Law n°2020-105 of February 10, 2020 on the fight against waste and the circular economy, known as the "AGEC law", aims to change production and consumption models with the aim of limiting and managing waste.

As covered in our previous article, the AGEC law introduced the obligation for producers of certain categories of products to display sorting labels on their products (Dentons - Extended producer responsibility and sorting labels: Are you up to date with your obligations to distribute your products in France?). It also strengthened the obligations of professionals in terms of communication on the environmental qualities of their products and services (Dentons - Communication on the environmental qualities of products: do's and don'ts).

Who is required to implement a prevention and eco-design plan?

The AGEC law also requires producers, as defined in article L.541-10-1 of the French Environment Code, to prepare a prevention and eco-design plan (hereinafter the "Plan") for each EPR sector to which they belong. Under these conditions, and by way of illustration, a producer who is a member of three eco-organizations will have to prepare three different plans and submit them to each of them.
It is interesting to note that producers can set up an individual or joint plan if they belong to a trade association or federation, for example.

Although this obligation has already come into force, it has been noted that only a limited number of producers have complied with it. As a result, the eco-organizations have required their members to submit their Plans by a certain date (mainly July 31 or August 31, 2023).

If a producer fails to meet this obligation, it is liable to an administrative fine of up to 1,500 euros for an individual and 7,500 euros for a legal entity, per unit or ton of product concerned. A daily penalty of up to 20,000 euros per day of delay may also be imposed.

What information should the prevention and eco-design plan contain?

As the main objectives of the Plan are to (i) reduce the use of non-renewable resources, (ii) increase the use of recycled materials and (iii) increase the recyclability of its products in domestic processing facilities, these three themes must be covered.

Producers may, of course, decide to achieve objectives relating to other themes and, as such, mention them in their Plan.

More specifically, for each of the above-mentioned themes, producers must indicate the objectives they wish to achieve, the reference indicators (current value and value to be achieved) and the actions they will implement to this end over the next five years. The Plan must be revised every five years. It must also contain an assessment of the previous plan, although this obligation does not apply to each producer's first plan.

In order to guide producers in drawing up the Plan, each eco-organization has set up a Plan template which producers are free, but not obliged, to use. We do, however, recommend that they use it to facilitate their work.

What is the legal scope of the prevention and eco-design plan?

The information contained in the Plan is confidential. In fact, each eco-organization is required to send the public authorities a summary of all the Plans received, containing only non-confidential information. As a result, the public authorities will have no knowledge of the objectives set individually by each producer.

Under these conditions, the objectives and indicators mentioned by producers in the Plan are not binding. Thus, a producer cannot be penalized for failing to meet the objectives set, but only for failing to implement a Plan.