France's penalty for the use of green DOT may not conform with EU law - French Supreme Court


The Conseil d'Etat (French Supreme Administrative Court) has suspended the texts introducing a penalty for the use of the Green Dot mark in France as of 1 April 2021, following an application for interim measures by several major trade associations and the holder and licensor of the Green Dot mark in the EU.

Among the many measures of law N° 2020-105 of 10 February 2020 aimed at promoting a circular economy (the AGEC Law), France has introduced new product-marking obligations. Specifically, France imposed Triman marking and a harmonised Info-Tri as of 1 January 2022.

Conversely, Article L. 541-10-3 of the French Environment Code in its version linked to the AGEC Law specifically provides that "signs and markings that may lead to confusion as to the sorting or delivery rule for waste from the product" would be subject to a penalty that would at least double the cost of the eco-contribution due for waste management by an eco-organisation. Although the Green Dot was not named, the Minister of Environment's Order of 30 November 2020, which was mandated by this law, describes precisely and solely the Green Dot sign. The penalty for using this sign is set out in the Annex to the Order of 25 December 2020 on the eco-organisations of the household packaging sector. This annex goes into force on 1 April, except for certain packaging exempt from sanctions during the transition period provided for in the order.

On 15 March, the Conseil d’Etat suspended the application of Order of 30 November 2020 and the provisions of the Annex to the Order of 25 December 2020, pending a decision on the merits of their legality.

In the light of the preliminary investigation into the case, the Conseil d’Etat expressed serious doubts about the legality and proportionality of the contested provisions in the light of EU law, and more particularly in light of Article 34 of the TFEU, which prohibits measures having equivalent effect to a quantitative restriction on imports.

In this respect, the Conseil d’Etat noted that, although it is indiscriminately applicable to all products marketed on the French market, whether manufactured in France or imported, the Green Dot penalty makes packaging bearing this sign more expensive. This penalty thus has the object and effect of dissuading producers from using this packaging in France by forcing them to provide different packaging within the EU – the Green Dot being mandatory in Spain and Cyprus – and to organise compartmentalised distribution circuits. The Conseil d'Etat noted that such provisions cannot be regarded as simple sales methods, since the pressure they exert on producers affects the characteristics of the products.

Furthermore, the Council of State considered that the Ministry of Ecological Transition did not provide proof that the disappearance of the Green Dot sign would, on its own, change sorting habits or that any misunderstanding over the meaning of the "Green Dot" could be corrected with less restrictive measures, such as issuing adequate information.

Conseil d'Etat, Ord. Référé, 15 March 2021, n°450160 et 450164, AFISE ao.

Conseil d'Etat, Ord. Référé, 15 March 2021, n°450160 et 450164, Société Der Grüne Punkt Duales System ao.

AUTHORS: Virginie Coursière-Pluntz, Nathalie Pétrignet, Camille Peraudeau [CMS Francis Lefebvre Avocats]