Poland’s EPR Reform Needs Revision: UC100 Bill May Breach EU Law.
Poland’s draft Packaging and Packaging Waste Act, known as UC100, requires further review before the legislative process is completed, according to a new analysis by Think Tank The Company. The report argues that the proposed extended producer responsibility system could create serious legal risks related to the implementation of Directive 2008/98/EC and establish a model with no equivalent in any other European Union Member State.
According to the authors, the proposed system could expose the Republic of Poland to liability for failing to fulfil its obligations as an EU Member State, as the National Fund for Environmental Protection and Water Management, or NFOŚiGW, may not be legally capable of acting as the Packaging EPR Organisation.
Think Tank The Company has called on policymakers to consider the issues raised in the analysis before the legislative process is completed. It has also declared its readiness to continue participating in expert discussions aimed at developing an EPR model that complies with EU law while addressing the needs of the Polish economy.
The analysis was submitted to Poland’s Ministry of Climate and Environment as an expert contribution to the ongoing legislative work. It focuses on the compliance of the UC100 bill with European Union law and argues that transferring the responsibilities of the Packaging EPR Organisation to NFOŚiGW may raise significant legal concerns.
The issue is not the choice of an organisational model itself, the report stresses, but how that model has been designed and whether it complies with existing EU regulations.
A model without an EU precedent
Under the current regulatory framework, EU Member States are free to choose how their extended producer responsibility systems are organised. However, the arrangements proposed in UC100 differ significantly from the solutions used elsewhere in the European Union.
The analysis did not identify any Member State in which the responsibilities of a producer responsibility organisation are performed by a public administration body that is not legally classified as an undertaking.
According to the report, this could make it more difficult to fulfil the obligations arising from Articles 8 and 8a of Directive 2008/98/EC and create a risk that EU law would be implemented incorrectly.
“The principle of the primacy of EU law requires authorities applying the law to give precedence to EU rules whenever national legislation conflicts with either primary or secondary EU law,” said Eliza Kruczkowska, Managing Director of Think Tank The Company.
“In practice, a conflict between the provisions of UC100 and the relevant provisions of EU law could provide grounds for NFOŚiGW itself, the Minister of Climate, other public authorities and national courts to disapply the national provisions imposing financial burdens on businesses.
“Such a challenge could have consequences not only for the future operation of the system. It could also allow producers to seek reimbursement of packaging EPR fees that had been paid without a sufficient legal basis.”
Bartłomiej Hajduk of the Odzyskaj Środowisko Foundation said the implementation of an EU directive should not result in the creation of a system whose compatibility with EU law is open to question and which has no equivalent in any other Member State.
“It is in the interests of the state, businesses and consumers to adopt durable and legally compliant solutions that are resistant to future disputes over interpretation,” Hajduk said.
“The discussion surrounding UC100 should not become a dispute over who is right. It should instead be treated as a test of the maturity of the market, public administration and the expert community.
“Poland now has an opportunity to build an EPR system that complies with EU law, is economically viable and draws on the experience of mature markets. The role of Think Tank The Company is to strengthen dialogue and organise the arguments in the interests of the Polish economy.”
Flat-rate fees could weaken environmental incentives
The collection of flat-rate fees from producers, followed by the conclusion of agreements with waste management and recycling companies, may not be sufficient to meet the requirements of either Directive 2008/98/EC or Regulation (EU) 2025/40, the analysis argues.
According to Think Tank The Company, a system under which NFOŚiGW collects simplified flat-rate fees from companies placing packaged products on the market would largely eliminate the system’s incentive function.
A producer that makes substantial investments in environmentally responsible packaging design, for example by using mono-materials, reducing packaging weight, eliminating toxic substances or ensuring a high level of recyclability, could face the same financial obligations as a company generating waste that is significantly more difficult to process.
As a result, the UC100 proposal would abandon a market-based mechanism that rewards environmentally responsible business practices. The system would not adequately differentiate charges according to recyclability and would not guarantee a high level of protection for human health and the environment.
EPR reform remains necessary
The purpose of the analysis is not to challenge the principle of extended producer responsibility itself.
On the contrary, Poland has lagged behind in implementing EU rules on EPR for several years, making reform necessary. However, Think Tank The Company argues that the reform should be based on solutions that comply with European law, ensure transparency and regulatory predictability, and enable environmental targets to be achieved effectively.
The organisation recommends moving away from a top-down model in favour of the bottom-up approach that is more commonly used across the European Union.
Under this model, the Packaging EPR Organisation would not be established directly by legislation. Instead, following the example of producer responsibility organisations operating in other Member States, it would be created by packaging producers themselves.
These are the entities subject to the extended producer responsibility principle established under Directive 2008/98/EC. A similar approach was proposed in a draft prepared by the Polish Chamber of Commerce for Environmental Protection on 3 September 2025.
