The advocate general also supported the view of the EU Commission that the present deposit regime contains discriminatory practices not in compliance with the EU Packaging Directive and has lead to distortion of competition within the internal market. He did not endorse the mandatory deposit as a valid and justified instrument to protect national refill bottle systems and questioned life cycle assessments as basis for a discriminatory packaging policy.
"It will be very difficult for the German government to ignore the additional criticism from an EU Institution commenting on the advocate general conclusions," said Lars Emilson, chairman of the BCME, which is made up of Ball Packaging Europe, Crown Bevcan Europe and Rexam.
Emilson believes that it is now in everyone's interest to work towards the immediate establishment of a national solution that promotes free trade without discriminatory elements.
"The beverage can is meeting all essential requirements of the Packaging Directive for its manufacture and recyclability and it should not be possible to more or less completely eliminate such a packaging from the market in less than a year. This explicit warning was given by the Advocate General to Germany in the same way as he did towards Denmark in the past."
There has been intense opposition to Germany's current one-way can deposit system from both Europe's packaging industry and the general public. The Association of European Steel Producers (APEAL) for example claims that the majority of Germans want to see the one-way can deposit system scrapped. Over 75 per cent of consumers feel that one-way drinks packaging should be sorted for recycling at home, as was done until the end of 2002.
The current system, which was introduced on 1 January 2003, means that consumers must return the can to the shop in which they purchased it.
"As a result, if you bought a container in Hamburg and went by train to Frankfurt, you couldn't return it," Rexam group communications director Per Erlandsson told FoodProductionDaily.com. "Customers can only return a container to the shop in which they bought it. As a result, many retailers have delisted one-way containers." For consumers, the problem, it seems, is that there is no uniform return system for one-way packaging in Germany. According to APEAL, there are currently five different, incompatible systems covering 10 per cent of the drinks market at most.
The mandatory deposit on disposable drinks packaging has also been met by almost unanimous opposition from the packaging industry. APEAL claims that the system has cost a drop in industry turnover of €1.2 billion and a loss of €50 million in beer tax revenue.
"We lost 1.5 billion cans in Germany last year, and this impacted our profit by £18 million," said Erlandsson. "The recycling scheme in Germany has created chaos, and has hit cans more than any other form of packaging. In any case, over 85 per cent of cans in the waste stream are already recycled. We are pro-recycling - for example I think that the systems in Scandinavia work very well - but a scheme like this simply cannot be introduced without a collection system put in place."
In addition, industry argues that mandatory deposits lead to discrimination and unequal treatment for different types of packaging. The system is also ambiguous - still soft drinks are not subject to deposits, while fizzy drinks are. The advocate general's conclusions will therefore provide the packaging industry with yet more ammunition with which to bring down a highly unpopular policy.