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The Producer Responsibility Obligations (Packaging Waste) Regulations 2007

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Statutory Instruments

2007 No. 871

environmental protection

The Producer Responsibility Obligations (Packaging Waste) Regulations 2007

Made

15th March 2007

Coming into force in accordance with regulation 1(1)

These Regulations are made by the Secretary of State for Environment, Food and Rural Affairs as respects England, Scotland(1) and Wales(2) in exercise of the powers conferred upon him by section 2(2) of the European Communities Act 1972(3) and sections 93 - 95 of the Environment Act 1995(4).

These Regulations implement Article 6(1) of Council Directive 94/62/EC on packaging and packaging waste.

The Secretary of State for Environment, Food and Rural Affairs is designated(5) for the purposes of section 2(2) of the European Communities Act 1972 in relation to measures relating to the prevention, reduction and elimination of pollution caused by waste and the management of packaging and packaging waste.

A draft of these Regulations has been laid before and approved by a resolution of each House of Parliament in accordance with section 93(10) of the Environment Act 1995.

Accordingly, after consultation in accordance with section 93(2) of the Environment Act 1995, and after having regard to the matters specified in section 93(6) of that Act as required by section 93(5) of that Act, the Secretary of State for Environment, Food and Rural Affairs makes the following Regulations:

PART IE+W+SGENERAL

Citation, commencement and extentE+W+S

1.—(1) These Regulations may be cited as the Producer Responsibility Obligations (Packaging Waste) Regulations 2007 and shall come into force on the day after the day on which they are made.

(2) These Regulations extend to Great Britain.

Interpretation and noticesE+W+S

2.—(1) In these Regulations—

“the Packaging Waste Directive” means Council Directive 94/62/EC(6) on packaging and packaging waste;

[F1“the Waste Directive” means Directive 2008/98/EC of the European Parliament and of the Council on waste;]

“the 1995 Act” means the Environment Act 1995(7); and

“the 1990 Act” means the Environmental Protection Act 1990.

[F2“PRONIR” means the Producer Responsibility Obligations (Packaging Waste) Regulations (Northern Ireland) 2007;]

(2) In these Regulations—

“accredited exporter” means an exporter who is accredited by the appropriate Agency under regulation 24;

“accredited reprocessor” means a reprocessor who is accredited by the appropriate Agency under regulation 24;

“allocation method” means the method set out in paragraph 7 of Schedule 2 for calculating the recycling obligations of a small producer who has elected under regulation 7 to follow this method;

[F3“appropriate [F4Agency]” means—

(a)

for the purposes of any provision of these Regulations relating to the exercise of the functions of the appropriate [F4Agency] in England, the Environment Agency;

(b)

for the purposes of any provision of these Regulations relating to the exercise of the functions of the appropriate [F4Agency] in Scotland, SEPA;

(c)

for the purposes of any provision of these Regulations relating to the exercise of the functions of the appropriate [F4Agency] in Wales, the Natural Resources Body for Wales;

(d)

for the purposes of any provision of these Regulations relating to the obligations of any other person—

(i)

the Environment Agency, where at the beginning of the relevant year the person’s registered office or principal place of business is in England;

(ii)

SEPA, where at the beginning of the relevant year the person’s registered office or principal place of business is in Scotland;

(iii)

the Natural Resources Body for Wales, where at the beginning of the relevant year the person’s registered office or principal place of business is in Wales;

(iv)

at the election of the person, the Environment Agency, SEPA or the Natural Resources Body for Wales, where at the beginning of the relevant year the person does not have a registered office or principal place of business in Great Britain;

(v)

in relation to schemes, where there is more than one operator of a scheme and such operators have registered offices or principal places of business in England and in Scotland (but not in Wales)—

(aa)

the Environment Agency where the operators have elected to apply for approval of the scheme from [F5that Agency]; or

(bb)

SEPA where the operators have elected to apply for approval of the scheme from [F6that Agency];

(vi)

in relation to schemes, where there is more than one operator of a scheme and such operators have registered offices or principal places of business in Wales and in Scotland (but not in England)—

(aa)

the Natural Resources Body for Wales where the operators have elected to apply for approval of the scheme from [F7that Body]; or

(bb)

SEPA where the operators have elected to apply for approval of the scheme from [F8that Agency];

(vii)

[F9in relation to schemes, where there is more than one operator of a scheme and such operators have registered offices or principal places of business in England and in Wales (but not in Scotland)—

(aa)

the Environment Agency, where the operators have elected to apply for approval of the scheme from that Agency; or

(bb)

the Natural Resources Body for Wales, where the operators have elected to apply for approval of the scheme from that Body;]

(viii)

[F9in relation to schemes, where there is more than one operator of a scheme and such operators have registered offices or principal places of business in England, in Scotland and in Wales—

(aa)

the Environment Agency, where the operator has elected to apply for approval of the scheme from that Agency;

(bb)

SEPA, where the operator has elected to apply for approval from that Agency; or

(cc)

the Natural Resources Body for Wales, where the operator has elected to apply for approval from that Body;]]

“appropriate authority” means—

(a)

for the purposes of regulation 4(7)—

(i)

the Secretary of State in relation to England;

(ii)

the National Assembly for Wales in relation to Wales;

(iii)

the Scottish Ministers in relation to Scotland;

(b)

F10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)

F10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)

for the purposes of any provision in these Regulations relating to the exercise of functions in respect of determining appeals against decisions of the Environment Agency F11... , the Secretary of State; F12...

(da)

[F13for the purposes of any provision in these Regulations relating to the exercise of functions in respect of determining appeals against decisions of the Natural Resources Body for Wales—

(i)

where the decision was made prior to 1st October 2013, the Secretary of State;

(ii)

where the decision was made on or after 1st October 2013, the Welsh Ministers;]

(e)

for the purposes of any provision in these Regulations relating to the exercise of functions in respect of determining appeals against decisions of SEPA, the Scottish Ministers;

[F14“approved person” means the person for the time being approved under regulation 34 for the purpose of—

(a)

issuing certificates of compliance under regulation 21 and signing the form referred to in regulation 7(4)(c) or (ca) or 19(2)(b) in relation to a particular producer; or

(b)

signing the form referred to in regulation 14(3)(c) and the statement referred to in regulation 22(4) in relation to a particular operator of a scheme;]

“calculation year” means the year preceding an obligation year;

“common database” means the electronic database held jointly by the Environment Agency and SEPA in which information under regulation 36(1) and (2) is placed.

“consumer information obligations” has the meaning given to it in regulation 4(4)(d);

“disposal” has the meaning given to it in Article 3(10) of the Packaging Waste Directive;

[F15“DOENI” means the Department of the Environment in Northern Ireland;]

“energy recovery” has the meaning given to it in Article 3(8) of the Packaging Waste Directive;

“exporter” means a person who, in the ordinary course of conduct of a trade, occupation or profession, owns and exports packaging waste for reprocessing outside the United Kingdom;

[F16“financial year” in relation to a person—

(a)

where the person is a company is determined as provided in section 390(1) to (3) of the Companies Act 2006; and

(b)

in any other case has the meaning given in section 390(4) of the Companies Act 2006, but as if the reference there to an undertaking were a reference to that person;]

[F17“marine installation” means any artificial island, installation or structure at sea, other than a vessel;]

“obligation year” means, for the purposes of this regulation and Schedule 10, a year in respect of which it is being considered whether a person is a producer;

“organic recycling” has the meaning given to it in Article 3(9) of the Packaging Waste Directive;

“packaging” has the meaning given to it in Article 3(1) of the Packaging Waste Directive;

“packaging materials” means materials used in the manufacture of packaging and includes raw materials and processed materials prior to their conversion into packaging;

“packaging waste” has the meaning given to it in Article 3(2) of the Packaging Waste Directive; but does not include packaging that became waste outside the United Kingdom;

“partnership” has the meaning given in section 1 of the Partnership Act 1890(8);

“PERN” means a packaging waste export recovery note issued by an accredited exporter on a form supplied to him by the appropriate Agency, as evidence of the export of the tonnage of packaging waste specified in the note for reprocessing outside the United Kingdom;

“preceding year” means the year preceding a relevant year;

“PRN” means a packaging waste recovery note issued by an accredited reprocessor on a form supplied to him by the appropriate Agency, as evidence of the receipt of the tonnage of packaging waste specified in the note for reprocessing within the United Kingdom;

“producer” has the meaning given in regulation 4 and includes a small producer unless otherwise stated, and the classes of producer are those set out in column 4 of Table 1 in Schedule 1;

“producer responsibility obligations” are the producer registration, recovery and recycling, certifying and consumer information obligations specified in regulation 4;

“recovery” means any of the applicable operations provided for in [F18Annex II] to the Waste Directive and for the purposes of these Regulations incineration at waste incineration plants with energy recovery shall be treated as if it is recovery; and “recover” and “recovery operation” shall be construed accordingly;

“recovery and recycling obligations” has the meaning given in regulation 4(4)(b);

“recyclable material” means—

(a)

glass;

(b)

aluminium;

(c)

steel;

(d)

paper/board;

(e)

plastic; or

(f)

wood,

and packaging materials composed of a combination of any of those materials are to be treated as made of the material which is predominant by weight;

“recycling” has the meaning given to it in Article 3(7) of the Packaging Waste Directive; and “recycle” shall be construed accordingly;

“recycling obligations” means the obligation to recycle set out in regulation 4(4)(b)(ii);

“relevant authorisation” means—

(a)

[F19a permit granted under regulation 13(1) of] [F20the Environmental Permitting (England and Wales) Regulations 2016] or [F21under the Pollution Prevention and Control (Scotland) Regulations 2012];

(b)

[F22an authorisation granted under section 6 of the 1990 Act];

(c)

[F22a waste management licence granted under section 36 of the 1990 Act; or]

(d)

[F23an exemption registered under [F24regulation 19 of the Waste Management Licensing (Scotland) Regulations 2011].]

[F23an exempt waste operation under [F20the Environmental Permitting (England and Wales) Regulations 2016] or any other operation exempt from the requirements of section 33(1)(a) and (b) of the Environmental Protection Act 1990 under those Regulations;]

“relevant date” means—

(a)

7th April in the obligation year; or

(b)

where an application for registration is made in a circumstance set out in regulation 7(3), or as required by paragraph 10 of Schedule 10, the date of the application;

“relevant year” means the year referred to in regulation 4(2), that is to say a year in respect of which a person is a producer;

“reprocessing site” means a site at which reprocessing takes place;

“reprocessor” means a person who, in the ordinary course of conduct of a trade, occupation or profession, carries out one or more activities of recovery or recycling, and “reprocessing” shall be construed accordingly;

“reuse” has the meaning given to it in Article 3(5) of the Packaging Waste Directive;

“scheme” means a scheme which is (or, if it were to be registered in accordance with these Regulations would be) a scheme whose members for the time being are, by virtue of these Regulations and their membership of that scheme, exempt from the requirement to comply with their producer responsibility obligations and “registered scheme” means a scheme which is registered with the appropriate Agency in accordance with these Regulations;

“SEPA” means the Scottish Environment Protection Agency;

[F25“SIC code” means a code included in “Indexes to the UK Standard Industrial Classification of Economic Activities 2007” published by the Office for National Statistics in 2009;]

[F26“signatory” means a natural person who creates an electronic signature;]

“small producer” means a producer F27... whose turnover in the last financial year—

(a)

in respect of which audited accounts are available; or

(b)

where audited accounts are not required, in respect of which accounts are available,

before the relevant date was £5,000,000 or less; and where audited accounts are required they shall be considered to be available when the annual accounts have been delivered to the registrar under [F28section 441 of the Companies Act 2006];

“transit packaging” means—

(a)

grouped packaging or secondary packaging, as defined in paragraph (b) in Article 3(1) of the Packaging Waste Directive; or

(b)

transport packaging or tertiary packaging as defined in paragraph (c) in Article 3(1) of the Packaging Waste Directive;

[F29“turnover” means, in relation to a person, their turnover as defined in section 539 of the Companies Act 2006 but as if the references to a company were references to that person;]

“year” means a calendar year beginning on 1st January.

(3) Where—

(a)notices are to be served on a producer under regulations 7(7)(a), 10 or 11(3);

(b)information is to be provided by a producer under regulations 7 or 8;

(c)fees are to be paid by a producer under regulation 9(2); or

(d)records and returns are to be maintained and furnished by a producer under regulation 20,

they shall be served on, provided, paid, or maintained and furnished by, in the case of a partnership, a partner acting on behalf of the partnership, and references in these Regulations to the producer shall be read accordingly.

(4) Where there is more than one operator of a scheme—

(a)notices to be served on the operator of the scheme under [F30regulation 13, 13A, 13B, 13C, 14 or 17] shall be served on the operator stated under regulation 14(3)(h);

(b)where information is to be provided by the operator of the scheme under regulations 14 and 15, fees are to be paid by the operator of the scheme under regulation 16, records and returns are to be maintained and furnished by the operator of the scheme under regulation 22, and appeals may be made by the operator of the scheme under regulation 27, they shall be provided, paid, or maintained and furnished, and such appeals may only be made, by the operator stated under regulation 14(3)(h),

and references in these Regulations to the operator of the scheme shall be read accordingly.

(5) In these Regulations—

(a)any document which is to be provided or given to any person may be provided or given to that person by electronic means if the document is capable of being reproduced by that person in legible form;

(b)any requirement to make, keep or retain a record or to maintain a register may be satisfied in electronic form if the text is capable of being produced by the person subject to the requirement in a legible documentary form;

(c)any requirement for a signature may be satisfied by an electronic signature incorporated into the document; and

[F31(d) “electronic signature” means data in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign;]

Textual Amendments

Exclusion of charities from producer responsibility obligationsE+W+S

3.  Parts II, III and IV of these Regulations do not apply to a charity within the meaning given in section 506 of the Income and Corporation Taxes Act 1988(9).

PART IIE+W+SPRODUCERS AND OBLIGATIONS

Producers and producer responsibility obligationsE+W+S

4.—(1) This regulation is subject to regulations 5, 37, 38 and 39 and Schedules 8, 9 and 10.

(2) In respect of a year a person is a producer of a class specified in an entry in column 4 of Table 1 in Schedule 1 if—

(a)in that year and the preceding year he performs the relevant functions of the class of producer specified in Column 1 of that Table in relation to that entry;

(b)in the preceding year he made supplies of the materials or products specified in Column 2 of that Table in relation to that entry of a class in Column 3 of that Table in relation to that entry; and

(c)in relation to that year he satisfies the threshold tests as provided by paragraph 3 of that Schedule,

and the other provisions of that Schedule shall also have effect for the purposes of determining whether a person is a producer of any class.

(3) Where in respect of a year a person is a producer and satisfies the provisions of Columns 1 to 3 of Table 1 in Schedule 1 in relation to more than one class of producer specified in an entry in Column 4 of that Table, whether or not in relation to the same materials or products specified in Column 2 of that Table, or the same transaction or process, for that year that person belongs to each such class.

