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Concept of waste from a legal point of view

Definitions, distinctions and legal bases

The Austrian waste term in the Waste Management Act 2002 (AWG) is defined as follows, based on the definition from the EU Waste Framework Directive:

Section 2 (1) AWG reads: Waste is movable property that the owner intends to dispose of or has disposed of or whose collection, storage, transport and treatment as waste is necessary in order not to impair public interests.

The term waste contains a subjective (“disposal”) and an objective (“in the public interest”) part.

The public interests are defined in the goals and principles of waste management.

Section 1 (3) AWG reads:

In the public interest, collection, storage, transport and treatment as waste is required, if not otherwise

  1. the health of people can be endangered or unreasonable nuisance can be caused,
  2. Hazards to water, air, soil, animals or plants and their natural living conditions can be caused,
  3. the sustainable use of water or soil can be impaired,
  4. the environment can be polluted beyond the unavoidable extent,
  5. Fire or explosion hazards can be brought about,
  6. Excessive noise or noise may be generated,
  7. the occurrence and multiplication of pathogens can be favored,
  8. public order and security may be disrupted or
  9. The appearance of the place and landscape as well as cultural assets can be significantly impaired.

Subjective concept of waste

The "subjective concept of waste" aims at the intentions of the owner of a thing. In principle, anyone can get rid of a thing if he has it in his custody.

Civil law ownership does not play a role in the assessment of the subjective intention to dispose of people. For example, in the sense of administrative law, the intention to discard can also be assumed if companies resell their production residues that they can no longer use for recycling.

The sale of waste or old materials (such as scrap, waste paper) does not change anything in terms of waste quality. Achieving income or saving expenses is basically only a "secondary purpose".

This fact is legally standardized in the explanations on the objective concept of waste.

Objective concept of waste

The objective definition of waste includes movable objects that should be recorded as waste in the public interest.

Section 2 (2) AWG reads:

Waste is considered to be things that are required to be properly collected, stored, transported and treated as waste in the public interest, even if they have entered into a connection with the soil that is harmful to the environment. Collection, storage, transport and treatment as waste in the public interest may also be necessary if a remuneration can be obtained for a movable object.

Immovable waste

In the first part of Section 2 (2) AWG, contrary to the diction of the “basic waste definition”, immovable objects are also regarded as waste, but only when the public interest is required. As a rule, soils polluted with pollutants (contaminated soil) are recorded.

If substances / waste were brought into contact with the soil in such a manner and quantity that the soil quality or the groundwater are impaired in the interests of the public, then both these things and the soil associated with them clearly constitute waste (e.g. petrol -contaminated soil in dome shafts of petrol stations).

Note: Section 4 of the Waste Catalog Ordinance generally defines locations (e.g. metal or mineral oil processing companies, petrol stations, cleaning shops, chemical industry) at which the soil is declared to be hazardous waste from the outset in the event of planned earth moving. The possible exemption is made through investigations.

For manure, liquid manure, liquid manure and organically compostable materials, conditions have been specified under which the public interests - if used correctly - do not apply.

Movable garbage 

The recording of movable objects within the objective waste term refers to the areas of collection, storage, transport and the treatment of these objects.

The nine criteria of Section 1 (3) AWG set out the requirements under which this public interest exists. Detailed provisions that must be complied with when dealing with waste can be found in the AWG itself or in the related ordinances.

When is there no waste property? 

If one assumes the objective definition of waste (within the meaning of Section 2 (1) (2) AWG), according to which waste is movable property that should be classified as waste in the public interest, this would mean that all substances that meet one of the nine criteria of Section 1, Paragraph 3, fall under the definition of waste.

This would mean that every movable object that could, for example, endanger human health or cause fire and explosion hazards or cause hazards for animals and plants, would automatically be regarded as waste. With this definition, for example, a new motor vehicle, many machines, all paints and varnishes, etc. would automatically be waste.

Although the concept of waste in the AWG is very broad, such an extension of the waste property to practically all hazardous substances would certainly not be expedient or sensible. Therefore, the following restriction has been made.

Section 2 (3) AWG reads:

In any case, orderly collection, storage, transport and treatment are not required in the public interest as long as they are

  1. a thing is new according to the general public opinion or
  2. according to the general public opinion, it is used for its intended purpose.

The collection, storage, transport and treatment of manure, liquid manure, liquid manure and organically compostable material as waste is not necessary in the public interest if this occurs in the context of an agricultural and forestry operation and in the immediate area of ​​an agricultural and forestry operation permitted use.

New things

Section 2 (3) no. 1 stipulates that “new items” do not constitute waste in the sense of the AWG even if they pose a risk that is mentioned in Section 1 (3).

However, this does not mean that such dangerous "things" or substances (eg new mineral oils, chemicals, solvents, etc.) may be handled without any regulation. Rather, the relevant legal provisions for these products (e.g. water law, chemicals law, chemicals ordinance, VOC ordinance, ADR regulations for transport, etc.) must be observed; They are therefore to be stored and used properly in the interests of environmental protection. There is therefore also a public interest in an orderly handling or an orderly treatment of these substances, but not in the registration of these substances as waste.

Intended Use

Movable objects are not waste, even if they are no longer new, as long as they are in a use that corresponds to their original purpose.