| ENVIRONMENT — Waste — “Polluter pays” principle — Coast polluted by heavy fuel oil spilled at sea — Whether oil “waste” — Liability for cost of anti-pollution measures — Council Directive 75/442/EEC (as amended by Commission Decision 96/350/EC), arts 1, 15
Commune de Mesquer v Total France SA and another (Case C-188/07); [2008] WLR (D) 206
ECJ: Acting President Timmermans, Judges Rosas, Lenaerts, Bay Larsen, Silva de Lapuerta, Schiemann, Kuris, Levits, Ó Caoimh, Lindh, Bonichot, von Danwitz and Toader: 24 June 2008
When heavy fuel oil, produced during the refinement of crude oil, was discharged from a ship at sea, the producer of the oil, as well as the seller of the oil and the charterer of the ship, could be held liable for the cost of disposing of pollution on the coast caused by the oil.
The Grand Chamber of the Court of Justice of the European Communities so held, inter alia, on a reference by the Cour de cassation, France, for a preliminary ruling.
The first defendant sold to the second defendant in France a quantity of heavy fuel oil to be used as a fuel for generating electricity, and the second defendant chartered a tanker to transport the oil to Italy. The ship sank on the voyage and oil was discharged, causing pollution on part of the French coastline. On a claim by the claimant local council for reimbursement of the costs of cleaning up the pollution, a number of questions on Directive 75/442 were referred to the Court of Justice.
Art 1 of Directive 75/442 provides that for the purposes of the Directive “(a) ‘waste’ shall mean any substance or object … which the holder discards or intends or is required to discard … (b) ‘producer’ shall mean anyone whose activities produce waste (‘original producer’) and/or anyone who carries out … operations resulting in a change in the nature or composition of this waste; (c) ‘holder’ shall mean the producer of the waste or the natural or legal person who is in possession of it …”
Art 15 provides: “In accordance with the ‘polluter pays’ principle, the cost of disposing of waste must be borne by:—the holder who has waste handled by a waste collector … and/or—the previous holders or the producer of the product from which the waste came.”
THE COURT, for reasons stated by it, ruled as follows. (1) A substance such as that at issue, namely heavy fuel oil sold as a combustible fuel, did not constitute waste within the meaning of Directive 75/442 where it was exploited or marketed on economically advantageous terms and was capable of actually being used as a fuel without requiring prior processing. (2) Hydrocarbons accidentally spilled at sea following a shipwreck, mixed with water and sediment and drifting along the coast of a member state until being washed up on that coast, constituted waste within the meaning of art 1(a) of Directive 75/442 where they were no longer capable of being exploited or marketed without prior processing. (3) For the purposes of applying art 15 of Directive 75/442 to the accidental spillage of hydrocarbons at sea causing pollution of the coastline of a member state: (a) the national court could regard the seller of those hydrocarbons and charterer of the ship carrying them as a producer of that waste within the meaning of art 1(b) of the Directive and thereby as a “previous holder” for the purposes of applying the first part of the second indent of art 15, if that court, in the light of the elements which it alone was in a position to assess, reached the conclusion that that seller-charterer had contributed to the risk that the pollution caused by the shipwreck would occur, in particular if he had failed to take measures to prevent such an incident, such as measures concerning the choice of ship; (b) if it happened that the cost of disposing of the waste produced by an accidental spillage of hydrocarbons at sea was not borne by the International Oil Pollution Compensation Fund, or could not be borne because the ceiling for compensation for that accident had been reached, and that, in accordance with the limitations and/or exemptions of liability laid down, the national law of a member state, including the law derived from international agreements, prevented that cost from being borne by the shipowner and/or the charterer, even though they were to be regarded as “holders” within the meaning of art 1(c) of Directive 75/442, such a national law would then, in order to ensure that art 15 was correctly transposed, have to make provision for that cost to be borne by the producer of the product from which the waste thus spread came. In accordance with the “polluter pays” principle, however, such a producer could not be liable to bear that cost unless he had contributed by his conduct to the risk that the pollution caused by the shipwreck would occur. |
