Inside a roll of toilet paper is a cardboard core. Does this internal element form part of the toilet paper’s packaging? It is a question which has stymied the French courts. The answer depends on the word ‘packaging’ which is found in the EU’s ‘packaging and packaging waste’ Directive 94/62/EC. If the answer is that the cardboard core does constitute packaging, then potential casualties of the CJEU’s ruling will not just be France’s toilet-paper makers but also France’s manufacturers of absorbent kitchen paper, aluminium foil, and even cling film. However, if the answer is no, then the Conseil d’État would like to know whether the EU Commission has acted ultra vires when enacting an ancilliary packaging Directive that has expanded the definition of ‘packaging’ still further. Many millions of euro are at stake.

Background
Inside a roll of toilet paper is a cardboard core. The key question is whether a cardboard core is part of toilet paper’s packaging.

The answer depends on the interpretation of a couple of pieces of EU legislation. The first is Directive 94/62/EC on packaging and packaging waste (OJ [1994] L365/10).

Article 3 provides:

1. ‘packaging` shall mean all products made of any materials of any nature to be used for the containment, protection, handling, delivery and presentation of goods, from raw materials to processed goods, from the producer to the user or the consumer. ‘Non-returnable` items used for the same purposes shall also be considered to constitute packaging.

‘Packaging` consists only of:
(a) sales packaging or primary packaging, i. e. packaging conceived so as to constitute a sales unit to the final user or consumer at the point of purchase;

(b) grouped packaging or secondary packaging, i. e. packaging conceived so as to constitute at the point of purchase a grouping of a certain number of sales units whether the latter is sold as such to the final user or consumer or whether it serves only as a means to replenish the shelves at the point of sale; it can be removed from the product without affecting its characteristics;

(c) transport packaging or tertiary packaging, i. e. packaging conceived so as to facilitate handling and transport of a number of sales units or grouped packagings in order to prevent physical handling and transport damage. Transport packaging does not include road, rail, ship and air containers;

2. ‘packaging waste` shall mean any packaging or packaging material covered by the definition of waste in Directive 75/442/EEC, excluding production residues;

3. ‘packaging waste management` shall mean the management of waste as defined in Directive 75/442/EEC;
…

However, Directive 94/62/EC has subsequently been amended by Directive 2004/12/EC (OJ [2004] L26). Article 1 amended the earlier Article 3 to read:

Directive 94/62/EC is hereby amended as follows:
1. the following subparagraphs shall be added to point 1 of Article 3:”The definition of ‘packaging’ shall be further based on the criteria set out below. The items listed in Annex I are illustrative examples of the application of these criteria.
(i) Items shall be considered to be packaging if they fulfil the abovementioned definition without prejudice to other functions which the packaging might also perform, unless the item is an integral part of a product and it is necessary to contain, support or preserve that product throughout its lifetime and all elements are intended to be used, consumed or disposed of together.

(ii) Items designed and intended to be filled at the point of sale and ‘disposable’ items sold, filled or designed and intended to be filled at the point of sale shall be considered to be packaging provided they fulfil a packaging function.

(iii) Packaging components and ancillary elements integrated into packaging shall be considered to be part of the packaging into which they are integrated. Ancillary elements hung directly on, or attached to, a product and which perform a packaging function shall be considered to be packaging unless they are an integral part of this product and all elements are intended to be consumed or disposed of together.

The Commission shall, as appropriate, in accordance with the procedure referred to in Article 21, examine and, where necessary, review the illustrative examples for the definition of packaging given in Annex I. As a priority, the following items shall be addressed: CD and video cases, flower pots, tubes and cylinders around which flexible material is wound, release paper of self-adhesive labels and wrapping paper.

Against this legislative backdrop, two parallel pieces of litigation have ensued in the French courts.

1) Case C-313/15, Eco-Emballages
The first piece of litigation involves a French recycling company called Eco-Emballages. It is claiming millions of euro from many toilet-paper-making companies in respect of their packaging. In essence, the legal basis to the claim is that the 2004 Directive provides illustrations of the definition of the term ‘packaging’, and that includes ‘tubes and cylinders around which flexible material is wound’.

The toilet-paper-makers are refusing to pay Eco-Emballages partly on the basis of common sense and partly on the basis of the law. Namely, they say that as a matter of common sense the word packaging denotes something on the outside of an object. However, they also make a more legal argument in so far as they emphasise that in the amending Directive, there is an exception to the definition of packaging, which reads: ‘unless the item is an integral part of a product and it is necessary to contain, support or preserve that product throughout its lifetime and all elements are intended to be used, consumed or disposed of together’. Consequently, they say that no liability arises.

However, the French court tasked with hearing the dispute was unable to resolve it. In June 2015, it decided to make a preliminary reference to the CJEU. The case has now been docketed by the CJEU as Case C-313/15, Eco-Emballages.

According to the Curia website, the official translation of the question referred reads:

Does the concept of packaging, as defined in Article 3 of Directive 94/62/EC, amended by Directive 2004/12/EC, […] include ‘roll cores’ (rolls, tubes, cylinders) around which flexible material, such as paper or plastic film, is wound and sold to consumers?

2) Case C-530/15, Melitta France
A second piece of litigation builds on Eco-Emballages’ combined claim for millions of euros from various companies but it touches on a more recent EU legislative amendment, namely, the EU Commission’s Directive 2013/2/EU. This is a Directive that adds to the list of what constitutes ‘packaging’. The dispute, spear-headed by Melitta France and accompanied by many other companies, has wended its way up to the French Conseil d’État.

Aware of the preliminary reference that has already been made by the French court in the Eco-Emballages case, the Conseil d’État is making its own preliminary reference in the event that the CJEU decides that the concept of packaging does not include roll cores. In that event, the Conseil d’État would like to know whether the EU Commission has exceeded its competence because the companies are now challenging the validity of the EU Commission’s 2013 Directive.

Question Referred
According to the EUR-Lex website, the French Conseil d’Etat in Case C-530/15, Melitta France has asked:

The Court is asked to decide whether by including ‘roll cores’ (rolls, tubes, cylinders) around which flexible material, such as paper or plastic film, is wound and sold to consumers in the examples of packaging, Commission Directive 2013/2/EU of 7 February 2013  […] has misconstrued the term ‘packaging’, as defined in Article 3 of Directive 94/62/EC of 20 December 1994, […] and exceeded the scope of the authorisation granted to the European Commission in respect of its implementing powers.

Update – 13 July 2016
The CJEU has joined the Eco-Emballages and Melitta cases. The hearing took place on 4 May 2016. Today, the Opinion of Advocate General Campos Sánchez-Bordona will be handed to the Third Chamber.

Update – 9 October 2016
After an interesting Opinion, the Third Chamber is due to hand down its judgment on 10 November 2016.