Amendments concerning the calculation of contributions due to the Environmental Fund for packaging, packaging waste and used tyres, the limitation of the financial liability of OIREP and the obligation for collectors/recyclers/disposal companies to provide a guarantee in favour of the Environmental Fund Administration
As of September 20, 2022, Government Emergency Ordinance no. 125/2022 came into force to amend and supplement Government Emergency Ordinance no. 196/2005 on the Environmental Fund (hereinafter “the Ordinance”.
Under GEO no. 125/2022, a series of legislative amendments were made to the provisions relating to the Environmental Fund, mainly concerning the powers and organisation of the Environment Fund Administration (AFM), the method of calculating the contributions provided for non-recovered packaging waste, the exemption from the payment of the eco-tax on carrier bags for household bags, and the limitation of the liability of authorised economic operators for the implementation of extended producer responsibility (OIREP) for packaging and packaging waste.
At the same time, changes have operated with regard to the entities that are obliged to use the SIATD software application and their obligations in terms of data registration in the application and new provisions have been introduced concerning the execution of the guarantees constituted by the electrical and electronic equipment producers or collective organizations according to the law, the obligation to constitute a guarantee in the amount of RON 500,000 in favour of the AFM by economic operators carrying out collection, recovery, sanitation and brokerage activities and reporting waste for OIREP for packaging and packaging waste.
Another amendment concerns the reduction of the contribution provided for the category of EEE referred to in point 3 of Annex 2 of GEO no. 5/2015, i.e., lamps, from RON 20 to RON 8.
Hereafter we will provide you with an analysis of the amendments with the greatest impact on the activity of most economic operators and which present risks for their financial liability.
One of the amendments which can have a strong impact on the activity of operators managing packaging waste is the method determining the quantity of packaging waste for which the contribution in the amount of RON 2/kg is levied for non-recovered quantities of packaging waste.
The amendment will come into force on January 1st, 2023 and provides that the contribution is due for the difference between the quantities of packaging waste corresponding the minimum recovery or incineration targets and the quantities of packaging waste actually recovered or incinerated. Given that the actual provision of art. 9, para. (1) letter d) of the Ordinance states that the contributions are due for the difference between the quantities of packaging waste corresponding the minimum recovery or incineration targets and the quantities of packaging waste entrusted for recovery or incineration, the responsibility of economic operators managing packaging waste as part of their activities to effectively recover or incinerate packaging waste increases significantly with the introduction of the new provisions.
As a consequence of the amendment discussed above, in order to be able to report quantities to the AFM, economic operators will need documentation attesting that the quantities reported have been recovered, so they will not be able to report quantities without recovery certificates obtained from the recycler.
At the same time, through the amendment made to art. 9, paragraph (1) let. d) of the Ordinance, the categories of economic operators who are obliged to pay the contribution have been identified, namely: economic operators who place packaged products on the national market, economic operators who import/purchase intra-Community packaged products for their own use/consumption, economic operators who over-package individually packaged products for resale/distribution, economic operators who place retail packaging on the national market and economic operators who rent packaging, in any form, on a professional basis.
A similar method of calculation for determining the obligation to pay the contribution to the Environment Fund is also introduced in Article 9, para. (1) letter v) of the Ordinance, amendment which will also come into force as of 1 January 2023. In this respect, the contribution owed by the OIREP for packaging and packaging waste and for the authorised economic operators to undertake the responsibility for the management of waste tyres, in the amount of 2 lei/kg, will be due for the difference between the quantities of waste corresponding to the annual targets established through Annex 3 of the Ordinance and the quantities actually recovered.
The above-mentioned amendment is directly linked to the calculation method established in para. (1) letter d) of the same Article and aims at maximising the quantities of packaging waste actually recovered, by making the operators who manage them financially liable in the event of failure to fulfil their recovery targets.
However, according to the provisions amended by GEO 125/2022, the financial liability of the OIREP is incurred within the limit of the guarantee provided for in Article 16 para. (8) letter e) of Law no. 249/2015 on the management of packaging and packaging waste, as amended, in the amount of two million RON.
This new approach is further reiterated by the provisions of Art. 10, paragraph (2) letter b) of the Ordinance whereby it is provided that the contributions, among which the ones analysed above, shall be paid only in the event of failure to achieve the targets provided by the legislation in force, for the quantities of packaging waste for which the economic operators referred to in Article 9, paragraph (1) let. d) of the Ordinance have concluded agreements with OIREP and for which the latter have not met the targets laid down by law, after the guarantee provided for in Article 16, paragraph (8) let. e) of Law no. 249/2015 has been executed.
