Deposit cans: Council of State to rule this week on million-euro penalty for delaying business sector

The government has established in law that the deposit on cans will start as of 31 December 2022. The State Secretary announced the measure on 3 February 2021 in a letter to the House of Representatives. This step came after years of debate. The strong public support for a deposit on cans, partly made visible by the Deposit Alliance and its “Statiegeld Yes We Can!”-campaign, was ultimately decisive. The business community was given more than 1 year and 10 months of preparation time, from 3 February 2021 up to and including 31 December 2022. That is well over the rule of thumb of about 1 year of preparation time that is normally maintained. Business community announces law-breaking But in June 2022, the Waste Fund unilaterally and bluntly declared that the business community would only have the deposit system ready for cans from 1 April 2023. That is three months after the legal implementation date. This is not a decision they can just make; it is an announcement of a law-breaking activity. As motivation, the Waste Fund refers to “a shortage of raw materials and staff”. However, the business community itself wasted a lot of time due to resistance from supermarkets. They refused for almost a year to accept cans in supermarkets, where cans could be added to the pre-existing system for glass beer bottles and large and small plastic bottles. Only in March this year did supermarkets declare they would collect cans after all, one day before the business community had to account for themselves in the House of Representatives. The fact that they actually took less time to set up the system was therefore caused by their own resistance on the issue. We warned the government about this early on. Penalty payments State Secretary Vivianne Heijnen responded to the message from the Waste Fund, saying she found it “very disappointing” that the sector is not meeting the legal deadline. On 30 September 2022, the Human Environment and Transport Inspectorate (ILT) issued preventive penalty payment orders. These provide that if the deposit system is not operational by 31 December, penalty payments for the business community will follow, which could amount to up to 28 million euros. These aim to motivate the business community to still adhere to the legal deadline, or at least to set up the deposit system as quickly as possible. The ILT carefully weighed all views and ruled that “the business community is taking insufficient action to still realise the levying of deposits on cans from 1 January 2023”. In addition, the ILT also concludes that the Waste Fund has not been able to substantiate sufficiently that a postponement until 1 April 2023 is justified. “It has been known for almost 2 years that this law is coming. There are examples of supermarkets and companies that are already accepting cans. There has been sufficient preparation time and there are examples that it is possible. However, the sector continues to backtrack. It is a responsibility of the sector to still get this done. Everyone understands that introducing a deposit on cans makes an important contribution to the high-quality recycling of raw materials and the prevention of litter, and therefore to the circular economy,” said Karin Visser, director of supervision and enforcement at the ILT. Council of State Recycling Netwerk was satisfied with the initial actions of the ILT and the announced penalty payments. The business community lodged an objection. Unexpectedly, the ILT announced in October that it would suspend the operation of the penalty decisions until 3 February 2023. In effect, this would mean that the penalty payments would not yet take effect as of 31 December 2022 and that the business community could therefore break the law at that moment without any consequence. Recycling Netwerk Benelux is involved in the case because we already submitted a conditional enforcement request to the ILT in August. Based on that involvement, we are now asking the Council of State to rule on this proposed suspension. Represented by Hörchner Advocaten, we argue that the penalty payments should indeed take effect as of 31 December 2022 because from that moment on the business community is in breach. These penalty payments are the instrument to motivate the business community to still comply with the law before 31 December 2022, or otherwise to have the deposit system ready as quickly as possible after this legal deadline. The importance of this lawsuit The law is very clear. Moreover, the business community has had almost two years of preparation time. The fact that the Waste Fund and the affiliated companies simply announce that they are not going to respect the law, and try to escape the consequences of this, is mind-boggling to us. Everyone must respect the law. That is why it is so important that the penalty payments can take effect as of 31 December 2022. We also expect the State Secretary for Infrastructure and Water Management

The government has established in law that the deposit on cans will start as of 31 December 2022. The State Secretary announced the measure on 3 February 2021 in a letter to the House of Representatives. This step came after years of debate. The strong public support for a deposit on cans, partly made visible by the Deposit Alliance and its “Statiegeld Yes We Can!”-campaign, was ultimately decisive.

