At a press conference held on 2 June, the Ministry of Climate and Environment announced the current concept for transposing the SUP Directive into Polish law, including introducing a deposit scheme for product packaging in Poland. Meanwhile, the Ministry’s idea goes beyond the guidelines in the Directive, by proposing expansion of the deposit-refund scheme to include single-use glass packaging, and some objections have been raised to this plan.
Directive (EU) 2019/904 of the European Parliament and of the Council of 5 June 2019 on the reduction of the impact of certain plastic products on the environment (SUP Directive) explicitly states that single-use glass packaging is excluded entirely from the scope covered by the Directive. The Directive stresses clearly the need to focus member state actions on the areas in which real reaction is most needed to produce an effective improvement in environmental protection. For that reason, point seven of the recitals states specifically that this Directive should cover only those single-use plastic products that are found the most on beaches in the Union (…) Glass and metal beverage containers should not be covered by this Directive as they are not among the single-use plastic products that are found the most on beaches in the Union.
In this context, the Directive makes several references to the principle of proportionality described in article 5(4) of the Treaty on European Union. According to this principle, the scope and form of the EU’s actions do not exceed that necessary to achieve treaty goals. Organizations that operate within the legal system are informed well in advance of the deadline for transposition, and before legislative work commences at national level, of the content and resultant obligations of the Directive. This enables them to prepare for the new legal system in advance, before transposition (see J. Maśnicki, Metody transpozycji dyrektyw, EPS 2017, no. 8, pp. 4-13).
In this context, the proposal made by the Ministry of Climate and Environment to include single-use glass bottles of up to 1.5 L in the deposit scheme goes beyond the Directive. This proposed obligation could be considered an indication of excessive interference by a member state in a national legal system under the pretext of transposing EU law. Cases of this kind are known as gold-plating in European law, where a member state goes beyond the directive framework by introducing additional provisions or more stringent regulation than required by the law being transposed.