Circular or Vicious Loops? Gauging the Persistence of EU Waste Law Against the Circular Economy Transition

Abstract Against unsustainable patterns of resource consumption, EU waste law has committed to a Circular Economy (CE) transition. Although the CE model promotes material circulation through waste prevention and recovery, it is impeded if product rules do not anticipate waste-related risks of non-virgin materials for humans and the environment. Therefore, institutional actors of EU waste law shall complement product law by advancing knowledge about the chemical substances of non-virgin materials, or else adopt a substance-based approach. Through a Historical Institutionalism (HI) lens, the article gauges the implications of older and persistent institutional forces against the substance-based approach, in the field of by-product rules. More specifically, the Commission and the EU judiciary have persistently exercised their agency to maintain the prominence of an action-based approach, where the safety of by-products is contingent on human actions assigning value to them. This persistent approach obstructs safe waste prevention as the highest CE pillar.