Packaging law in interaction with the Incoterms clause CIP

Since 01.01.2019, the law on the marketing, return and high-quality recycling of packaging (VerpackG) has been in force (VerpackG). It is an implementation of the European requirements from the Single-Use Plastics Directive (EU)2019/904 and the amended Waste Framework Directive (EC) 2008/98.

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The Act sets out the requirements for product responsibility under Section 23 of the KrWG for packaging with the aim of avoiding or reducing the impact of packaging waste on the environment. The VerpackG is primarily aimed at manufacturers and distributors of packaged goods.

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According to Section 3 (14), a manufacturer within the meaning of the Packaging Act is “the distributor who places packaging on the market for the first time on a commercial basis”. Importers are also considered to be manufacturers. According to Section 3 (13) of the Packaging Act, the final distributor is “the distributor who delivers packaging to the final consumer.” Accordingly, the first placing on the market is the connecting factor for, among other things, the system participation obligation of certain packaging and not a manufacturer’s property, for example, in the sense of product liability law.

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In our case, an export transaction from Austria to Germany was now regulated. The exporter is a company is Austria and has used the Incoterms clause CIP for the export transaction. Within the framework of CIP, the company has engaged a forwarding agent. It was now questionable whether the Austrian company was now already bound to the German packaging law for the transaction.

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CIP describes: The seller has to deliver the goods to the carrier named by him. In addition, he has to pay the freight charges necessary to transport the goods to the named place of destination. Furthermore, he has to take out the transport insurance contract to the extent of the Institute Cargo Clauses A at his own expense. The CIP clause also obligates the seller to pack and clear the export. The clause is also applicable to all modes of transportation.

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CIP consequently stipulates that the transfer of risk still takes place in Austria. The conclusion to the application of the Packaging Act is now offered by Section 3 (14) of the Packaging Act: “The manufacturer is the distributor who places packaging on the market for the first time on a commercial basis. The person who commercially imports packaging into the area of application of this Act is also deemed to be the manufacturer.” In this regard, the person who bears legal responsibility for the goods when they cross the border is to be considered the obligated manufacturer.

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With regard to the concept of “legal responsibility”, general reference must be made to the concept of transfer of risk. This is still in Austria in the specific case. Consequently, the obligations under the German Packaging Act do not affect the Austrian company.