular economy and, as such, would be contrary to Article 1 of the Directive, which states that one of the objectives of the SUP Directive is to “promote the transition to a circular economy”.
In that regard, it is worth emphasising the characteristics of the paper fibre products under discussion, which demonstrate their full compliance with the principles driving the circular economy and the objective of reducing environmental pollution, both of which are at the heart of the Directive. In particular, the following essential characteristics of paper fibre products must be taken into account for the purposes of drafting the Guidelines, which are currently being drawn up.
The physical and safety-related characteristics of the paper fibre product
The paper fibre products under discussion are essentially made of paper. The polymeric coating is indeed a secondary (more precisely, marginal) component of these products, representing a negligible share of the final product (no more than 10%). The polymeric coating is, in essence, a few millimetres thick: as paper is a hygroscopic material, the presence of limited quantities of polymers is necessary for paper fibre food containers to preserve the integrity of the food and its safety. From a chemical viewpoint, the main function of polymers is essentially to “bind” the paper fibre in order to provide the product with a coating that ensures levels of protection, safety and hygiene appropriate to the food contained in it. It is thus clear that this guarantee of hygiene and safety is essential in such a context, considering that the paper fibre products under discussion are food contact materials. In addition, the paper fibre products under discussion possess several advantages in terms of food and more generally human health safety, when compared to plastic products. Indeed, paper fibre prevents the risk of pathogens circulating in food and does not give rise to toxic hazards.
The reduced environmental impact of the paper fibre products under discussion
The paper fibre products under discussion are made from renewable raw materials, such as wood fibres derived from European certified forests managed with eco-sustainability criteria (certification FSC®; PEFC™; SFI®). These forests, through their constant growth (for each tree felled three trees are planted, giving rise to an active reforestation process), play a fundamental role in mitigating and balancing the environmental impact by absorbing carbon dioxide and releasing oxygen. The use of these sustainable raw materials has a positive effect in terms of impact on the environment, which can be estimated in a reduction of about 806 million tonnes of carbon dioxide per year, equivalent to about 20% of the Union’s fossil emissions. It is therefore clear that the paper fibre products under discussion are profoundly different, in terms of composition and environmental impact, from single-use plastic products, which are produced from chemicals such as heavy plastics.
Compliance of paper fibre products with the principles of circular economy and eco-sustainability
The paper fibre products under discussion are fully recyclable as paper. As a matter of fact, the recycling plants currently in use have for many years allowed the recycling of the product as paper after separation of the thin polymer coating, which is also recycled. It should be pointed out that in the EU Member States the paper fibre products under discussion are destined to the paper collection and recycling stream (and not to the plastic products recycling stream) if the plastic content does not exceed a specific threshold which changes from country to country (by way of example, in Italy and France paper fibre products are treated for recycling purposes as paper if their plastic content does not exceed 50%).
In view of the above, polymer coated paper fibre containers are collected in paper bins and recycled through the paper recycling process (which is totally different than that used for plastic products). Thus, treating the paper fibre products under discussion as single use plastics would not only create confusion amongst consumers (which would then have to modify and adjust their waste separation behaviour), but it would also undermine the entire waste recycling cycle (which would have to process paper fibre products in the plastic waste cycle, which is however not suitable to fulfil this function).
That said, it should be noted that the reasons behind the high recycling ratio of paper are to be found primarily in the residual value of the recycled paper. Recycling paper fibre products is economically more advantageous than producing them from scratch, due to the intrinsic value of virgin fibres in terms of quality, appearance and processability. After their use, paper fibre products re-enter the paper fibre cycle after processing into cellulose which, due to its technical and mechanical properties, considerably improves the quality of the recycled paper (the positive characteristics of virgin fibres allow them to be recycled up to 7 times). On the contrary, as far as plastic is concerned, the recycling cost of the polymer is higher than the value of the virgin raw material. That explains why the recycling ratio of plastic products is less than half (around 41% in 2017) than that of the paper fibre products under discussion (around 86% in 2017).
In addition, from a consumer perspective, paper fibre products are more easily compressible and transportable in order to be disposed of in the appropriate paper bin. That incentivises consumers not to disperse them into the environment, helping to increase the recycling rate.
Single-use paper fibre products are the only eco-sustainable alternative to single-use plastic products
Finally, reusable plastic products are not more eco-sustainable than paper fibre products. On the contrary, reusable plastic products are more polluting than paper fibre products and their use runs counter to the logic of the circular economy, which is at the heart of the SUP Directive. As a matter of fact, several studies show that reusable plastic alternatives are more harmful to the environment than single-use paper fibre products.
