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Italy to Exempt Bioplastics from EU SUP Directive (FREE)

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The Italian legislature recently published the draft decree transposing the Single-use Plastics Directive 2019/904 (SUPD) into Italian law and an accompanying report.

The definition of plastic in the draft decree does not include materials such as paints, inks, adhesives or plastic coatings weighing less than 10% of the total weight of the product, which are not its main structural component.

To achieve a quantifiable consumption reduction of certain single-use plastics (SUP) products by 2026, as required by the SUPD, the decree foresees voluntary, cooperative measures, such as specific sector plans and awareness raising, as well as incentives for alternatives, rather than restrictive measures.

The law would grant a tax credit of a maximum of €3 million per year in total for the years 2022 to 2024 to businesses that buy reusable, biodegradable or compostable (EN 13432:2002) alternatives to SUP products for which bans or consumption reduction are foreseen (20% of documented expenses for purchases of such alternatives, up to €10,000 per year and beneficiary).

The draft decree foresees, in principle, the restriction of placing on the market, i.e. bans, of the same product categories as the SUPD.

However, contrary to the EU law, it foresees an exception for SUP products made from (1) biodegradable and compostable plastic (EN13432 or EN14995), (2) with percentages of renewable raw material of at least 40% (60% from 2024), (3) in the following cases:

a) When it is not possible to use reusable alternatives to SUP food contact products

b) If use takes place in controlled environments, which ordinarily and permanently deliver waste to public collection services, e.g. canteens and health facilities

c) When alternatives do not give any guarantee in terms of hygiene and safety because of situative and local circumstances

d) Depending on the particular type of food or drink

e) If the particular circumstances involve a multitude of people

f) If the environmental impact is worse than single-use alternatives, based on a lifecycle analysis.

Discussions are ongoing in both Parliamentary Chambers, which both want to opine on the draft after hearing from the Conference of Regions.

Once both chambers adopt their position, the Council of Ministers will adopt the final decree and it will be enacted, published and enter into force.

The approval by the legislature is expected, as in April, it had tasked the government with transposing the SUPD into the Italian system, specifying some key aspects that the government was to follow.

These included an exception to the ban of certain SUP food contact products, with a “gradual” restriction, allowing SUP products to be placed on the market when made of biodegradable or compostable plastic, and with increasing percentages of renewable raw material.

Greenpeace Italia had released a report on the transposition of SUPD, warning that this exception would  clearly contradict the Directive, whereas Legambiente, another environmental NGO, is reportedly in favour of it.

Italy notified the draft to the European Commission, which implies that it will not adopt it before 23 December 2021 (so-called standstill period).

Italy’s definition of plastic is apparently meant to protect for example beverage cups that are mostly made from paper but with plastic lining or coating.

The European Commission has rejected calls to interpret the SUPD in such a manner, including in its so-called scope guidance in May 2021.

The exception for certain products made from bioplastics would clearly violate the SUPD, as that EU law, adopted with the participation of Italy, explains that it also applies to “bio-based and biodegradable plastics regardless of whether they are derived from biomass or are intended to biodegrade over time”.

As multiple other Member States, Italy is already in breach of EU law, as it has not brought into force the national rules necessary to comply with the SUPD (i.e. transposed it) by 3 July 2021.

Its intended transposition will likely be in violation of EU law.

The Commission would then have the task to start an infringement procedure.

At the end of that procedure, the European Court of Justice could impose coercive and/or punitive fees against Italy.

However, until the Court finds that the Italian law is in breach of EU law and/or Italy changes it under pressure from the EU, the national rules would apply there, and insofar differ from those in the rest of the EU.

Written by

Ken Huestebeck, Senior Associate, Squire Patton Boggs, Brussels

Francesca Zuccarello Cimino, Associate, Squire Patton Boggs, Brussels

Squire Patton Boggs

Squire Patton Boggs is an international law firm with 45 offices in 20 countries. It was formed in 2014 by the merger of multinational law firm Squire Sanders with Washington, D.C. based Patton Boggs.

Disclaimer

The opinions expressed here by Ken Huestebeck and Squire Patton Boggs are their own, not those of Bioplasticsnews.com.

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