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Cite as: [2008] EUECJ C-188/7_O, [2008] EUECJ C-188/07_O

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OPINION OF ADVOCATE GENERAL

KOKOTT

13 March 2008 ¹(1)

Case C-188/07

Commune de Mesquer

Total France SA

and

Total International Ltd

(Reference for a preliminary ruling from the Cour de Cassation (France))

(Directive 75/442 on waste Concept of waste Hydrocarbons and heavy fuel oil Holder of waste Polluter-pays principle International Convention on Civil Liability for Oil Pollution Damage)

I Introduction

This reference for a preliminary ruling from the Cour de Cassation (Court of Cassation) results from the accident involving the tanker Erika off the Brittany coast in 1999. The heavy fuel oil spilled in the accident polluted amongst other things beaches in the Commune of Mesquer ('Mesquer'), which is now claiming damages from undertakings in the Total Group.

Reference has therefore been made to the Court of Justice on questions relating to the interpretation of Council Directive 75/442/EEC of 15 July 1975 on waste (2) ('the Waste Framework Directive'). First of all it must be clarified whether heavy fuel oil as such can be treated as waste or became waste as a result of the accident. It is also asked whether the undertakings in the Total Group must bear the cost of disposing of the oil pollution because they produced the spilled heavy fuel oil and arranged its transportation in the tanker.

In this connection it should be borne in mind that France is party to the International Convention of 29 November 1969 on Civil Liability for Oil Pollution Damage,(3) as amended by the Protocol of 1992 (4) ('the Liability Convention'), and to the 1971 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, as amended by the Protocol of 1992 (5) ('the Fund Convention').

II Legal framework

A Relevant international law

At the level of international law, the Liability Convention is of relevance to the present case. That Convention has been ratified by, among others, 24 Member States, but not by the Community. (6)

Article III of the Liability Convention contains the provisions relating to liability for oil pollution at sea:

'1. Except as provided in paragraphs 2 and 3 of this Article, the owner of a ship at the time of an incident, or, where the incident consists of a series of occurrences, at the time of the first such occurrence, shall be liable for any pollution damage caused by the ship as a result of the incident.

2. No liability for pollution damage shall attach to the owner if he proves that the damage:

(a) resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character, or

(b) was wholly caused by an act or omission done with intent to cause damage by a third party, or

(c) was wholly caused by the negligence or other wrongful act of any Government or other authority responsible for the maintenance of lights or other navigational aids in the exercise of that function.

3. If the owner proves that the pollution damage resulted wholly or partially either from an act or omission done with intent to cause damage by the person who suffered the damage or from the negligence of that person, the owner may be exonerated wholly or partially from his liability to such person.

4. No claim for compensation for pollution damage may be made against the owner otherwise than in accordance with this Convention. Subject to paragraph 5 of this Article, no claim for compensation for pollution damage under this Convention or otherwise may be made against:

(a) the servants or agents of the owner or the members of the crew;

(b) the pilot or any other person who, without being a member of the crew, performs services for the ship;

(d) any person performing salvage operations with the consent of the owner or on the instructions of a competent public authority;

(e) any person taking preventive measures;

(f ) all servants or agents of persons mentioned in subparagraphs (c), (d) and (e),

unless the damage resulted from their personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.

5. Nothing in this Convention shall prejudice any right of recourse of the owner against third parties.'

Under Article V of the Liability Convention, the liability on the part of the owner is limited, at least if it is not proved that the pollution damage resulted from his personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.

At the relevant time, that liability limit under Article V(1) was, depending on the size of the ship, between 3 million units of account and 59.7 million units of account. Under Article V(9) a unit of account is a Special Drawing Right as defined by the International Monetary Fund; on 13 December 1999, immediately after the accident, it was EUR 1.357120. (7) In the case of the Erika the owner's liability was limited to around EUR 13 million. (8)

The Liability Convention is supplemented by the Fund Convention. That Convention has been ratified by among others 23 Member States, but not by the Community. (9)

Under Article 2 of the Fund Convention, the International Oil Pollution Compensation Fund (hereinafter also referred to as 'the Fund') created by the Convention provides compensation for oil pollution damage to the extent that the protection afforded by the Liability Convention is inadequate. At the relevant time the liability coverage under the Fund was limited to 135 million units of account. In the case of the Erika, this gave a sum of around EUR 185 million. (10)

Under Article 28(4), the Fund Convention is open only to States which have ratified, accepted, approved or acceded to the Liability Convention.

In addition, Article 235(3) of the United Nations Convention on the Law of the Sea, signed at Montego Bay on 10 December 1982, (11) ('the Law of the Sea Convention') requires States to cooperate with regard to liability for pollution of the marine environment:

'With the objective of assuring prompt and adequate compensation in respect of all damage caused by pollution of the marine environment, States shall cooperate in the implementation of existing international law and the further development of international law relating to responsibility and liability for the assessment of and compensation for damage and the settlement of related disputes, as well as, where appropriate, development of criteria and procedures for payment of adequate compensation, such as compulsory insurance or compensation funds'.

