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The purpose of this paper is to analyse the main changes to Legislative Decree No. 152 of 3 April 2006 (Environmental Consolidated Act, Testo unico in materia ambientale, hereinafter “TUA”), as amended after the transposition into the Italian legal system of EU Directives Nos. 851/2018 and 852/2018 on the transition to a “circular economy”, with a focus on the novelties introduced on “Extended Producer Responsibility” (“EPR”).
Legislative Decree No. 116/2020 - implementing Directive (EU) 2018/852 - also amended Articles 217 et seq. of the TUA on management of “packaging” and “packaging waste”.
First, Article 218 of the TUA provides for the following definitions:
- “packaging”: “the product, composed of materials of any nature, used to contain certain goods, from raw materials to finished products, to protect them, to allow their handling and delivery from the producer to the consumer or user, to ensure their presentation, as well as disposable items used for the same purpose”;
- “packaging waste”: “any packaging or packaging material covered by the definition of waste under Article 183, paragraph 1 (a), excluding production residues”[1].
That being said, new Article 217 of the TUA outlines the purposes of the new regulations on packaging: lawmakers intend in particular to promote measures aimed at preventing the production of packaging waste, to encourage the reuse of packaging, recycling and other forms of recovery of packaging waste, thereby pursuing the goal of reducing the final disposal of waste and ensuring a high-level of environmental protection.
The rules cover the management of all packaging and packaging waste resulting from its use, used or produced by industries, businesses, offices, stores, services, households or any other subject.
The new packaging management rules also contain important requirements in relation to the “extended producer responsibility” regime.
Whereas clause 20 of Directive (EU) 2018/852, in particular, expressly provides that effective extended producer responsibility schemes can have a positive environmental impact by reducing the generation of packaging waste and increasing its separate collection and recycling.
Consequently, Article 1(8) of Directive (EU) 2018/852 amended Article 7 of Directive (EC) 94/62 providing, on the part of Member States, for the obligation to establish by 31 December 2024 extended producer responsibility schemes for all packaging.
Furthermore, second paragraph of Article 217 of the TUA makes express reference to the concept of “shared responsibility”, providing that “Operators in the respective packaging supply chains as a whole shall ensure, in accordance with the principles of “shared responsibility”, that the environmental impact of packaging and packaging waste is minimised as much as possible throughout the life cycle”.
Article 219, paragraph 2 of the TUA in turn provides that, in order to promote the transition to a circular economy in accordance with the “polluter pays” principle, economic operators shall cooperate according to the principle of “shared responsibility” by promoting measures to ensure the prevention, reuse, recycling and recovery of packaging waste.
The objective pursued by said rules is to encourage the development of clean technology and to reduce upstream the production and use of packaging as well as to promote the production of reusable packaging and its actual reuse [2].
For example, Article 219-bis of the TUA provides that, precisely in order to increase the percentage of reusable packaging placed on the market to contribute to the transition to a circular economy, economic operators are adopting - individually or collectively - deposit-return systems.
A further relevant aspect is the setting of precise recycling and recovery targets for packaging waste for producers and users.
Second paragraph of Article 220 of the TUA in this regard provides that the so-called National Packaging Consortium (hereinafter referred to as “CONAI”), in order to ensure the monitoring of the achievement of recycling and recovery targets, shall acquire from all entities operating in the packaging and packaging waste sector a set of recycling data, to be reported annually to the Waste Register.
Such data relates to the quantities of packaging placed on (and recovered from) the market during the calendar year preceding the year in which the report is made[3].
Furthermore, paragraph 6 of Article 220 of the TUA specifies how recycling and recovery targets for packaging waste are to be set[4].
Finally, Legislative Decree No. 116/2020 also amended Article 221 of the TUA, which provides that “Producers and users are responsible for the proper and effective environmental management of any packaging and packaging waste produced by the consumption of their products”.
In this respect, in order to ensure the achievement of the aforementioned recovery and recycling targets, Article 224, paragraph 1, of the TUA provides for producers and users to participate on an equal basis in CONAI.
CONAI’s duties include, inter alia, determining and placing on consortium members (i.e., producers and users) the contribution called “CONAI environmental contribution” [5].
Such contribution represents the form of financing whereby CONAI distributes the cost for higher charges for separate collection, recycling and recovery of packaging waste among producers and users.