(4) A person who is a producer in respect of a year has producer responsibility obligations in respect of that year, that is to say he must—

(a)be registered as provided in regulation 6 (in these Regulations referred to as the “producer registration obligation”);

(b)where he is—

(i)a producer, other than a small producer who has elected to follow the allocation method, recover and recycle packaging waste in relation to each of the classes of producer to which the producer belongs, as calculated under Schedule 2; or

(ii)a small producer who has elected to follow the allocation method, recycle packaging waste as calculated under paragraphs 2, 7 and 8 of Schedule 2,

(in these Regulations referred to as the “recovery and recycling obligations”);

(c)furnish a certificate of compliance in respect of his recovery and recycling obligations in accordance with regulation 21 (in these Regulations referred to as the “certifying obligation”); and

(d)if his main activity is that of seller, provide information to consumers of the goods sold by him about—

(i)the return, collection and recovery systems available to them;

(ii)their role in contributing to the reuse, recovery and recycling of packaging and packaging waste;

(iii)the meaning of related markings on packaging that he places on the market and that relates to his recovery and recycling obligations; and

(iv)the chapter dealing with the management of packaging and packaging waste in any strategy prepared under section 44A or 44B of the 1990 Act (national waste strategy),

(in these Regulations referred to as the “consumer information obligations”).

(5) A producer may only demonstrate compliance with his recovery and recycling obligations through the acquisition of PRNs or PERNs or both.

(6) A PRN or PERN that relates to packaging waste delivered or exported for reprocessing in December in a year may be relied on by a producer to demonstrate compliance with his recovery and recycling obligations either in that year or the following year.

(7) The appropriate authority shall issue guidance as to the provision of information under paragraph (4)(d) above and shall take such steps as may be appropriate to ensure that users of packaging, including in particular consumers, obtain the necessary information about the matters referred to in paragraph (4)(d).

Producers and Scheme membershipE+W+S

5.— [F32(1)]  Where a producer is a member of a registered scheme throughout a relevant year he is exempt from complying with his producer responsibility obligations for the relevant year.

[F33(2) A producer shall not be a member of a registered scheme for the purposes of these Regulations if they fail to—

(a)provide any information the scheme requests for the purposes of meeting its producer responsibility obligations within a reasonable period of receiving such a request; or

(b)pay any fee required for membership of the scheme.]

Textual Amendments

PART IIIE+W+SREGISTRATION: PRODUCERS AND SCHEMES

Producer registration obligationE+W+S

6.  Subject to regulations 37 and 39 and Schedules 8 and 10, a producer shall be registered with the appropriate Agency in respect of a relevant year, or any part of that year, during which he is not a member of a registered scheme.

Application for producer registrationE+W+S

7.—(1) Subject to paragraph (3) below, a producer who is required by regulation 6 to be registered shall, on or before 7th April in a relevant year, make an application for producer registration to the appropriate Agency.

(2) Where the producer is a partnership, the application shall be made by any partner acting on behalf of the partnership.

(3) Where any of the following occurs in a relevant year—

(a)the application for registration of a scheme of which the applicant was a member is refused;

(b)the registration of a scheme of which the applicant was a member is cancelled;

(c)the applicant’s membership of a scheme is discontinued;

(d)the applicant becomes a producer in respect of that year; or

(e)an application to register made within the time limit in paragraph (1) above is refused,

an application for registration shall be made within 28 days of the occurrence.

(4) An application for producer registration shall—

(a)be made in writing;

(b)contain the information set out in Part I of Schedule 3;

[F34(c)be accompanied by the following further information, on a form supplied for that purpose by the appropriate Agency and signed by the approved person, in relation to the relevant year—

(i)each class of producer to which the applicant belongs;

(ii)if they belong to more than one class of producer, which of those classes constitutes their main activity as a producer; and

(iii)the relevant SIC code for the class of producer to which the applicant belongs or, as the case may be, for the applicant’s main activity;

(ca)other than in the case of a small producer who has elected to follow the allocation method under sub-paragraph (d) and, subject to paragraph (9), be accompanied by the following further information, on a form supplied for that purpose by the appropriate Agency and signed by the approved person, in relation to the relevant year—

(i)in relation to each class of producer—

(aa)the amount of packaging waste which they are required to recover by virtue of paragraph 3(1) of Schedule 2 and of this the proportion which is to be recovered by recycling by virtue of paragraph 3(2) of Schedule 2;

(bb)the amount of packaging waste which they are required to recycle for each kind of recyclable material by virtue of paragraph 3(3) of Schedule 2;

(ii)the basis on which the amounts referred to in paragraph (i) were calculated; and

(iii)such other information, which is specified on the form, as the appropriate Agency reasonably requires in order to determine the application;]

(d)in the case of a small producer state whether he elects to follow the allocation method, and, if he does, be accompanied by evidence as to his turnover;

F35(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F36(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) A small producer who has elected under paragraph (4)(d) above to follow the allocation method shall follow this method for a minimum of the year of registration and the following two years.

(6) An application for producer registration shall be granted where—

(a)the producer has complied with—

[F37(i)paragraphs (4)(a) and (b) and (11);]

(ii)where applicable, paragraphs (4)(c), [F38(ca),] (d), (f) and (5) above; and

(b)the appropriate Agency is satisfied that the further information provided in accordance with paragraph (4)(c) [F39or (ca)] above, or (9) below, has been provided in accordance with paragraph (8) below,

and shall otherwise be refused.

(7) Where an application for producer registration is granted—

(a)the appropriate Agency shall, within 28 days of it being granted confirm to the producer in writing that he is registered with it; and

(b)the producer shall be treated as having been registered—

(i)where the application was made within the time limit specified in paragraph (1), from the beginning of the relevant year;

(ii)where the application was made within the time limit specified in paragraph (3), from the date of the relevant occurrence;

(iii)in any other case, from the date specified in the confirmation,

until any cancellation of the producer’s registration in accordance with regulation 11.

(8) Any information provided shall be as accurate as reasonably possible.

(9) Where the application to register is made in one of the circumstances set out in sub-paragraph (a), (b), (d) or (e) of paragraph (3) above, the further information referred to in paragraph (4)(c) [F40or (ca)] above need not accompany the application but shall be provided within 28 days of the application being made.

F41(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F42(11) A producer making an application for registration shall pay the fee required in regulation 9 to the appropriate Agency on or before the relevant date.]

Textual Amendments

Conditions of registration of a producerE+W+S

8.  Registration of a producer shall be subject to the conditions that the producer will—

(a)comply with his obligations set out in regulation 4(4);

(b)provide any information reasonably requested by the appropriate Agency with regard to the obligations referred to in paragraph (a) above;

(c)inform the appropriate Agency of—

(i)any change in the circumstances of the producer which relate to the registration of the producer and, where the producer is a partnership, any change of partners;

(ii)any material change in the information provided in accordance with regulation 7(4)(b); and

(iii)any material change in the further information provided in accordance with regulation 7(4)(c), [F43or (ca),] or 7(9), as the case may be,

within 28 days of the occurrence of any such change;

(d)provide records and returns to the appropriate Agency as required by regulation 20; [F44and]

(e)notify the appropriate Agency that he wishes to cancel his registration where he has become a member of a registered scheme or has ceased to be a producer in respect of a year;

F45(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F45(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Forms and fees for producer registrationE+W+S

9.—(1) The appropriate Agency shall provide the form referred to in regulation 7(4)(c) [F46or (ca)] free of charge to any person requesting one.

(2) Subject to paragraphs (3) and (4) below, the fee which is to be charged by the appropriate Agency on an application for producer registration shall be—

(a)where the producer is a small producer who has elected to follow the allocation method, £562; or

(b)in all other cases, £776.

(3) In the case of an application where the fee in paragraph (2) above is to be treated as a fee for group registration by virtue of paragraph 5(b)(iii) of Schedule 8, in respect of each subsidiary included within that application that is not a small producer who has elected to follow the allocation method, the appropriate Agency shall charge an additional fee of—

(a)£180 for each of the first 4 subsidiaries;

(b)£90 for each of the 5th to the 20th subsidiaries inclusive; and

(c)£45 for each of the 21st and subsequent subsidiaries.

(4) On each resubmission of an application which is required by reason of the producer having failed to meet the requirements of regulation 7(4) or (9) on his previous submission, the appropriate Agency shall charge an additional fee of £220.

Textual Amendments

Refusal to register producersE+W+S

10.  Any decision of the appropriate Agency under regulation 7(6) to refuse to register a producer shall be notified within 28 days of the decision to the producer in writing together with the reasons for the decision, a statement as to the right of appeal under Part VI of these Regulations and a statement as to the offence specified in regulation 40(1)(a).

Cancellation of registration of producersE+W+S

11.—(1) The appropriate Agency may cancel the registration with it of a producer where it appears to the appropriate Agency that—

(a)the producer is in breach of any of the conditions specified in regulation 8; or

(b)the producer knowingly or recklessly supplied false information in connection with his application for registration, or with compliance with any of the conditions specified in regulation 8.

(2) The appropriate Agency shall cancel the registration with it of a producer where it is notified that the producer has become a member of a registered scheme or has otherwise ceased to be subject to the producer registration obligation in respect of a year.

(3) Before cancellation of a registration under paragraphs (1) or (2) above, the appropriate Agency shall serve on the producer concerned written notice of—

(a)its decision to cancel;

(b)the reasons for the decision;

(c)the date when cancellation will take effect, not being earlier than—

(i)in the case of cancellation under paragraph (1) above, the expiration of the time limit for an appeal against the notice provided for in paragraph 2 of Schedule 6;

(ii)in the case of cancellation under paragraph (2) above, 5 days from the date of the notice;

(d)the right of appeal under Part VI of these Regulations; and

(e)where cancellation is under paragraph (1), a statement as to the offence specified in regulation 40(1)(a).

Schemes: general provisionsE+W+S

12.—(1) The operator of a scheme shall carry out the recovery and recycling obligations and where applicable, consumer information obligations, that every producer who is a member of the scheme that he operates would have had, but for their membership of that scheme.

[F47(2) The operator of a scheme shall inform the members in writing immediately if—

(a)the operator receives a notice of withdrawal of the scheme’s approval under regulation 13C(3); or

(b)the scheme is approved pursuant to regulation 13(4).]

[F47(2A) The operator shall provide a copy of the notice of withdrawal of the scheme’s approval with the written notice provided pursuant to paragraph (2).]

(3) The operator of a scheme may only demonstrate compliance with his recovery and recycling obligations through the acquisition of PRNs or PERNs or both.

(4) A PRN or PERN that relates to packaging waste delivered or exported for reprocessing in December in a year may be relied on by the operator of a scheme to demonstrate compliance with his recovery and recycling obligations either in that year or the following year.

Textual Amendments

Application for approval of a schemeE+W+S

13.—(1) An application for approval of a scheme by the appropriate [F48Agency] shall be made in writing by the operator of the scheme and shall—

(a)contain the following information—

(i)the name and address of the person who proposes to operate the scheme; and

(ii)information which demonstrates that—

(aa)the scheme is likely to subsist for a period of at least 5 years; and

(bb)the operator of the scheme is likely to be able to meet its expected recovery and recycling obligations for that period; and

(b)be accompanied by the following documentation—

(i)a copy of the constitution of the scheme;

(ii)a copy of the rules with which a member of the scheme is obliged to comply; and

(iii)a copy of the procedures under which the operator of the scheme would enforce the rules against a member of the scheme.

(2) Subject to paragraphs (3) and (4), an application for approval of a scheme shall within 28 days of receipt of the application be granted [F49where the appropriate Agency] is satisfied that—

(a)the scheme is likely to subsist for a period of at least 5 years;

(b)the operator of the scheme is likely to be able to meet its expected recovery and recycling obligations for that period,

and otherwise be refused.

[F50(2A) Where an application for approval is granted, the appropriate Agency shall notify the operator of the scheme in writing of its decision within 28 days of making that decision.]

(3) A further application for approval in accordance with paragraph (1) shall be made on the occurrence of—

(a)a change in the person who is the operator of the scheme;

(b)a conviction of the operator of the scheme for an offence under these Regulations;

(c)the operator of the scheme notifying the appropriate [F51Agency] under regulation 22(4) that he did not comply with the requirements of regulation 12(1) for the previous year of registration; or

(d)a failure by the operator of the scheme to comply, where applicable, with the additional conditions set out [F52in regulation 13A(2)],

within 28 days of the occurrence of an event mentioned in sub-paragraph (a), (b) or (d) above or within 14 days of the occurrence of the event mentioned in sub-paragraph (c) above.

(4) Where the operator of the scheme has notified the appropriate [F53Agency] under regulation 22(4) that he did not comply with the requirements of regulation 12(1) the appropriate [F53Agency] may, whether or not it is not satisfied as to the matters set out in paragraph (2) above, grant approval subject to the additional conditions set out in [F54regulation 13A(2)].

[F55(5) Where the conditions in paragraph (7) are met, an operator may elect to make an application for approval by DOENI under paragraph (1).]

[F55(6) Where an operator so elects—

(a)functions of the appropriate Agency in relation to the application under this regulation shall be carried out by DOENI on behalf of the appropriate Agency; and

(b)until the application has been determined, the operator may not make an application to the appropriate Agency under paragraph (1) in relation to the same or substantially the same scheme.]

[F55(7) The conditions are—

(a)the operator’s registered office or principal place of business is in Northern Ireland; and

(b)the operator proposes to apply to DOENI in relation to the same year for approval of the scheme under regulation 13(1) of PRONIR.]

[F55(8) For the purposes of these Regulations, an act of DOENI performing the functions of the appropriate Agency pursuant to paragraph (6)(a) is to be treated as an act of the appropriate Agency.]

Textual Amendments

[F56Conditions of approval of a schemeE+W+S

13A.—(1) Approval of a scheme under regulation 13 is subject to the following conditions—

(a)the operator of the scheme complies with the obligations set out in regulation 12(1);

(b)the operator of the scheme monitors the accuracy of information to which regulation 19 applies, so that the operator may reasonably discover when a scheme member has not complied with regulation 19(2)(c);

(c)the operator of the scheme acquires PRNs or PERNs in a manner which least hinders the ability of any other operator to acquire PRNs or PERNs pursuant to regulation 12(3);

(d)the operator of the scheme maintains sufficient financial resources to acquire PRNs or PERNS pursuant to regulation 12(3);

(e)the operator of the scheme maintains access to, and sufficient financial resources to pay for, the expertise necessary for the purposes of calculating the recovery and recycling obligations referred to in regulation 12(1);

(f)the operator of the scheme provides any information reasonably requested by the appropriate Agency for the purposes of monitoring compliance pursuant to regulation 31(1)(b) or (c);

(g)in relation to any year in which the scheme is registered under regulation 14—

(i)the operator of the scheme informs the appropriate Agency in writing of—

(aa)any change in the person who is the operator of the scheme and, in the case where the operator of the scheme is a partnership, or where there is more than one operator of a scheme, any change of partners or operators;

(bb)any material change in the information provided in accordance with regulation 14(3)(b);

(cc)any material change in the further information provided in accordance with regulation 14(3)(c); and

(dd)any change in the operator stated under regulation 14(3)(h),

within 28 days of the occurrence of any such change; and

(ii)the operator of the scheme complies with the requirement set out in regulation 15A; and

(h)the operator of the scheme provides records and returns to the appropriate Agency as required by regulation 22.

