The concept of packaging: clarification of the law

18 November 2016
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  1. Some legal decisions have recently clarified important outlines regarding the concept of packaging. Considering the dissemination, including on internet sites, of news which is incomplete and easily manipulated, accurate and verifiable information should be provided in order to overcome any confusion, especially as it could result in undue and spurious requests being made to companies which produce packaging.
  2. A recent ruling made by the Court of Rome (no. 11074/2014) confirmed the nature of spools (tubes around which flexible materials such as plastic film, paper, etc. are rolled) as packaging, reaffirming that, under the law, the obligation of manufacturers and users of packaging pursuant to both the Ronchi Decree, and Legislative Decree no. 152/2006 “prescinds from the qualification of the packaging as primary (…) or secondary (…) or tertiary (…) in that the packaging, regardless of the function it is meant to perform, is in any case destined for separate waste collection provided by the public utility”. The ruling also confirms that “a product is qualified as packaging with regard to its function, which is that of containment, protection or handling of goods to enable the delivery and presentation from the producer to the user,from the user to the consumer, regardless of the marketing stage of the merchandise contained in said packaging, with the consequence that the packaged goods can be either raw material, semi-processed or the end product “. The ruling clarifies that “directive no. 2004/12/EC has left unaltered the concept of packaging contained in art. 3, paragraph 2, of Directive 94/62/EC, also concluding, in light of Directive 2013/2/EU, that “the cores of spools are subject to the Conai environmental contribution.”
  3. Another first instance ruling (Court of Rome, no. 8131/2014), concerning the nature of packaging of a specific category of goods consists of large capacity bins (greater than 100 litres), had instead been wrongly denied the qualification of packaging as “due to their characteristics (…) were designed and manufactured to withstand and last for a long time, “so that they” are not comparable to single-use containers or limited in time” as they are “intended for long term use and durable” and “as long-term aid to the firm’s activities within the production cycle of same and not for the purpose of ensuring a suitable transport of the goods in the manufacturer/user/consumer cycle (and intermediate steps). “The conflict between the concept of “single-use or limited in time” and “extended use and long-lasting” inside “the productive cycle” of the company is, in fact, outside the legal regulations on the subject, for which the duration or the place of use or reuse of a good is not, in itself, decisive for the purposes of identifying it as packaging. In giving a reason for the decision, the same court does not preclude that the reusability of an asset is, in itself, incompatible with the function of packaging. With regard to these outlines, Conai reserves the right to appeal the decision, taking into account legal precedents to the contrary (Court of Rome no. 2005/2012, no. 2011/2012). In any case, the ruling, in confirming the legal precedents governing national and European legislation of reference, reaffirms that: a) for the purpose of qualifying goods as packaging, a central role is given to its function of containment, protection, handling and delivery of goods, whether they be raw materials or finished products, in transport from the manufacturer to the consumer/end user , from manufacturer to user, user to another user, or by a user to a consumer/end user; b) this function should be checked ex ante and in the abstract, taking into account the design features and manufacture of the goods.
  4. An important ruling by the Court of Appeal, Rome (n. 3048/2014) has finally confirmed, rejecting the appeal brought by Polieco, the judgement of the Court of Rome no. 16818/2007 which verified the nature of packaging for shopping bags, vacuum packs, open mouth bags, as well as tubular and flat films for the automatic packaging of, for example, plant food, fertilisers, chemical products in general, polymers, salts, pasta products, feed, cover hoods for pallets, shrinkwrap and stretch film, top sheet film for pallets and industrial stretch film for packaging pallets. Packaging products that Polieco has long claimed to include in the waste management system of polyethylene goods, removing them from packaging waste. The Court reiterates that the classification of a product as packaging is in its “function (containment and protection)”. This, in the light of the Ronchi Decree and art. 3 of Directive 94/62/EC, it being understood that Directive no. 2004/12/EC, “for completeness of motivation” cited in the first instance ruling, is limited to clarifying the definition of “packaging” already contained in directive no. 94/62/EC (implemented by the Ronchi Decree), providing explicit criteria regarding the level of interpretation to clarify the definition. ” The clarification made by the Court was required to refute the theory of Polieco, according to whom the concept of packaging was radically changed by directive no. 2004/12/EC and its transposition in Italy with legislative decree no. 152/2006. The judges of second degree, by refuting the contrary theory of Polieco, also reaffirm the accuracy of the interpretation of the framework of reference made by the Court of Rome in sentence no. 16818/2007 (and in many other decisions: v. Court of Rome no. 10050/2006; n. 10555/2008; n. 21623/2008; n. 2005/2012; n. 2011/2012; n. 2015/2012; n. 2019/2012; n. 23265/2013; n. 6732/2014) with regard to the fact that: a) the functions of the packaging specified in regulatory definitions shall not be understood as cumulative; b) “assets intended for use within the production cycle” can also be qualified packaging; c) the notion of packaging refers not “only to the product intended to allow delivery of goods from the producer to the consumer, but also used to allow delivery from the manufacturer to the user.” The Court of Appeal also confirms that it was correct to dismiss the counter-claim of Polieco in order to ascertain and declare that “goods such as containers used in industry and agriculture (for solid or liquid materials and agricultural food products), such as bins, tanks and containment boxes, containers for logistics, cisterns, covers for silage and round bales, characterised by specific technical features and special characteristics for different industrial applications and used repeatedly, as a function of instrumental goods (and as such, considered in terms of accounting and taxation: “depreciable goods”) for the production and/or typical activities of the company are not, in relation to specific use, industrial-productive, to be considered wholly or mainly as packaging, but if made entirely or principally of polyethylene, the goods are subject to the rules pursuant to art. Legislative decree No. 48. 22/97″. Consequently, the nature of these goods as packaging must also be recognised, and therefore the Court of Appeal refutes the theory contained in the aforementioned judgement of the Court of Rome, no. 8131/2014, according to which bins should be excluded. The judgement of the Court of Appeal is particularly important since the dispute that was decided concerns an investigation with general and abstract value, thus not referable to particular types of goods produced by specific packaging producers, and that it constitutes the first significant decision on the subject made by a judge of the final court of appeal.
  5. The Court requires a few basic considerations to review and reject, in a timely manner, all grounds for appeal by Polieco. Ample space was instead dedicated to the request made by the Conai counterclaim for damages against Polieco, given the recurrence beyond all logic of their interpretations, and related claims, against companies that produce packaging. Lastly, the ruling rejects the claims, but emphasises that the errors in law made by Polieco are excusable only for the compensation profile of 2003 when the lawsuit was brought forward; today, this is no longer true, in light of judgements made since then by Italian and European Courts.