Since their entry into force, the new French sorting rules (resulting from the ‘AGEC’ law n°2020-1051), have been the subject of much discussion. Both domestic and foreign operators are facing difficulties with the practical implementation of these new obligations. However, their legality had not yet been questioned.
In a press release dated 15 February 20232, the European Commission has announced that it asked France to comply with European law on the free movement of goods, in relation to the requirement to feature the Triman logo with sorting instructions (‘Info-Tri’) on products placed on the French market.
Indeed, the Commission considers that the French labelling rules relating to the management of waste-generating products could constitute a barrier to entry to the French market, and risks undermining the principle of free movement of goods (Articles 34-36 TFEU).
Without discussing the merits of these measures, which are likely to be regulated at the European level in the near future, the purpose of this article is to address the legal difficulties raised by their practical application on the European market.
- Overview of the French obligation
- Formal notice sent to France for failure to address its labelling requirements concerning waste sorting instructions
- Next steps in the infringement procedure
Overview of the French obligation
The issue of sorting rules is not (yet) harmonised at European level.
France has therefore positioned itself as a leader from 2020 onwards on these issues, in particular by (i) introducing a penalty for the use of confusing symbols such as the Green Dot – a penalty that has since been suspended by the Council of State (Conseil d’Etat) while awaiting a ruling on the merits – and (ii) imposing specific sorting rules for the French market: Triman logo + sorting instructions “Info-Tri” specific to each extended producer responsibility (EPR) channel.
In short: operators placing waste-generating products on the French market (which may include manufacturers, importers, distributors, etc.) must add the Triman logo to the labelling of products, together with the sorting instructions ‘Info-Tri’ visual. The latter are drawn up by the eco-organisations and validated by the French authorities, and are therefore directly linked to the principle of EPR, since (i) each EPR channel has its own sorting instructions (design included), (ii) to have access to the sorting rules’ design, it is necessary to have joined the relevant eco-organisation.
However, two practical difficulties can be encountered:
- A product may be subject to several EPR schemes, which means that sorting rules related to each of the schemes should be featured (e.g. a toy containing batteries and packaged is likely to be concerned by three EPR schemes: toy, batteries and accumulators and household packaging).
- The deadlines for implementation are particularly complex because the sorting instructions were not validated at the same time for each EPR channel, thereby coming into force successively; moreover, transitional deadlines have been granted to operators, but again, the dates depend on each sector, which can be problematic when a product falls within the scope of two EPR channels, for which the deadlines are not harmonised.
Although the implementing decree3 on consumer information on waste sorting rule provides for a mutual recognition clause, this seems to be of little practical application since it entails:
- to replace the Triman by an ‘equivalent’ logo: that the EU or another Member State imposes compulsory signage informing the consumer that the products concerned are subject to sorting rules.
- to replace the ‘Info-Tri’ sorting instructions: that the EU or another Member State imposes compulsory sorting information with the same characteristics as the French Info-tri.
Consequently, French operators introducing their products into the EU market, as well as operators introducing their products into France, are faced with the same difficulty: to produce different packaging according to the marketing country, or to combine the sorting rules specific to each country thereby increasing the size of the packaging.
It is in this context that the European Commission has announced the opening of an infringement procedure against France.
Formal notice sent to France for failure to address its labelling requirements concerning waste sorting instructions
As ‘guardian of the Treaties’, the European Commission is responsible for ensuring the application of the Treaties and of measures adopted by the institutions pursuant to them. It oversees the application of EU law under the control of the Court of Justice of the European Union (CJEU).
To this end, it has tools at its disposal, such as the infringement procedure against Member States when it considers that there is a failure to fulfil the obligations incumbent on Member States under the Treaties (Article 258 of the Treaty on the Functioning of the European Union).
This procedure has several steps which may lead to a Member State being sanctioned.
As a first step, the Commission starts by sending a letter of formal notice to the Member State concerned, which may submit its observations and reply to the request for information within a period set by the Commission, usually two months.
In this context, the Commission announced in its press release of 15 February 2023 that it considers that the French labelling requirements for waste sorting instructions might not comply with EU law.
In the absence of EU-wide harmonisation of rules on waste sorting instructions, national measures adopted by Member States shall not ‘create an unnecessary burden on internal market trade’.
As mentioned above, the implementation of the new French sorting rules is the source of implementation difficulties for market players, particularly foreign ones, in view of the application deadlines and operational constraints (successive relabelling to comply with the various deadlines depending on the EPR channel, lack of space on packaging, stock clearing periods, different rules depending on the country in which the products are sold, etc.).