(2) Approval of a scheme pursuant to regulation 13(4) is subject to the following additional conditions in relation to any year in which the scheme is registered under regulation 14—

(a)the operator of the scheme complies with 50% of the total recovery and recycling obligations of the scheme before 30th June;

(b)the operator of the scheme complies with a further 50% of the remaining recovery and recycling obligations before 30th September;

(c)the operator of the scheme makes returns to the appropriate Agency of information demonstrating compliance with the conditions set out at sub-paragraphs (a) and (b) on or before 15th July and 15th October respectively;

(d)the operator pays the fee under regulation 16(3) to the appropriate Agency; and

(e)the operator of the scheme does not accept any new members into the scheme.

(3) The additional conditions set out in paragraph (2) cease to apply at the beginning of the year following the approval year if the appropriate Agency is satisfied that in the approval year the operator complied with—

(a)the obligations under regulation 12(1); and

(b)the additional conditions set out in paragraph (2).

(4) If the additional conditions set out in paragraph (2) cease to apply by virtue of paragraph (3), the appropriate Agency shall serve written notice of the cessation within 28 days of the date on which the appropriate Agency is satisfied in accordance with paragraph (3).

(5) In paragraph (3), “approval year” means the year for which approval was granted pursuant to regulation 13(4).]

Textual Amendments

[F56Refusal to grant approval of a schemeE+W+S

13B.  Where the appropriate Agency decides under regulation 13 to refuse to grant approval of a scheme, it shall serve on the operator of the scheme, within 28 days of making the decision, written notice of—

(a)the decision under regulation 13;

(b)the reasons for the decision; and

(c)the right of appeal under regulation 27(2)(a).]

Textual Amendments

[F56Withdrawal of approval of a schemeE+W+S

13C.—(1) The appropriate Agency may withdraw approval of a scheme where it appears to it that—

(a)the operator of the scheme is in breach of any of the conditions referred to in regulation 13A(1) or (2); or

(b)the operator knowingly or recklessly supplied false information in connection with the application for registration, or in connection with compliance with the conditions referred to in regulation 13A(1) or (2).

(2) The appropriate Agency shall cancel any registration of a scheme under regulation 14 if it withdraws approval of the scheme and such cancellation shall take effect on the date on which the withdrawal of approval takes effect.

(3) Before the withdrawal of approval, the appropriate Agency shall serve on the operator of the scheme written notice of—

(a)its decision under paragraph (1) to withdraw approval;

(b)the reasons for the decision;

(c)the right of appeal under regulation 27(2)(b) and (c); and

(d)the date on which the withdrawal takes effect, not being earlier than the expiration of the time-limit for an appeal against the notice provided for in paragraph 2 of Schedule 6.

(4) Where an application under regulation 13(3)(a) or (b) is not received by the due date, the appropriate Agency may decide to withdraw approval of the scheme and, if such a decision is taken, shall serve on the operator of the scheme written notice of—

(a)the decision to withdraw approval of the scheme;

(b)the reasons for the decision; and

(c)the date on which the withdrawal takes effect, not being earlier than 28 days from the date of the notice.

(5) Where an application under regulation 13(3)(c) or (d) is not received by the due date, the appropriate Agency shall serve written notice on the operator of the withdrawal of approval of the scheme, which shall take effect from the date of the notice.

(6) The appropriate Agency shall consider any representations made by the operator of a scheme before the notice under paragraph (4) takes effect, and may withdraw the notice under paragraph (4) at any time.

(7) An operator of a scheme in relation to which approval is withdrawn under this regulation shall, within 14 days of the withdrawal taking effect, serve on each scheme member written notice containing the following information—

(a)a statement that approval of the scheme has been withdrawn and the date when the withdrawal takes effect;

(b)the reasons for the withdrawal; and

(c)the obligation of a producer under regulation 6.]

Textual Amendments

Application for registration of a schemeE+W+S

14.—(1) An application for registration of a scheme in relation to a year shall be made by the operator of the scheme, on or before [F5715th April] in that year, to the appropriate Agency.

(2) Where the operator of the scheme is a partnership the application for registration shall be made by any partner acting on behalf of the partnership.

(3) An application for registration of a scheme shall—

(a)be made in writing;

(b)contain the information set out in Part II of Schedule 3;

(c)F58... be accompanied by the following further information, on a form supplied for that purpose by the appropriate Agency [F59and signed in accordance with the requirement in paragraph (3A)], in relation to the relevant year—

(i)each producer who is a member of the scheme [F60and each class of producer to which each producer belongs];

(ii)if any producer belongs to more than one class of producer, which of those classes constitutes his main activity as a producer;

(iii)the relevant SIC code for the activity or, as the case may be, the main activity of each class of producer in the scheme;

(iv)in relation to each producer the information referred to in [F61paragraph (4)(ca)(i) and (ii)] of regulation 7;

(v)in relation to members who are small producers who have elected to follow the allocation method, the aggregate amount of packaging waste which is required to be recycled by virtue of paragraphs 2, 7 and 8 of Schedule 2 by those members;

(vi)a statement of the turnover of each small producer who is a member of the scheme; and

(vii)such other information as the appropriate Agency reasonably requires in order to determine the application and as is specified on the form;

(d)be accompanied by a statement as provided in Part III of Schedule 3;

(e)[F62except where a scheme is registered in respect of the previous year,] be accompanied by evidence that the scheme has been approved by the appropriate [F63Agency]; but, subject to paragraph (4)(d) below, where the scheme has yet to be approved, such evidence shall be supplied to the appropriate Agency as soon as possible after receipt;

F64(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(g)be accompanied by a fee calculated under regulation 16; and

(h)where there is more than one operator of the scheme, be accompanied by a statement signed by all of the operators of the scheme as to which operator is able to accept notices and act on behalf of all the operators of the scheme.

[F65(3A) The requirement mentioned in paragraph (3)(c) is that the form be signed by—

(a)the approved person; or

(b)in the case of a scheme that has not already been registered, anyone who is eligible to be an approved person under regulation 34(2).]

(4) An application for registration shall be granted where—

(a)the operator has complied with paragraphs (3)(a), (b), (d), F66... (g) and (h) above;

(b)the appropriate Agency is satisfied that the information provided in accordance with paragraph (3)(c) above has been provided in accordance with paragraph (7) below;

F67(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F68(d)the scheme has been approved by the appropriate [F69Agency]; and

(e)the scheme was either registered in the previous year or the scheme was approved by the appropriate [F69Agency] no earlier than in the year previous to that in which the application for registration is made,]

and shall otherwise be refused.

(5) Where an application for registration of a scheme is granted—

(a)the appropriate Agency shall, within 28 days of its decision, notify the operator of the scheme in writing of its decision; and

(b)the scheme shall be treated as registered from the beginning of the year in relation to which the application is made until any cancellation of the scheme’s registration in accordance with [F70regulation 13C(2)].

F71(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) Any information provided shall be as accurate as reasonably possible.

[F72(8) Where an application for registration is refused on the grounds of failure to meet the requirements of paragraph (4)(e), the operator must make a new application for approval of the scheme in accordance with regulation 13 before making an application for registration of the scheme under this regulation.]

[F73(9) Where the conditions in paragraph (11) are met, an operator may elect to make an application to DOENI for registration under paragraph (1).]

[F73(10) Where an operator so elects—

(a)functions of the appropriate Agency in relation to the application under this regulation and under regulations 16, 17 and 19(2)(a) shall be carried out by DOENI acting on behalf of the appropriate Agency; and

(b)until such time as the application has been determined, the operator may not make an application to the appropriate Agency under paragraph (1) in relation to the same or substantially the same scheme.]

[F73(11) The conditions are—

(a)the operator’s registered office or principal place of business is in Northern Ireland; and

(b)the operator proposes to apply to DOENI in relation to the same year for registration of the scheme under regulation 14(1) of PRONIR.]

[F73(12) For the purposes of these Regulations, an act of DOENI performing the functions of the appropriate Agency pursuant to paragraph (10)(a) is to be treated as an act of that Agency.]

Textual Amendments

Conditions of registration of a schemeE+W+S

F7415.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

[F75Notification of change of membershipE+W+S

15A.  In relation to the year in which registration is granted, the operator of the scheme shall notify the appropriate Agency in writing at intervals as required by the appropriate Agency of any change in the membership of the scheme and any such notification shall be accompanied by the additional fee calculated in accordance with regulation 16(6).]

Textual Amendments

Forms and fees for registration of a schemeE+W+S

16.—(1) The appropriate Agency shall provide the form referred to in regulation 14(3)(c) free of charge to any person requesting one.

(2) Subject to paragraphs (3), (4), (5) and (6) below, the fee which is to be charged by the appropriate Agency on an application for registration of a scheme shall be—

(a)£345 for each small producer who has elected to follow the allocation method and who is on the date of the application a member of the scheme; and

(b)£564 for each producer who is not a small producer who has elected to follow the allocation method and is on the date of the application a member of the scheme.

(3) In the case of a scheme that has been granted [F76approval pursuant to] regulation 13(4) the fee to be charged by the appropriate Agency in addition to the fee in paragraph (2) above is—

(a)£1,540 where the operator of the scheme has an obligation to recover up to and including 24,999 tonnes of packaging waste;

(b)£2,310 where the operator of the scheme has an obligation to recover between 25,000 and 249,999 tonnes of packaging waste; or

(c)£3,080 where the operator of the scheme has an obligation to recover over 250,000 tonnes of packaging waste.

(4) In the case of a group of companies that is on the date of the application a member of a scheme the fee to be charged by the appropriate Agency for that member is—

(a)£345 where the holding company is a small producer who has elected to follow the allocation method and the group of companies had an aggregate turnover of £5,000,000 or less in the previous year; or

(b)£564 where—

(i)the holding company is not a small producer who has elected to follow the allocation method; or

(ii)the holding company is a small producer who has elected to follow the allocation method and the group of companies had an aggregate turnover of more than £5,000,000 in the previous year;

and, in addition to the fee payable under sub-paragraph (a) or (b), in respect of each subsidiary included within that application who is not a small producer who has elected to follow the allocation method, the appropriate Agency shall charge a fee of—

(i)£180 for each of the first 4 subsidiaries;

(ii)£90 for each of the 5th to 20th subsidiaries inclusive; and

(iii)£45 for each of the 21st and subsequent subsidiaries.

(5) In the case where an application is required to be resubmitted as a result of a failure to meet the requirements of regulation 14(3)(c) or 14(6), the fee to be charged by the appropriate Agency in addition to any fee payable under this regulation is £220 for each member of that scheme in respect of whom the information resubmitted was different from that contained in the original application.

(6) The additional fee which is to be paid by an operator of a scheme in compliance with the [F77obligation set out] in regulation 15 is calculated as follows—

where—

“A” is the number of new members of the scheme which are the subject of the notification who are not small producers who have elected to follow the allocation method;

“B” is the fee set out at sub-paragraph (2)(b) above plus the sum of £110;

“C” is the number of new members of the scheme which are the subject of the notification who are small producers who have elected to follow the allocation method ;

“D” is the fee set out at sub-paragraph (2)(a) above plus the sum of £110; and

“AF” is the additional fee.

Textual Amendments

Refusal to register a schemeE+W+S

17.  Any decision of the appropriate Agency under regulation 14 to refuse to register a scheme shall be notified, within 28 days of the decision, to the operator of the scheme in writing together with—

(a)the reasons for the decision;

(b)a statement as to the right of appeal under [F78regulation 27(2)(d)]; and

(c)a statement as to the offence specified in regulation 40(1)(a).

Textual Amendments

Cancellation of registration of a schemeE+W+S

F7918.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Information provided to scheme operatorsE+W+S

19.—(1) This regulation applies to information which—

(a)is provided to the operator of a scheme by a producer who is a member of that scheme at the time the information is provided; and

(b)is information which the operator of the scheme will need to rely upon for the purposes of his application for registration of a scheme under regulation 14.

(2) A producer who provides to the operator of the scheme information to which this regulation applies shall—

(a)provide that information on a form supplied for the purpose by the appropriate Agency;

(b)ensure that the form is signed by the approved person; and

(c)ensure that the information is as accurate as reasonably possible.

PART IVE+W+SRECORDS, RETURNS AND CERTIFICATE

Producers—records and returnsE+W+S

20.—(1) A producer who is subject to the certifying obligation shall—

(a)maintain, and retain for at least 4 years after the record is made, records of the information referred to in paragraph (2) below for a small producer who has elected to follow the allocation method or paragraph (3) for any other producer; and

(b)at the same time as he furnishes a certificate of compliance to the appropriate Agency in accordance with regulation 21, make a return to the appropriate Agency of that information.

(2) The information to be recorded by a small producer who has elected to follow the allocation method is—

(a)his turnover;

(b)the recycling allocation for the relevant year as provided in paragraph 8 of Schedule 2;

(c)the amount, in tonnes, of packaging waste which is to be recycled under the allocation method set out in paragraph 7 of Schedule 2; and

(d)the aggregate tonnage of packaging materials that have been received by an accredited reprocessor for recycling and that have been exported by an accredited exporter for recycling as set out in the PRNs or PERNs acquired.

(3) The information to be recorded by any other producer is—

(a)the amount in tonnes, to the nearest tonne, of packaging waste delivered respectively for recovery and for recycling to a reprocessor or exporter, by or on behalf of the producer as set out in the PRNs or PERNs acquired; and

(b)the total number of tonnes of each material which is the subject of the producer’s recovery and recycling obligations.

(4) The records maintained under paragraph (1)(a) above by a producer shall be made available, on demand, to the appropriate Agency.

Producers—certifying obligationE+W+S

21.—(1) Subject to regulations 5, 37 and 39 and Schedules 8 and 10, a producer shall furnish in accordance with this regulation a certificate of compliance to the appropriate Agency.

(2) A certificate of compliance shall be furnished as evidence of whether or not the producer has complied with his recovery and recycling obligations for a relevant year and shall be furnished on or before 31st January in the year immediately following the relevant year.

(3) The provisions of Schedule 4 shall apply as regards the information to be contained in a certificate of compliance.

Schemes—records and returnsE+W+S

22.—(1) The operator of a scheme shall maintain, and retain for at least 4 years after they are made, records of the information referred to in paragraph (2) below, and make returns of that information to the appropriate Agency on or before 31st January in the year following the year to which the information relates.

(2) For each year the information is—

(a)the amount in tonnes, to the nearest tonne, of packaging waste delivered respectively for recovery and for recycling, to a reprocessor or exporter through the scheme as set out in the PRNs or PERNs acquired;

F80(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . and

(c)the total number of tonnes of each material which is the subject of an obligation to recover and recycle for which the operator of the scheme is responsible under regulation 12(1).

(3) The records maintained under paragraph (1) above shall be made available, on demand, to the appropriate Agency.

(4) The operator of a scheme shall, by 31st January in 2008 and thereafter by 31st January in each year following the year to which the information relates, send a statement [F81signed by the approved person] to the appropriate [F82Agency] confirming whether or not the operator has complied with the requirements of regulation 12(1) for the previous year of registration.

Textual Amendments

[F83Notification of winding-up, receivership, administration, etc.E+W+S

22A.—(1) This regulation applies to—

(a)the operator of a scheme;

(b)a producer; or

(c)a reprocessor or an exporter accredited in accordance with Part 5 (accreditation of reprocessors and exporters).

