Decision ID: 003703

In June 2010 the 1992 Fund Executive Committee noted a judgement rendered in March 2010 by the Court of Cassation in respect of a claim by a co-operative of salt producers in Guérande for commercial loss, costs incurred in a marketing campaign and additional costs as a result of the incident. The Committee recalled that the 1992 Fund had considered that production of salt had been possible in 2000, and that since the co-operative had had a stock of salt available sufficient to maintain sales in 2000, the claim was inadmissible. The Committee also recalled that the Civil Court in Saint Nazaire, in a judgement rendered in May 2007, had stated that the 1992 Fund’s admissibility criteria were not binding on national courts. It was recalled that the Court had stated that it was not the co-operative but the salt producers that actually produced salt, that the co-operative could not claim for loss of production but for loss of sales and that it was for the co-operative to prove that it had suffered a loss of profit as a result of the pollution. It was also recalled that the Civil Court had considered that the co-operative had had sufficient stock to be able to maintain sales at the normal level, even in the absence of production in 2000, that therefore it had not demonstrated that it had suffered a commercial loss and that for this reason the claim item had been rejected. It was recalled that as regards the claim for costs incurred in a marketing campaign, the Civil Court had held that the co-operative’s decision to inform the public that it had a substantial stock of salt available for sale and to run a marketing campaign to inform and reassure consumers had been a reasonable measure to mitigate loss, which had been effective, and that the Court had awarded the co-operative some of the costs. It was also recalled that as regards additional costs the Civil Court had accepted costs incurred in minimising pollution damage (monitoring booms, filtration devices and water analyses), but had rejected costs relating to the time spent by salt producers in defending their interests and co-ordinating their activities, which were not directly linked to the Erika incident. It was noted that the both claimant and the 1992 Fund had appealed against the judgement. The Executive Committee recalled that in its judgement rendered in June 2008 the Court of Appeal had considered that the commercial losses suffered by the co-operative were only due to its decision to put a quota on its sales in order to preserve its stock and that the available stock had been sufficient to maintain the level of sales for at least two years. It was recalled that the Court of Appeal had considered therefore that the commercial losses suffered by the co-operative were a consequence of the sales quotas self-imposed by the co-operative, which had been an administrative decision and not a direct consequence of the Erika incident. It was also recalled that the Court had concluded that the claimant had not shown that there was a sufficiently close link of causation between the commercial losses and the pollution and had therefore rejected the claim. The Committee noted that, as regards the claim for costs incurred in a marketing campaign, the Court of Appeal had referred to the 1992 Fund’s Claims Manual which established that, in order to be admissible for compensation, a claim for the costs of marketing campaigns must be related to measures addressed to prevent or minimise losses that, if suffered, would have themselves been admissible for compensation under the 1992 Civil Liability and Fund Conventions. It was recalled that the Court had considered that since the commercial losses claimed were not admissible for compensation under the 1992 Conventions, it followed that the costs of the marketing campaign aimed at minimising these losses were not admissible either. It was further recalled that the Court had considered that the marketing costs claimed formed part of the regular budget apportioned for marketing purposes and that for these reasons the Court of Appeal had rejected the claim for costs incurred in the marketing campaign as well as the other additional costs claimed by the co-operative. The Executive Committee noted that, following an appeal by the claimant, the Court of Cassation had rejected the appeal in respect of commercial losses and costs incurred in the marketing campaign, confirming the decision by the Court of Appeal. It was noted that the Court of Cassation had however quashed the decision by the Court of Appeal in relation to the additional costs incurred by the claimant, since it was of the opinion that the Court of Appeal had failed to notice that those additional costs were related to pollution prevention measures, and that the Court of Cassation had sent the case back to the Court of Appeal for decision on that point.