The 80 Percent Derogation: The Exit for States Already Collecting Well

The derogation is the regulation's respect for results: a member state that can demonstrate a separate collection rate of at least 80 percent for the in-scope bottles and cans in 2026 may request exemption from the duty to establish a deposit system, provided it submits a plan - with measures and milestones - to reach the 90 percent objective. The logic is that the target, not the instrument, is the obligation: a state already collecting at deposit-system levels through other means (mature kerbside with proven capture, voluntary deposit traditions) should not be forced to rebuild its infrastructure to satisfy a blueprint.

For producers, the derogation changes the map, not the destination: collection performance is owed either way, and the reporting duties that evidence it continue.

The 80 percent must be demonstrated on the same counting integrity the target guide prescribed - placed weight from register-grade data, collected weight from measured streams, leakage and double counting excluded. States with mixed collection systems face the attribution problem in earnest: what share of in-scope containers does the kerbside system actually capture, separable from the general packaging statistics? Expect the Commission's assessment to probe exactly there, and expect candidate states to have built the measurement before building the application. Producers in candidate states should watch their own reporting's role in the national number: the derogation is, in part, an audit of the industry's data.

The plan is not a narrative; it is a trajectory with measures attached - the instruments (collection enhancements, any voluntary-deposit expansion, communications, litter measures) and the milestones by which 90 is approached, monitored by the Commission. A state that takes the derogation and stalls should expect the exemption's logic to reverse: the plan's failure is the factual basis for requiring the system after all. Businesses should therefore treat a derogation state's plan as a regulatory programme in its own right - its milestones are soft deadlines with a hard instrument behind them.

No deposit system means no deposit mechanics - no registration with a DRS operator, no deposit marking, no take-back clearing - and producers in a derogation state keep the EPR route for these containers, with its fees and reporting. But the direction of travel deserves respect in planning: if the plan falters, a system arrives later and faster than the 2029 cohort's, on a compressed timetable nobody enjoys. Portfolios spanning derogation and system states should keep their container data, marking capability and registration discipline system-ready in the derogation markets too - optionality, again, is cheapest before it is needed.

The derogation is the framework complimenting a member state on a decade of collection work - and attaching a plan, milestones and a reversible exemption to the compliment. For businesses the practical reading is stability: a derogation state with a credible plan is not a loophole market but a differently-instrumented one, and portfolios should engage its programme (data quality, plan milestones) as attentively as a system launch. The states to watch are those where the 2026 number is contested; contested arithmetic at national scale tends to resolve into infrastructure, eventually and expensively.

Consider the arithmetic a candidate state must publish: kerbside capture studies for bottles and cans in the mid-seventies, a voluntary deposit tradition in one region adding points the national statistics must count without double-counting, on-the-go leakage estimated rather than measured. The gap between that evidence and a defensible 80 is a measurement programme - capture analysis by stream, litter counts, register-grade placement data - costing a fraction of a deposit build-out and useful under either outcome. Producers in such states should support the measurement publicly and supply their data promptly: if the derogation holds, they saved a system's friction; if it fails, the same data is their launch head start.