(2) A company or limited liability partnership to which this regulation applies shall inform the appropriate Agency as soon as is practicable upon becoming aware that one or more relevant circumstances apply or are about to apply to them.

(3) The operator of a scheme must inform the appropriate Agency as soon as is practicable upon becoming aware that one or more relevant circumstances apply or are about to apply to the scheme it operates.

(4) For the purposes of this regulation “relevant circumstances” are—

(a)a winding-up order has been made or a resolution for voluntary winding-up has been passed;

(b)a determination for a voluntary winding-up has been made;

(c)a receiver or a manager of the company or limited liability partnership’s undertaking has been duly appointed;

(d)its undertaking has entered administration;

(e)a voluntary arrangement proposed for the purposes of Part 1 of the Insolvency Act 1986 has been approved under that Part of the Act.]

Textual Amendments

PART VE+W+SACCREDITATION OF REPROCESSORS AND EXPORTERS

Requirement for accreditationE+W+S

23.—(1) A person shall not issue a PRN unless he is at the time of the issue an accredited reprocessor or, where the PRN is of the type referred to in paragraph (6) of regulation 4 or paragraph (4) of regulation 12 was accredited at the time the material was received, and the PRN relates to packaging waste received by him for reprocessing on the reprocessing site for which he is accredited.

(2) A person shall not issue a PERN unless he is at the time of the issue an accredited exporter or, where the PERN is of the type referred to in paragraph (6) of regulation 4 or paragraph (4) of regulation 12 was accredited at the time the material was received, and the PERN relates to [F84an export of packaging waste for reprocessing] for which he is accredited under regulation 24.

Textual Amendments

Application for accreditationE+W+S

24.—(1) An application for accreditation shall be made to the appropriate Agency—

(a)in the case of a person wishing to be accredited—

(i)as a reprocessor in respect of each reprocessing site for which he wishes to be accredited and stating which of the applicable recovery operations and which recyclable materials he wishes that accreditation to cover; or

[F85(ii)as an exporter, in respect of the export of one or more recyclable materials for reprocessing outside the United Kingdom;]

(b)on a form made available by the appropriate Agency and including all the information specified on that form, being information which the appropriate Agency reasonably requires in order to determine the application;

[F86(c)accompanied by a business plan containing information on how the funds acquired from the issue of PRNs or PERNs are to be applied including information in respect of the following matters—

(i)investment in infrastructure and the development of capacity for the collection, sorting, treatment and reprocessing of packaging waste;

(ii)funding provided to other persons involved in the collection of packaging waste;

(iii)reductions in the prices of, and the development of new markets for, materials or goods made from recycled packaging waste;

(iv)the costs of complying with obligations in these Regulations;

(v)funds retained for future investment;

(vi)the development of a communications strategy for consumers of packaging made from recyclable materials; and]

(d)accompanied by a fee of—

(i)in the case of an applicant who undertakes to issue PRNs or PERNs for not more than 400 tonnes of packaging waste in the year to which the application relates, £505; or

(ii)in any other case, £2616.

(2) An application for accreditation as—

(a)a reprocessor to issue PRNs for the receipt of one or more specified recyclable materials at a specified reprocessing site and for reprocessing in one or more specified recovery operations or a combination of such operations; or

[F87(b)an exporter, to issue PERNs for the export of one or more specified recyclable materials for reprocessing in one or more recovery operations outside the United Kingdom, or a combination of such operations,]

shall be granted where the appropriate Agency is satisfied as to the matters set out in paragraph (3) below or, in any other case, shall be refused.

(3) The matters referred to in paragraph (2) are—

(a)the contents of the business plan referred to in paragraph (1)(c) above;

[F88(b)where the application is made for accreditation as an exporter and relates to—

(i)one or more reprocessing sites outside the European Community, that the requirements of Article 6(2) of the Packaging Waste Directive are met in respect of each such site; or

(ii)one or more reprocessing sites outside the European Community, but it is not possible for the applicant at the time of the application to specify the site or sites to which the export of one or more specified recyclable materials for reprocessing is taking place, that the requirements of Article 6(2) of that Directive are met in respect of each such export;]

(c)that the application has been duly made in accordance with paragraph (1) above; and

(d)the reprocessor or exporter will comply with the conditions specified in or under Schedule 5.

(4) The appropriate Agency shall notify the applicant in writing of its decision under paragraph (2) no later than 12 weeks after the application was made and, if the decision is a decision to refuse accreditation, such notification shall include reasons for the decision and a statement of the right of appeal under regulation 27(3)(a).

(5) Subject to regulation 26, where accreditation is granted under paragraph (2), it shall take effect—

(a)where the application is made in the preceding year to that in which the person wishes to be accredited—

(i)from 1st January where the decision to accredit was made before that date; and

(ii)in all other cases, from the date of the decision,

and shall remain in force until 31st December in the year for which the person has applied to be accredited;

(b)where the application is made during the year in which the person wishes to be accredited, from the date of the decision, and shall remain in force until 31st December in that year.

(6) Where a reprocessor or exporter who has given the undertaking and paid the fee specified in paragraph (1)(d)(i) subsequently breaches that undertaking, he shall from the date of that breach be liable to pay to the appropriate Agency the sum of £2111 (being the balance of the fee which would have been payable under paragraph (1)(d)(ii) had the undertaking not been given) [F89within 28 days of the breach].

[F90(7) An application to extend the accreditation of an exporter to include a further reprocessing site or sites to which they want to export packaging waste for reprocessing shall be made to the appropriate Agency on the form specified in paragraph (1) and be accompanied by a fee of—

(a)£85 for the first form submitted as part of the application; and

(b)£35 for each additional form submitted as part of the application.]

(8) An application to extend an exporter’s accreditation to include a further reprocessing site or sites located within the European Community shall be granted by the appropriate Agency where it is satisfied that the application has been made in accordance with paragraph (7) above, and in any other case be refused.

(9) An application to extend an exporter’s accreditation to include a further reprocessing site or sites located outside the European Community shall be granted by the appropriate Agency where it is satisfied that each of those sites meets the requirements of Article 6(2) of the Packaging Waste Directive and is satisfied that the application was made in accordance with paragraph (7) above, and in any other case be refused.

Textual Amendments

Conditions of accreditationE+W+S

25.  An accredited reprocessor or exporter shall comply with the conditions specified in and under Schedule 5.

Suspension and cancellation of accreditationE+W+S

26.—(1) The appropriate Agency may suspend or cancel the accreditation of a reprocessor or exporter where it appears to it that—

(a)the person who is accredited has failed to comply with any of the conditions specified in or under Schedule 5; or

(b)the person who is accredited has knowingly or recklessly supplied false information in his application for accreditation made under regulation 24 or in connection with compliance with any of the conditions specified in or under Schedule 5.

[F91(2) Where the appropriate Agency is no longer satisfied that the requirements of Article 6(2) of the Packaging Waste Directive are met in relation to the export of one or more specified recyclable materials for reprocessing at one or more reprocessing sites outside the European Community, the appropriate Agency shall cancel the accreditation of an exporter to the extent that it relates to any such export which does not meet those requirements.]

(3) Where the appropriate Agency suspends or cancels an accreditation under paragraph (1) or cancels the accreditation of an exporter [F92pursuant to] paragraph (2), it shall serve on the reprocessor or exporter concerned written notice of—

(a)its decision to cancel or suspend (as the case may be) the accreditation;

(b)the reasons for the decision;

(c)the right of appeal under Part VI;

(d)the date when the cancellation or suspension will take effect, not being earlier than the date of receipt of the notice; and

(e)in the case of a suspension, the period of the suspension or any steps which are required to be taken in order to bring the suspension to an end.

(4) The accreditation of a reprocessor or exporter shall be deemed to be cancelled—

(a)on the date on which either of the following occurs—

(i)the person who is accredited ceases to be the holder of a relevant authorisation; or

(ii)the person who is accredited ceases to be a reprocessor or exporter; or

(b)in a case where the person who is accredited requests that his accreditation should be cancelled, with effect from the date for cancellation specified by that person.

Textual Amendments

PART VIE+W+SAPPEALS

Right of appealE+W+S

27.—(1) A producer may appeal to the appropriate authority against a decision of the appropriate Agency—

(a)to refuse to grant an application for registration under regulation 7(6); or

(b)to cancel registration under regulation 11(1).

[F93(2) The operator of a scheme may appeal to the appropriate authority against a decision of the appropriate Agency—

(a)to refuse to grant an application for approval under regulation 13;

(b)to withdraw approval under regulation 13C(1) or (5);

(c)after the notice referred to in paragraph 13C(4)(c) takes effect, to withdraw approval under regulation 13C(4); or

(d)to refuse to grant an application for registration under regulation 14(4).]

(3) A reprocessor or exporter may appeal to the appropriate authority against a decision of the appropriate Agency—

(a)to refuse accreditation under regulation 24;

(b)to specify a condition pursuant to paragraph 1(q)(iii) of Schedule 5; or

(c)to cancel or suspend accreditation under regulation 26.

Textual Amendments

Procedure on appealsE+W+S

28.—(1) Where an appeal is made to the appropriate authority it may—

(a)appoint any person to exercise on its behalf, with or without payment, the function of determining the appeal; or

(b)refer any matter involved in the appeal to such person as the appropriate authority may appoint for the purpose, with or without payment.

(2) If the appellant so requests, or the appropriate authority so decides, the appeal shall be or continue in the form of a hearing.

(3) Schedule 6 shall have effect with respect to the procedure on any such appeal.

Determination of appealsE+W+S

29.  Where, on such an appeal, the appropriate authority determines that the decision of the appropriate Agency shall be altered it shall be the duty of the appropriate Agency to give effect to the determination.

Status pending appealE+W+S

30.  In a case falling within [F94regulation 11(1) or 13C(1), (4) or (5)], the decision appealed against shall be ineffective until the appeal is disposed of; and if the appeal is dismissed or withdrawn the decision shall become effective from the end of the day on which the appeal is dismissed or withdrawn.

Textual Amendments

PART VIIE+W+SAGENCIES’ POWERS & DUTIES

MonitoringE+W+S

31.—(1) The appropriate Agency shall monitor in accordance with this regulation—

(a)compliance with their producer responsibility obligations by persons who are or may be producers;

(b)compliance by operators of schemes with the obligations referred to in regulation 12(1) ;

(c)compliance by operators of schemes with the conditions referred to in [F95regulation 13A(1) and (2); and]

(d)compliance by persons who are accredited reprocessors or exporters with the conditions specified in or under Schedule 5; and

F96(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) The duty referred to in paragraph (1) above includes a duty to monitor—

(a)the registration of producers as required by regulation 6;

(b)the accuracy of the information provided by producers pursuant to regulations 7 and 8;

(c)the accuracy of the returns furnished to the appropriate Agency by a producer under regulation 20;

(d)the accuracy of the information contained in certificates of compliance furnished to the appropriate Agency under regulation 21;

(e)the accuracy of the information provided by an operator of a scheme pursuant to regulations 14 and 15; and

(f)the accuracy of the returns provided to the appropriate Agency by an operator of a scheme under [F97regulations 13A(2)(c) and 22].

(3) For the purposes of the discharge of its functions under these Regulations, the appropriate Agency may, by notice in writing served on—

(a)any person who has, or who the appropriate Agency has reason to believe has, producer responsibility obligations under regulation 4;

(b)in relation to any person who is a member of a registered scheme, the operator of that scheme;

(c)any person who is, or who the Agency has reason to believe is, issuing PERNs or PRNs;

(d)any person who is engaged in trading in, or brokerage in relation to, PERNs or PRNs; or

(e)any accredited reprocessor or exporter,

require him to maintain such records, and furnish such returns to the appropriate Agency, of such information specified in the notice as the appropriate Agency reasonably considers it needs for those purposes, in such form and within such period following service of the notice, or at such time, as is so specified.

Textual Amendments

Monitoring—publicationE+W+S

32.  The appropriate Agency shall provide to the appropriate authority by 1st December, and publish by 31st December, in each year in respect of the following calendar year a report setting out its proposed monitoring plan including the following details of the monitoring to be carried out under regulation 31—

(a)the Agency’s policy in relation to the monitoring it is required to carry out under regulation 31; and

(b)an indication of the minimum number of persons which it proposes to monitor in the course of that year.

Public registerE+W+S

33.—(1) The appropriate Agency shall maintain and make available in accordance with this regulation a register relating to—

(a)the producers and schemes registered with it in accordance with Part III; and

(b)the reprocessors and exporters accredited by it in accordance with Part V,

and containing the relevant information prescribed in Schedule 7.

(2) The appropriate Agency shall—

(a)secure that the register is open for inspection at its principal office by members of the public free of charge at all reasonable working hours; and

(b)permit members of the public to obtain copies of entries in the register on payment of reasonable charges.

(3) The register may be kept in any form but shall be indexed and arranged so that members of the public can readily trace information contained in it.

(4) The appropriate Agency shall within 7 days of receipt of the information amend the relevant entry in the register to record any change to the information entered F98....

(5) Nothing in this regulation shall require a register maintained by the appropriate Agency to contain information relating to, or to anything which is the subject-matter of, any criminal proceedings (including prospective proceedings) at any time before those proceedings are finally disposed of.

(6) Nothing in this regulation shall require a register maintained by the appropriate Agency to contain any information which has been superseded by later information after 4 years have elapsed from that later information being entered in the register.

Textual Amendments

[F99Approved personsE+W+S

34.—(1) The appropriate Agency may approve a person listed in paragraph (2) for the purposes of—

(a)in relation to a producer, issuing certificates of compliance and signing the form referred to in regulation 7(4)(c) or (ca) or 19(2) (as the case may be);

(b)in relation to the operator of a scheme, signing the form referred to in regulation 14(3)(c) or the statement referred to in regulation 22(4).

(2) A person listed is, where the relevant person—

(a)is an individual, that individual;

(b)is a partnership, a partner;

(c)is a company registered in Great Britain, a director or company secretary of that company;

(d)is an unincorporated body, an individual who has control or management of that body; or

(e)does not have a registered office in Great Britain, an individual who has control or management of the relevant person.

(3) For the purposes of paragraph (2), the “relevant person” means a producer or the operator of a scheme (as the case may be).

[F100(4) Subject to regulation 34A, the appropriate Agency may approve the delegation by an approved person of the person’s functions to any other person.

(5) An approved person who has delegated functions under paragraph (4) may continue to perform those functions.

(6) For the purposes of these Regulations, an act of a delegate performing the functions of an approved person on that person’s behalf is to be treated as an act of the approved person.

(7) In this regulation, and in regulation 34A, “functions” means the functions referred to in paragraph (1)(a) and (b).]]

Textual Amendments

[F101Delegation of approved persons’ functions: procedureE+W+S

34A.—(1) An approved person who proposes the delegation of the person’s functions to another person under regulation 34(4) shall apply for approval to the appropriate Agency on a form supplied for that purpose by that Agency, signed by the approved person.

(2) An application for approval under paragraph (1) shall, within 28 days of receipt of the application—

(a)be granted where the appropriate Agency is satisfied that the proposed delegate, taking into account the factors specified in paragraph (3), is capable of carrying out the functions on behalf of the approved person; or

(b)otherwise be refused.

