Some breweries argue that they need not join the deposit return scheme for returnable bottles because they distribute beverages in those bottles to retail chains and wholesalers and collect the empty packaging on subsequent deliveries. They consider this sufficient to classify them as entities placing beverages in packaging on the market through direct sales. Such entities need not participate in the scheme to demonstrate the required separate collection rates: they may count bottles collected outside the scheme through their own collection arrangements.
To confirm this position, one brewery requested an individual interpretation from the Marshal of Mazowieckie Province under Article 34 of the Entrepreneurs’ Law. The authority fully endorsed its arguments.
There are doubts, however, about whether the authority correctly classified the brewery as a direct seller of packaged beverages. That classification would require the business to engage exclusively in direct sales, understood as delivering beverages to a place agreed with the purchaser while simultaneously collecting empty packaging. This creates a necessary condition: the brewery must use only that sales model.
In practice, the brewery’s activities are not confined to that model. It also places beverages in metal cans on the market, outside direct sales. That fact alone prevents it from falling within the definition of a direct seller.
Nor does there appear to be a basis for accepting, contrary to the literal wording of the legislation, that a brewery can simultaneously conduct direct sales of glass bottles, benefiting from an exemption for those bottles, and standard sales of cans, participating in the scheme for that packaging.
Contrary to the authority’s interpretation, the mechanism allowing producers to join different schemes for different packaging categories does not provide such a basis. It merely allows producers to choose different operators for particular packaging types. It concerns neither the definition of a direct seller nor the scope of exemptions from participation.
The definition of an entity placing beverages in packaging on the market through direct sales is undoubtedly imprecise and a textbook example of poor legislative drafting. It is not entirely clear which entities the legislature intended to cover. Nevertheless, an interpretation contradicting the wording of the provision and relying mainly on purposive arguments is difficult to regard as correct.