As stated on CONAI’s website, the purpose is to encourage the use of more recyclable packaging, linking the contribution level to the environmental impact of the end-of-life/new-life phases[6].
The sums due as CONAI environmental contribution are levied, based on specific indication in the invoice of the amount due, upon the so-called “first transfer.”
“First transfer” means the transfer, even temporarily and for any reason, within the national territory:
- of the finished packaging performed by the last producer or empty packaging trader to the first user other than the empty packaging trader;
- of the packaging material carried out by a “producer of raw material (or semi-finished products)” to a “self-producer”[7].
Finally, it should be pointed out that, also in relation to the technical measures required for the application of the new packaging rules ,it will be necessary to wait for the implementing Ministerial Decrees under Article 219, paragraph 4, of the TUA.
2. Tyres, batteries and end-of-life vehicles
As mentioned above, the legal system recognises a number “extended producer liability” schemes.
Without prejudice to the considerations made above in relation to the general provisions on extended producer liability under new Articles 178-bis and 178-ter of the TUA, it seems appropriate to briefly mention some of the extended producer liability schemes that are already regulated by the law in force.
First, as far as the law on tyres is concerned, a distinction must be made depending on whether or not they are mounted or fitted on an end-of-life vehicle.
Tyres mounted or fitted on an end-of-life vehicle are indeed subject to the provisions of Legislative Decree No. 209/2003, “Implementation of Directive 2000/53/EC on end-of-life vehicles”.
On the contrary, if tyres are not mounted or fitted on an end-of-life vehicle, the provisions of Ministerial Decree No. 182/2019, implementing Article 228, paragraph 2, of the TUA and regulating the timelines and implementation methods of the obligation to manage end-of-life tyres, shall apply.
Such distinction derives from the fact that Article 228, paragraph 1 of the TUA, while dictating provisions on the recovery of end-of-life tyres, expressly keeps safe the provisions on end-of-life vehicles of Legislative Decree No. 209/2003. Consequently, if tyres are mounted on an end-of-life vehicle, the special rules in Legislative Decree No. 209/2003 shall prevail.
That being said, Article 228 of the TUA and the aforementioned implementing Ministerial Decree (Ministerial Decree No. 182/2019) pursue an environmental protection purpose to be achieved through the optimisation of end-of-life tire recovery activities.
As far as the scope of such “extended liability” regime is concerned, Ministerial Decree No. 182/2019 provides that the provisions therein apply to producers and importers[8] who put tyres into the so-called “spare part market”.
Such market is defined by Article 2, paragraph 1, e) of the same Ministerial Decree as the market in which new, used or retreaded tyres are marketed, other than those sold to vehicle manufacturers and intended for installation on vehicles.
In relation to such entities, Article 228 of the TUA provides for the obligation to procure, either individually or in associated form, the management of quantities of end-of-life tyres equal to those placed on the market by the manufacturers and importers themselves and intended for sale in the national territory, also arranging research, development and training activities aimed at optimising the management of end-of-life tyres.
More specifically, the implementing provisions of Ministerial Decree No. 182/2019 provide that tyre manufacturers and importers are required to manage, in the calendar year, quantities by weight of end-of-life tyres, of any brand, equal to the quantities by weight of tyres placed by them on the spare part market in the preceding calendar year (see Article 3, paragaph 4, of Ministerial Decree No. 182/2019).
A further relevant aspect of the regulations on end-of-life tyres is the so-called “environmental contribution for the management of end-of-life tyres”, provided for by Article 228, paragraph 2 of the TUA and Article 6 of Ministerial Decree No. 182/2019.
Said contribution is required in order to meet the aforesaid obligations that the legislation places on tyre manufacturers and importers and is charged to end users and is an integral part of the sale consideration, as it must be clearly and distinctly stated on invoices.
More specifically, the manufacturer (or importer) shall apply the contribution in force on the date when tyres are introduced into the national spare part market (see Article 228, paragraph 2 of the TUA). Then, such contribution shall remain unchanged at all stages of the marketing of tyres, without prejudice to the obligation for each dealer to clearly and distinctly state on the invoice or other fiscal documentation the amount of the contribution paid at the time of the purchase (see Article 6, paragraph 4 of Ministerial Decree No. 182/2019).