(3) The factors mentioned in paragraph (2)(a) are—

(a)if the proposed delegate is an employee of the producer or the operator of the scheme, the proposed delegate’s level of seniority;

(b)if the proposed delegate is not an employee of the producer or the operator of the scheme, the nature of the proposed delegate’s relationship with the approved person;

(c)the degree of the proposed delegate’s knowledge of, or access to, information necessary for the purposes of carrying out the functions on behalf of the approved person; and

(d)any other factor which the appropriate Agency reasonably thinks is relevant.

(4) An approval granted in accordance with paragraph (2)(a) may be for such period, or subject to such other conditions, as the appropriate Agency may specify.

(5) Where an application for approval is granted in accordance with paragraph (2)(a), the appropriate Agency shall notify the approved person in writing of this, and of any conditions it has imposed pursuant to paragraph (4), within 28 days of its decision.

(6) The appropriate Agency may decide to withdraw approval granted under paragraph (2)(a) and, if such a decision is taken, shall serve on the approved person written notice of—

(a)the decision to withdraw approval;

(b)the reasons for the decision; and

(b)the date on which the withdrawal takes effect, not being earlier than 28 days from the date of the notice.

(7) If an approved person proposes to revoke a delegation granted under paragraph (2)(a), the person shall serve written notice on the appropriate Agency of this and of the date when the revocation takes effect, not being earlier than 28 days from the date of the notice.]

Textual Amendments

Entry and inspectionE+W+S

35.—(1) A person who appears suitable to the appropriate Agency may be authorised in writing by that Agency for the purposes of its functions under these Regulations to exercise the powers of entry and inspection referred to in paragraph (2) below.

(2) The powers of entry and inspection are those set out in section 108(4)(a) to (l) of the 1995 Act (powers of enforcing authorities and persons authorised by them) and for this purpose section 108(4) shall be read as if references to the authorised person were references to a person authorised under paragraph (1) of this regulation and as if—

(a)the words “(or, in an emergency, at any time and, if need be, by force)” in section 108(4)(a) were omitted;

(b)the reference in section 108(4)(f) to articles or substances in relation to which samples may be taken were to records and packaging and packaging materials and as if the power in that paragraph to take samples of the air, water or land in, on, or in the vicinity of, the premises were omitted;

(c)the power set out in section 108(4)(g) were omitted;

(d)the reference in section 108(4)(h) to any article or substance were to any sample as is mentioned in sub-paragraph (b) above and as if the reference to an offence in section 108(4)(h)(iii) were to an offence under regulation 40;

(e)the reference to records in section 108(4)(k)(i) were to the records and returns required to be kept and provided to the appropriate Agency under these Regulations; and

(f)the reference to the power in section 108(1) were to the power conferred by this regulation.

(3) The provisions of section 108(6) and (7) of the 1995 Act shall apply to the powers conferred by paragraphs (1) and (2) above as they apply to the powers conferred by section 108(4) of the 1995 Act, but as if any reference to an authorised person were to a person authorised under paragraph (1) of this regulation, and as if—

(a)in section 108(6) and (7) the words “Except in an emergency” were omitted; and

(b)in section 108(6) the words “or to take heavy equipment on to any premises which are to be entered” were omitted.

(4) The provisions of section 108(12) and (13) of the 1995 Act shall apply to the powers conferred by paragraphs (1) and (2) above as they apply to the powers conferred by section 108(4) of the 1995 Act.

(5) The provisions of paragraphs 2 to 6 of Schedule 18 to the 1995 Act (supplemental provisions with respect to powers of entry) shall apply to the powers conferred by this regulation as they apply to the powers conferred by section 108 of the 1995 Act, but as if any reference—

(a)to a designated person were to a person authorised in writing by the appropriate Agency to exercise on its behalf any power conferred by this regulation;

(b)to a relevant power were to a power conferred by this regulation, including a power exercisable by virtue of a warrant under the provisions of that Schedule as applied by this paragraph; and

(c)in paragraph 6(1) to section 108(4)(a) or (b) or (5) of the 1995 Act were to paragraph (1) of this regulation.

(6) In this regulation “warrant” means a warrant under the provisions set out in Schedule 18 to the 1995 Act as applied by paragraph (5) above.

Collation and provision of informationE+W+S

36.—(1) The appropriate Agency shall collate and place in the common database every report provided to it under paragraph 1(n) of Schedule 5 no later than 21 days after receipt.

(2) The appropriate Agency shall, by the same dates as it places the reports under paragraph (1), place in the common database the information in its possession required under regulations 7(4)(c) [F102and (ca)] and 14(3)(c).

(3) The Environment Agency shall, by 31st March in the year following the year in which the reports are due to be provided under paragraph 1(n) of Schedule 5, provide the Secretary of State with a copy of every report collated under paragraph (1) above.

(4) The Environment Agency shall provide the Secretary of State with any information placed under paragraph (2) above by 30th June in the year in which it has been provided to the appropriate Agency or, where the information is provided after this date, by [F10328th February] in the following year.

Textual Amendments

PART VIIIE+W+SGROUPS OF COMPANIES, PUB OPERATING BUSINESSES AND LICENSORS AND MID-YEAR CHANGES

Packaging handled by groups of companiesE+W+S

37.  The provisions of Schedule 8 shall apply with regard to groups of companies as defined in that Schedule.

Packaging handled by licensors and pub operating businessesE+W+S

38.—(1) Where in the relevant year and in the preceding year a person is a licensor, the provisions of Schedule 9 shall apply to determine whether that person has producer responsibility obligations in that capacity.

(2) Where in the relevant year and in the preceding year a person is a pub operating business, the provisions of Schedule 9 shall apply to determine whether that person has producer responsibility obligations in that capacity.

(3) For the purposes of this regulation and Schedule 9 a person is a licensor where he is a party to a licence agreement in or under which he grants a licence to use a trade mark to another.

(4) For the purposes of this regulation and Schedule 9 a person is a pub operating business where—

(a)he is a party to a pub operating agreement in or under which he grants a lease or tenancy of premises to another; and

(b)the premises to which the pub operating agreement relates—

(i)in England or Wales, are used by the tenant in order to carry on the licensable activity of—

(aa)the sale by retail of alcohol for consumption on the premises or both on and off the premises; or

(bb)the supply of alcohol by or on behalf of a club to, or to the order of, a member of the club or both, for consumption on the premises or both on and off the premises,

and in respect of which a premises licence is in force; or

[F104(ii)in Scotland, are used by the tenant for the sale by retail or supply of alcohol for consumption on the premises or both on and off the premises, and in respect of which a premises licence is in force.]

(5) In England and Wales, in the definition of pub operating business—

(i)“alcohol” has the same meaning as in section 191 of the Licensing Act 2003(10) and ‘alcoholic’ shall be construed accordingly;

(ii)“premises licence” has the same meaning as in section 11 of the Licensing Act 2003;

(iii)“supply of alcohol” has the same meaning as in section 14 of the Licensing Act 2003; and

(iv)“sale by retail” in relation to any alcohol has the same meaning as in section 192 of the Licensing Act 2003.

[F105(6) In Scotland, in the definition of pub operating business–

(i)“alcohol” has the meaning given in section 2 of the Licensing (Scotland) Act 2005;

(ii)“premises licence” has the meaning given in section 17 of that Act.]

(7) For the purposes of this regulation and Schedule 9—

“licence agreement” means an agreement or number of related agreements in or under which the licensor grants the licensee a licence that allows the licensee to use a trade mark as the name under which the licensee sells from premises goods that are associated with that trade mark, and includes an obligation (whether expressed as a positive or as a negative obligation) on the licensee that relates to the presentation of those premises;

“licensee” means the party to a licence agreement to whom a licence to use a trade mark is granted;

“premises” means any sales outlet on which packaging is handled and includes any land, vehicle, vessel, mobile plant and stall;

“pub operating agreement” means an agreement or number of related agreements in or under which one person (the pub operating business) grants a tenancy or lease of premises to another person (the tenant) that includes an obligation (whether expressed as a positive or as a negative obligation) on the tenant to purchase some or all of the alcohol or alcoholic liquor (as the case may be), to be sold or supplied on or from the premises, from the pub operating business or from a person or persons nominated or authorised by or on behalf of that business;

“tenant” means the party to a pub operating agreement to whom the lease or tenancy of premises is granted; and

“trade mark” has the same meaning as in section 1 of the Trade Marks Act 1994(11).

Textual Amendments

Mid-year changesE+W+S

39.  The provisions of Schedule 10 shall apply with regard to changes in a year in respect of a person who is a producer in respect of that year and any changes in membership of a scheme or group of companies , or other event affecting a producer in the relevant year.

[F106PART IXEOFFENCES

Textual Amendments

Offences and penaltiesE+W+S

40.—(1) A producer who contravenes a requirement of—

(a)subject to paragraph (2) below, regulation 4(4)(a);

(b)regulation 4(4)(b); or

(c)regulation 4(4)(c),

is guilty of an offence.

(2) A producer is not guilty of an offence under paragraph (1)(a) above in respect of any period during which, under regulation 7(7), he is treated as having been registered.

(3) An operator of a scheme who fails to comply with his recovery and recycling obligations in contravention of regulation 12(1) is guilty of an offence.

(4) A person who contravenes a requirement of regulation 23 or who is in breach of either of the conditions specified in paragraph 1(a) or 1(d) of Schedule 5 is guilty of an offence.

(5) A person who furnishes any information to the appropriate Agency in connection with its functions under these Regulations or furnishes information to which regulation 19 applies to an operator of a scheme shall be guilty of an offence if, in furnishing the information, he—

(a)knows the information to be false or misleading in a material particular; or

(b)furnishes such information recklessly and it is false or misleading in a material particular.

(6) A person who fails without reasonable excuse to comply with any requirement imposed in a notice under regulation 31(3) shall be guilty of an offence.

(7) A person who intentionally delays or obstructs a person authorised by the appropriate Agency in the exercise of powers referred to in regulation 35 is guilty of an offence.

(8) Where in accordance with Schedule 8 there is a group registration the holding company is guilty of an offence if—

(a)it does not comply with its recovery and recycling obligations referred to in paragraph 5(c) of Schedule 8; or

(b)it does not furnish a certificate of compliance in accordance with paragraph 5(d) of Schedule 8.

(9) A person guilty of an offence under any of paragraphs (1) to (8) above shall be liable—

(a)on summary conviction to a fine not exceeding the statutory maximum; or

(b)on conviction on indictment, to a fine.

(10) Where an offence under these Regulations is committed by a Scottish partnership and is proved to have been committed with the consent or connivance of, or have been attributable to neglect on the part of, any partner or a person who was purporting to act as such, that person as well as the partnership shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Civil sanctionsE

40A.—(1) The Environment Agency may impose a fixed monetary penalty or variable monetary penalty, or accept an enforcement undertaking, in relation to an offence specified in the following Table of civil sanctions, as indicated in that Table, as if it were an offence under a provision specified in relation to that sanction in Schedule 5 to the Environmental Civil Sanctions (England) Order 2010.

Table of civil sanctions

Offence under these RegulationsFixed monetary penaltyVariable monetary penaltyEnforcement undertaking
regulation 40(1)(a)YesYesYes
regulation 40(1)(b)NoYesYes
regulation 40(1)(c)YesNoNo
regulation 40(3)NoYesYes
regulation 40(7)NoYesNo
regulation 40(8)(a)NoYesYes
regulation 40(8)(b)YesNoNo

(2) The terms used in this regulation have the same meaning as in that Order.

(3) The provisions of that Order in relation to those sanctions apply as if they were provisions of those Regulations.

(4) This regulation applies only in England.]

[F107Civil sanctions, WalesE

40B.—(1) [F108The Natural Resources Body for Wales] may impose a fixed monetary penalty or variable monetary penalty, or accept an enforcement undertaking, in relation to an offence specified in the following Table of civil sanctions, as indicated in that Table, as if it were an offence under a provision specified in relation to that sanction in Schedule 5 to the Environmental Civil Sanctions (Wales) Order 2010.

Table of civil sanctions

Offence under these RegulationsFixed monetary penaltyVariable monetary penaltyEnforcement undertaking
regulation 40(1)(a)YesYesYes
regulation 40(1)(b)NoYesYes
regulation 40(1)(c)YesNoNo
regulation 40(3)NoYesYes
regulation 40(7)NoYesNo
regulation 40(8)(a)NoYesYes
regulation 40(8)(b)YesNoNo

(2) The terms used in this regulation have the same meaning as in that Order.

(3) The provisions of that Order in relation to those sanctions apply as if they were provisions of these Regulations.

(4) This regulation applies only in Wales.]

Textual Amendments

PART XE+W+SREVOCATION AND TRANSITIONAL PROVISION

Revocation and transitional provisionE+W+S

41.—(1) The Producer Responsibility Obligations (Packaging Waste) Regulations 2005(12) are revoked.

(2) Any step taken before commencement of these Regulations which has effect under any provision of the Producer Responsibility Obligations (Packaging Waste) Regulations 2005 shall be treated on or after commencement as having effect under any equivalent provision of these Regulations.

(3) Where the Producer Responsibility Obligations (Packaging Waste) Regulations 2005 specified a time period and part of that period had elapsed under those Regulations before revocation of those Regulations, that part of the period shall be treated on commencement of these Regulations as having elapsed under the equivalent provision of these Regulations.

[F109PART 11E+WReview

Textual Amendments

ReviewE+W

42.—(1) The Secretary of State must from time to time—

(a)carry out a review of regulations 2 to 40 in relation to England and Wales;

(b)set out the conclusions of the review in a report; and

(c)publish the report.

(2) In carrying out the review the Secretary of State must, so far as is reasonable, have regard to how Article 6(1) of the Packaging Waste Directive (which is implemented by means of regulations 2 to 40), as amended from time to time, is implemented in other member States.

(3) The report must in particular—

(a)set out the objectives intended to be achieved by the regulatory system established by regulations 2 to 40;

(b)assess the extent to which the objectives are achieved; and

(c)assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation.

(4) The first report under this regulation must be published before 1st July 2017.

(5) Reports under this regulation are afterwards to be published at intervals not exceeding five years.]

Ben Bradshaw

Minister of State

Department for Environment, Food, and Rural Affairs

Regulations 2(2), 4(2) and 4(3)

SCHEDULE 1E+W+SPRODUCERS

Table 1

Relevant function performed in Years 1 and 2Subject matter of supply in Year 1Class of supply in Year 1Class of producer in Year 2
ManufacturerPackaging materialsA B or CManufacturer
Convertor, subject to paragraph 1(2)Packaging or packaging materialsA B or CConvertor
Packer/fillerPackaging or packaging materialsA B or CPacker/filler
ImporterPackaging or packaging materialsA B or CImporter
SellerPackagingESeller
Manufacturer, Convertor, Packer/filler, or ImporterTransit packagingB or FSecondary provider
Service ProviderPackagingGService Provider

1.—(1) For the purposes of Column 1 in the above Table—E+W+S

(a)“relevant function” means the performance by a person of the functions of one of the following—

(i)manufacturer;

(ii)convertor;

(iii)packer/filler;

(iv)importer;

(v)seller;

(vi)service provider,

either himself or through an agent acting on his behalf, and in the course of business;

(b)“convertor” means a person who uses or modifies packaging materials in the production or formation of packaging;

(c)“importer” means a person who imports packaging or packaging materials into the United Kingdom;

(d)“manufacturer” means a person who manufactures raw materials for packaging;

(e)“packer/filler” means a person who puts goods into packaging;

(f)“seller” means a person who supplies packaging to a user or a consumer of that packaging, whether or not the filling has taken place at the time of the supply;

(g)“service provider” means a person who supplies reusable packaging to a user of that packaging where the supply is made by hiring out or lending the packaging;

(h)“Year 1” means the preceding year; and

(i)“Year 2” means the relevant year.

