Ministerial draft ROP under a wave of criticism from manufacturers

We know the assumptions of the Extended Producer Responsibility (EPR) system, which the Ministry of Climate and Environment has been working on for some time. However, the eagerly awaited ROP model differs significantly from what entrepreneurs and environmental experts had expected.

At the end of February, statements by members of the advisory team for systemic solutions for waste management, which operates under the Ministry of Climate and Environment, appeared in the media, from which the concept of the ROP model being developed by the Ministry of Climate and Environment emerged more and more clearly, and in recent days the Ministry in the Polish Parliament presented its assumptions. What will be its main assumptions?

• One system operator

According to the Ministry's plan, the operator of the ROP system is to become the National Fund for Environmental Protection and Water Management, whose main task will be to ensure that the required recycling levels for packaging waste are met.

• Costs for introducers

The costs of packaging waste management will be borne by the introducers of packaged products. The Ministry envisages setting, by way of a regulation, fixed rates of the public charge, which will be transferred by the introducers through marshal offices to the NFOŚiGW account. The fee rates will be lower the more the packaging demonstrates its recyclability.

• Disbursement of the proceeds of the levy by NFOŚiGW

The funds from the financial contributions made by the introducers will be distributed between:

• municipalities, depending on the weight of packaging waste collected and in addition as compensation for the maintenance of the municipal waste collection system,
• treatment facilities, depending on the weight of packaging waste sorted and sent for recycling,
• recycling facilities for waste with a negative market value, depending on the mass of waste recycled.

Part of the funds will also go to environmental education and to cover the investment gap of the packaging waste management system.

• Responsibility for achieving recycling levels on the part of NFOŚiGW

The sole responsibility for ensuring that the recycling levels set by the EU are achieved will rest with the sole and, in addition, state-owned operator of the system, the NFOŚiGW. Under the current system, producers can transfer this responsibility to any recovery organisation of their choice.

• The role of local authorities

Municipalities will continue to be responsible for organising the collection and for managing the collected municipal waste. In return for these activities, the municipalities will receive (as well as the installations) compensation at a fixed amount to facilitate long-term planning.

Other assumptions of the draft ROP

• further introducers and further installations will be able to join the system at any time,
• the system operator will not acquire ownership of the waste at any stage of its management,
• waste holders will not be obliged to hand over their waste to specific recipients (installations),
• the various stakeholder groups will be represented on the dialogue council set up for the ROP system.

Paradoxically, the Ministry's proposed ROP system may consequently lead to problems in meeting waste recycling targets packaging.

This is because the proposal of the Ministry of the Environment transfers the responsibility for achieving these recycling levels from entrepreneurs (introducers) to the state (NFOŚiGW). Titled the producer's liability is therefore limited to financial liabilitywhich consists of setting aside a pre-determined amount in the company's monthly budget and transferring it to the correct account. In contrast, the organisational responsibility of introducers and the need to ensure, in accordance with the Waste Directive, the efficiency of the ROP system have been completely disregarded.

Similar solutions are currently in place in only 2 EU countries (Hungary and Croatia), and in both of them, businesses are faced with the high costs of operating the systems and the state with the real risk of not meeting the 2025 targets set by Directive 94/52/EC.

The public charge envisaged in the ministerial ROP model will be nothing more than a new environmental para-tax and a will not meet the condition of cost-effectiveness announced by the IOC. Moreover, such the solution will be contrary to Directive 2008/98/EC on waste, and thus with the legal act that de facto obliged Poland to introduce the ROP provisions. The Directive requires that the financial contributions paid by introducers to fulfil their obligations under the ROP should not exceed the costs necessary to provide waste management services in a cost-effective manner. These costs should be determined transparently between the stakeholders themselves and not top-down, as proposed by the IOC.

According to Konrad Nowakowski, President of the Polish Chamber of Packaging Recovery and Recycling:

The proposed ROP model does not achieve the basic objectives of environmental policy - it does not contribute to increased recycling or the development of a circular economy. In practice, it becomes another tax imposed on businesses, with no mechanisms to ensure that the funds are used efficiently.

The current financial liability mechanism in the form of a product fee significantly affects the motivation of these entities towards not only eco-design, but also ensuring the required recycling levels. Fixed, predetermined fee rates, the introduction of which is envisaged by the ICE model, will not give those introducing packaged products any influence on the functioning of the system. Nor will they take into account the dynamically changing costs of waste management.

The effect of continuing the project on the basis of the ministerial assumptions may even be the abandonment of research and development work currently being carried out by entrepreneurs to develop packaging with minimal environmental impact. The investment expenditures incurred would not be returned to the producers in the future - instead of the expected return on investment, a predetermined fee would be imposed on the producers, which would in no way reward "green" packaging.

The contradiction of the ministerial ROP model with EU legislation does not only manifest itself at the level of cost-effectiveness. As experts point out, a centrally administered system, with the NFOŚiGW becoming the monopoly, is incompatible with Article 8a of Directive 2008/98/EC on waste. These provisions provide for the possibility of setting up multiple organisations in each Member State to carry out ROP obligations on behalf of product manufacturers, while requiring Member States to designate one or more authorities to supervise in such a situation.

In addition, the preamble of the recently enacted Regulation (EU) 2025/40 of the European Parliament and of the Council of 19 December 2024 on packaging and packaging waste (PPWR) indicates that producers should be able to collectively fulfil their ROP obligations through authorised producer responsibility organisations. Member States may instead authorise multiple liability organisations - as indicated in recital 130, competition between these organisations can lead to greater benefits for consumers.

In the ministerial proposal of the ROP, there will be a state system administrator acting on the basis of statutory authority rather than authorisation, but no producer responsibility organisations will be created, contrary to recital 130 above.

Following the announcement of the ministerial concept of ROP, business representatives called in large numbers for the Ministry of Climate and Environment to stop drafting a bill based on this model and initiate a public discussion on the creation of an optimal model for the Polish economy, the organisation of which will be influenced by those introducing packaged products.

As industry experts point out, the introduction of the ROP system, in the form proposed by the IOC, would entail the end of the activities of all packaging recovery organisations (PROs), which are currently not only entities fulfilling the statutory obligations of producers. Their role is much broader - the majority of OOOs offer comprehensive, integrated solutions for companies aimed at optimising waste management, minimising the carbon footprint of packaging, products and services, as well as expert support in fulfilling other obligations under environmental regulations. The OOO's activities thus create a series of synergies that bring real benefits to the economy, the environment and citizens. Indeed, let us not forget that it is the recovery organisations that carry out public education campaigns on behalf of their clients and have been making efforts for years to ensure that action in favour of recycling and the GOZ is taken not only by businesses and decision-makers, but also by increasingly aware consumers.