Opinion of the Advocate General — ECLI:EU:C:2022:497
Date: 2022-06-22
Language of the case: German
Subject matter: Environment;Waste
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary C-238/21 – 1 
Case C-238/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
13 April 2021 
Referring court: 
Landesverwaltungsgericht Steiermark (Austria) 
Date of the decision to refer: 
2 April 2021 
Complainant: 
Porr Bau GmbH 
Respondent authority: 
Bezirkshauptmannschaft Graz-Umgebung 
  
Subject matter of the case in the main proceedings 
Waste – Classification – End-of-waste status – Requirements 
Subject matter and legal basis of the request 
Interpretation of Directive 2008/98/EC of the European Parliament and of the 
Council of 19 November 2008 on waste and repealing certain Directives; 
Article 267 TFEU. 
Questions referred for a preliminary ruling 
1. Does Article 6(1) of Directive 2008/98/EC of the European Parliament and 
of the Council of 19 November 2008 preclude national legislation under 
which end-of-waste status is achieved only once waste or existing 
substances or the substances obtained from them are used directly as a 
substitute for raw materials or for products made from primary raw materials 
or they have been prepared for reuse? 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-238/21 
 
2  
If Question 1 is answered in the negative: 
2. Does Article 6(1) of Directive 2008/98/EC of the European Parliament and 
of the Council of 19 November 2008 preclude national legislation under 
which end-of-waste status in respect of extracted materials can be achieved 
at the earliest when they serve as a substitute for raw materials or for 
products made from primary raw materials? 
If Question 1 and/or Question 2 is/are answered in the negative: 
3. Does Article 6(1) of Directive 2008/98/EC of the European Parliament and 
of the Council of 19 November 2008 preclude national legislation under 
which end-of-waste status in respect of extracted materials cannot be 
achieved if formal criteria (in particular record-keeping and documentation 
obligations) which have no environmentally relevant influence on the 
measure carried out are not complied with or are not complied with in full, 
even though the extracted materials demonstrably fall below the limit values 
(premium) to be complied with for the specific intended use. 
Provisions of EU law relied on 
Directive 2008/98/EC of the European Parliament and of the Council of 
19 November 2008 on waste and repealing certain Directives (‘Waste Directive’), 
in particular Articles 3 and 6. 
Provisions of national law relied on 
Abfallwirtschaftsgesetz 2002 (2002 Law on waste management; ‘the 2002 
AWG’), in particular Paragraphs 2 and 5 
Bundesabfallwirtschaftsplan (Federal Waste Management Plan; ‘the BAWP’). 
Succinct presentation of the facts and procedure in the main proceedings 
1 The Landesverwaltungsgericht Steiermark (Regional Administrative Court, Styria, 
Austria; ‘referring court’) is called on to deal with a complaint lodged against a 
decision (‘contested decision’) of the Bezirkshauptmannschaft Graz-Umgebung 
(administrative authorities of the District of Graz and surrounding area; 
‘respondent authority’). 
2 The complainant is a construction company. It was contracted by farmers to 
supply extracted materials (hereinafter also referred to as ‘the materials used’) to 
them and distribute them on their properties. The purpose of this was to adapt the 
terrain and improve the cultivation areas, thereby increasing the yields of those 
areas. 
PORR BAU 
 
3 
3 In the contested decision, the respondent authority stated, in essence, that the 
materials used constitute waste within the meaning of Paragraph 2(1) of the 2002 
AWG. It had not lost its status as waste, because formal criteria under the Austrian 
Federal Waste Management Plan (2011 version), which is based on Article 28 of 
Directive 2008/98/EC, had not been met. 
4 The referring court takes the view that the materials used are uncontaminated 
extracted materials of quality class A1, which is the highest quality class for 
excavated soil. Such materials are suitable for terrain adjustments (such as those at 
issue in the present case) under Austrian law and the use of those materials is 
legally permissible. 
Since the referring court has doubts as to the view taken by the authority 
concerned and, in particular, as to its interpretation of the definition of waste, it 
refers the matter to the Court of Justice. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
5 The referring court also has doubts as to whether uncontaminated extracted 
materials of a high quality class constitute ‘waste’ within the meaning of the 
definition of waste under EU law in the first place. 
6 According to point (1) of Article 3 of the Waste Directive, ‘waste’ means ‘any 
substance or object which the holder discards or intends or is required to discard’. 
The third case (‘objective waste’) can be ruled out, as the materials used can be 
used for almost any application without concern. Therefore, only the first and 
second cases (‘subjective waste’) enter into consideration. 
7 Should the Court of Justice come to the conclusion that the materials used 
constitute waste, it would still be necessary to assess whether they have achieved 
end-of-waste status in the meantime. 
8 End-of-waste status (hereinafter also referred to as ‘end of waste’) is regulated 
more strictly in national law than in the Waste Directive (Article 6) and, in the 
view of the referring court, is therefore not compatible with the latter. 
9 The referring court takes the view that national legislation such as that at issue in 
the present case, under which end-of-waste status in respect of extracted materials 
can be achieved at the earliest when they serve as a substitute for raw materials or 
for products made from primary raw materials, infringes Article 6(1) of the Waste 
Directive. 
10 National law also provides that the end-of-waste status in respect of extracted 
materials cannot be achieved if formal criteria (in particular record-keeping and 
documentation obligations) are not complied with or are not complied with in full. 
This is the case even though those formal criteria have no environmentally 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-238/21 
 
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relevant influence and the extracted materials demonstrably fall below the limit 
values to be complied with for the specific intended use. 
11 A further reason why the referring court considers the national legislation to be 
contrary to EU law is that the use of the extracted materials of the highest quality 
class for a useful purpose had already been established from the very outset, the 
technical requirements were complied with, testing and safety were demonstrated 
by means of expert opinions and there have not been and will not be any other 
harmful environmental or health consequences. In addition, the use of such 
extracted materials also pursues the objective of waste prevention and the 
substitution of primary raw materials that would be required otherwise. Were that 
use to be prohibited, it would mean that primary raw materials would have to be 
used instead, and secondary raw materials that are fundamentally extremely 
suitable for recovery (that is to say, extracted materials in the present case) would 
have to be landfilled. However, this would contradict the objectives of the Waste 
Directive.