It should be emphasised that the reusable cutlery used by the fast food industry is mainly made of particularly heavy and thick plastic resins, and not of glass, ceramic or metal. This reusable plastic cutlery, generally produced in the Far East, has a life cycle of a few hundred reuses (between 100 and 200) and is much more polluting than than single-use paper fibre equivalents. As a matter of fact, cleaning of reusable cutlery requires considerable energy and drinking water consumption (this is, in general, a critical element, especially in areas where water is scarce). In addition, the use and washing of such cutlery produces significant pollution of the rivers, due to the detergents used in this context. This impact is aggravated at times of high customer attendance since, in order to achieve the required levels of “health & safety”, washing must be longer and more intensive, with additional consumption of energy, water and detergents. Finally, reusable plastic products of significant thickness and weight are not recycled at the end of their life, but are subject to incineration or landfilling, which is at odd with the principles of circular economy.
For these reasons, reusable plastic products do not constitute a valid eco-sustainable alternative to single-use plastic products. Both categories of products are polluting and run counter to the basic principles of the circular economy. Only single-use paper fibre products can, at the same time, reduce the use plastic single-uses (by at least 90%) and contribute to the reduction of environmental pollution.[29]
Conclusions
In the light of all the above considerations, the following conclusions can be drawn:
The SUP Directive does not apply to all single-use products but only to certain single-use plastic products.
The SUP Directive applies to certain single-use plastic products only, namely “those single-use plastic products that are found the most on beaches in the Union as well as fishing gear containing plastic and products made from oxo-degradable plastic” (recital 7). The single-use plastic products covered by the Directive account for around 86% of the single-use plastics found, in counts, on beaches in the Union. Therefore, any interpretation supporting the inclusion of all single-use products in the scope of the Directive would be ultra vires and deprive the Union legislator of the powers conferred upon it by the Treaty.
Polymer-coated paper fibre products are not single-use plastic products under the SUP Directive.
Articles 3(1) and 3(2) of the SUP Directive SUP, interpreted in the light of its wording, regulatory context and aims, lead to the conclusion that polymer coated paper fibre products (with a negligible percentage of polymer, i.e. no more than 10%) are not “single-use plastic products” and, as such, are not included in the scope of the Directive.
The inclusion of polymer coated paper fibre products in the scope of the Directive would be, moreover, contrary to the fundamental principles of proportionality and equality. On the one hand, the inclusion of polymer coated paper fibre products in the scope of the Directive would be disproportionate as it would go further than is necessary to attain the objectives of the Directive, since the products at issue are not amongst the products threatening the marine environment. On the other hand, bearing in mind the ultimate objective of the Directive to “reduce the impact of certain single-use plastic products … on the environment and on human health”, polymer coated paper fibre products cannot be treated in the same way as single-use plastic products.
To treat differently paper fibre plates and paper fibre cups would be unwarranted in light of the objective characteristics of polymer coated paper fibre products and of the scope of the SUP Directive.
Given that the SUP Directive only applies to certain single-use plastic products and that paper fibre products are not single-use plastic products, to treat paper fibre plates and paper fibre cups differently would be contrary to the scope of the SUP Directive. Paper fibre plates and paper fibre cups are in fact made from the same materials, i.e. paper and a negligible percentage of polymers (no more than 10%), which does not alter their nature as paper products and allow the product to contain and protect food and drink.
The inclusion of paper fibre products in the scope of the SUP Directive would have a detrimental impact on the circular economy and on the entire Foodservice chain
The inclusion of paper fibre products in the scope of the SUP Directive would be contrary to Article 1, which lists amongst the objectives of the Directive “to promote the transition to a circular economy”. Unlike reusable plastic products, paper fibre products are fully recyclable as paper and allow the reuse of the main raw material (paper fibre) in subsequent production cycles, thus reducing waste as much as possible, in full compliance with the principles of circular economy. Thus, reusable plastic products are not an environmentally sustainable alternative to single-use plastic products. On the contrary, single-use paper fibre products are the only eco-sustainable alternative to single-use plastic products.
In addition to the above, it should be noted that possible inclusion of single-use paper fibre products in the scope of the Directive, whether plates or cups, would have a negative impact on the fast-food industry as well as on the upstream and downstream supply chain, putting the employment of several hundred thousand people at risk. Suffice it to say, in that regard, that the European food service sector is worth around EUR 335 billion and counts 1.7 million undertakings employing around 8 million workers. As far as the Italian economy is concerned, the negative impact would be even more significant in view of the substantial contribution given by the agri-food chain operators to the fast-food sector.
