THE PACKAGING (ESSENTIAL REQUIREMENTS) REGULATIONS

2015

2015 No. 1640

1.

This explanatory memorandum has been prepared by The Department for Business,Innovation and Skills and is laid before Parliament

by Command of Her Majesty.

This memorandum contains information for the Joint Committee on Statutory Instruments.

2. Purpose of the instrument

2.1 These Regulations implement Articles 9 and 11 of Directive 94/62/EC of the European Parliament and Council on Packaging and Packaging Waste (“the principal Directive”) as amended by Directives 2004/12/EC, Commission Decision 2006/340/EC and Decision 2009/292/EC, Article 1 and the Annex of Directive 2013/2/EU and Article 1 of Directive (EU) 2015/720. They set the essential requirements packaging must meet before it can be placed on the market. They provide enforcement authorities with powers for the enforcement of those obligations. They consolidate the amendments to the Packaging (Essential Requirements) Regulations 2003 (SI2003/1941), (“the original Regulations”) that imple

mented these provisions and revoke and replace the original Regulations and amending legislation.

3. Matters of special interest to the Joint Committee on Statutory Instruments

3.1 These Regulations are made under section 2(2) of the European Communities Act 1972 under the negative resolution procedure and include a consequentialamendment to paragraph 10 of Schedule 5 to the Consumer Rights Act 2015 to substitute a reference to the Packaging (Essential Requirements) Regulations 2003. There is an equivalent power to amend paragraph 10 under paragraph 12 of Schedule 5 and paragraph 12(6) provides that amendment to primary legislation must be made under the affirmative procedure.

3.2 After careful consideration we have decided not to use the power under paragraph 12 and will be disapplying paragraph 12(6) in effect. Section 2(2) of the ECA 1972 permits either the affirmative or negative

resolution procedure. We consider that the possibility of controversy in relation to the amendment to paragraph 10 to be minimal and that therefore the negative procedure is the more appropriate option for

making the amendment to paragraph 10.

3.3 The amendment merely substitutes the reference to the original Regulations. The decision to give the enforcement authorities under the original Regulations the powers set out in Schedule 5 was already considered during the passage of the Consumer Rights Act through Parliament. It would be a waste of Parliamentary time and resource to require a debate on these Regulations in the circumstances.

3.4 These Regulations do not amend the list of enforcement authorities and are not used to confer significantly additional powers into legislation which currently confers no such powers. We understand that this was one of the reasons for the affirmativeprocedure being imposed for use of the power to amend paragraph 10.

3.5 We also considered whether the amendment to paragraph 10 could be made in any other affirmative legislation under paragraph 1

2(6). It is intended that theseRegulations come into force on 1 October 2015 and we are not aware of any other legislation that could be used to amend the list of legislation in paragraph 10 under paragraph 12(6) so that the powers in Schedule 5 are available under these Regulations

from 1 October 2015. The Regulations are intended to come into force after the commencement of Schedule 5 to the Consumer Rights Act 2015 which is due to commence on 1 October 2015 through an order to be made under the negative procedure. In addition it is not considered helpful to readers of the legislation to require them to have regard to two sets of legislation (in addition to Schedule 5 to the Consumer Rights Act) in order to understand the application of the legislation.

4. Legislative Context

4.1 The UK transposed Directive 94/62/EC into UK law by The Packaging

(Essential Requirements) Regulations 1998 (SI 1998/1165). These were revoked by the Packaging (Essential Requirements) Regulations 2003

(SI 2003/1941), which were subsequently amended by S.I. 2004/1188, 2006/1492, 2009/1504 and 2013/2212. These Regulations consolidate this legislation and transpose the definition of “plastic” and “plastic carrier bag” in Art 1 of Directive (EU) 2015/720. The remaining provisions

of Directive 94/62/EC as amended are implemented through the Producer Responsibility Obligations (Packaging Waste) Regula

tions 2007 (S.I. 2007/871) 4.2 The European measures were considered by the scrutiny committees. DTI submitted an EM on Council Directive 6891/04 on 16/03/2004 relating to a “Proposal for a European Parliament and Council Directive amending Directive 94/62/EC on

packaging and packaging waste”. The Commons European Scrutiny Committee cleared it from scrutiny (Report 13, Session 03/04). The Lords Select Committee on the EU cleared it on 9/4/2004 (Sift 1174, Session 03/04). BERR submitted an EM on Council Directive 8488/12 on 19/04/12 relating to a “Proposal for Council Directive amending Annex I to European Parliament and Council Directive 94/62/EC on packaging and

packaging waste”. The Lords Select Committee on the EU cleared it from scrutiny on 1st May 2012 (Sift 1464, Session 10/12) and HoC cleared scrutiny without the requirement for a substantive report on