(2) Where a person performs the functions of a convertor and a packer/filler F110...as part of the same packing/filling process, and in relation to the same packaging, as regards supplies of packaging or packaging materials made to or by him in connection with those functions, or that process, he is treated for the purposes of these Regulations as a producer of the class of packer/filler only.

(3) For the purposes of this Schedule a person acts “in the course of business” if he acts in the ordinary course of conduct of a trade, occupation or profession.

Textual Amendments

2.  For the purposes of Column 3 of the above Table, and Schedule 2—E+W+S

(a)“Class A supply” means—

(i)the final use or consumption by an importer of imported packaging or packaging materials; or

(ii)a deemed supply;

(b)“Class B supply” means a supply, other than solely for the purpose of transport, to a person who acts as a distributor, that is to say who, in relation to the packaging or packaging materials supplied, neither performed the functions of one of the classes of producer, nor was the user or consumer;

(c)“Class C supply” means a supply (other than a Class F supply) to a person for the performance by that person of a relevant function which—

(i)is different from the function performed by his immediate supplier; and

(ii)is not that of an importer;

(d)“Class E supply” means a supply, other than a supply of transit packaging in respect of which a Class F supply has already been made, to a user or consumer other than a person who performed a relevant function;

(e)“Class F supply” means a supply—

(i)to a person who performed a relevant function;

(ii)to a user or consumer; or

(iii)to a person who acts as a distributor,

using the transit packaging supplied to perform the functions of a packer/filler and seller;

(f)“Class G supply” means a supply —

(i)to a person who performed a relevant function; or

(ii)to a person who acts as a distributor,

where the supply is made by hiring out or lending the packaging;

(g)“supply” means doing any of the following, either himself or through an agent acting on his behalf, in relation to packaging or packaging materials owned by the supplier—

(i)selling, hiring out or lending;

(ii)providing in exchange for any consideration other than money;

(iii)providing in or in connection with the performance of any statutory function; or

(iv)giving as a prize or otherwise making a gift,

and, where the packaging or packaging materials are owned by a person who does not have a registered office or principal place of business in Great Britain, a supply shall take place when a person performs any of the functions in paragraphs (i) to (iv) above on behalf of the owner in relation to that packaging or packaging materials; and

(h)“deemed supply” means a supply which is deemed to occur when a person who has carried out a relevant function then performs another such function in relation to the same packaging or packaging materials.

3.  A person satisfies the threshold tests if—E+W+S

(a)his turnover in the last financial year—

(i)in respect of which audited accounts are available; or

(ii)where audited accounts are not required, in respect of which accounts are available,

before the relevant date was more than £2,000,000; and

(b)in the calculation year the person handled in aggregate more than 50 tonnes of packaging or packaging materials.

4.—(1) For the purposes of paragraph 3(a) above audited accounts shall be treated as being available, where the person is a company, where annual accounts have been delivered to the registrar under [F111section 441 of the Companies Act 2006].E+W+S

(2) For the purposes of paragraph 3(b) above, the amount of packaging or packaging materials handled is the amount handled in the United Kingdom in respect of which the producer made a supply referred to in Column 3 of Table 1, other than a deemed supply, calculated in tonnes to the nearest tonne by—

(a)including packaging, including reused transit packaging, or packaging materials so supplied which were imported into the United Kingdom by the producer, either himself or through an agent acting on his behalf; and

(b)excluding—

(i)reused sales packaging or primary packaging as defined in paragraph 1(a) of Article 3 of the Packaging Waste Directive;

(ii)production residues from the production of packaging or packaging materials or from any other production process occurring before, during or after the producer handled the packaging or packaging materials;

(iii)any packaging or packaging materials so supplied which were exported from the United Kingdom by the producer, either himself or through an agent acting on his behalf or which to the producer’s reasonable knowledge were otherwise exported from the United Kingdom [F112(with the exception of any packaging or packaging materials exported from the United Kingdom to a marine installation)]; and

(iv)reused transit packaging (with the exception of reused transit packaging imported into the United Kingdom).

Textual Amendments

Regulation 4(4)

SCHEDULE 2E+W+SRECOVERY AND RECYCLING OBLIGATIONS

1.—(1) Except for a small producer who has elected to follow the allocation method, a producer’s obligations to recover and recycle packaging waste in a relevant year are, in relation to each class of producer to which he belongs—E+W+S

(a)to recover an amount of packaging waste as provided in paragraph 3(1) below;

(b)to recover by recycling a proportion of that packaging waste, as provided in paragraph 3(2) below; F113...

(c)as part of the obligation to recover packaging waste as provided in paragraph (a) above, to recover by recycling an amount of packaging materials which is packaging waste, as provided in paragraph 3(3) below, [F114and

(d)in relation to glass, to recycle by re-melt an amount of glass packaging which is glass packaging waste, as provided in paragraph 3(4),]

and are calculated by aggregating his obligations in relation to each class of producer to which he belongs in respect of that year.

Textual Amendments

2.  Where a small producer has elected to follow the allocation method, his obligations to recycle packaging waste in a relevant year are to recycle an amount of packaging waste as provided in paragraphs 7 and 8 below.E+W+S

3.—(1) The amount of packaging waste to be recovered by a producer in relation to a class of producer to which he belongs is calculated as follows—E+W+S

where—

[F115“P” is the amount of packaging and packaging materials handled in Great Britain by the producer in the preceding year, calculated to the nearest tonne by—

(a)

taking into account packaging, including reused transit packaging, or packaging materials, which were imported into the United Kingdom by the producer; and

(b)

excluding—

(i)

reused sales packaging or primary packaging as defined in paragraph 1(a) of Article 3 of the Packaging Waste Directive;

(ii)

production residues from the production of packaging or packaging materials or from any other production process occurring before, during or after the producer handled the packaging or packaging materials;

(iii)

any packaging or packaging materials so supplied which were exported from the United Kingdom by the producer or which to the producer’s reasonable knowledge were otherwise exported from the United Kingdom (except to a marine installation); and

(iv)

reused transit packaging (except reused transit packaging imported into the United Kingdom);]

“C” is the percentage prescribed in paragraph 4 below in relation to the class of producer;

“X” is the percentage prescribed in paragraph 5 below as the recovery target for the relevant year; and

“Z” is the amount by tonnage of packaging waste which is to be recovered within the relevant year.

[F116(2) The proportion of the packaging waste referred to in sub-paragraph (1) which is to be recovered by recycling, in relation to a class of producer to which the producer belongs in the years [F1172012 to 2017] is not less than 92% of the amount by tonnage of packaging waste represented by “Z” in sub-paragraph (1).]

(3) Where in the preceding year the producer has handled any recyclable material (whether in the form of packaging or packaging materials), the producer shall recover by recycling an amount of packaging waste consisting of that material calculated as follows—

where—

“M” is the amount in tonnes to the nearest tonne of the recyclable material (whether in the form of packaging or packaging materials) handled in Great Britain by the producer in the preceding year;

“C” is the percentage prescribed in paragraph 4 below in relation to the class of producer;

“Y” is the percentage prescribed in paragraph 6 below as the recycling target for the relevant year; and

“Q” is the amount by tonnage of packaging waste consisting of that material which is to be recycled in the relevant year.

[F118(4) Where in the preceding year the producer has handled any glass (whether in the form of packaging or packaging materials), the producer shall recycle by re-melt an amount of glass packaging waste calculated as follows—

[F119 

 ]

where—

  • “L” is the amount to the nearest tonne of the glass (whether in the form of packaging or packaging materials) handled in Great Britain by the producer in the preceding year;

  • “B” is the percentage prescribed in paragraph 4 in relation to the class of producer;

  • [F120“Y” is the percentage prescribed in paragraph 6 as the recycling target in respect of glass in relation to the relevant year;]

  • F121...

  • “G” is the amount by tonnage of glass packaging waste which is to be recycled by re-melt in the relevant year.]

Textual Amendments

4.—(1) The following percentages are prescribed as the percentages for the following classes of producer—E+W+S

(a)

manufacturer

6%;
(b)

convertor

9%;
(c)

packer/filler

37%;
(d)

seller

48%;
(e)

secondary provider

85%; and
(f)

service provider

85%.

(2) The following percentages are prescribed for the class of importer—

(a)the manufacturer’s percentage, that is 6%—

(i)on Class A supplies, where the importer also carries out the functions of a convertor;

(ii)on Class B supplies, where the relevant packaging or packaging materials are supplied, by the distributor who receives them, to a convertor; and

(iii)on Class C supplies to a convertor;

(b)the manufacturer’s and the convertor’s percentages aggregated, that is 6% + 9% = 15%—

(i)on Class A supplies, where the importer also carries out the functions of a packer/filler;

(ii)on Class B supplies, where the relevant packaging or packaging materials are supplied, by the distributor who receives them, to a packer/filler;

(iii)on Class C supplies to a packer/filler; and

(iv)on Class G supplies;

(c)the manufacturer’s, the convertor’s and the packer/filler’s percentages aggregated, that is 6% + 9% + 37% = 52%—

(i)on Class A supplies where the importer also carries out the functions of a seller;

(ii)on Class B supplies where the relevant packaging or packaging materials are supplied, by the distributor who receives them, to a seller; and

(iii)on Class C supplies to a seller;

(d)the manufacturer’s, the convertor’s, the packer/filler’s and the seller’s percentages aggregated, that is 6% + 9% + 37% + 48% = 100%—

(i)on Class F supplies; and

(ii)on Class A supplies, where the importer is also the final user or consumer.

[F1225.  The following is prescribed as the recovery target “X”—E+W+S

(a)for the year 2018, 80%;

(b)for the year 2019, 81%;

(c)for the year 2020, 82%.]

Textual Amendments

6.  The following percentages are prescribed as the recycling target “Y” in respect of the recyclable material specified in the first column in relation to the years indicated F123... —E+W+S

[F124Table 2: Recycling targets

Materials201820192020
Glass787980
Plastic535557
Aluminium586164
Steel798285
Paper/Board717375
Wood384348]

Textual Amendments

F1256A.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

Textual Amendments

7.—(1) The amount of packaging waste to be recycled by a small producer who has elected to follow the allocation method is calculated as follows—E+W+S

where—

“A” = a/1,000,000;

“a” is the annual turnover of the producer in the last financial year in respect of which audited accounts are available before the relevant date, rounded up to the nearest ten thousand pounds;

“B” is the recycling allocation for the relevant year prescribed in paragraph 8 below; and

“Zs” is the amount of packaging waste (in tonnes) which is to be recycled in the relevant year.

(2) For the purposes of this paragraph, a small producer shall carry out his recycling obligations by recycling the recyclable material he handled which is predominant by weight.

[F1268.  The recycling allocation “B” is 30 for each of the years 2018 to 2020.]E+W+S

Textual Amendments

9.  Paragraph 4(2) of Schedule 1 applies for the purposes of this Schedule, but as though the words “For the purposes of paragraph 3(b) above,” and the words “other than a Class A supply,” were omitted.E+W+S

10.  Where the appropriate Agency is satisfied that a producer has instituted a system of using reusable packaging which has a life of at least four years, the producer’s obligations under this Schedule in relation to that packaging may be discharged by equal instalments over four years commencing with the year in which that packaging is first used.E+W+S

[F12711.  For the purposes of this Schedule, “recycling by re-melt” means the recycling of waste glass packaging or packaging materials using a method that melts the glass before it is re-formed into a product.]E+W+S

Textual Amendments

Regulations 7(4), 14(3) and 15(g)

SCHEDULE 3E+W+SINFORMATION

PART IE+W+SINFORMATION TO BE CONTAINED IN APPLICATION FOR PRODUCER REGISTRATION

1.  The address and telephone number of the registered office of the producer or, if not a company, the principal place of business of the producer.E+W+S

2.  The business name of the producer if different from that referred to in paragraph 1 above.E+W+S

3.  The address for service of notices on the producer if different from that referred to in paragraph 1 above.E+W+S

4.  Where the producer is a partnership, the names of all the partners.E+W+S

PART IIE+W+SINFORMATION TO BE INCLUDED IN AN APPLICATION FOR REGISTRATION OF A SCHEME

5.  The name of the scheme.E+W+S

6.  The name of the operator and, where the operator is a partnership, the names of all the partners.E+W+S

7.  The address and telephone number of the registered office of the operator or, if not a company, the principal place of business of the operator, and, if more than one, all the operators.E+W+S

8.  The address for service of notices if different from that referred to in paragraph 7 above.E+W+S

9.  The names and addresses of the registered offices, or, where the members of the scheme are not companies, the principal places of business, of the scheme’s members.E+W+S

10.  Full particulars of the agreement for the constitution of the scheme including any rules or regulations to be observed by its members.E+W+S

PART IIIE+W+SSTATEMENT OF THE SCHEME’S POLICIES AND THE OPERATIONAL PLANS OF SCHEMES AND PRODUCERS

11.  The matters to be contained in the statement to be provided pursuant to regulation 14(3)(d) are—E+W+S

(a)the steps intended to be taken through the scheme to increase the use of recycled packaging waste in the manufacture of packaging, packaging materials or other products or materials supplied by its members; and

(b)the principal methods by which packaging waste is to be recovered through the scheme, and by which it is to be recycled through the scheme, together with information about the steps the user or consumer may take to assist the scheme in applying these methods.

