The Incoterm does not decide it, and a contract cannot move the duty. DDP, DAP, EXW and the rest allocate who pays freight, who carries risk and who clears customs. Producer status under article L. 541-10 of the Environmental Code follows a different test entirely: who, acting professionally, first places the product on the French market. Sell DDP to a French distributor who then resells, and the distributor is still the producer. Sell DDP straight to the French business that uses the goods, and you are first on the market — so you are the producer, and with no French establishment you need a representative under article L. 541-10-9-1.Sources (2)
ADEMEADEME — which producers the EPR schemes cover
LégifranceLégifrance — Code de l'environnement
What an Incoterm actually settles
Incoterms are commercial trade terms. They answer who arranges and pays for carriage, where risk passes from seller to buyer, and who handles export and import formalities. They are drafted by the ICC and adopted because the parties put them in the contract.
That is the reason they cannot decide EPR. Extended producer responsibility is a statutory obligation owed to the French state and administered through ADEME and the eco-organismes. Two companies can agree between themselves who pays for what; they cannot agree between themselves who owes a public-law duty. The test in the statute is the only one that counts.
The test, and where each Incoterm leaves you
ADEME states it in one line: the producer is any person who, acting professionally, first places a product on the French market. Apply that to the common terms:
| Term | What it settles commercially | Who is the producer |
|---|---|---|
| DDP — delivered duty paid | You deliver to the buyer's door and pay import duties and clearance | Depends on the buyer. A reseller opens the French market itself; a business end user does not, so then it is you |
| DAP — delivered at place | You deliver, the buyer clears and pays import duties | Same answer. The buyer clearing customs does not by itself make it the first to place the goods on the market |
| EXW — ex works | The buyer collects from your premises abroad and does everything after | Usually the buyer: it imports and brings the goods onto the French market |
| FCA, CPT, CIP | Carriage arrangements between the two of you | Neutral — fall back on who first places the goods on the market |
Notice what repeats. In every row the Incoterm changes the commercial position and the answer still turns on who your customer is and what they do next.
The question that actually decides it
Not "what Incoterm did we use?" but: is my customer reselling, or using the goods?
- Reselling — a distributor, wholesaler or retailer that buys for its own account and sells on. That company opens the French market and is the producer. You are outside the duty for that channel, whatever the Incoterm.
- Using — a factory, hotel, restaurant, office, workshop or laboratory that consumes the goods. That is an end user, so nobody after you places the goods on the market. You are the producer, and the duty is yours.
Professional end users count as end users. Selling B2B does not take you out of EPR; it changes which stream applies, and from 1 January 2027 professional packaging has a scheme of its own — see who is the producer for professional packaging.
Two things that do not change the answer either
- Importer of record. If your French customer is the importer of record and resells, it is the producer — but that follows from it being first on the market, not from the customs paperwork. Where the customer is the importer of record and the goods are for its own use, you should look closely at who is genuinely first on the market rather than assume the label settles it.
- A French VAT number. Holding one changes nothing about producer status or the representative duty — see does a French VAT number mean I am established.
Put it in writing
Because the answer turns on what your customer does, it is worth recording in the contract what you have relied on: whether the buyer is acquiring for resale or for its own use, and which party is registering for EPR. That does not transfer the duty — nothing between the two of you can — but it does document the basis on which you concluded the duty was not yours, which is exactly what you would want if the question is ever asked.
Frequently asked questions
So DDP never makes us the producer?
DDP neither makes you the producer nor stops you being one. It is simply not the test. Under DDP you may well be the producer, but because of who you are selling to, not because of the Incoterm.
Our contract says the buyer is responsible for all local compliance. Does that work?
It allocates risk between you and the buyer and may give you a contractual claim if things go wrong. It does not move a statutory duty owed to the French state. If the law makes you the producer, ADEME and the eco-organismes look to you.
We sell to a French distributor and also direct to some French factories. What then?
Both positions at once, which is normal. For the distributor channel the distributor is the producer; for the direct sales you are, and those sales alone trigger the registration and the representative duty. You declare the volumes you place on the market, not the ones your distributor does.
Does it matter if we are established in another EU country rather than outside the EU?
Not for this. Article L. 541-10-9-1 applies to any producer not established in France, EU or not. An Italian or German company selling directly to French end users is in the same position as a Chinese or American one.
Sources
- ADEME — which producers the EPR schemes cover
- Légifrance — Code de l'environnement
- Légifrance — article L. 541-10-9-1 of the Environmental Code (full text)
Founder of EPR France Rep, the France-based EPR authorised representative for companies selling into France.
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