Turning to the analysis of “extended responsibility” in respect of end-of-life vehicles, the purpose of the provisions of Legislative Decree No. 209/2003 must be found, on the one hand, in the lawmakers' intention to minimise the impact of end-of-life vehicles on the environment, in order to contribute to its protection, preservation and improvement, and, on the other hand, in the desire to avoid competition distortions, especially in terms of the access by small and medium-sized companies to the market for collection, demolition, treatment and recycling of end-of-life vehicles.
Indeed, end-of-life vehicles represent a specific type of waste, always involving a considerable flow of materials in terms of both quality and quantity[9].
The extended liability governed by Legislative Decree No. 209/2003 rests on the “manufacturer” of vehicles, defined by Article 3, paragraph 1(d) of the same decree as “the manufacturer or outfitter, understood to be the holder of the vehicle type-approval, or the professional importer of the vehicle”.
Among the obligations placed on vehicle manufacturers, particularly remarkable are the requirements under Article 5, paragraph 3 of Legislative Decree No. 209/2003, involving manufacturers having to arrange for the collection of end-of-life vehicles (and, where possible, their used components) throughout the national territory: to this end, it is expressly provided that manufacturers shall organise, on an individual or collective basis, a network of collection centers appropriately distributed throughout the national territory, also arranging a website where information can be found regarding the procedures for selecting affiliated collection centers[10].
Finally, Article 10, paragraph 1 of Legislative Decree No. 209/2003 places another peculiar obligation on vehicle manufacturers, i.e. causing any information necessary for the safe storage and dismantling of the vehicle (in the form of a manual or on computer support to be available to authorised treatment facilities) at the latter’s request, within six months of placing the same vehicle on the market. Such information, in particular, must allow identification of the different components and materials of the vehicle and the location of all hazardous substances in it[11].
Turning to the analysis of the provisions on extended producer responsibility for “batteries, accumulators and their waste”, the applicable rules are contained in Legislative Decree No. 188/2008, as amended by Legislative Decree No. 27/2016.
Said provisions, inter alia, apply to “manufacturers” of industrial and vehicle batteries and accumulators[12].
Article 2, paragraph 1 (n) of Legislative Decree No. 188/2008 defines a manufacturer as anyone who places batteries or accumulators, including those incorporated into appliances or vehicles, on the national market for the first time on a professional basis, regardless of the sales technique used, including distance communication techniques defined by the Consumer Code.
Legislative Decree No. 188/2008 provides for a number of obligations regarding the collection, treatment and recycling of waste batteries and accumulators.
Article 7, in particular, provides that, in order to promote separate collection, producers of industrial and vehicle batteries and accumulators, or any third parties acting on their behalf, shall organise and manage separate collection systems for industrial and vehicle batteries and accumulators that are suitable for covering the entire national territory in a homogeneous manner.
To perform such obligation, manufacturers may, alternatively: (a) join existing systems and use their collection network; or (b) organise independently, on an individual or collective basis, collection systems for waste industrial and vehicle batteries and accumulators[13].
The financing of such collection, treatment and recycling of waste batteries and accumulators is the responsibility of producers or any third parties acting on their behalf (see Article 13, paragraph 1, Legislative Decree No. 188/2008).
However, unlike the provisions of the TUA on aforementioned “CONAI environmental contribution” and “environmental contribution for the management of end-of-life tyres”, Article 13, paragraph 5 of Legislative Decree No. 188/2008 provides that the costs of collection, treatment and recycling are not separately stated to end users at the time of sale of new portable batteries and accumulators.
Finally, there is express provision for a national register – established with the Ministry of the Environment and Protection of Land and Sea – with which manufacturers who are required to finance waste management systems for batteries and accumulators must register (see Article 14 of Legislative Decree No. 188/2008).
Manufacturers are required to make such registration at the Chamber of Commerce in whose district the registered office of the company is located (see Annex III, Part A of Legislative Decree No. 188/2008). Once registration has been made, a registration number is issued to the manufacturer, to be mentioned in all transport documents and commercial invoices.
In addition, Article 15 of Legislative Decree No. 188/2008 provides that manufacturers must annually report to the National Register the quantities of batteries and accumulators placed on the national market in the previous year.
