Source: All England Reporter
Publisher Citation: [2008] All ER (D) 308 (Jun)
Court: Court of Justice of the European Communities (Grand Chamber)
Judge:

Judges Timmermans (President of the Second Chamber, acting as President), Rosas, Lenaerts and Bay Larsen (Presidents of Chambers), Silva de Lapuerta, Schiemann, Kuris, Levits, O Caoimh, Lindh, Bonichot, von Danwitz and Toader (Rapporteur),

Judgment Dates: 24 June 2008

Catchwords

European Community - Environment - Ship-source pollution - Waste management - Concept of waste - 'Polluter pays' principle - Hydrocarbons and heavy fuel oil - Shipwreck - Whether heavy fuel oil might be classified as waste - Whether producer and/or seller of heavy fuel oil spilled at sea might be required to dispose of waste generated.

The Case

European Community Environment. A substance such as that at issue in the main proceedings, namely heavy fuel oil sold as a combustible fuel, did not constitute waste within the meaning of Council Directive (EEC) 75-442 (on waste), as amended by Commission Decision (EC) 96-350, where it was exploited or marketed on economically advantageous terms and was capable of actually being used as a fuel without requiring prior processing. 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, constituted waste within the meaning of art1(a) of Directive 75-442, as amended by Decision 96-350, where they were no longer capable of being exploited or marketed without prior processing. For the purposes of applying art15 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 might regard the seller of those hydrocarbons and charterer of the ship carrying them as a producer of that waste within the meaning of art1(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 art15 of that directive, if that court, in the light of the elements which it alone was in a position to assess, reached the conclusion that that 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; if it happened that the cost of disposing of the waste produced by an accidental spillage of hydrocarbons at sea was not borne by the International Oil Pollution Compensation Fund, or could not be borne because the ceiling for compensation for that accident had 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, prevented that cost from being borne by the shipowner and-or the charterer, even though they were to be regarded as 'holders' within the meaning of art1(c) of Directive 75-442, as amended by Decision 96-350, such a national law would then, in order to ensure that art15 of that directive was correctly transposed, have to make provision for that cost to be borne by the producer of the product from which the waste thus spread had come. In accordance with the 'polluter pays' principle, however, 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.

Practice Areas

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