Decision ID: 003547

In March 2009 the 1992 Fund Executive Committee noted that in December 2008 the French Court of Cassation had rendered a decision in respect of an action brought by the Commune de Mesquer against Total SA before the French Courts in the context of the Erika incident in which it had been argued that the cargo on board the Erika was, under European law, a waste. It was recalled that the Court of Cassation had referred this question to the European Court of Justice (ECJ) for an opinion. It was also recalled that the ECJ had delivered its judgement in June 2008. The Executive Committee noted that in its decision the Court of Cassation had followed the opinion of the ECJ. It was noted that the Court of Cassation had quashed part of an earlier judgement of the Court of Appeal in Rennes in which the Court of Appeal, although it had considered as ‘waste’ the fuel oil spilled mixed with sand and water, had rejected the claim by the Commune de Mesquer on the grounds that Total SA could not be considered as a previous holder or producer of the waste within the meaning of Directive 75/442/EEC of 15 July 1975 on waste, as amended by Commission Decision 96/350/EC of 24 May 1996. It was noted that the Court of Cassation had concluded that fuel oil once spilled and mixed with sea water and sediments became a ‘waste’ under European law, that the seller of that fuel oil and and charterer of the ship carrying it could be regarded as ‘producer’ and as a ‘previous holder’ of that waste, if it was established that the seller/charterer had contributed to the risk that the pollution caused by the shipwreck would occur, and that under certain circumstances also the producer of the product from which the ‘waste’ came could be required to bear the cost of disposing of the ‘waste’ if it was established that he had contributed to the risk of pollution. It was further noted that the Court of Cassation had transferred the case to the Court of Appeal in Bordeaux for a decision on whether or not Total SA had contributed, by its conduct, to the risk that the pollution caused by the Erika incident would occur.