B European Community law

1. The Waste Framework Directive

Article 1 of the Waste Framework Directive defines inter alia waste, producers of waste and holders of waste:

'For the purposes of this Directive:

(a) 'waste' shall mean any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard;

...

(b) 'producer' shall mean anyone whose activities produce waste ('original producer') and/or anyone who carries out pre'processing, mixing or other operations resulting in a change in the nature or composition of this waste;

(d) ...'

Annex I defines various categories of waste, including the following two:

'Q4 Materials spilled, lost or having undergone other mishap, including any materials, equipment, etc., contaminated as a result of the mishap',

and

'Q15 Contaminated materials, substances or products resulting from remedial action with respect to land'.

Article 15 of the Waste Framework Directive lays down rules governing responsibility for the cost of disposing of waste:

'In accordance with the 'polluter pays' principle, the cost of disposing of waste must be borne by

the holder who has waste handled by a waste collector or by an undertaking as referred to in Article 9; and/or

the previous holders or the producer of the product from which the waste came.'

2. Directive 68/414/EEC on strategic resources to which a stock-holding obligation attaches

Article 1 of 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 (12) obliges the Member States to maintain their stocks of petroleum products at a level corresponding to 90 days' internal consumption. Under the third indent of Article 2 that obligation includes fuel oils.

3. Decision 2004/246/EC on the Fund Convention

The Community's position on the Liability Convention is illustrated in the fourth recital and in Article 4 of Council Decision 2004/246/EC of 2 March 2004 authorising the Member States to sign, ratify or accede to, in the interest of the European Community, the Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992, and authorising Austria and Luxembourg, in the interest of the European Community, to accede to the underlying instruments.(13)

Article 1 of the Decision authorises the Member States to conclude a measure supplementary to the Fund Convention. Some Member States are permitted in this connection to take part in the Fund Convention and the Liability Convention:

'1. The Member States are hereby authorised to sign, ratify or accede to, in the interest of the European Community, the Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992, (the Supplementary Fund Protocol) subject to the conditions set out in the following Articles.

2. Furthermore, the Czech Republic, Estonia, Luxembourg, Hungary, Austria and Slovakia are hereby authorised to accede to the underlying instruments.

3. The text of the Supplementary Fund Protocol is attached in Annex I to this Decision. The text of the underlying instruments is attached in Annexes II and III to this Decision.

4. In this Decision, the term 'underlying instruments' shall mean the Protocol of 1992 to amend the International Convention on Civil Liability for Oil Pollution Damage, 1969 and the Protocol of 1992 to amend the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971.

5. In this Decision, 'Member State' means all the Member States with the exception of Denmark.'

Article 2 urges the Member States to accede to the Supplementary Fund Protocol as soon as possible or, in the case of the States mentioned in Article 1(2), to that Protocol and the underlying instruments.

The fourth recital in the preamble states:

'Pursuant to the Supplementary Fund Protocol, only sovereign States may be party to it; it is not therefore possible for the Community to ratify or accede to the Protocol, nor is there a prospect that it will be able to do so in the near future.'

Article 4 therefore calls on the Member States to work towards allowing accession by the Community:

'Member States shall, at the earliest opportunity, use their best endeavours to ensure that the Supplementary Fund Protocol, and the underlying instruments, are amended in order to allow the Community to become a Contracting Party to them.'

That Council Decision became necessary, according to the second and third recitals in the preamble, because rules of the Supplementary Fund Protocol affect Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (14) and fall within the exclusive competence of the Community.

III Facts, main proceedings and reference for a preliminary ruling

The Italian electricity production company ENEL agreed a contract with Total International Ltd for the supply of heavy fuel oil to Italy. The heavy fuel oil was to be used as combustible fuel in a power station for electricity production.

Heavy fuel oil is created when crude oil is refined. Lighter elements of crude oil which pass into a gaseous state at low temperatures are processed into petrol or heating oil, for example. Heavy fuel oil, on the other hand, is viscous at normal temperatures and must be warmed for it to become liquid.

To fulfil the contract with ENEL, Total Raffinage Distribution, now Total France, sold a certain quantity of heavy fuel oil to Total International Ltd, which chartered the tanker Erika to transport it to the port of Milazzo in Sicily. The ship sank on 11 and 12 December 1999. Some of its cargo was spilled into the sea and polluted stretches of the French Atlantic coastline, including areas of Mesquer.

The Commune adopted an order putting the Total companies on formal notice to dispose of the waste from the ship. However, it also incurred expenditure in respect of the operations for cleansing the Commune's territory and removing the pollution. It brought an action against Total France and Total International Ltd ('Total') for payment of those costs.

