On 13 March 2008 Advocate-General Kokott gave her opinion in the preliminary ruling 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 (click here for more information). It was France’s worst ever oil disaster.
The Advocate-General has proposed the following answers to the questions referred:
1. Heavy fuel oil, as the product of a refining process, meeting the user’s specifications and intended by the producer to be sold as a combustible fuel, and referred to in Directive 68/414/EEC of 20 December 1968 imposing an obligation on Member States of the EEC to maintain minimum stocks of crude oil and/or petroleum products, cannot as such be treated as waste within the meaning of Article 1 of Council Directive 75/442/EEC of 15 July 1975 on waste.
2. Heavy fuel oil is to be treated as waste for the purposes of Directive 75/442 if it is discharged in a tanker accident and is mixed with water and sediment.
3. The producer of heavy fuel oil and/or the seller and carrier may be ordered under Article 15 of Directive 75/442 to bear the cost of disposing of oil waste following a shipping accident if they can be accused of contributing personally to causing the leak of the heavy fuel oil. However, it is also compatible with that provision to limit the liability of the producer of heavy fuel oil and/or the seller and carrier in accordance with the International Convention of 29 November 1969 on Civil Liability for Oil Pollution Damage, as amended by the Protocol of 1992, and the 1971 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, as amended by the Protocol of 1992.
James Maurici is appearing for the United Kingdom as interveners.