Background paper As the violation of contract procedure of the European Union commission because of conversion of the pledge
obligation to Germany the Federal Government to 22.12.2003 with a report to the European commission it explained that the
present conversion of the pledge obligation for one-way beverage packing to Germany does not offend against European right.
The Federal Government reacts with it to a letter of the commission of 23.10. - 2003, with which a violation of contract
procedure was introduced against the Federal Republic of Germany. The doubts of the commission in this procedure are not
directed against the pledge obligation. The commission criticizes however the fact that after its view a country wide and
surface covering cancelling system does not exist at present in Germany and sees it in the possibility of furnishing
so-called isolated solutions an offence against European right. The Federal Government is against the fact the opinion that
neither the pledge regulation of the packing regulation nor their present conversion offends against Community law. 1. The
dose pledge corresponds to the European packing guideline Germany has with sanction-reinforced Ruecknahme-und pledge
obligations in the packing regulation the "necessary measures" demanded by the commission for the mechanism of cancelling -,
collecting or utilization systems seized and thus kind. 7 packing guideline accordingly. There is not a large so-called
"result obligation", the Federal Government must not the mechanism of such systems ensure. Beyond these legal arguments:
Cancelling systems are country widely and surface covering furnished. The participating enterprises and the to -- 2 -. . .
number of the sales offices are in table 1 represented. Table 1: For distribution of sales sales kind of the sales office
cancelling system sales offices Convenience range Tankstellenshops of kiosks baker's shops of tobacco goods business of
supermarket/beverage markets group of salient save Karstadt Woolworth drinking property Lekkerland/Tobaccoland Vfw AG west
pledge approx.. 100,000 Edeka/AVA Rewe group (except penny) Metro group of Tengelmann group (except pluses)
abfuellerspezifische solutions Rewe partly additionally sucked. Isolated solution approx.. 17,000 Aldi Lidl penny of pluses
net Norma sucked. Isolated solutions partial additionally abfuellerspezifische solutions (e.g. pluses) approx.. 13.000 the
systems operated by Lekkerland/Tobaccoland, Vfw AG and west pledge covers the all-largest part that with approximately
100,000 sales offices approximately 130,000 sales offices for beverages in Germany. Besides also the abfuellerspezifischen
cancelling solutions and the isolated solutions of individual trading ventures offer a country wide and surface covering
cancelling infrastructure. The systems ensure a surface covering cancelling and pledge refunding in the entire federal
territory. It reaches each small place, each quarter, each airport, each station and the motorways. From European right it
cannot be derived also that all systems furnished in the competition must be with each other compatible in each case. In
Germany cancelling systems are compatible with one another, as far as it concerns homogeneous packing. Between the systems
countrycountry country/- Tobaccoland, Vfw and Westpfand/Interseroh exist a full compatibility. Same applies to the
abfuellerspezifischen cancelling systems (e.g. the large - 3 -. . . French mineral water marks). The packing of a mark,
which was bought for example with the sales offices of the Rewe group, can be returned to the Metro group, in the Edeka
markets and everywhere, with the business of the Tengelmann group, where homogeneous bottles are sold, and in reverse. The
trade mark-specific packing acquired with a Discounter can be returned at all branches of this Discounters - evenly
everywhere, where homogeneous bottles are sold. As is the case for multi-path systems the consumers are both will and able
to differentiate between the packing forms of different offerers and to assign these the respective vertreibern. Altogether
meet R furnished in Germany cknahmeloesungen the requirements formulated by the commission: -- the expenditure for the
consumers is not disproportionate. Everyone has a cancelling place in its environment. Exactly the same as with multi-path
systems there is product, which everywhere not sold and whose packing is taken back therefore not by each cancelling place.
There is however for all packing the return possibility in the entire federal territory, fitting for the respective
marketing form. -- also for the trade pledge collection and refunding are reasonable and function in practice, both in
relation to the consumer and opposite the Vorvertreiber. -- also for the manufacturers the expenditure of the participation
in a cancelling system is reasonable. The systems are open all in and to foreign manufacturers equally. Costs of the
participation and the marking need are relative also with view of the past costs of the participation with the system "the
Green point". 2. The dose pledge is not no barrier to trade in the opinion of the Federal Government is the conversion of
the German pledge regulation at kind. 28 of the EEC contract separates alone at the regulations of the European Union
packing guideline to measure. The Federal Government sees itself therein - 4 -. . . by the view of the general attorney with
the European Court of Justice, in his conclusion final speech from the year 2001 to the Danish dose prohibition confirms D
maso Ruiz Jarabo Colomer. But even if one the situation in Germany at kind. 28 EEC would judge, then this would not be hurt,
since the pledge and cancelling regulations of the packing regulation and their conversion do not represent a barrier to
trade. Also the so-called "isolated solutions" for trade mark-specific packing do not work in the opinion of the Federal
Government as barrier to trade. Discounter bring and partly also supermarket chains packing with a specific form on the
market and limit the cancelling to this individual packing. These solutions are possible, since the packing regulation
limits the cancelling obligation to packing of the "kind, form and size", which the respective vertreiber brings in traffic.