Furthermore, Article 122, paragraph 1) of the Ordinance provides that the contribution stipulated in Art. 9, paragraph (1) let. v) of the Ordinance will be executed from the guarantee constituted by the OIREP, in the amount of two million RON, and subsequently, if the payment obligation exceeds the guarantee, the remaining contribution shall be due by the economic operators referred to in Article 9, paragraph (1), let. d) of the Ordinance who have concluded a contract with the OIREP for which payment obligations have been established.
Therefore, if the OIREP fails to meet its recovery obligations, taken over under the contract, in accordance with the targets imposed by the applicable law and the contribution established for them under Art. 9 para. (1) letter v) of the Ordinance exceeds the amount of the guarantee constituted in the amount of RON 2 million, the remaining amount will be charged to the economic operator who has concluded the contract with the OIREP.
Another provision newly introduced is the one stipulating that, for the fulfilment of the recovery targets, the quantities contracted by the OIREP for packaging and packaging waste and economic operators authorised to take over the annual collection obligations of WEEE found by the AFM as not having been collected, recovered, or recycled will not be taken into account.
In addition, according to the amendments implemented by the GEO no. 125/2022, the quantities of packaging waste not registered in the SIATD software application will not be taken into account for the achievement of the minimum waste management targets.
The provisions previously analysed have an impact over the imputation of the contribution set out in Art. 9 para. (1) let. v) of the Ordinance, for which the OIREP for packaging and packaging waste can be financially liable only within the limit of the guarantee provided for in Article 16 para. (8) letter e) of Law no. 249/2015, in the amount of two million RON, the remaining amount being charged to the economic operator who has concluded the contract with the OIREP.
Also related to the SIATD application, according to Art. 10, para. (11) introduced by GEO no. 125/2022, from January 1st, 2023, the SIATD software application will be used also by the authorised operators handling used tyres and the authorised operators handling portable batteries and accumulators and electrical and electronic equipment.
Furthermore, by adopting GEO no. 125/2022, Chapter III1 was introduced. The new chapter regulates the management and enforcement of the guarantee of producers of electrical and electronic equipment and collective organizations, constituted under articles 29 and 30 of the GEO no. 5/2015 on waste electrical and electronic equipment.
Article 121 stipulates that the AFM shall manage a separate account in which the amounts executed from the guarantees mentioned above shall be collected.
The newly introduced provisions also list the situations in which the guarantees provided by individual producers and by collective organisations may be enforced.
The legislative amendments have also introduced a new obligation incumbent on economic operators carrying out collection, recovery, sanitation or brokerage activities and reporting waste for the OIREP for packaging waste. The latter have the obligation to provide a guarantee in the amount of RON 500,000 in favour of AFM for the purpose of securing the tax obligations provided for in Art. 9 para. (1) let. v) of the Ordinance.
The guarantee imposed on collectors/disposers/sanitation companies is updated from the following year by 15% of the value of the service provided the previous year to the organisation implementing extended producer responsibility.
Access to the SIATD application for collectors/disposers/sanitation companies will be restricted and they will not be able to report waste quantities if they do not constitute the above-mentioned guarantee.
The guarantee shall be enforced if payment obligations have been established for the economic operators referred to in Article 9 para. (1) letter v) of the Ordinance arising from the fault of economic operators carrying out collection, recovery, sanitation, or brokerage activities.
Therefore, if payment obligations are established for the OIREP for packaging and packaging waste due to the fault of economic operators carrying out collection, recovery, sanitation or brokerage activities, the order of enforcement of the obligations will be the following: (1) the guarantee in the amount of RON 500,000 constituted by the economic operators carrying out collection, recovery, sanitation or brokerage activities; (2) the guarantee in the amount of two million RON constituted by the OIREP for packaging and packaging waste; and (3) if the above-mentioned guarantees do not cover the amounts imposed by the AFM, the rest of the amount shall be paid by the economic operators identified in Art. 9 para. (1) let. d) of the Ordinance who concluded the contract with the OIREP.
The amendment of the Ordinance also introduces new sanctions concerning administrative offences arising from the use of the SIATD application and the reporting of data therein, the marketing and marking of household and carrier bags, and the calculation of the security provided under the new provisions.
Therefore, the newly introduced legal provisions aim primarily at making the economic operators involved in the waste recovery process, especially packaging waste, more responsible. However, the limitation of OIREP’s liability may bring a strong imbalance in the producer-OIREP relationship since the first has no control over the management of packaging waste or the activities of OIREP, once he concludes the extended liability contract and pays the OIREP fee, and, according to the new legal provisions, the producer could be held liable for failure by OIREP to fulfil its legal and contractual obligations.
Source:
1.Emergency Ordinance 125/2022 amending and supplementing Government Emergency Ordinance no. 196/2005 on the Environment Fund
2.Emergency Ordinance 196/2005 on the Environment Fund
3.Emergency Ordinance 5/2015 on waste electrical and electronic equipment
4.Law 249/2015 on the management of packaging and packaging waste