3. Liabiliy of waste producer and introduction of the National electronic register for waste traceability (R.E.N.T.Ri)
As mentioned, Articles 188 et seq. of the TUA regulate the so-called “liability of waste producer”. The purpose of such liability is exclusively to ensure the proper performance of waste management operations.
Such aspect represents the main difference between said form of liability and the EPR, since the aim of the latter is to entirely prevent the generation of waste[14].
The initial producer - or other holder - of waste may treat it in different ways. A distinction is made, in particular, between:
- direct management, by managing the actual recovery or disposal activities without using third parties;
- indirect management, by entrusting waste to an intermediary or trader or by handing it over to an organisation or company engaged in waste treatment operations or, finally, by handing it over to a public or private entity in charge of waste collection or transport. Such parties will then deliver the collected and transported waste to authorised waste management facilities or to a collection centre[15].
However, it must be emphasised that the mere hand-over of waste for treatment by the original producer or holder to one of the above-mentioned parties does not in itself exclude the producer’s liability with respect to recovery or disposal operations.
Indeed, in order to be exempt from liability it will be necessary to comply with one of the conditions specified in Article 188, paragraph 4 of the TUA and, in particular, (i) to directly deliver the waste to the “public collection service” or, (ii) if it is decided to deliver the waste to entities authorised to carry out recovery or disposal activities, to obtain within three months from the date of delivery a specific “form” countersigned by the recipient of the waste and dated. In particular, in such latter case, it is also provided that upon expiry of the three-month period, the producer or holder who has not received the form may formally notify the competent authorities thereof and, as a result, still be exempt from liability for recovery or disposal operations[16].
Pursuant to the third paragraph of Article 188 of the TUA, waste management costs must be borne by the initial producer of the waste as well as by the holders who follow one another, in various capacities, in the phases of the management cycle.
Another innovation in the waste management modalities introduced by Legislative Decree No. 116/2020 is the National Electronic Register for Waste Traceability (hereinafter “R.E.N.T.Ri”), which includes procedures and tools for the traceability of waste that must be integrated into the new R.E.N.T.Ri information system, managed by the Ministry of Ecological Transition - with the technical support of the National Register of Environmental Operators - on the basis of operational modalities that will be established by a ministerial implementing regulation.
The R.E.N.T.Ri introduces a digital management model for the fulfilment of various obligations such as, for example, the issue of transport identification forms and the keeping of chronological loading and unloading registers.
The implementing ministerial decrees, besides having to regulate the operational, technical and functional aspects of the R.E.N.T.Ri, shall allow, through specific interfaces, interoperability with the management systems currently used by public and private companies that will have to register with the R.E.N.T.Ri.
To such end, pending the definition of the implementing regulatory measures, the Ministry of Ecological Transition has launched an experimental phase by creating a simplified prototype that will make it possible to verify the functionality and usability of some of the R.E.N.T.Ri features and that, at the same time, will enable the companies required to register to experiment in practice the operational procedures that will become part of day-to-day obligations following the application of the new legislation.
Pursuant to Article 190 of the TUA, entities subject to the obligation to register with the R.E.N.T.Ri include, inter alia, “companies and organisations that are initial producers of hazardous waste and companies and organisations that are initial producers of non-hazardous waste pursuant to Article 184, paragraph 3, letters c), d) and g)”[17].
In particular, such entities are obliged to keep a chronological loading and unloading register - whose format shall be governed by the same decrees implementing the R.E.N.T.Ri – stating, for each type of waste, quantity produced, nature and origin of waste and quantity of products and materials obtained from treatment operations, such as preparation for re-use, recycling and other recovery operations, as well as, where applicable, details of the aforementioned identification form[18].
Lastly, the amended Article 190 of the TUA provides that:
- the R.E.N.T.Ri is not compulsory for agricultural entrepreneurs referred to in Article 2135 of the Italian Civil Code, whose annual turnover does not exceed eight thousand euros, companies collecting and transporting their own non-hazardous waste, and, for non-hazardous waste only, companies and organisations that are initial producers with no more than ten employees;
- until the issue of the implementing ministerial decrees, Decrees of the Minister of the Environment No. 145 of 1 April 1998 and No. 148 of 1 April 1998, containing the models of the loading and unloading register and of the waste identification form, will continue to apply.
