Omnibus VIII leaves the representative duty for non-EU sellers intact, but changes the arithmetic of selling through an EU hub

Who Article 45(3) catches, in the Regulation's own terms

The duty rests on two definitions. Article 3(1)(15) lists five ways to be a packaging producer. Points (a) and (b) cover a company established in a Member State that first makes packaging or packaged products available there. Points (c) and (d) cover a company established in a Member State or in a third country that first makes packaging or packaged products available directly to end users in another Member State. Point (e) catches a company that unpacks packaged products without being an end user (lxgesetze.de, Article 3, unofficial German consolidated text).

Article 45(3) then applies to points (c) and (d). Its first subparagraph requires such a producer to appoint, by written mandate, an authorised representative for extended producer responsibility in each Member State where it first makes packaging available, other than the Member State where it is established. Its second subparagraph lets Member States require producers established in third countries to appoint a representative when they first make packaging or packaged products available on their territory (lxgesetze.de, Article 45). Article 3(1)(20) defines the representative as a person established in the Member State concerned, appointed to carry out the producer’s obligations under Chapter VIII.

Commission Notice C/2026/3084 of 10 June 2026 adds two readings that matter for groups based outside the EU. Offering a product directly to an end user counts as making it available in the end user’s Member State, and a branch of a non-EU company has no separate legal personality, so it cannot act as importer. The non-EU manufacturer must instead incorporate an EU subsidiary or appoint a representative where a Member State requires one (SPI rule PR-EU-001, from the Notice, consulted 14 October 2026). The Notice is guidance, not law, and says only the Court of Justice gives binding interpretations.

Producer status is the bigger obligation and none of the Omnibus texts touches it. Registration in each Member State, reporting and EPR fees all follow from it, which is why fee levels in SPI’s per-tonne comparison apply to a non-EU seller exactly as they do to a domestic one. The representative is the person who carries those obligations locally.

What the three texts do for producers outside the EU

The Commission’s proposal. COM(2025) 982 of 10 December 2025, transmitted to the Council as ST 16753/25 on 11 December 2025, has two operative suspensions. Article 1 suspends Article 56(3) of the Batteries Regulation and Article 2 suspends Article 45(3) of the PPWR, both until 1 January 2035. Because Article 45(3) would be suspended as a whole, the second paragraph of Article 2 sets a fallback for third-country packaging producers: Member States may either provide that they appoint a representative by written mandate when first making packaging available, or ensure traceability and enforcement through alternative means (ST 16753/25).

That was a real change for non-EU sellers. It would have turned a uniform EU duty into 27 national choices. Recital 6 explains why the Commission still wanted a backstop: enforcement against third-country producers is harder because they sit outside Member States’ enforcement powers and the EU’s administrative and judicial cooperation mechanisms.

Parliament’s position. Parliament adopted its first-reading position on 20 October 2026, recorded as T10-0345/2026, and the matter was referred back to committee for negotiations the same day (Legislative Observatory). Its press release says the suspension would apply only to EU-based small and micro enterprises, with fewer than 50 employees and turnover or balance sheet under EUR 10 million, until 2035 or until a circular economy act is adopted. SPI has not yet confirmed how the adopted text words the third-country fallback, but a pause limited to EU-based firms leaves a third-country seller’s duty under the first subparagraph untouched.

The Council’s mandate. ST 14765/26 of 21 October 2026 replaces the Commission’s blanket suspension with a targeted one. A producer established in one Member State does not need a representative in another Member State where it makes less than 1 tonne of packaging, including packaging of packaged products, available for the first time in a calendar year. The suspension runs to 1 January 2032, a new Article 2a asks the Commission to review its length by 31 December 2030, and a competent authority can order an exempted producer that breaches its EPR obligations to appoint a representative. Recital 6 states that the existing provisions for producers established in third countries should be maintained in their current form (ST 14765/26).

