This article provides a brief overview of the development of waste law and waste management in Germany, but cannot and does not intend to replace more detailed presentations. It does, however, provide access to materials that are difficult to access (legal texts and studies) through links.
Introduction
As a rule, waste is understood to be all solid and sludge-like residues of human production and consumption that are disposed of, want to be disposed of or must be disposed of. Waste has been generated in human settlements since time immemorial and was often deposited outside the living area from the very beginning. This method of disposal is still the predominant disposal method worldwide. However, the standards in individual countries vary widely: from uncontrolled dumping to orderly disposal in landfills with basic sealing and aftercare.
In the affluent society, the handling of waste was for many years limited to getting rid of it, usually by dumping. This has led to environmental problems such as soil and water pollution.
Sustainable waste management must be attuned to the carrying capacity of ecosystems. While every creature produces waste, systems of well-organised management of materials had evolved over the course of evolutionary history.
“All residual or end products of biological chemical activities are either deposited in some form (e.g. as humus, peat, coal) or degraded and reused. This organisation has led to a situation where all creatures have to worry about their substance supply, but not about the fate of their metabolic products, excreta and corpses. This biological heritage is still at work in humans, too, and makes it difficult to adopt a conscious attitude towards waste. For thousands of years, but even more so since the industrial revolution, the way humans deal with substances has been detached from the natural material economy, in some cases irreversibly, primarily through enormous shifts of substances as a result of imports and exports, which have greatly changed the natural distribution of substances in the biosphere, as well as through the production of many new substances and products that cannot or can only with difficulty be integrated or recycled into the natural material flows” [SRU 1990].
Sustainable waste management means that unavoidable waste is recycled to the greatest possible extent and that a circular economy is pursued as far as possible. When calling for a circular economy, however, it should be noted that even in nature there are not only closed cycles, and that there are also ecological limits to waste management measures. In their entirety, these measures must not pollute the environment more severely than the avoided or recycled waste would.
Development of German waste legislation
The first legal foundations for waste management in Germany were developed at the beginning of the 19th century. However, the waste law regulations at that time were limited to individual parts of Germany, where they were integrated into regulatory and police law, such as sanitary police regulations. It was only after the links between a lack of urban hygiene and widespread diseases such as cholera became increasingly clear that more emphasis was placed on orderly drainage and waste disposal. These fields of activity were carried out by the municipalities as sovereign tasks. Until the 1960s, the collected waste was almost exclusively taken to the existing many small garbage dumps.
Waste management goals did not find their way into the environmental policy of the Federal Republic of Germany until around 1970. In 1971, the Federal Government analysed the waste management situation in its environmental programme, which was characterised by the operation of about 50,000 small, often unorganised dumps. Hazardous waste (special waste) was also deposited at these sites along with household waste. Criticism of this state of affairs culminated above all in the demand to create a few central and orderly landfills. After the Federal Government obtained legislative competence for the area of waste law in 1972 by amending the Basic Law, it enacted the Waste Disposal Act.
The Waste Disposal Act of 1972
The Waste Disposal Act (WDA) was primarily an organisational and planning law, the aim of which was to steer the disorderly so-called “dumping economy” into orderly channels through organisational guidelines. This was primarily achieved by regulating the responsibilities for waste disposal. The law was clearly disposal-oriented. Binding obligations for waste recovery were not included in this law. Objectives for the prevention and recovery of waste were formulated for the first time in the Federal Government’s Waste Management Programme of October 1975.
The 1986 Waste Management Act (WMA)
Within the framework of the 4th amendment to the Waste Disposal Act in 1986, the Waste Disposal Act became the “Act on the Prevention and Disposal of Waste – Waste Management Act”. This law for the first time contains principles and obligations for the avoidance and recycling of waste. Among other things, the WMA newly regulates the waste recovery requirement, the disposal of waste oils, the authorisation to issue technical instructions and the extension of waste law monitoring to contaminated sites.
The authorisation to issue technical instructions was used to regulate the disposal of hazardous waste through the “TI Waste” and the disposal of municipal waste through the “TI Municipal Waste“.
The bundle of empowerments contained in Article 14 WMA to enforce prevention and recovery was used to issue product-related regulations in advance of the disposal obligation. The best-known example is the Packaging Ordinance (PackO), which was further developed into the Packaging Act (PackA) after several amendments.
Recycling and Waste Management Act of 1994
The Recycling and Waste Management Act (RMWA) is the third comprehensive revision of waste legislation in Germany, following the Waste Disposal Act of 1972 and the Waste Management Act of 1986.
The amendment also aimed to implement European directives such as the Waste Framework Directive and the Hazardous Waste Directive. The primary objective of the RWMA was to further develop waste management into a circular economy. Important cornerstones of the RWMA were the implementation of a new concept of waste adapted to EU law, the hierarchy of obligations, extended product responsibility and a partial re-organisation of the disposal system with extended possibilities for privatisation of waste management.
What was new was that the scope of application of the RWMA in principle also covers substances which until 1986 were designated as so-called economic goods or residual materials within the meaning of Article 5 para. 1 no. 3 of the Federal Immission Control Act in distinction to the waste concept of Article 1 WDA. The scope of application of the RWMA was thus significantly expanded compared to the WDA of 1972.
Circular Economy Act of 2012
The Act on the Promotion of the Circular Economy and Ensuring the Environmentally Sound Management of Waste (Circular Economy Act – CEA) came into force in June 2012. The CEA replaced the Recycling and Waste Management Act (RWMA). The CEA transposes the requirements of the EU Waste Framework Directive (2008/98/EC) into national law.
The primary objective was to focus the circular economy even more strongly on resource, climate and environmental protection. With the CEA, the concept of waste was aligned with the WFD and expanded. A new regulation on the distinction between waste and by-products not subject to waste law was introduced in Article 4 and a new provision on the end of waste status in Article 5.
Circular Economy Act of 2020
The aim of the revised CEA, which has been amended again, is to improve resource management and resource efficiency in Germany and, in particular, to strengthen waste prevention. The recycling rates of certain waste streams, especially paper, metal, plastic and glass, but also municipal waste, are increased and the obligations for separate collection are extended to bio-waste, hazardous household waste, textiles and bulky waste.
Public authorities will be obliged to give preference to ecologically advantageous products in future procurement. Recycled products are to be given priority in public procurement. With this law, the Federal Government is obliging itself to give preference in procurement to products that conserve raw materials, are low-waste, repairable, low-pollutant and recyclable, provided that no unreasonable additional costs are incurred.
With a newly created duty of care, the state will in future for the first time have legal recourse against the destruction of new goods or returns. For the first time, there is also a legal basis for manufacturers and retailers of single-use plastic products, such as “to-go cups” or cigarette butts, to participate in the cleaning costs of parks and streets by decree.
Sources:
[SRU 1990]: SRU – Der Rat von Sachverständigen für Umweltfragen: “Kurzfassung des Sondergutachten Abfallwirtschaft”, published by the Federal Ministry for the Environment, Bonn, September 1990.