The Commission considers that the French rules carry a risk of hindering the free movement of goods, as well as potential counterproductive effects on the environment. In effect, compliance with the rules might generate more waste due to the use of additional materials needed for additional labelling, as well as an increase in the size of packaging to display the Triman logo and sorting instructions.
Thus, according to the Commission, France has not ‘conducted a sufficient analysis of the proportionality of [its] policy choice as other suitable options, less restrictive of trade between Member States, are available’.
The absence of notification under Directive 2015/1535 is also criticized, in that the law was not notified to the Commission in draft form prior to its adoption.
In this respect, a quick parallel can be drawn with the issue of the Green Dot ban. When France adopted a text aimed at penalizing the use of this logo, it was still compulsory in many European countries. Today, this regulatory requirement seems to be questioned in most countries. For example, in Spain, where the Green Dot was mandatory, a 2021 draft law planned to ban it. However, the notification of the draft text by the Spanish government on TRIS led the European Commission to issue a detailed opinion4 indicating that such a ban would be likely to hinder the free movement of goods as (i) other Member States would have to comply with the Spanish obligations or (ii) force producers to design special packaging or modify the packaging of their products for the Spanish market. In France, as the notification of the ‘AGEC’ law was not carried out, it can be assumed that the issue of the Green Dot and the new sorting rules would also have subject to comments by the European Commission, especially as the Commission is willing to harmonise these issues in the near future (Proposal for a Regulation on packaging and packaging waste5).
As regards the procedure against France, the French authorities now have two months to respond, failing that, the Commission may send France a reasoned opinion.
For example, the Commission has just sent such a reasoned opinion to France in a completely different context, on the grounds that France has not fully implemented EU legislation on drinking water quality. The Commission had initially sent a letter of formal notice in October 2020. However, it seems to us that the issue of labelling for sorting rules is less complex and that shorter deadlines should apply – especially as the Commission may wish to avoid Member States going their own way in this matter, potentially creating obstacles to the internal market.
Next steps in the infringement procedure
The case at hand is at the very first step of the infringement procedure which may lead to a Member State being sanctioned.
Generally, if, following the letter of formal notice and the deadline for comments, the European Commission is not satisfied with the Member State’s response and considers that there is a failure to fulfil its obligations under EU law, it may send a reasoned opinion. In this opinion, the Commission will ask the Member State concerned to ensure compliance, and to inform the Commission of the measures taken to that end within a specified period, usually two months.
If the Member State does not remedy the situation within the specified period, the Commission may refer the matter to the CJEU.
In the event of a Court judgment recognizing a breach of one of its obligations under the Treaties, the State concerned shall be required to take the necessary measures to comply with the judgment.
However, if the Commission considers that the State concerned has still not implemented the measures provided for in the Court’s decision, it may again refer the matter to the Court, indicating the amount of a financial penalty which it considers appropriate to the circumstances.
On its website, the Commission indicates that in 90% of cases, Member States comply with their obligations before a possible referral to the Court.
For the record, the Commission can decide to open an infringement procedure either on its own initiative or following a complaint. In recent years, a greater proportion of cases are opened following investigations by the Commission itself.
In its October 2022 Communication ‘Enforcing EU law for a Europe that delivers’6, the Commission announced its intention to make strategic and targeted use of EU infringement procedures.
It will be interesting to follow the next steps, to see whether the Commission makes full use of its powers under the infringement procedure provided for by the Treaties. This new development concerning the French sorting rules does not suspend the execution of the French texts, which means that operators must continue to comply, despite the lack of visibility and associated legal uncertainty.
2) European Commission Procedure INFR(2022)4028 of 15 February 2023 (Formal notice Article 258 TFEU: Possible breach of Articles 34-36 TFUE in relation to packaging labelling rules)
3) Implementing Decree: Décret n° 2021-835 du 29 juin 2021 relatif à l’information des consommateurs sur la règle de tri des déchets issus des produits soumis au principe de responsabilité élargie du producteur – Légifrance (legifrance.gouv.fr)
4) EC detailed opinion on the Spanish law draft: https://ec.europa.eu/growth/tools-databases/tris/index.cfm/en/search/?trisaction=search.detail&year=2022&num=325&mLang=FR
5) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on packaging and packaging waste: EUR-Lex – 52022PC0677 – EN – EUR-Lex (europa.eu)
Articles: Article 17 TEU; Article 258 TFEU; Article 260 TFEU ; Article L.541-9-1 of the French environmental code.