Related Info
[1] Directive (EU) 2019/904 of the European Parliament and of the Council of 5 June 2019 on the reduction of the impact of certain plastic products on the environment, OJ L 155 of 12.6.2019, pp. 1-19.
[2] SUP Directive, Article 1.
[3] Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the reduction of the impact of certain plastic products on the environment COM/2018/340 final – 2018/0172 (COD).
[4] Si v., in tal senso, la sentenza del 17 febbraio 2009, Elgafaji, causa C-465/07, punti 36-38.
[5] Please note that, unlike plastic, paper fibre products are less bulky and therefore more easily compressible for recycling.
[6] According to this provision “[e]ach institution shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them. The institutions shall practice mutual sincere cooperation.”
[7] See Judgement of 21 June 2018, Polonia c. Parlamento e Consiglio, case C-5/16, point 84 and the case-law cited.
[8] See Judgement of 10 September 2015, Parlamento c. Consiglio, case C-363/14, point 46 and the case-law cited.
[9] As well as to certain products which are not relevant for the purposes of this paper, namely oxo-degradable plastic products and fishing gear containing plastic.
[10] Article 2 of SUP Directive.
[11] See, as a recent example, judgment of 3 October 2019, case C-197/18, Wasserleitungsverband Nördliches Burgenland, point 48 and the case-law cited.
[12] See, for illustrative purposes, the Dictionary of Physical Sciences Treccani’s definition of the term “principal”: “principal [agg. Der. del lat. principalis, da princeps -ipis “primo”] [LSF] Which has greater importance than other things”.
[13] Judgement of 3 October 2013, Inuit Tapiriit Kanatami, case C-583/11 P, point 50.
[14] Proposal for a Directive of the European Parliament and of the Council on the reduction of the impact of certain plastic products on the environment, Bruxelles, 28.5.2018, COM(2018) 340 final, 2018/0172(COD).
[15] Opinion of the Committee on Agriculture and Rural Development for the Committee of the Environment, Public Health and Food Safety on the proposal for a directive of the European Parliament and of the Council on the reduction of the impact of certain plastic products on the environment (COM(2018)0340 – C8-0218/2018 – 2018/0172(COD))
[16] In this sense, see also the opinion of the Committee on Industry, Research and Energy of 27 September 2018.
[17] Judgement of 29 April 2010, M.e.a., case C-340/08, point 64.
[18] Judgement of 9 September 2010, Usha Martin, caseT-119/06, point 44 and the case-law cited.
[19] The principle of proportionality is also recalled in recital 14 of the SUP Directive, which provides that “[w]here Member States decide to implement that obligation through marketing restrictions, they should ensure that such restrictions are proportionate and non-discriminatory”.
[20] Proposal for a Directive of the European Parliament and of the Council on the reduction of the impact of certain plastic products on the environment SWD/2018/254 final – 2018/0172 (COD).
[21] See, in particular, table 2 of the Annex 3 to Commission Staff Working Document Impact Assessment Reducing Marine Litter: action on single use plastics and fishing gear Accompanying the document Proposal for a Directive of the European Parliament and of the Council on the reduction of the impact of certain plastic products on the environment.
[22] As assessed in the Impact Assessment, those data have been realeasd by the Technical Group of Marine Litter Activities (monitoring programmes, clean-up campaigns and research projects) del Joint Research Center of the Commission.
[23] Proposal for a Directive of the European Parliament and of the Council on the reduction of the impact of certain plastic products on the environment SWD/2018/254 final – 2018/0172 (COD).
[24] See, as example, Judgement of 3 May 2007, case C‑303/05, Advocaten voor de Wereld, point 56 and case-law cited.
[25] See, as example, Judgement of 22 January 2019, Cresco Investigation, case C-193/17, point 42.
[26] Article 1 of SUP Directive.
[27] Judgement of 10 September 2014, Holger Forstmann Transporte, case C-152/13, point 26.
[28] As assessed in the Impact Assessment, those data have been released by the Technical Group of Marine Litter Activities (monitoring programmes, clean-up campaigns and research projects) del Joint Research Center of the Commission.
[29] As evidence of the importance to be attached to environmentally sound recycling processes, it should be noted that Article 4(2) of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste allows Member States to change the waste hierarchy (prevention; preparing for re-use; recycling; other recovery, e.g. energy recovery; and disposal) where the options chosen by the State result in the best overall environmental outcome and this is justified by life-cycle thinking on the overall impacts of the generation and management of such waste.