Think tank opposes a natural-monopoly model
Think Tank The Company also argues that Poland should adopt a different organisational structure rather than creating a natural monopoly for the Packaging EPR Organisation.
According to the analysis, natural-monopoly systems are inefficient, as demonstrated by the negative experiences of other EU Member States that have chosen this approach.
The think tank points in particular to the Hungarian system, which it describes as suboptimal and poorly suited to achieving the regulatory objectives established under Directive 2008/98/EC.
A decentralised system based on competition between producer responsibility organisations would, in its view, be more efficient and more consistent with the principles of the European single market.
Key findings of the analysis
The report identifies four principal conclusions:
- The UC100 bill raises significant concerns regarding its compliance with Directive 2008/98/EC.
- The proposed organisational model has no equivalent in other EU Member States.
- The legal analysis complements earlier reports examining the potential economic consequences of the reform.
- EPR reform is necessary, but the proposed legislation requires amendments before the legislative process is completed.
Think Tank The Company argues that UC100 does not satisfy the conditions required to establish a monopolistic Packaging EPR Organisation. The shortcomings identified in the report fall into three main areas.
1. No coherent framework for achieving recycling targets
The provisions of UC100 do not impose obligations on NFOŚiGW that would guarantee that its financial offer and organisational structure were quantitatively sufficient and qualitatively adapted to the EU’s dynamically increasing recycling targets.
The collection of fees and distribution of funds through contractual arrangements would not, by itself, provide an automatic guarantee that measurable environmental results would be achieved in practice.
According to the report, the proposed system lacks a coherent and systematic framework connecting the fees collected from producers with specific operational measures, recycling capacity and environmental outcomes.
2. Insufficient procedural safeguards
The Court of Justice of the European Union requires compulsory contracting with a single organisation to be accompanied by sufficient procedural safeguards capable of preventing conflicts of interest and unfair competitive conditions.
Under the UC100 model, NFOŚiGW would perform two separate and potentially conflicting roles. It would act as a public administration body exercising statutory powers while simultaneously distributing funds to companies operating in the waste management sector.
The report argues that such an arrangement creates a risk of conflicts of interest and fails to provide sufficient protection against arbitrary decisions or discriminatory contractual terms.
3. No independent appeals mechanism
UC100 does not provide for an independent external mechanism through which businesses could challenge decisions or fee levels imposed by NFOŚiGW.
The proposal also lacks transparent rules governing the conclusion of agreements with recycling companies.
According to the analysis, these shortcomings create a direct risk of arbitrary and unpredictable outcomes. Producers would be deprived of meaningful contractual autonomy and would have little protection against prices being imposed unilaterally by a monopoly operator.
Legal conclusions
The legal analysis conducted by Think Tank The Company leads to the following conclusions:
- It would be legally inappropriate for the national legislature to transfer the responsibilities and powers of the Packaging EPR Organisation to NFOŚiGW.
- NFOŚiGW is not an entrepreneur within the meaning of Poland’s Entrepreneurs’ Law and therefore cannot be classified as an undertaking within the meaning of Article 106 of the Treaty on the Functioning of the European Union.
- NFOŚiGW is a state-owned legal entity established and operating under Poland’s Environmental Protection Law. Consequently, packaging producers would have no legal mechanism through which they could become members of the organisation.
- NFOŚiGW is subject to administrative supervision by the Minister of Climate and Environment and is required to interpret national law in a manner consistent with EU law.
- Because of the alleged conflict between UC100 and Directive 2008/98/EC, NFOŚiGW could be legally required to refrain from applying the provisions governing its operation as the Packaging EPR Organisation.
- The UC100 provisions concerning NFOŚiGW’s role as the Packaging EPR Organisation are incompatible with Directive 2008/98/EC, the freedom to conduct business within the European single market and the principle of proportionality.
- These incompatibilities could create an obligation to disapply the relevant national provisions, rendering them inoperative in practice.
- The application of the disputed provisions could expose Poland to state liability in damages for failing to fulfil its obligations as an EU Member State.
- A natural-monopoly model operated by NFOŚiGW would not be optimal and would be significantly less efficient than a decentralised, free-market system.
About Think Tank The Company
Think Tank The Company is an apolitical, pro-business expert organisation that combines the perspective of entrepreneurs with economic analysis and practical market experience.
It works to support the innovation and competitiveness of the Polish economy by transforming business experience into systemic policy solutions. Its guiding principles are reliability, effectiveness and political neutrality.
The think tank is supported by a Business Council composed of leading entrepreneurs. Its strategic direction is supported, among others, by Rafał Brzoska and Michał Sołowow. The organisation also includes a dedicated Council for Small and Medium-Sized Enterprises.