A framework: four routes to EU consumers, and what each text does to them

The useful question for a non-EU exporter is not whether it is covered, but which route it uses. SPI groups the routes into four, by who is the producer in each destination Member State (Exhibit 3).

Route A is the default for brands shipping parcels from outside the EU. It carries the full duty: in Germany the representative must be named in the LUCID register before the first sale, and the Zentrale Stelle Verpackungsregister (ZSVR) says there is no exemption.

Route B looks lighter, because the platform handles the storefront, but the producer is still the seller. Article 45(4) makes the platform collect registration details and a self-certification before letting the producer sell, and section 13 of Germany’s VerpackDG bars distributors and fulfilment providers from handling packaging of producers not registered in LUCID (PR-DE-001), as SPI’s Germany piece sets out.

Route C is where Omnibus VIII matters. An EU subsidiary that holds stock and sells to consumers across borders is a point (c) producer in each other Member State, which is exactly the producer the Commission, Parliament and Council want to relieve, to different degrees.

Route D shifts the producer role to an EU importer or distributor in each market. The brand needs no representative under the first subparagraph, but gives up control of registration and fee data, and the importer’s costs come back in the price.

How much is 1 tonne?

The Council’s test is per Member State and per calendar year, and it counts all packaging made available for the first time, including the packaging of packaged products (ST 14765/26). Exhibit 4 shows how few packs fit under it.

At 50 grams of packaging per order, 1 tonne is 20,000 orders a year, or about 55 a day by SPI’s calculation. That is a market a brand is testing, not one it serves. Argus Media reported on 26 October 2026 that Germany had proposed a 10-tonne threshold during Council talks, which would cover 200,000 such orders a year; SPI has not seen that proposal in a public Council document.

The comparison with national small producer lines is in Ledger 52, which shows the Council’s 1 tonne sitting below Austria’s 1,500 kg flat-fee band. For a non-EU exporter the point is narrower: even if it builds an EU hub, the 1-tonne test removes representatives only in its smallest markets.

Scenario: one brand, eight markets, four outcomes

To show what the routes and texts mean in practice, SPI built an illustrative non-EU brand that sells online to consumers in 8 Member States. Its packaging tonnes per Member State are SPI assumptions, chosen to look like a brand with two large markets and a tail of small ones (Exhibit 5).

Route A sells direct from outside the EU into all 8. Route C sets up a subsidiary in the Netherlands, which is the producer at home and a point (c) producer in the other 7. Route D uses an importer in each market. The outcomes are the current rule, the Commission’s text, Parliament’s position (with the subsidiary either qualifying as a small enterprise or not) and the Council’s mandate, plus an SPI test at 10 tonnes, a level chosen because a 10-tonne line was reported in Council talks.

The low, base and high cases for a hub follow directly. Low: the Council’s 1-tonne test wins, and the hub drops Austria and Ireland, keeping 5 representatives. Base: a compromise with a higher threshold, such as SPI’s 10-tonne test, keeps only Germany and France, so 2 remain. High: a size test that the subsidiary meets, or the Commission’s original scope, removes all 7. The direct route stays at 8 in every case, so the gap between the routes runs from 1 representative to 8 (Exhibit 7).

Two assumptions drive the Parliament rows. Parliament’s press release defines the eligible firms by staff and turnover or balance sheet, the same ceilings as a small enterprise in the EU SME definition, which the Commission’s PPWR guidance already uses for micro-enterprises. SPI has not yet confirmed whether the adopted text counts a parent group’s staff and turnover. If it does, the subsidiary of a large non-EU group would rarely qualify, and the Parliament row for a hub would be 7, not 0.

The gap between EU and non-EU sellers of the same size

Omnibus VIII creates an asymmetry that did not exist on 12 August 2026. Exhibit 8 compares the illustrative brand with an EU rival of identical size and tonnage, established in the Netherlands and selling directly into the same 7 other Member States.

