Cross-sector business concerns vis-à-vis the French “Loi relative à la lutte contre le gaspillage et à l'économie circulaire” and the corresponding enabling ‘décrets’ or ‘arrêté’.

We the undersigned trade associations and other bodies wish to highlight our collective concerns to the European Commission and other Member States vis-à-vis the French Loi n° 2020-105 du 10 février 2020 relative à la lutte contre le gaspillage et à l’économie circulaire (1) (Law on the fight against waste and the circular economy, herewith ‘the French law’).

We welcome France’s ambition and efforts to transpose the revised Waste Framework Directive 2018/851 (herewith ‘the WFD’) and Packaging and Packaging Waste Directive 2018/852 (herewith ‘the PPWD’) and recently adopted Single Use Plastics Directive 2019/904 (herewith ‘the SUP’). However, we consider some specific provisions within the law to be;

i. damaging for the functioning of the EU’s Internal Market as they will create new trade barriers and are disproportionate with regard to the stated policy objectives; and/or

ii. inconsistent with some provisions of the WFD, PPWD or SUP.

These measures include:

•  Article 17: Mandatory use of a sorting logo (‘signalétique informant le consommateur que ce produit fait l'objet de règles de tri’ namely the ‘Triman’ logo) for all products subject to EPR including all packaged goods (with the exception of glass beverage containers)

• Article 62: Penalising the use of other symbols such as the ‘green dot’ that denotes payment of an EPR fee

• Article 62: Modification of EPR schemes in a manner inconsistent with Article 8a (‘General Minimum requirements for extended producer responsibility schemes’) from 2008/98/EC as amended by EU/2018/851

• Article 35: A new requirement that unsold products be re-employed or donated to charitable associations

• Article 61: The ability to impose national recycled content levels for certain products and materials

Our shared concerns in respect of these provisions are further outlined in the attached analysis. We collectively request that;

1.  The European Commission review the compatibility of the French law (and any ancillary arrêtés or décrets) with regard to EU harmonized product legislation and internal market rules consistent with the obligations within Article 114.6 TFEU;

2. Once the French Government notifies the corresponding measures under the TRIS procedure ((EU/2015/1535), we call upon the Commission and Member States to respond with their opinions on the notified drafts taking into account the concerns highlighted in this submission;

3. In the event that France adopts any of the measures as highlighted below, we ask the Commission to launch an infringement procedure against France in respect of the Internal Market provisions within the PPWD. We ask this as we believe that we have clearly demonstrated that the underlying rationale of environmental protection is flawed in respect of the imposition of the ‘Triman’ and penalising of the ‘green dot’;

4. The European Commission review the highlighted French provisions within the context of Article 6 of Directive EU/2015/1535. In particular, the need to postpone adoption for a period of up to 12 months where the Commission has the intention to propose or adopt measures on the same matter. For example, within the recent Circular Economy Action Plan (CEAP), the Commission has signalled the intention of “setting minimum requirements for sustainability labels/logos” and the plan to “assess the feasibility of EU-wide labelling that facilitates the correct separation of packaging waste at source” as part of a future EU-wide harmonised model for separate collection of waste and labelling to facilitate separate collection.

5. Members of the World Trade Organization (WTO) oppose the corresponding French draft measures when notified to the WTO(2)

We thank you in advance for taking our views into consideration and would be happy to further expand upon our views on this matter if necessary.

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(1) Loi n° 2020-105 du 10 février 2020 relatif à la lutte contre le gaspillage et à l’économie circulaire (TREP1902395L). Available at:
https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000041553759&dateTexte=&categorieLien=id

(2) The previous attempt to impose the ‘Triman’ in France was also notified to the WTO Secretariat under Article 2.9.2 of the Agreement on Technical Barriers to Trade (TBT) on November 19th 2013 (G/TBT/N/FRA/153). Other WTO Members then had the possibility to submit their comments on the draft décret. Concerns were raised by the United States, Canada, New Zealand and Mexico. They highlighted the cost of implementation and questioned whether it was proportionate to the objectives and whether it risks hampering trade and fragmenting the internal market in respect of waste recycling. See: ‘Minutes of the meeting of 18-19 June 2014’ World Trade Organization Committee on Technical Barriers to Trade, 19 September 2014.  Available at: https://docs.wto.org/Dol2FE/Pages/FormerScriptedSearch/directdoc.aspx?DDFDocuments/t/G/TBT/M63.DOC