F12812.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

Textual Amendments

F12913.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

Textual Amendments

Regulation 21

SCHEDULE 4E+W+SINFORMATION IN CERTIFICATE OF COMPLIANCE

The information to be contained in a certificate of compliance is—

1.  The name and address of the approved person who is issuing the certificate.E+W+S

2.  The date of the certificate.E+W+S

3.  The producer in respect of whom the approved person is issuing the certificate (“the relevant producer”).E+W+S

4.  A statement by the approved person that the certificate has been issued in accordance with any guidance issued by the appropriate Agency under section 94(4) of the 1995 Act.E+W+S

5.  Certification by the approved person as to whether the relevant producer has complied with his recovery and recycling obligations.E+W+S

6.  Subject to paragraph 7 below, copies of all PRNs or PERNs acquired for the year to which the certificate relates.E+W+S

7.  A PRN or PERN which is issued in respect of packaging waste received by a reprocessor or exported in December of any year may be included in the certificate of compliance for either that year or the following year.E+W+S

Regulation 25

SCHEDULE 5E+W+SCONDITIONS OF ACCREDITATION

1.  The conditions referred to in regulation 25 are that—E+W+S

(a)PRNs shall not be issued for more than the total amount of packaging waste which—

(i)is received for reprocessing on the reprocessing site of a reprocessor in the year or the part of the year for which he is accredited; and

(ii)will be capable of being reprocessed on the site for which he is accredited no later than the end of the following year;

(b)a reprocessor may only issue a PRN in respect of packaging waste once that packaging waste has been received for reprocessing on that reprocessing site;

(c)PRNs which relate to packaging waste received for reprocessing in December of a year shall specify that fact;

[F130(d)PERNs shall not be issued for more than the total amount of packaging waste which an accredited exporter exports for reprocessing in the year or part of the year for which he is accredited;

(e)a PERN may only be issued once the packaging waste that it relates to has been exported for reprocessing;]

(f)PERNs which relate to packaging waste exported in December of a year shall specify that fact;

(g)where a PRN or PERN has not been issued by 31st January in any year in respect of an amount of packaging waste received for reprocessing or exporting in the previous year, a PRN or PERN for that amount shall not be issued to producers or operators of schemes, or to the representatives of producers or operators of schemes but shall be issued to the appropriate Agency on or before [F13128th February] in that year;

F132(h). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(i)the weight of packaging waste recorded on a PRN or PERN shall be—

(i)rounded up to the nearest whole tonne where the part tonne is 0.5 or more;

(ii)rounded down to the nearest whole tonne where the part tonne is less than 0.5;

F133(j). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(k)subject to sub-paragraph (g) above, PRNs and PERNs may only be issued to producers or operators of schemes, or to the representatives of producers or operators of schemes;

F134(l). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(m)records shall be maintained for each quarter year on a form made available for the purpose by the appropriate Agency, shall be retained for at least 4 years after the end of the year in which the record is made and shall be made available to the appropriate Agency on demand;

(n)reports shall be provided to the appropriate Agency before each of 21st April, 21st July, 21st October and 28th February in respect of the previous quarter year on—

(i)the tonnage of packaging waste received or exported for reprocessing in that quarter;

(ii)the tonnage of packaging waste reprocessed in that quarter;

(iii)the number of PRNs or PERNs issued in that quarter; and

(iv)a list of all PRNs and PERNs issued,

on a form provided by the appropriate Agency;

[F135(o)a report shall be provided to the appropriate Agency before 28th February in each year which—

(i)sets out all the information provided in the quarterly reports which relate to the whole of the previous year;

(ii)sets out the amount of revenue received in the previous year from the sale of PRNs and PERNs;

(iii)sets out what that amount has been spent on, including information on the matters set out in paragraphs (i) to (vi) of regulation 24(1)(c);

(iv)accounts for the whole of that amount;

(v)sets out and explains any deviation during the previous year from the business plan referred to in regulation 24(1)(c);

(vi)is in the form prescribed by the appropriate Agency for this purpose;]

F136(p). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(q)a reprocessor or exporter must—

(i)as far as possible implement the business plan referred to in regulation 24(1)(c);

(ii)undertake sampling and inspection of packaging waste received or exported for reprocessing, in accordance with a plan approved by the appropriate Agency; and

(iii)comply with such other conditions as the appropriate Agency may specify in the notification of a grant of accreditation;

[F137(r)a PERN may only be issued in respect of packaging waste that is exported in accordance with—

(i)Regulation (EC) No 1013/2006 of the European Parliament and of the Council on shipments of waste; and

(ii)Commission Regulation (EC) No 1418/2007 concerning the export for recovery of certain waste listed in Annex III or IIIA to Regulation (EC) No 1013/2006 of the European Parliament and of the Council to certain countries to which the OECD Decision on the control of transboundary movements of wastes does not apply;

(s)where applicable, a reprocessor or exporter must comply with regulation 24(6)]

Textual Amendments

2.  For the purposes of this Schedule—E+W+S

(a)“issue” in relation to a PRN or PERN means to sell or otherwise supply to a producer or operator of a scheme or to the representative of a scheme or operator of a scheme, and a reprocessor or exporter may issue a PRN or PERN to himself;

(b)“quarter year” means the first, second, third and fourth three months of the yearF138...

F139(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Regulation 28(3)

SCHEDULE 6E+W+SPROCEDURE ON APPEALS

1.—(1) A person who wishes to appeal to the appropriate authority under regulation 27 shall do so by notice in writing given or sent to the appropriate authority.E+W+S

(2) The notice shall be accompanied by—

(a)a statement of the grounds of appeal;

(b)a copy of any correspondence or document relevant to the appeal that could be required to be disclosed as part of standard disclosure under Part 31 of the Civil Procedure Rules 1998(13); and

(c)a statement indicating whether the appellant wishes the appeal to be in the form of a hearing or to be determined on the basis of written representations.

(3) The appellant shall serve a copy of his notice of appeal on the appropriate Agency together with copies of the documents mentioned in sub-paragraph (2) above.

2.—(1) Subject to sub-paragraph (2) below, notice of appeal shall be given before the expiry of the period of 2 months beginning with the date of the decision which is the subject of the appeal.E+W+S

(2) The appropriate authority may at any time allow notice of an appeal to be given after the expiry of the period mentioned in sub-paragraph (1) above.

3.  Where under regulation 28(2) the appeal is by way of a hearing, the person hearing the appeal shall, unless he has been appointed to determine the appeal under regulation 28(1)(a), make a written report to the appropriate authority which shall include his conclusions and recommendations or his reasons for not making any recommendations.E+W+S

4.—(1) The appropriate authority or other person determining an appeal shall notify the appellant in writing of its or his decision and the reasons for the decision.E+W+S

(2) If the appropriate authority determines an appeal after a hearing under regulation 28(2), it shall provide the appellant with a copy of any report made to him under paragraph 3 above.

(3) The appropriate authority or other person determining an appeal shall, at the same time as notifying the appellant of his decision, send the appropriate Agency a copy of any document sent to the appellant under this paragraph.

Regulation 33

SCHEDULE 7E+W+SPUBLIC REGISTER

1.  The name and address of the registered office or principal place of business of—E+W+S

(a)each registered producer;

(b)each registered operator of a scheme and each member of the scheme for which he is the operator; and

(c)each accredited reprocessor and accredited exporter.

2.  In relation to accredited reprocessors and exporters—E+W+S

(a)each material type accepted;

(b)in relation to any recovery operation to be used, the appropriate classification of the applicable operation provided for in [F140Annex II] of the Waste Directive;

(c)in relation to the incineration at waste incineration plants with energy recovery, the appropriate classification of the applicable operation under [F141Annex I or II] of the Waste Directive;

(d)whether the reprocessor or exporter is accredited to issue PRNs or PERNs for either 400 tonnes or less, or more than 400 tonnes of packaging waste;

(e)the trading name, address and telephone number of the reprocessor or exporter;

(f)the reprocessing site address for an accredited reprocessor;

(g)the reference number supplied by the appropriate Agency;

(h)whether or not quarterly returns and annual returns have been provided in accordance with the conditions set out in [F142paragraph 1(n) and (o)] of Schedule 5;

(i)whether the appropriate Agency has served a notice to suspend or cancel accreditation; and

(j)whether accreditation has been suspended or cancelled.

Textual Amendments

F140Words in Sch. 7 para. 2(b) substituted (S.) (27.3.2011) by The Waste (Scotland) Regulations 2011 (S.S.I. 2011/226), reg. 1(1), Sch. para. 20(2)(a)

Words in Sch. 7 para. 2(b) substituted (E.W.) (29.3.2011) by The Waste (England and Wales) Regulations 2011 (S.I. 2011/988), reg. 1(2), Sch. 4 para. 23(3)(a) (with regs. 2, 47(2))

F141Words in Sch. 7 para. 2(c) substituted (S.) (27.3.2011) by The Waste (Scotland) Regulations 2011 (S.S.I. 2011/226), reg. 1(1), Sch. para. 20(2)(b)

Words in Sch. 7 para. 2(c) substituted (E.W.) (29.3.2011) by The Waste (England and Wales) Regulations 2011 (S.I. 2011/988), reg. 1(2), Sch. 4 para. 23(3)(b) (with regs. 2, 47(2))

3.  A statement in relation to each registered producer as to whether a satisfactory certificate of compliance has been furnished.E+W+S

4.  A statement in relation to each registered operator of a scheme as to whether he has complied with his obligations under regulation 12(1).E+W+S

Regulation 37

SCHEDULE 8E+W+SGROUPS OF COMPANIES

1.  This Schedule applies in relation to a relevant year—E+W+S

(a)where a holding company and one or more of its subsidiaries, or two or more subsidiary companies of the same holding company (in either case referred to in this Schedule and Schedule 10 as “a group of companies”) each satisfies the provisions of Columns 1 to 3 of Table 1 in Schedule 1 in relation to a class or classes of producer; and

(b)where the aggregate of the turnovers, and the aggregate of the amounts of packaging or packaging materials handled by each such company, are sufficient to satisfy the threshold tests as provided by paragraph 3 of Schedule 1.

2.  Subject to regulation 5, in respect of a year each company referred to in paragraph 1 above is a producer of a class specified in an entry in Column 4 of Table 1 in Schedule 1 if—E+W+S

(a)in that year and the preceding year the company performs the relevant functions specified in Column 1 of that Table in relation to that entry; and

(b)in the preceding year the company made supplies of the materials or products specified in Column 2 of that Table in relation to that entry of a class specified in Column 3 of that Table in relation to that entry,

and the other provisions of that Schedule, other than paragraph 3, shall also have effect for the purposes of determining to which class of producer such a company belongs.

3.  For the purposes of this Schedule and Schedule 10 “subsidiary” and “holding company” have the same meanings as they have in [F143section 1159 of the Companies Act 2006].E+W+S

Textual Amendments

4.  Subject to regulation 5, companies who are producers and are in a group of companies shall comply with their producer registration obligations for a relevant year by—E+W+S

(a)being registered for that year with the appropriate Agency as required by regulation 6, in which case each company so registered has its own recovery and recycling obligations, certifying obligations, and, where applicable, consumer information obligations; or

(b)the holding company and one or more of the subsidiaries being registered together for that year with the appropriate Agency, (in this Schedule and Schedule 10 referred to as a “group registration”) in which case paragraphs 5 and 6 below shall apply.

5.  Where there is a group registration—E+W+S

(a)the subsidiary companies in the group registration are exempt from complying with their producer responsibility obligations for the relevant year;

(b)the holding company has a producer registration obligation for the relevant year which is an obligation to make the group registration and for this purpose regulations 5 to 11, and Parts I and II of Schedule 3, shall be read as if—

(i)references to the applicant or the producer were references to the holding company;

(ii)references to information to be provided regarding the producer were to information to be provided regarding each company in the group registration; and

(iii)the references in [F144regulation 9(2)] to a fee for producer registration were read as references to a fee for group registration;

(c)the holding company has recovery and recycling obligations and, where applicable, consumer information obligations for the relevant year which are the aggregate of its own obligations in respect of that year, if any, and the obligations which the subsidiary companies in the group registration would have had but for the group registration;

(d)the holding company shall furnish records and returns and provide a certificate of compliance, and references in regulation 21 and Schedule 4—

(i)to a producer shall be read as references to the holding company, and

(ii)to information shall be read as references to information regarding each company in the group registration.

Textual Amendments

6.  Where—E+W+S

(a)there is a group registration;

(b)a subsidiary company in the group is a small producer which has elected in the group registration application to follow the allocation method; and

(c)the subsidiary company follows the allocation method during at least the year of registration and the following two years,

the obligations of the holding company for that subsidiary company shall be determined using the allocation method.

7.  This Schedule is subject to the provisions of Schedule 10.E+W+S

Regulation 38

SCHEDULE 9E+W+SLICENSORS AND PUB OPERATING BUSINESSES

1.  A head organisation has producer responsibility obligations in the situations set out in paragraph 3(1) below where the conditions in paragraph 3(2) below are met and, where a head organisation has producer responsibility obligations, paragraphs 6 and 7 below apply to determine those obligations.E+W+S

2.  Paragraph 6 below applies to determine the producer responsibility obligations of a licensor and paragraph 7 below applies to determine the producer responsibility obligations of a pub operating business.E+W+S

3.—(1) The situations referred to in paragraph 1 above are that—E+W+S

(a)the head organisation and one or more of his members would, but for a failure to satisfy one or both of the threshold tests in paragraph 3 of Schedule 1, each have producer responsibility obligations under these Regulations;

(b)two or more members of the head organisation would, but for a failure to satisfy one or both of the threshold tests in paragraph 3 of Schedule 1, each have producer responsibility obligations under these Regulations; or

(c)the head organisation has producer responsibility obligations under these Regulations and one or more of his members would, but for a failure to satisfy one or both of the threshold tests in paragraph 3 of Schedule 1, each have producer responsibility obligations under these Regulations.

(2) The conditions referred to in paragraph 1 above are that—

(a)the head organisation satisfies the threshold test relating to turnover in paragraph 3(a) of Schedule 1; and

(b)subject to paragraphs 4 and 5 below, the head organisation and one or more of his members, or his members alone, in one of the situations in paragraph 3(1)(a), (b) or (c) above, together satisfy the threshold test relating to packaging handled in paragraph 3(b) of Schedule 1.

4.  Where the head organisation is a licensor, for the purposes of the threshold test in paragraph 3(b) of Schedule 1, packaging or packaging materials handled in one of the situations in paragraph 3(1)(a), (b) or (c) above shall only include—E+W+S

(a)packaging or packaging materials that bear a trade mark of the head organisation for which a licence to use such trade mark has been granted under the licence agreement;

(b)packaging associated with goods that bear a trade mark of the head organisation for which a licence to use such trade mark has been granted under the licence agreement; and

(c)where the member is obliged to—

(i)purchase goods in packaging;

(ii)purchase goods and associated packaging or packaging materials to be used to contain or protect such goods or to facilitate the handling of or for the presentation of such goods;

(iii)purchase packaging or packaging materials to be used to contain or protect such goods or to facilitate the handling of or for the presentation of such goods,

from the head organisation or, where the head organisation has negotiated some or all of the terms of the supply, a supplier nominated or authorised by the head organisation under the licence agreement, such packaging or packaging materials.

5.  Where the head organisation is a pub operating business, for the purposes of the threshold test in paragraph 3(b) of Schedule 1, packaging or packaging materials handled in one of the situations in paragraph 3(1)(a), (b) or (c) above shall only include packaging or packaging materials that contain the goods that are the subject of the obligation to purchase from the head organisation or person nominated or authorised by that head organisation under the pub operating agreement, whether or not the goods have been packed or filled in the packaging or packaging materials when they are purchased by the member.E+W+S

6.  Where the head organisation is a licensor—E+W+S

(a)where there is a situation falling in paragraph 3(1)(a) or (b) above and the conditions in paragraph 3(2) above have been met, the head organisation is deemed to be a producer of a class or classes specified in an entry in Column 4 of Table 1 in Schedule 1 and has producer responsibility obligations in respect of his own activities, where applicable, and those of his members in respect of the packaging or packaging materials set out in paragraph 4; or

(b)where there is a situation falling in paragraph 3(1)(c) above and the conditions in paragraph 3(2) above have been met, the head organisation, in addition to having producer responsibility obligations as a producer in respect of his own activities, is deemed to be a producer of a class or classes specified in an entry in Column 4 of Table 1 in Schedule 1 and has producer responsibility obligations in respect of the activities of his members in respect of the packaging or packaging materials set out in paragraph 4.

