In Commune de Mesquer v Total France SA and another (Case C-188/07) – Butterworths Law Direct 24.6.08 the European Court of Justice heard an issue arising out of the incident on 12th December 1999, when the oil tanker Erika, chartered by Total International Ltd, sank about 35 nautical miles south-west of the Pointe de Penmarc'h (France), spilling part of her cargo and oil from her bunkers at sea and causing pollution of the Atlantic coast of France. An Italian company, ENEL, concluded a contract with Total International Ltd for the delivery of heavy fuel oil intended to be used as fuel for electricity production. In order to carry out the contract, Total France SA sold the heavy fuel oil to Total International Ltd, which chartered the vessel Erika to carry it from France to Italy. On 9th June 2000, the Commune de Mesquer brought proceedings against the Total companies in the commercial court, seeking, inter alia, a ruling that the companies should be liable for the consequences of the damage caused by the waste spread on the territory of the municipality and be ordered jointly and severally to pay the costs incurred by the municipality for cleaning and anti-pollution measures. The action was unsuccessful. The Commune de Mesquer appealed to the Court of Appeal which confirmed the decision at first instance, taking the view that the heavy fuel oil did not, in the instant case, constitute waste but was a combustible material for energy production manufactured for a specific use. The municipality appealed on a point of law to the Cour de Cassation. Since it considered that the case raised a serious problem of interpretation of Council Directive (EEC) 75/442 (on waste), as amended by Commission Decision (EC) 96/350, the Cour de Cassation decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling.
The ECJ held:-
(1) On the issue as to whether heavy fuel oil sold as a combustible fuel might be classified as waste within the meaning of art 1(a) of Directive 75/442: that a substance such as that at issue in the main proceedings, namely heavy fuel oil sold as a combustible fuel, did not constitute waste within the meaning ofDirective (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) On the issue as to whether heavy fuel oil that was accidentally spilled into the sea following a shipwreck had in such circumstances to be classified as waste within the meaning of category Q4 in Annex I to Directive 75/442: that 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, as amended by Decision 96/350, where they were no longer capable of being exploited or marketed without prior processing.
(3) On the issue as to whether, in the event of the sinking of an oil tanker, the producer of the heavy fuel oil spilled at sea and/or the seller of the fuel and charterer of the ship carrying the fuel might be required to bear the cost of disposing of the waste thus generated, even though the substance spilled at sea was transported by a third party, in the instant case a carrier by sea: that the national court might regard the seller of those hydrocarbons and the charterer of the ship carrying them as a producer of that waste within the meaning of art 1(b) of Directive 75/442, as amended by Decision 96/350, and thereby as a 'previous holder' for the purposes of applying the first part of the second indent of art 15 of that directive, 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. It emphasised that if the cost of disposing of the waste produced by an accidental spillage of hydrocarbons at sea was not, or could not be, borne by the International Oil Pollution Compensation Fund, and the national law of a member state prevented that cost from being borne by the shipowner and/or the charterer, such a national law would then, in order to ensure that art 15 of that directive 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 had come. It therefore emphasised that the obligation of a member state to take all the measures necessary to achieve the result prescribed by a directive was a binding obligation imposed by the third paragraph of art 249 EC and by Directive 75/442.