On February 15th, 2023, the EU Commission opened an infringement procedure by sending a letter of formal notice to France for failure to address its labelling requirements concerning waste sorting instructions with the principle of free movement of goods.
The EU Commission indicated that :
- Currently, to be placed on the French market, household products belonging to an extended producer responsibility (EPR) scheme must be labelled with (1) the Triman logo informing consumers that the product is the object of sorting rules; and (2) the so-called “Info-Tri” specifying the methods for sorting;
- The imposition of national-specific labelling requirements risks undermining the principle of free movement of goods and can lead to counterproductive environmental effects. Such measures can also lead to increased material needs for additional labelling and additional waste produced due to larger than necessary sizes of the packaging;
- The French authorities do not seem to have conducted a sufficient analysis of the proportionality of their policy choice as other suitable options, less restrictive of trade between Member States, are available. France is also considered in breach of the notification obligations under the Single Market Transparency Directive (Directive (EU) 2015/1535) to the extent that the law was not notified to the Commission at a draft stage, prior to adoption.
France had two months to reply and address the concerns raised by the EU Commission. The infringement procedure is currently still ongoing and does not suspend the application of the current French rules.
As things stand, it seems rather likely that France will adapt the rules on the Triman marking in the short/medium term. In particular, the obligation to affix the Triman logo and Info-Tri directly on household packaging (which seems to be the main issue as regards the principle of free movement of goods) might be removed or mitigated.
On a parallel procedure, the French Conseil d’Etat issued a ruling on April 21st, 2023 dismissing the applications for ultra vires against the Triman Decree introduced by professional organizations. One of the criticisms raised against the decree was also based on the EU principle of the free movement of goods. On this aspect, the Conseil d’Etat judged that the new rules constitute a measure having equivalent effect to a quantitative restriction on imports but that it was justified by the aim of protection of the environment and that it could not be seen as going beyond the strictly necessary constraints.
This French decision does not prejudge the EU Commission's future decision.
