Packaging and packaging waste
Directive 94/62/EC on packaging and packaging waste, was the first instance of application of EPR, even before that concept itself was publicised.
Both minimal and maximal recovery and recycling targets are set by Directive 94/62 for packaging and packaging waste in order to avoid any possible resulting disturbance to the internal market and on competition. In addition, in order to limit the presence of noxious metals and of other substances, the Directive provides for maximum concentration levels in lead, cadmium, mercury and hexavalent chromium present in packaging (Article 11). The Directive furthermore lays down a number of essential requirements in order for packaging to be placed on the market (Article 9).
Directive 94/62 contemplates the implementation of EPR measures “to promote the implementation of the objectives” it pursues (Article 14). However, it leaves it to the Member States to adopt such measures as they deem appropriate “to ensure that systems are set-up” to provide for the return and/or collection of used packaging and/or packaging waste from the consumers or any other final users, their reuse or recovery (Article 7(1)), such requirements of the Directive being of little normative value.
By their very nature, such waste management systems cannot provide an adequate response to the second goal pursued by the Directive, i.e. “to ensure the functioning of the internal market and to avoid obstacles to trade and distortion and restriction of competition” (Article 1(2)). As a matter of practice, some of the Member States had adopted heterogeneous general approaches to the problem even before the Directive was adopted. Such is the case of an eco-tax in Belgium, a convention on packaging in the Netherlands, and above everything else Duales System Deutschland (DSD) in Germany. In France, the producer must affix to its packaging a logo certifying that it belongs to an approved recovery system (i.e. essentially Eco-Emballages), albeit a trade barrier is not seen to exist as a result of such practice.