The content of this article is for information purposes only and is not, and cannot be intended as, professional advice on the matters dealt with. For further information, please contact Gianmarco Navarra, Clitie Potenza and Michelangelo Eugenio Maida.
[1] Article 183, paragraph 1, a) in turn contains the following definition of “waste”: any object which the holder discards or intends or is required to discard.
[2] See Article 219, paragraph 1, a) of the TUA.
[3]In relation to this, it should also be noted that, in order to fulfill the obligations arising from the European principles of the EPR, which require producers to achieve precise recovery and recycling targets for used packaging, pursuant to Article 221, paragraph 3 of the TUA, producers may alternatively: a) organise independently, including collectively, the management of their packaging waste throughout the country; b) join any of the consortia referred to in Article 223 of the TUA (i.e., consortia differentiated according to the different packaging materials); c) certify under their own responsibility that a system has been put in place for the return of their packaging, by means of appropriate documentation demonstrating the self-sufficiency of the system. Pursuant to Article 220, paragraph 2 of the TUA, communications to CONAI may be submitted by the parties under (a) and (c) for those who have joined the management systems provided therein.
[4] More specifically, according to Article 220, para. 6 of the TUA, such targets will be calculated as follows:
“a) the weight of packaging waste generated and recycled in a given calendar year is calculated. The amount of packaging waste generated may be considered equivalent to the amount of packaging placed on the market in the same year;
1) such output waste is subsequently recycled;
2) the weight of materials or substances that are removed by further operations prior to the recycling operation and are not subsequently recycled is not included in the weight of waste reported as recycled (…)”.
[5] See Article 224, paragraph 3, h) TUA.
[6] See https://www.conai.org/imprese/contributo-ambientale/.
[7] Ibid.
[8] “Manufacturer or importer of tyres: the natural or legal person who manufactures or imports tyres, placing them on the market for the purpose of sale” (see Article 2, paragraph 1(g) of Ministerial Decree No. 182/2019). On the other hand, the following are excluded from the scope of Ministerial Decree No. 182/2019: a) bicycle tyres; b) inner tubes, their protectors (flaps) and rubber seals; c) tyres for airplanes and aircraft in general (see Article 1, paragraph 3 of Ministerial Decree No. 182/2019).
[9] M. LOCHE, A. CASTELLI, art. cit., page 100.
[10] This obligation, according to the same Article 5, paragraph 3 of Legislative Decree No. 209/2003, does not concern cases in which a mandatory collection consortium is directly provided for by law.
[11] It should be noted that Article 231 of the TUA lays down specific provisions in relation to the demolition, material recovery and scrapping of motor vehicles and trailers not covered by Legislative Decree No. 209/2003. The provisions contained in the latter Legislative Decree indeed apply exclusively to motor vehicles belonging to categories M1 and N1 in Annex II, Part A, of Directive 70/156/EEC and three-wheel motor vehicles as defined by Directive 2002/24/EC, excluding motor tricycles.
[12] Vehicle batteries or accumulators, in particular, include batteries or accumulators used for starting, lighting and ignition of vehicles (see Article 2, paragraph 1(e) of Legislative Decree No. 188/2008).
[13] Second paragraph of Article 7 also allows for the collection of industrial and vehicle batteries and accumulators to be carried out by independent third parties, provided this is done without additional charges to the waste producer or end user.
[14] C. BOVINO, art. cit., page 785.
[15] See Article 188 of the TUA. In addition, the second paragraph of Article 188 of the TUA specifies that organisations or companies collecting or transporting waste on a professional basis must be registered in the specific National Register of Environmental Operators.
[16] The form referred to in the fourth paragraph of Article 188 of the TUA is the so-called FIR (waste identification form), governed by Article 193 of the TUA, which must contain the following data: name and address of the producer and holder; waste origin, type and quantity; destination plant; date and routing; name and address of the consignee.
[17] The reference contained in Article 190 of the TUA to non-hazardous waste referred to in Article 184, paragraph 3, letters c), d) and g) relates to the following waste, insofar as different from the so-called “urban waste” (such category includes, by way of example only, household waste); waste produced during industrial processing; waste produced during craft processing; waste deriving from the recovery and disposal of waste; sludge generated from water purification and other water treatment and from the purification of waste water; waste from the reduction of fumes, septic tanks and sewerage systems.
[18] See Article 190, first paragraph of the TUA.
