Decision ID: 003530

In October 2008 the 1992 Fund Executive Committee noted that on 24 June 2008 the European Court of Justice (ECJ) had rendered a judgement in respect of three questions referred to it by the French Court of Cassation in a legal action brought by the Commune de Mesquer against Total SA before the French Courts in the context of the Erika incident. It was noted that the French Court of Cassation had referred the following three questions to the ECJ:

1. Whether the fuel oil transported as cargo on board the Erika was in fact a waste under European law.

2. Whether a cargo of fuel oil that accidentally escaped from a ship would, once it had been mixed with seawater and sediments, become waste under European law.

3. If the cargo on board the Erika was not a waste but become a waste after accidentally escaping from the ship, should the companies of the Total group be considered responsible for the waste under European law even though the cargo was being transported by a third party?

It was recalled that in March 2008 the Advocate General of the ECJ had delivered a legal opinion on these three questions stating, inter alia, that heavy fuel oil must be treated as a waste within the meaning of Directive 75/442/EEC on waste when it was discharged as a result of an incident and became mixed with water and sediments but that this provision of European law was compatible with the provisions of the 1992 Civil Liability and Fund Conventions. The Executive Committee noted the conclusions of the ECJ which could be summarised as follows:

1. The fuel oil transported on board the Erika did not constitute a waste within the meaning of Directive 75/442/EEC of 15 July 1975 on waste as amended by European Commission Decision 96/350/EC of 24 May 1996.

2. A cargo of fuel oil that accidentally escaped from a ship would, once it had been mixed with seawater and sediments, must be considered as a waste within the meaning of that Directive.

3. The European Community was not bound by the 1992 Conventions, since it had not ratified them. The Directive on waste did not contain any provision expressly stating that the Directive did not apply to an incident or activity in respect of which liability or compensation fell within the scope of these Conventions.

The national court may regard the seller of those hydrocarbons and charterer of the ship carrying them as a producer of that waste within the meaning of that Directive, and thereby as a ‘previous holder’ for the purposes of applying the Directive, if the court reached the conclusion that the 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.

The Directive on waste did not preclude the European Union Member States from laying down, pursuant to their relevant international commitments, such as the 1992 Civil Liability and Fund Conventions, that the shipowner and the charterer could be liable for the damage caused by the discharge of hydrocarbons at sea only up to maximum amounts. Neither did the Directive preclude either a compensation fund such as the IOPC Funds, with resources limited to a maximum amount for each incident, from assuming liability, pursuant to those international commitments, in place of the ‘holders’ within the meaning of the Directive, for the cost of disposal of the waste resulting from hydrocarbons accidentally spilled at sea.

If the cost of disposing of the waste produced by an accidental spillage of hydrocarbons at sea was not borne by the 1992 Fund and, 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 regarded as ‘holders’ within the meaning of that Directive, in order to ensure that the Directive is correctly transposed, such a national law would have to make provision for that cost to be borne by the producer of the product from which the waste came. In accordance with the ‘polluter pays’ principle, 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.

The Executive Committee noted the Director’s opinion that, although it might be too early to reach a conclusion on the possible consequences that the judgement by the ECJ could have for the 1992 Civil Liability and Fund Conventions, the judgement appeared to have taken into account all the relevant international commitments of the European Union Member States, including the 1992 Civil Liability and Fund Conventions, and that therefore it would appear that the judgement would not affect the applicability of these Conventions.