EU Advocate General Issues Opinion on 'Polluter Pays'

March 19, 2008 // Published as a news service by IHS

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The advocate general for the European Union (EU) issued an opinion on March 17 regarding the "polluter-pays" principle in EU waste law.

According to Juliane Kokott, this principle can justify liability for pollution damage caused by a heavy fuel oil discharge, but it is also compatible with this principle to exclude from liability those who did not cause such oil pollution either intentionally or recklessly.

The case in point involved the Breton (France) community of Mesquer, which brought an action against the Total Group seeking repayment of the costs incurred when it had to clean its beaches of the oil spills caused by the sinking of Total's tanker Erika in 1999.

In order to give a ruling on the conditions of liability under European Community waste law, the French Cour de Cassation called upon the European Court of Justice for an interpretation of the relevant provisions.^[1]

The referring court sought to determine whether discharged heavy fuel oil falls within the meaning of waste for the purposes of European Community law and whether those involved in producing, selling or carrying the heavy fuel oil, without actually transporting it, are also liable for disposing of the pollution damage caused.

In the opinion, Kokott concluded that heavy fuel oil is to be treated as waste for the purposes of European Community law if it is discharged in a tanker accident and is mixed with water and sediment.

In accordance with the EU's Waste Framework Directive, the financial burden of the disposal operations should be on the persons who cause the waste, whether they are holders or former holders of the waste or even producers of the product from which the waste came.

If the responsibility for costs on the part of the Total companies, as the producer of heavy fuel oil and/or the seller and carrier, were to be assessed solely on the basis of the Waste Framework Directive, the companies would have to be ordered to bear the cost of disposing of the oil waste following the tanker accident in so far as they can be accused of contributing personally to causing the leak of the heavy fuel oil.

However, French law might preclude liability on the part of the Total companies. In that respect, Kokott analysed the effects that the international agreements binding on France have on liability under the Waste Framework Directive.

Kokott pointed out that the international liability convention^[2] precludes any claim for compensation in France against anyone other than the owner of the ship, unless the damage was caused intentionally or recklessly. That exclusion from liability is a permissible way of making full use of the scope granted to the member states in relation to the implementation of the polluter-pays principle.

In addition, Kokott found it compatible with the polluter-pays principle that the liability of both the ship's owner and the International Fund for Compensation for Oil Pollution Damage^[3] is limited.

Kokott said it is justified to apportion to the general public a causal contribution for oil accidents and some of the risk, since the contracting states to that convention - which include almost all of the EU member states - permit risky maritime oil transportation and accept the risk of having to bear further costs. If oil damage exceeds the limits of the liability of the ship's owner and of the fund, the costs cannot really be afforded by private funds.

Kokott concluded that it is compatible with the polluter-pays principle to limit the liability of the producer of heavy fuel oil and/or the seller and carrier in accordance with the liability convention and the fund convention.

The opinion of the EU's advocate general is not binding on the European Court of Justice. Rather, its role is to propose a legal solution to the cases for which it is responsible. The judges of the European Court of Justice can now begin their deliberations in this case, and judgment will be given at a later date.

The full text of the opinion may be found on the court's web site at
http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=rechercher&numaff=C-188/07.

^[1] Council directive 75/442/EEC of July 15, 1975 on waste (OJ 1975 L 194, p. 39), amended by EC decision 96/350/EC of May 24, 1996 (OJ 1996 L 135, p. 32).

^[2]International convention of Nov. 29, 1969 on Civil Liability for Oil Pollution Damage.

^[3]International convention of Dec. 18, 1971 on the establishment of an International Fund for Compensation for Oil Pollution Damage.

Source: European Commission.