The business community was given more than 1 year and 10 months of preparation time, from 3 February 2021 up to and including 31 December 2022. That is well over the rule of thumb of about 1 year of preparation time that is normally maintained.

The business community announces law-breaking

But in June 2022, the Waste Fund declared unilaterally and bluntly that the business community would only have the deposit system ready for cans from 1 April 2023. That is three months after the legal implementation date. This is not a decision they can just make; it is an announcement of a law-breaking activity.

As motivation, the Waste Fund refers to “a shortage of raw materials and staff”. However, the business community itself wasted a lot of time due to resistance from supermarkets. They refused for almost a year to accept cans in supermarkets, where cans could be added to the pre-existing system for glass beer bottles and large and small plastic bottles. Only in March this year did supermarkets declare they would collect cans after all, one day before the business community had to account for themselves in the House of Representatives. The fact that they actually took less time to set up the system was therefore caused by their own resistance on the issue. We warned the government about this early on warned.

Penalty payments

State Secretary Vivianne Heijnen responded to the message from the Waste Fund, saying she found it “very disappointing” that the sector is not meeting the legal deadline. On 30 September 2022, the Human Environment and Transport Inspectorate (ILT) issued preventive penalty payment orders. These provide that if the deposit system is not operational by 31 December, penalty payments for the business community will follow, which could amount to up to 28 million euros. These aim to motivate the business community to still adhere to the legal deadline, or at least to set up the deposit system as quickly as possible.

The ILT carefully weighed all views and ruled that “the business community is taking insufficient action to still realise the levying of deposits on cans from 1 January 2023”. In addition, the ILT also concludes that the Waste Fund has not been able to substantiate sufficiently that a postponement until 1 April 2023 is justified. “It has been known for almost 2 years that this law is coming. There are examples of supermarkets and companies that are already accepting cans. There has been sufficient preparation time and there are examples that it is possible. However, the sector continues to backtrack. It is a responsibility of the sector to still get this done. Everyone understands that introducing a deposit on cans makes an important contribution to the high-quality recycling of raw materials and the prevention of litter, and therefore to the circular economy,” said Karin Visser, director of supervision and enforcement at the ILT.

Council of State

Recycling Netwerk was satisfied with the initial actions of the ILT and the announced penalty payments. The business community lodged an objection. Unexpectedly, the ILT announced in October that it would suspend the operation of the penalty decisions until 3 February 2023. In effect, this would mean that the penalty payments would not yet take effect as of 31 December 2022 and that the business community could therefore break the law at that moment without any consequence.

Recycling Netwerk Benelux is involved in the case because we already submitted a conditional enforcement request to the ILT in August. Based on that involvement, we are now asking the Council of State to rule on this proposed suspension. Represented by Hörchner Advocaten, we argue that the penalty payments should indeed take effect as of 31 December 2022 because from that moment on the business community is in breach. These penalty payments are the instrument to motivate the business community to still comply with the law before 31 December 2022, or otherwise to have the deposit system ready as quickly as possible after this legal deadline.

The importance of this lawsuit

The law is very clear. Moreover, the business community has had almost two years of preparation time. The fact that the Waste Fund and the affiliated companies simply announce that they are not going to respect the law, and try to escape the consequences of this, is mind-boggling to us. Everyone must respect the law. That is why it is so important that the penalty payments can take effect as of 31 December 2022.

We also expect the State Secretary for Infrastructure and Water Management Vivianne Heijnen to condemn this attitude of the business community more strongly than she has done so far. Because when the business community adopts this attitude for every piece of environmental policy they do not feel like implementing, and brushes aside the government’s laws without consequence, there is no end to it.

The hearing with pleadings took place on Thursday 24 November at the Council of State in The Hague. The Council of State will rule in the week of 28 November 2022.

Full document “Gronden Voorlopige Voorziening” (Download PDF)

In the media Trouw, Postponement of deposit on cans is ‘a middle finger to the government’, 21 November 2022 NPO Radio 1, Packaging Waste Fund responds to dissatisfaction with postponement of can deposit: ‘We have pulled out all the stops’, 22 November 2022 AfvalOnline, Dispute over deposit system on cans “a wonderful case”, 24 November 2022