Definition and Legal Basis of the Dual System
Das Dual System is a central term in German environmental law and primarily refers to the privately organized system for the collection, sorting, recovery, and disposal of sales packaging in accordance with the provisions of the German Packaging Act (VerpackG). Its legal framework and development are closely linked to the introduction of the statutory obligation for the return and recycling of packaging waste. The Dual System represents an alternative collection and recycling system outside of public waste disposal and is a key component in implementing product responsibility pursuant to Section 23 of the Circular Economy Act (KrWG).
Origin and Historical Development
Historical Background
The origin of the Dual System can be traced back to the increasing requirements for recycling and waste reduction in Germany in the early 1990s. With the entry into force of the Packaging Ordinance (VerpackV) in 1991, a nationwide responsibility for manufacturers and distributors regarding their packaging waste was established for the first time. This required the introduction of a privately organized take-back system—known as the Dual System.
Introduction of the “Green Dot”
The most well-known system in this context is the “Duales System Deutschland GmbH (DSD),” founded in 1990. It introduced the “Green Dot” symbol as a mark for packaging participating in the system and organized nationwide collection via yellow bags and bins. The term “Dual System” became established as a synonym for privately operated take-back systems that compete with public-sector waste management.
Legal Classification and Legislative Basis
Packaging Act (VerpackG)
The currently governing regulation is the Packaging Act (VerpackG, in force since January 1, 2019), which details the obligations of manufacturers and distributors of packaging. Section 3 (16) VerpackG defines a “dual system” as a system approved under Section 18 VerpackG for the collection, sorting, and recycling of sales packaging typically generated as waste by private end consumers. The law obliges those placing packaging subject to system participation on the market to participate in one or more dual systems (Section 7 VerpackG).
Circular Economy Act (KrWG)
In addition, the Circular Economy Act (Sections 23 ff. KrWG) specifies fundamental obligations regarding product responsibility, which also include the organization of take-back and recycling of packaging via dual systems. The aim is a sustainable circular economy to conserve resources and reduce environmental impact.
General Framework and Approval
According to Section 18 VerpackG, dual systems must ensure nationwide comprehensive collection and recycling and comply with annual quotas for material recycling and overall recycling. Approval is granted by the Foundation Central Packaging Register Office (ZSVR), which also manages the register (Section 9 VerpackG), as well as monitors and audits the systems.
Functionality and Obligations of the Participants
Participation Obligation for Those Placing Packaging on the Market
Manufacturers and distributors of packaging subject to system participation must join a dual system and have the quantities of packaging they place on the market licensed. Fees are based on the type and quantity of packaging used.
Organization of Collection and Recycling
Dual systems independently organize the collection (e.g. via yellow bags, yellow bins, recycling centers), sorting, and recycling of collected packaging. They maintain contractual relationships with collection and disposal companies. The systems fulfill recycling quotas according to Section 16 VerpackG.
Verification and Documentation Obligations
Dual systems are subject to extensive verification, documentation, and reporting obligations to the Central Office (Section 17 VerpackG). This particularly includes the annual record of material flows to meet recycling quotas and auditing by an independent expert (e.g. Section 27 (2) VerpackG).
Competition and Market Structure
Since market liberalization in 2003, several approved dual systems have operated in Germany, competing for manufacturers’ system participation. The Federal Cartel Office monitors compliance with competition law in the area of dual systems.
Distinction from Other Take-Back Systems
While the dual system focuses on sales packaging, there are parallel rules for transport packaging, reusable packaging, and packaging-like non-packaging materials. These are subject to their own take-back obligations that are not covered by dual systems.
Legal Disputes and Developments
Reference to European Law
The Dual System in Germany implements requirements from the EU Waste Framework Directive and the EU Packaging Directive, particularly regarding product responsibility and recycling targets.
Case Law and Questions of Interpretation
The legal structure of the Dual System has repeatedly been the subject of court proceedings. These include issues concerning the distinction between private and municipal collection structures, the obligation to participate in the system, the verification of recycling quotas, and market access for new systems.
Reforms and Outlook
With the entry into force of the Packaging Act in 2019, system participation requirements were tightened, central oversight by the ZSVR strengthened, and verification obligations extended. Political and legal developments aim for a continuous increase in recycling quotas and further reinforcement of product responsibility.