7.  Where the head organisation is a pub operating business—E+W+S

(a)where there is a situation falling in paragraph 3(1)(a) or (b) above and the conditions in paragraph 3(2) above have been met, the head organisation is deemed to be a producer of a class or classes specified in an entry in Column 4 of Table 1 in Schedule 1 and has producer responsibility obligations in respect of his own activities, where applicable, and those of his members in respect of the packaging or packaging materials set out in paragraph 5; or

(b)where there is a situation falling in paragraph 3(1)(c) above and the conditions in paragraph 3(2) above have been met, the head organisation, in addition to having producer responsibility obligations as a producer in respect of his own activities, is deemed to be a producer of a class or classes specified in an entry in Column 4 of Table 1 in Schedule 1 and has producer responsibility obligations in respect of the activities of its members in respect of the packaging or packaging materials set out in paragraph 5.

8.  Where the head organisation does not have the information necessary for the purposes of paragraphs 4 to 7 above he shall use his best endeavours to obtain such information; and where despite having used his best endeavours he nevertheless does not have such information he shall produce his best estimate and that estimate shall be used for the purposes of paragraphs 4 to 7 above.E+W+S

9.  Where the head organisation is a licensor and does not have a registered office or principal place of business in Great Britain the obligations of the head organisation under this Schedule shall be performed by a person who carries out or manages the functions of the head organisation in Great Britain and has a registered office or principal place of business in Great Britain.E+W+S

10.  For the purposes of this Schedule—E+W+S

(a)“head organisation” means a licensor or pub operating business as defined in regulation 38; and

(b)“member” means:

(i)where the head organisation is a licensor, a licensee being the person granted a licence to use a trade mark by the licensor under a licence agreement as provided for in regulation 38; or

(ii)where the head organisation is a pub operating business, a tenant being the person granted a lease or tenancy by the pub operating business as provided for in regulation 38.

Regulation 39

SCHEDULE 10E+W+SMID-YEAR CHANGES

PART 1E+W+SSCHEME MEMBERSHIP

1.  Subject to paragraphs 4 and 5 below, where a person who is a producer in respect of a year becomes a member of a registered scheme during that year, the recovery and recycling obligations of the producer for that year, referred to in regulation 12(1), shall be performed through the scheme.E+W+S

2.  Where a person who is a producer in respect of a year ceases to be a member of a registered scheme during that year, he shall comply with his recovery and recycling obligations for that year, calculated as provided in regulation 4 and Schedule 2.E+W+S

3.  Where a person who is a producer in respect of a year ceases to be a member of one registered scheme (“the first scheme”) and becomes a member of another registered scheme (“the second scheme”) during that year, the first scheme shall not be required to perform any of the producer’s recovery and recycling obligations, referred to in regulation 12(1), and all such obligations shall be performed through the second scheme.E+W+S

PART IIE+W+SGROUP MEMBERSHIP

4.  This Part applies where—E+W+S

(a)a company joins a group of companies and becomes a company to which paragraph 1 of Schedule 8 applies; or

(b)a holding company or subsidiary company to which paragraph 1 of Schedule 8 applies ceases to belong to a group of companies.

5.  Where paragraph 4(a) above applies the company shall either—E+W+S

(a)be registered separately with the appropriate Agency as required by regulation 6; or

(b)be registered with the appropriate Agency as part of a group registration under Schedule 8 and for the purposes of this paragraph—

(i)such registration is effected upon notice being given by the holding company to the appropriate Agency of the change in the group registration; and

(ii)where prior to joining the group of companies the company was registered with an appropriate Agency, the Agency shall cancel the company’s registration and regulation 11(3) shall apply to that cancellation as it applies to a cancellation under regulation 11(2).

6.  Where—E+W+S

(a)paragraph 4(a) above applies;

(b)in relation to the obligation year the company itself satisfies the threshold tests; and

(c)the company is registered as part of a group registration,

the holding company shall comply with the requirements of the company’s recovery and recycling obligations for the year in which it joins the group.

7.  Where—E+W+S

(a)paragraph 4(a) above applies;

(b)in relation to the obligation year the company itself satisfies the threshold tests; and

(c)the company is registered separately with the appropriate Agency,

the company shall comply with its recovery and recycling obligations for the year in which it joins the group.

8.  Where—E+W+S

(a)paragraph 4(a) above applies;

(b)in relation to the obligation year the company itself does not satisfy the threshold tests; and

(c)the company is registered as part of a group registration,

the holding company shall comply with a proportion of the requirements of the company’s recovery and recycling obligations for the year in which it joins the group, such proportion being calculated as provided in paragraph 16 below.

9.  Where—E+W+S

(a)paragraph 4(a) above applies;

(b)in relation to the obligation year the company itself does not satisfy the threshold tests; and

(c)the company is registered separately with the appropriate Agency,

the company shall comply with a proportion of its recovery and recycling obligations for the year in which it joins the group, such proportion being calculated as provided in paragraph 16 below.

10.  Where—E+W+S

(a)paragraph 4(b) above applies; and

(b)in relation to the obligation year the company itself satisfies the threshold tests,

it shall register with the appropriate Agency as required by regulation 6 within 28 days of ceasing to be a member of a group and regulations 7 to 11 shall apply as if this were an occurrence specified in regulation 7(3)(d).

11.  Where—E+W+S

(a)paragraph 4(b) above applies;

(b)in relation to the obligation year the company itself satisfies the threshold tests; and

(c)the company was registered as part of a group registration,

the holding company shall comply with the requirements of the company’s recovery and recycling obligations for the year in which it ceases to be a member of the group.

12.  Where—E+W+S

(a)paragraph 4(b) above applies;

(b)in relation to the obligation year the company itself satisfies the threshold tests; and

(c)the company is registered separately with the appropriate Agency,

the company shall comply with its recovery and recycling obligations for the year in which it ceases to be a member of the group.

13.  Where—E+W+S

(a)paragraph 4(b) above applies;

(b)in relation to the obligation year the company itself does not satisfy the threshold tests; and

(c)the company was registered as part of a group registration,

the holding company shall comply with the requirements of the company’s recovery and recycling obligations for the year in which it ceases to be a member of the group.

14.  Where—E+W+S

(a)paragraph 4(b) above applies;

(b)in relation to the obligation year the company itself does not satisfy the threshold tests; and

(c)the company was registered separately with the appropriate Agency,

the holding company shall comply with the requirements of the company’s recovery and recycling obligations for the year in which it ceases to be a member of the group.

15.  Where in a relevant year paragraph 4 above applies to a company as a result of that company ceasing to be a member of one group (“the first group”) and becoming a member of another group (“the second group”)—E+W+S

(a)where in relation to each group the company is registered as part of a group registration, the first group shall comply with the requirements of the company’s recovery and recycling obligations for the year in which the company ceases to be a member of that group and the second group shall comply with those requirements in the following and any subsequent year in which the company is a member of the second group;

(b)where in relation to each group the company is registered separately with the appropriate Agency, the company shall comply with its recovery and recycling obligations for the year;

(c)where in relation to the first group the company was registered as part of a group registration and in relation to the second group the company is registered separately with the appropriate Agency, the holding company shall comply with the requirements of the company’s recovery and recycling obligations for the year in which the company ceases to be a member of that group and the company itself shall comply with its recovery and recycling obligations for any subsequent year; or

(d)where in relation to the first group the company was registered separately with the appropriate Agency and in relation to the second group the company is registered as part of a group registration, the company itself shall comply with its recovery and recycling obligations for the year in which it joins the group and the holding company shall comply with the requirements of the company’s recovery and recycling obligations for any subsequent year.

16.  The proportion referred to in paragraphs 8 and 9 above shall be calculated as follows—E+W+S

where—

“G” is the number of days in the relevant year during which the company was a member of the group;

“H” is the number of days in the relevant year; and

“G / H” is the proportion.

17.  For the purposes of this Part of this Schedule, the “threshold tests” means the threshold tests provided in paragraph 3 of Schedule 1.E+W+S

PART IIIE+W+SINCAPACITY

18.  Where in a relevant year a producer dies or becomes bankrupt or incapacitated (“the first producer”) that person shall cease to have any producer responsibility obligations for that year and any person who carries on the activities of the first producer following that event shall be treated as a producer and shall have the producer responsibility obligations of the producer for that year.E+W+S

19.  Any person carrying on the activities of the first producer referred to in paragraph 18 above shall within 28 days of commencing to do so—E+W+S

(a)inform the appropriate Agency in writing of that fact and the date of the death, the date of bankruptcy or the nature of the incapacity and the date on which it began; and

(b)apply to be registered as required by regulation 6 F145....

Textual Amendments

20.  In relation to a producer which is a company, the references to a person becoming bankrupt or incapacitated in paragraph 18 above shall be construed as references to it going into liquidation or receivership or entering administration.E+W+S

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations (which apply to Great Britain) impose on producers the obligation to recover and recycle packaging waste, and related obligations, in order for the United Kingdom to attain the recovery and recycling targets set out in Article 6(1) of Council Directive 94/62/EC on packaging and packaging waste as amended by Council Regulation (EC) No 1882/2003, Council Directive 2004/12/EC and Council Directive 2005/20/EC (“the Packaging Waste Directive”).

Part I of these Regulations (“General”) sets out various definitions used in these Regulations (regulation 2: interpretation and notices). In particular, certain terms used in these Regulations have the same meaning as in the Packaging Waste Directive. This includes the following terms— “packaging”, “packaging waste”, “recovery”, “recycling” and “reuse”. Part I also excludes charities from having producer responsibility obligations (regulation 3).

Part II of these Regulations (“Producers and Obligations”) provides that where a producer (defined in regulation 4) satisfies the two threshold tests (set out in Schedule 1, paragraph 3), he will have producer responsibility obligations for that year. The criteria are to have a turnover of more than £2M (in the last financial year in respect of which audited accounts are available) and to have handled (as defined in Schedule 1) packaging or packaging materials (defined in regulation 2) weighing more than 50 tonnes in the previous year. Schedule 1 sets out the detailed basis upon which a person qualifies as a producer with producer responsibility obligations under these Regulations. Schedule 2 sets out the rules for working out the level of a producer’s recovery and recycling obligations.

A producer can purchase packaging waste recovery notes (“PRNs”) or packaging waste export recovery notes (“PERNs”) or both to satisfy his obligations himself (regulation 4(5)), or may join a compliance scheme. Where he joins a scheme that is registered with an appropriate Agency he is exempt from complying with his producer responsibility obligations (regulation 5) for that year. The scheme must meet the recovery and recycling obligations and, where appropriate, the consumer information obligations, that its members would have had, but for their membership of the scheme.

Part III of these Regulations (“Registration: Producers and Schemes”) sets out the requirements for registration of a producer or a scheme, the conditions that apply and why (and how) that registration may be cancelled. Under regulation 6 producers who are not members of registered schemes need to be registered, in England or Wales with the Environment Agency or, in Scotland with the Scottish Environment Protection Agency. Regulation 7 (Application for producer registration) sets out the information needed from the producer when he applies. In particular, he must supply the information set out in Part I of Schedule 3. Regulation 8 sets out the conditions of registration of a producer. Where the appropriate Agency is satisfied that an application has been properly made (including payment of the relevant fee) it shall be registered with the appropriate Agency for the year. There is provision for cancellation of registration in regulation 11 where a producer fails to meet the conditions specified in regulation 8 or is subsequently found to have given false information on his application or where he joins a registered compliance scheme.

There are similar registration requirements for schemes in regulations 14 to 18. Before a compliance scheme can be registered, it must have approval from the appropriate authority (regulation 13).

Part IV of these Regulations (“Records, Returns and Certificate”) sets out the requirements on producers and operators of schemes to keep records and furnish returns to the appropriate Agency (regulations 20 and 22) and on producers to provide certificates demonstrating compliance with their recovery and recycling obligations (regulation 21 and Schedule 4).

Part V of these Regulations (“Accreditation of Reprocessors and Exporters”) sets out the procedure for applying for accreditation as a reprocessor to issue PRNs or as an exporter to issue PERNs. Regulation 24 sets out the procedure for applying, regulation 25 and Schedule 5 set out the conditions that apply to such accreditation and regulation 26 the basis upon which such accreditation may be suspended or cancelled.

Part VI of these Regulations (“Appeals”) sets out the right of appeal against certain decisions of the appropriate Agency (regulation 27). The procedure to be followed is set out in regulation 28 and Schedule 6. This Part also sets out the status of the producer or scheme pending the resolution of the appeal (regulation 30).

Part VII of these Regulations (“Agencies’ Powers and Duties”) sets out the duties of the appropriate Agencies to monitor compliance (regulation 31) and their duties in relation to keeping a public register (regulation 33 and Schedule 7). Regulations 34 and 35 concern the powers of the appropriate Agencies to approve persons to issue certificates of compliance and of entry and inspection. Regulation 36 requires the Environment Agency and SEPA to collate information on the common database and for the Environment Agency to pass this data to the Secretary of State.

Part VIII of these Regulations (“Groups of Companies, Licensors and Pub Operating Businesses and Mid-Year Changes”) sets out how to apply these Regulations to groups of companies (regulation 37 and Schedule 8) and to situations where two or more businesses are in relationships involving licenses of trade marks or pub operating agreements (regulation 38 and Schedule 9) and how to apportion the recovery and recycling obligations and other obligations where mid-year changes occur (regulation 39 and Schedule 10).

Part IX of these Regulations sets out various offences. Under regulation 40 it is an offence to contravene the producer responsibility obligations to register, recover and recycle packaging waste, and furnish a certificate of compliance to the appropriate Agency, or to provide false or misleading information, or to prevent the appropriate Agencies from exercising their powers of entry and inspection.

Part X of these Regulations revokes the Producer Responsibility Obligations (Packaging Waste) Regulations 2005 (S.I. 2005/3468) and includes a transitional provision to account for actions taken or time periods commenced under the Producer Responsibility Obligations (Packaging Waste) Regulations 2005.

The transposition note relating to these Regulations and a Regulatory Impact Assessment which shows the anticipated cost of compliance to businesses and the environmental benefits in respect of these Regulations may be obtained from the Producer Responsibility Unit, Department for Environment, Food and Rural Affairs, Room 6/F5, Ashdown House, 123 Victoria Street, London SW1E 6DE. A copy of the transposition note and Regulatory Impact Assessment have been placed in the library of each of the Houses of Parliament.

(1)

Under section 57 of the Scotland Act 1998 (c. 46), despite the transfer to Scottish Ministers of functions in relation to implementing obligations under Community law in respect of devolved matters, the function of the Secretary of State in relation to implementing those obligations continues to be exercisable by him as regards Scotland.

(2)

Under paragraph 5 of Schedule 3 of the Government of Wales Act 1998 (c. 38), despite the transfer of the relevant functions of the Secretary of State so far as they are exercisable in relation to Wales to the National Assembly for Wales by virtue of Article 2 and Schedule 1 of the National Assembly for Wales (Transfer of Functions) Order 1999 (S.I. 1999/ 672), the function of the Secretary of State in relation to implementing obligations under Community law continues to be exercisable by him as regards Wales.

(6)

OJ No. L 365, 31.12.1994, p. 10, as last amended by Council Directive 2005/20/EC, OJ No. L 70, 16.3.2005, p.17.

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