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Commune de Mesquer v Total France, SA, Total International Ltd

DATE: 24 Jun 2008

On 24 June the European Court of Justice gave its judgment on a reference from the Cour de Cassation (France) in Commune de Mesquer v Total France, SA, Total International Ltd (Case C-188/07).

The Italian electricity production company ENEL entered into a contract for the supply of heavy fuel oil. The heavy fuel oil was to be used for electricity generation by ENEL in Italy. To fulfil the contract with ENEL, Total Raffinage Distribution (now Total France), sold a certain quantity of heavy fuel oils meeting the specifications of ENEL - which came from the Dunkirk refineries - to Total International Ltd, which chartered the ship m.v. Erika in order to transport it to the port of Milazzo in Sicily.

In 1999 the ship broke up off the coast of France which led to her cargo, namely several million tonnes of heavy fuel oil, being spilled into the sea. This led to the pollution of the French Atlantic coastline. It was France's worst ever oil disaster.

The ECJ held:

1.  A substance such as that at issue in the main proceedings, namely heavy fuel oil sold as a combustible fuel, does not constitute waste within the meaning of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Commission Decision 96/350/EC of 24 May 1996, where it is exploited or marketed on economically advantageous terms and is 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, constitute waste within the meaning of Article 1(a) of Directive 75/442, as amended by Decision 96/350, where they are no longer capable of being exploited or marketed without prior processing.

3. For the purposes of applying Article 15 of Directive 75/442, as amended by Decision 96/350, to the accidental spillage of hydrocarbons at sea causing pollution of the coastline of a Member State:

    • 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 Article 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 Article 15 of that directive, if that court, in the light of the elements which it alone is in a position to assess, reaches the conclusion that that seller-charterer contributed to the risk that the pollution caused by the shipwreck would occur, in particular if he failed to take measures to prevent such an incident, such as measures concerning the choice of ship;
    • if it happens that the cost of disposing of the waste produced by an accidental spillage of hydrocarbons at sea is not borne by the International Oil Pollution Compensation Fund, or cannot be borne because the ceiling for compensation for that accident has 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, prevents that cost from being borne by the shipowner and/or the charterer, even though they are to be regarded as 'holders' within the meaning of Article 1(c) of Directive 75/442, as amended by Decision 96/350, such a national law will then, in order to ensure that Article 15 of that directive is 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 cannot be liable to bear that cost unless he has contributed by his conduct to the risk that the pollution caused by the shipwreck will occur".

 James Maurici appeared for the United Kingdom as interveners.