Summary
The Dual System is an essential part of German waste and environmental law. It ensures the privately organized take-back and recycling of sales packaging in fulfillment of statutory product responsibility. Its legal regulation is primarily governed by the Packaging Act under the supervision of the Central Packaging Register Office. System participation, mass balance verification, and compliance with recycling quotas constitute central legal obligations. The ongoing further development of the system serves both national and European goals of resource conservation and waste prevention.
Frequently Asked Questions
What legal obligations do manufacturers and distributors have under the Dual System?
Manufacturers and distributors of packaged goods that typically become waste at private end consumers are subject to a system participation obligation pursuant to the Packaging Act (VerpackG). They are therefore required to have their packaging licensed by a Dual System approved in Germany (e.g. Der Grüne Punkt, BellandVision, Interseroh, etc.) and to pay the corresponding licensing fees. In addition, before placing packaging subject to system participation on the market, they must register in the Central Packaging Register (“LUCID”) and submit the required volume notifications there accurately and on time. Another legal requirement is to retain proof of the chosen Dual System and the reported volumes for a period of at least three years. Correct labeling of the packaging may also be required. Violations of these obligations can be sanctioned as administrative offences with substantial fines.
What monitoring and supervisory obligations does the Packaging Act prescribe for Dual Systems?
The Packaging Act obliges Dual Systems to ensure the proper collection, sorting, and recycling of packaging waste collected. The systems must submit annual mass flow documentation on all licensed packaging and its subsequent handling to the Central Packaging Register Office and the responsible state authorities. In particular, compliance with the specified recycling and recovery quotas must be documented and ensured. Dual Systems are also required to carry out random checks and report any suspected manipulation or false declarations in manufacturers’ participation obligations. Noncompliance may result in substantial sanctions, up to the withdrawal of system approval.
Are all packaging types subject to the licensing obligation under the Dual System?
No, the Packaging Act distinguishes between different types of packaging. Only so-called packaging subject to system participation—i.e. packaging that typically becomes waste at private end consumers (sales packaging and grouping packaging)—must be licensed with a Dual System. Transport packaging that remains within trade or is used industrially is subject to other provisions, for example take-back obligations by the manufacturers themselves, but not necessarily the obligation to participate in the system. In certain cases, service packaging (such as to-go cups or carrier bags) can be licensed by the final distributor through a simplified procedure.
What legal consequences arise from violations of the system participation obligation?
Violations of the system participation obligation constitute an administrative offence under the Packaging Act and can be penalized with fines of up to 200,000 euros. Sanctionable violations in particular include placing non-licensed packaging on the market, missing or incorrect registration in the LUCID packaging register, or insufficient or late volume notifications. In addition, competition associations or competitors may assert cease-and-desist and damages claims. Repeated serious violations can ultimately lead to a sales ban imposed by the competent authorities.
What reporting obligations exist towards the Central Packaging Register Office?
Manufacturers and distributors are required to electronically report to the Central Packaging Register Office, prior to placing packaging on the market, both the basis for their system participation (e.g. name and registration number of the Dual System) and the volumes of packaging licensed each year and, where applicable, during the year with Dual Systems. In addition, any changes in company details or in the scope of system participation must be communicated promptly on their own initiative. The Central Packaging Register Office may request information at any time in exercising its supervisory function and conduct random audits.
Are there exemptions or special regulations in the Packaging Act for small quantities or certain industries?
The Packaging Act does not provide for a general minimum threshold: every manufacturer and distributor placing packaging subject to system participation on the market is required to license and register it, regardless of quantity. However, for certain industries—such as service providers distributing service packaging—simplified procedures exist whereby system participation obligations can be transferred to upstream suppliers. Nevertheless, the requirement to register in the packaging register remains. There are also special rules for mail order companies involved in cross-border trade as part of extended producer responsibility.
How is it ensured that the Dual System functions uniformly throughout Germany?
The legal framework and requirements for Dual Systems are uniformly binding nationwide under the Packaging Act. Central nationwide monitoring is the responsibility of the Central Packaging Register Office, which oversees both manufacturers’ compliance and the operation of Dual Systems. Practical implementation, however, takes place regionally through the respective system operators, who must nevertheless operate according to nationwide standards. Licensing fees and organization of waste collection may vary regionally, but the statutory goals regarding collection and recycling are set uniformly everywhere.
