In the following circulars, we shall briefly introduce the issue of legal regulation of waste and packaging waste. In this area, a number of obligations arise which, under certain conditions, apply to retail and wholesale businesses, including e-shops. However, awareness of the scope of these obligations is not entirely widespread amongst the business community.
The Waste Act imposes upon waste originators (původci odpadu) an obligation to comply with certain procedures aimed primarily at preventing the generation of waste and its appropriate disposal. Waste originators are considered to include, inter alia, legal persons or natural persons authorised to conduct business in whose activities waste is generated. Waste originators thus include wholesale and small retail businesses, including e-shops.
Subject to exceptions, waste is generally considered to be any movable thing which a person discards or intends or is obliged to discard. Discarding always occurs where a person hands over such thing for recovery or disposal or hands it over to a person authorised to collect or purchase waste, regardless of whether for consideration or without consideration. Discarding of waste also occurs where a person removes the movable thing itself.
A specific list of all obligations of waste originators is contained in Section 16 of the Waste Act; in this circular we shall briefly set out at least the most essential of these. We would point out, however, that this is not an exhaustive list.
Every waste originator is, in accordance with the above-mentioned provision, obliged to fulfil certain basic obligations in relation to waste which is produced by practically all persons (e.g. office waste such as paper, used toners, etc., but also other waste similar to municipal waste which, however, arose in connection with business activities). These include, in particular, the obligation to classify waste according to types and categories, the obligation to collect waste sorted according to individual types and categories, the obligation to secure waste against undesirable depreciation, theft or leakage, or the obligation to keep continuous records of all their waste and the manner of handling it and to archive such records for at least 5 years.
Waste produced in connection with business activities may then be disposed of by obliged persons either through the system of collection, gathering, transport, sorting, recovery and disposal of municipal waste established by the municipality, on the basis of an appropriate contract concluded with the municipality, or through a third party – a specialised company which has the necessary permit.
Beyond the above-mentioned obligations which apply to almost every entrepreneur, the Waste Act further establishes a number of special obligations which apply only in certain cases. These include, in particular, the obligation of take-back of waste and the associated information obligation concerning the manner of ensuring take-back. The take-back obligation applies in particular to batteries and accumulators, tyres, discharge lamps and fluorescent tubes, or certain electrical equipment.
The Waste Act establishes specific conditions for fulfilment of these special obligations and the conditions under which these obligations apply; however, given the extensive nature of this issue, we shall not address them in detail in this circular.
For breach of obligations under the Waste Act, the competent administrative authority may impose a fine which in certain cases (e.g. in the case of failure to ensure the take-back obligation or in the case of failure to classify waste according to the waste catalogue) may amount to 10 million Czech crowns. However, the most common sanction will typically be a fine for using the system established by the municipality for handling municipal waste (particularly collection containers or collection yards) without a written contract with such municipality. For breach of this obligation, the competent municipal authorities may impose a fine of up to CZK 300,000.
The Packaging Act establishes, in particular, the conditions for handling packaging and for preventing (limiting) its generation.
Pursuant to the Act, packaging is considered to be all products made of any material and intended for the containment, protection, handling, delivery or, as the case may be, presentation of a product or products intended for the consumer or other end user, provided they are at the same time intended i) to form a sales unit for the consumer or other end user at the point of purchase (so-called sales packaging), or ii) to form a group of a certain number of sales units at the point of purchase (so-called grouped packaging), or iii) to facilitate handling (so-called transport packaging). Within the meaning of the Act, packaging must therefore be considered to include, for example, cardboard cartons or boxes, plastic bags or films, etc.
A specific list of the obligations of obliged persons under the Packaging Act (i.e. persons who place packaging on the market or persons who put packaging into circulation) is contained in Sections 3 to 15 of the Packaging Act. Below, however, we shall briefly set out at least the most fundamental of these.
The above three obligations may, according to the Packaging Act, be fulfilled either by own means, which, however, is in most cases very difficult (particularly in relation to ensuring the take-back obligation), or through an authorised packaging company, which in the Czech Republic is EKO-KOM, a.s. In such case, it is necessary to have a contract concluded with EKO-KOM, a.s. and to comply with the stipulated contractual conditions. An obliged person who does not supply packaging (packaged products) directly to the end user, but whose customers still ensure distribution to other users, i.e. particularly wholesale businesses, may also fulfil the above obligations by transferring these obligations to their customers (retail businesses). However, the relevant purchase contract must expressly so provide.
For completeness, we would add that obliged persons under the Packaging Act have, in addition to the above expressly mentioned obligations, further obligations which cannot be transferred to another person. These include, for example, the obligation to comply with the conditions for placing packaging on the market or the preventive obligation to minimise the volume and weight of packaging used.
The Packaging Act provides for situations where an obliged person produces only a small or insignificant quantity of packaging. For such cases, the Act establishes exceptions from certain obligations. Where obliged persons do not produce more than 300 kg of packaging per year and at the same time their annual turnover does not exceed the amount of CZK 4,500,000, they need not fulfil the obligations set out in Sections 10 to 15 of the Packaging Act. This means that they need not ensure take-back of packaging and further recovery of packaging waste, need not keep records of packaging produced and need not be registered in the List. However, this exception does not apply to the remaining obligations (e.g. the preventive obligation to minimise the volume of packaging used), and obliged persons must therefore fulfil them without exception.
For breach of obligations under the Packaging Act, the competent administrative authority may impose a fine, the maximum amount of which may range, depending on the type of obligation breached, from CZK 500,000 (e.g. breach of the preventive obligation) up to 10 million Czech crowns (e.g. failure to ensure take-back of packaging).
David Svoboda
Law Firm Mašek, Kočí, Aujezdský www.e-Advokacie.cz – on-line legal advisory services
This text was originally prepared by the law firm Mašek, Kočí, Aujezdský in cooperation with the Association for Electronic Commerce (APEK) as legal circular No. 5/2017 and No. 6/2017 intended for members of this association.
This text was translated from Czech to English using an AI translator.