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Support, advice and practical help to achieve compliance with the Producer Responsibility Obligations (Packaging Waste) Regulations

Enforcement Undertakings

Previous years’ non-compliance with the Packaging Regulations

If you think your company may have been obligated in previous years, but has not been registered, you could be subject to investigation and enforcement action by the Environment Agency, (EA).

Fortunately, regulations introduced in 2010 for England and Wales, under the Regulatory Enforcement and Sanctions Act, gave the EA powers to apply Civil Sanctions, for packaging offences, without having to resort to prosecution.

The EA have stated that, when considering non-registration Packaging Regulations offences, they expect Enforcement Undertakings (EUs) to be the most commonly used Civil Sanction.

This means that, for most companies facing potential investigation for non-registration, (where at least one offence was committed after April 2010, or July 2010 for companies based in Wales), it is likely they will be able to avoid the possibility of prosecution, by offering an EU to cover the entirety of their offending.

Enforcement Undertakings - Key Commitments

EUs are an opportunity for a business, which a regulator reasonably suspects of having committed an offence, to make an offer to make amends for non-compliance and correct any harm caused.

An EU must contain a commitment to undertake the following actions:

For packaging offences, which are predominantly financial in nature, (i.e. the avoidance of registration fees and the cost of Packaging Recovery Notes), it is expected that EUs include actions that, as a minimum, remove the financial gain arising from the offending.

In practice this means calculating the costs which should have been paid during the period of non-compliance. A ‘penalty element’ is then added, (typically 10% of the total avoided costs for self-reported EUs and 30% for cases where the EA has commenced an investigation). The whole sum is then donated to an environmental project, which is nominated by the offender.

The project, or charity, nominated must be clearly connected to environmental improvement, preferably related to the legislation that was breached. Donations cannot be made to an organisation which has any personal or managerial links with the donor.

The EU offer should also contain a contribution towards the costs necessarily incurred by the EA in the course of their investigation into the alleged offences and in the monitoring and discharge of the EU itself. This is in accordance with the ‘Polluter Pays Principle’ and the aim of the EA to be ‘cost neutral’ when dealing with an offender. However, these costs will invariably be less than those expected should the matter have proceeded to court.

What are the advantages of an EU?

An Enforcement Undertaking enables an offender to:

If the offer is accepted by the EA, an Enforcement Undertaking becomes legally binding and once completed there is no further criminal or civil action.

How we can help

Synergy has experience in preparing and submitting Enforcement Undertakings on behalf of our members, guiding them through the whole process from start-to-finish.

Specifically we can:

Our assessment of your avoided costs will include a calculation of your recycling obligations in previous years, using the best available packaging information and the EA’s published list of average historic PRN prices, for the relevant years. However, we would aim to limit your offer to cover only those years for which packaging information was readily available, or could be estimated to a reasonable degree of accuracy. This fulfils the requirement that there is reasonable suspicion that an offence has been committed in any given year, while keeping the assessment of avoided costs as accurate as possible.

If you would like more details about how Synergy can help with your EU submission, or any other aspect of your compliance with the Packaging Regulations, please get in touch.


Synergy Quick Guide to Enforcement Undertakings

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