The regulation serves the constitutionally necessary protection of vertreibern, does not lead not to a market splintering
and unfolds also no bring in-restraining effect. In principle the marktzugang for foreign products did not change. The offer
of the Discounter is limited since more jeher to trade marks trade mark-own packing. Abfuellerspezifi cancelling solutions
make the unchanged continuation for the marketing possible in the past packing (return systems of the French Mineralwaesser
and PETCycle). Also the import statistics do not speak for a handicap of the domestic market by the pledge obligation. A
discriminating listing of imported beverages in Germany is not evident. Actually importers profited both from
abfuellerspezifischen solutions and from the isolated solutions of the Discounter. There are even clear signs that straight
products foreign by these possibilities register substantial paragraph increases. Thus since introduction of the dose pledge
the beer of a Belgian brewery in one-way PET bottles of the Discounters Aldi is for example only driven out. To year end
2002 were there the beer doses of a German Abfuellers. It concerns with this example a substantial size of the market: Alone
these - 5 -. . . filling up contract might constitute approximately 1.5% of the entire German beer market. Also the market
data to mineral water occupy impressively that even during the transitional phase until October 2003 the quantity of
imported beverages within this market range important for importers rose around more than 11 per cent. The cancelling
systems are already a set of foreign Abfuellern attached. Beside the French and Italian Mineralwaessern this applies to
Energy drinks from Austria (talk bulletin) and e.g. to beer imported goods of Tuborg, faxes and Carl mountain (Denmark), for
Desperados (France) as well as Heineken (the Netherlands). Even a superproportional listing of foreign offerers, if it had
taken place - and it does not have! - would not be to be added to the state. If vertreiber do to lead one-way packages in
their assortment the state does not have influence on such private-autonomous decisions of the economictaken part. An
addition would be possible if necessary if the laws vertreiber would force actually to take one-way packages from the
assortment. Of it however no speech can be. The development of the last weeks and months in Germany shows that it is further
problem-free possible to bring both bepfandete one-way and bepfandete multi-path beverage packing in traffic. 3. The dose
pledge is well for the environment if slight market handicaps were determined - again: they do not become! - would be
justified these by the waste-economical and totalecological effects of the pledge obligation. Also the legal service of the
commission came in the end, the pledge regulation is suitable already in principle to become fair compelling requirements of
environmental protection. This already confirmed also the higher administrative court Berlin in the year 2002 expressly. - 6
-. . . The pledge obligation serves the waste avoidance, which is a priority goal also the Community law. Since at the
beginning of of 2003 could the decrease of the multi-path portions be braked and a rerise of the multi-path portions on
approximately 61% be achieved. A displacement of multi-path by one-way would lead annually to an additional waste arising of
1,2 million tons. Beyond that into several kobilanzen occupied totalecological effects justify the pledge obligation.
One-way packages cause greenhouse effect "doubly in the particularly important effect category" to five times as high loads
as comparable re-usable packages. A tinplate box makes the three-way contribution compared with a
0,33-Liter-Glas-Mehrwegflasche approximately to the greenhouse effect. The Federal Office for Environment Protection again
represented in a report of 4.12.2003 in summary, the displacement of multi-path systems would have which ecological
consequences by one-way packages. It shows up that a renouncement of the pledge obligation would lead too significantly
increased environmental impacts. In all effect categories substantial additional environmental impacts would result, with
rises up to more than 100 %. in the important effect categories "greenhouse potential" and "acid education potential" must
from a rise of the loads around 58% and/or. 87% to be gone out (see table 2). The pledge obligation represents also a
necessary and appropriate measure. The displacement that reusable packing case was intensified since 1995 from year to year.
It had approximately doubled itself last each year. In the 1. Quarter 2002 was appropriate the multi-path portion only with
approximately 56.0 %, in 2. Quarter 2002 it sank even already on 54,5%, against year end 2002 it at nearly 50 % had
continued to concern. Below a certain market penetration multi-path systems are no longer able to exist. Examples from
European neighbour states (Belgium, Austria, Switzerland) show that without an effective protection regulation multi-path
systems were displaced within short time substantial. - 7 - During a careful consideration process the Federal Government
weighed the explained immediate necessity out for the entry into force of the pledge obligation with possible other
ecological and economic effects in March 2002. It arrived thereby at the result that a Inkraftsetzen of the pledge
obligation ecologically indispensably and only mit angemessenen Belastungen verbunden ist. Die Bundesregierung ist somit der
Auffassung, dass die deutsche Pfandpflicht nach §§ 6 und 8 VerpackV und ihre Umsetzung in der Praxis mit europäischem Recht
im Einklang steht. Gleichwohl hat sie ihre Bereitschaft wiederholt, die Sach- und Rechtslage, insbesondere auch die
Beurteilung von sog. Insellösungen, mit den Dienststellen der Kommission weiter zu erörtern. Tabelle 2: Umweltbelastungen
durch Getränkeverpackungen Vergleich zwischen ?80% ökol. vorteilhaft? und ?0% Mehrweg? 80 % ökol. vorteilhaft 0 % MW.
Mehrbelastung Indikator Verbrauch fossiler Energieträger 920.000 1.400.000 50% t Rohöläquivalente Treibhauspotential
4.100.000 6.500.000 58% t CO2-Äquivalente Photooxidantienbildungspotential 5.900 12.500 113% t Ethen/NOx-Äquiv. S
urebildungspotential 22.000 41.000 87% t SO2-Äquivalente Terr. Eutrophierungspotential 2.000 2.700 31% t PO4-Äquivalente
Aquat. Eutrophierungspotential 200 270 43% t PO4-Äquivalente Naturraumbeanspruchung 120 140 11% km2