The difference of one representative today is the home market: the EU rival needs none in the Netherlands, while the non-EU seller needs one there too. Under Parliament’s position the gap becomes the full 8. Under the Council’s mandate it is 3, because the rival drops only its two smallest markets.

The co-legislators justify the asymmetry on enforcement grounds. Recital 6 of the Commission’s proposal, which the Council kept, says third-country producers sit outside Member States’ enforcement powers and EU cooperation mechanisms.

National rules a non-EU seller meets today

The representative is an EU duty, but each Member State runs its own register, language and contract rules. Exhibit 9 summarises four that SPI holds in its tracker and fee-market data.

Platforms, fulfilment and the enforcement point

For non-EU sellers, the platform is where the rule is checked. Article 45(4) requires providers of online platforms that let consumers conclude distance contracts with producers to obtain the producer’s registration information under Article 44, its registration number or numbers, and a self-certification before allowing it to use their services (lxgesetze.de, Article 45, unofficial German text). SPI has not yet confirmed the English wording or any separate start date for this paragraph against the Official Journal.

The e-commerce angle on platforms is set out in Ledger 23. For the representative rule, the practical point is that the check runs per Member State. A seller with a representative in Germany but not in Spain can lose its Spanish listings while its German ones stay live.

What could still move in trilogues

Parliament and the Council agree on the direction for EU producers and on leaving third-country producers alone, so most of the trilogue is about Route C. Four points could still reach non-EU groups.

The test. Company size or volume per Member State. A size test written without group consolidation would help EU subsidiaries of non-EU groups the most; a volume test helps every EU entity, but only in small markets.

The threshold. 1 tonne in the Council’s text; Argus Media reported that Germany pressed for 10 tonnes, which SPI has not seen in a public Council document. In SPI’s scenario, a 10-tonne line would move the hub’s count from 5 to 2.

The end date. 1 January 2032 with a review by 31 December 2030 in the Council’s text, against 2035 or an earlier circular economy act in Parliament’s. Either way the relief is temporary, which limits how far a group should restructure around it.

The safeguard. The Council lets an authority order an exempted producer in breach of its EPR obligations to appoint a representative. For an EU hub of a non-EU group, that means the relief can be withdrawn market by market.

Batteries are a separate question. The Commission and Parliament texts cover Article 56(3) of the Batteries Regulation, while the Council’s mandate shows the batteries wording as deleted, as SPI’s news report noted. Non-EU sellers of battery-powered products should map that regime separately.

A decision sequence for non-EU exporters

The routes in Exhibit 3 are not exclusive, and most groups run more than one. SPI suggests working through four questions in order, market by market, using the SKU and entity matrix described below.

First, who is the producer in each Member State today? The Commission’s guidance treats goods imported from outside the Union as placed on the market at release for free circulation, by an importer established in the Union (SPI rule PR-EU-001, from Notice C/2026/3084). If the group’s own EU company clears the goods, it is the importer and, where it first makes them available in its home Member State, the producer there. If a customer or a distributor clears them, that company usually holds the role. If parcels go straight from outside the EU to consumers, the non-EU seller is the producer under point (d) in every destination.

Second, which of those roles need a representative? Under the first subparagraph of Article 45(3), only points (c) and (d) do, and only outside the home Member State. A non-EU seller selling direct has no home Member State in the EU, which is why its count in Exhibit 6 is 8 for 8 markets, against 7 for an EU hub selling into the same 8.

Third, does any Member State use the second subparagraph? This is the route by which a Member State can ask a third-country producer for a representative even where it is not selling direct. SPI has not yet confirmed which Member States use it, so the Route D count of zero in Exhibit 6 is a floor, not a promise.

Fourth, what would each Omnibus outcome change for the entities that remain? Only the EU-established entities in Route C are in play. For them, the answers are the counts in Exhibit 7, and they depend on the test, the threshold and the end date still open in trilogues.