New EPR requirements for online marketplaces

Online retail is getting more and more popular. It is not only convenient for consumers; it has also helped consumers and shops to cope with the closures caused by COVID.

At the same time, national authorities and the European Commission have identified sales via online channels as a major source of freeriding, whereby companies do not comply with EU-wide extended producer responsibilities (EPR) for WEEE, batteries and packaging.

One significant channel is sales via online marketplaces, where sellers do not always fulfil their EPR obligations for various reasons, including the seller not being aware of their obligations. Furthermore, online platforms still have no legal obligation to ensure the compliance of their sellers.

Following the mandate from Article 8a of the Waste Framework Directive, the European institutions have emphasized once again that actors in online sales have similar obligations to other producers or retailers. The European Commission is currently working on “Guidelines on the minimum requirements for extended producer responsibility schemes”.

According to a first draft from September 2020, Member States should consider introducing actions to prevent illegal online selling. The draft guidelines specifically mention the need to impose certain responsibilities on marketplaces to tackle the freeriding problem, such as the requirement for the online marketplace to request and check sellers’ compliance with their EPR obligations: for example, registration and reporting.

Although the Guidance is not yet officially published, Germany, France, Belgium and Portugal have already published or drafted legislation to implement marketplace requirements, albeit while applying a slightly different approach to regulation.

For example, marketplaces would be obliged to share EPR compliance information with their sellers in Germany and Belgium, but not in France and Portugal.  Other requirements include active checking that sellers are fulfilling their registration or reporting obligations, have a contract with a producer responsibility organisation, or that the marketplace is keeping an internal register of EPR data for all its sellers.

In the event of a seller’s non-compliance, Members States are considering different measures that the marketplace would need to take, such as stopping the sales of affected sellers or taking on the seller’s EPR obligation.

It is expected that other countries will follow the path of Germany, France, Belgium and Portugal, as all EU Member States are struggling with the negative effects of freeriding. These include underfunding of waste management operations and the undermining of legitimate producers who must pay more to compensate for the freeriders.

What is the current status of the new obligations for online marketplaces in Germany can be found at www.verpackungesetz-info.de