The proceedings are now pending before the Cour de Cassation, which refers the following questions to the Court of Justice for a preliminary ruling:

1. Can 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 as amended by Directive 98/93/EC of 14 December 1998 relating to strategic resources to which a stock-holding obligation attaches, be treated as waste within the meaning of Article 1 of Directive 75/442/EEC of 15 July 1975 as amended by Directive 91/156/EEC of 18 March 1991 and codified by Directive 2006/12/EC?

2. Does a cargo of heavy fuel oil, transported by a ship and accidentally spilled into the sea, constitute either in itself or on account of being mixed with water and sediment waste falling within Category Q4 in Annex I to Directive 2006/12?

3. Where the first question is answered in the negative and the second in the affirmative, can the producer of heavy fuel oil (Total Raffinage) and/or the seller and carrier (Total International Ltd) be regarded as the producer and/or holder of waste within the meaning of Article 1(b) and (c) of Directive 2006/12 and for the purposes of applying Article 15 of that Directive, even though at the time of the accident which transformed it into waste the product was being transported by a third party?

During the proceedings before the Court of Justice, on 16 January 2008 the Tribunal de grande instance de Paris (Regional Court, Paris) ordered various persons, including different companies in the Total Group, to pay fines as a result of the Erika accident. Under that judgment, those convicted had to pay damages amounting to around EUR 192 million to various civil parties to the proceedings. In calculating the damages, the payments under the International Oil Pollution Compensation Fund were taken into account. (15) Mesquer is to be awarded EUR 500 000 in compensation for damage to its reputation. (16) On the other hand, the Tribunal de grande instance rejected as unsubstantiated a claim for EUR 67 181.78 in compensation for damage not covered by the Fund. (17) The fault on the part of Total S.A. was based on the selection and inspection of the Erika for transportation of heavy fuel oil. (18) According to the press reports, Total, amongst others, has appealed against that decision.

Mesquer, Total, the Kingdom of Belgium, the French Republic, the Italian Republic, the United Kingdom and the Commission submitted written observations pursuant to Article 23 of the Statute of the Court of Justice. Apart from Belgium and Italy, they also took part in the hearing on 22 January 2008.

IV Legal assessment

It should first be pointed out that the consolidated version of the Waste Framework Directive also mentioned in the order for reference does not apply to events from 1999, but the version that was applicable at that time. (19)

A Admissibility of the reference for a preliminary ruling

Total considers the reference for a preliminary ruling to be hypothetical since Mesquer has already been compensated in full and there is therefore no legal interest in bringing proceedings in the main action. Furthermore, on receipt of the payment Mesquer waived all further claims in relation to the damage.

With this plea Total relies on the fact that in exceptional circumstances it is for the Court to examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction. (20) The Court has consistently held that it is possible to refuse a request by a national court only where it is quite obvious that the interpretation of Community law sought bears no relation to the actual facts of the main action or its purpose or where the problem is hypothetical and the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (21) With the exception of these cases, the Court of Justice is in principle bound to give a ruling on questions concerning the interpretation of provisions of Community law. (22)

Unlike, for example, questions of Community law which may make a reference for a preliminary ruling appear to be hypothetical wholly or in part, the question whether there is a legal interest in bringing proceedings in the main action may be examined in principle only by the national court. In the context of preliminary ruling proceedings before the Court of Justice, particularly high requirements must therefore be imposed on pleas raised against the result of that examination.

With this in mind, Total's arguments do not call into question the admissibility of the reference for a preliminary ruling. Mesquer is claiming not only payments which it has allegedly already received, but is also seeking a declaration that Total is liable in principle to pay damages. Such a declaration would also cover damage which did not occur until the future.

Only a national court can assess the effect of the waiver of further claims asserted by Total. Since the alleged waiver must have been known to the referring court, it must be assumed that it did not preclude the action.

Doubts as to the admissibility of the action before the national court could also be linked to the fact that the Tribunal de grande instance has given a ruling on Mesquer's claims against other companies in the Total Group in connection with the accident. However, the question whether this constitutes a procedural bar for the present proceedings on account of lis alibi pendens cannot be decided by the Court of Justice, but only by the competent national court.

It cannot therefore be stated that the main proceedings or the reference for a preliminary ruling are hypothetical in nature. Consequently, the reference for a preliminary ruling is admissible.

B The first question Nature of heavy fuel oil as waste

With the first question the referring court seeks to ascertain whether 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 the directive relating to strategic resources to which a stock-holding obligation attaches, (23) can be treated as waste within the meaning of Article 1 of the Waste Framework Directive.

First of all, it should be pointed out that no further consideration can be given to Mesquer's argument that heavy fuel oil is a substance with a different lower quality than previously assumed, that is to say highly toxic production residues with different viscosity values than those prescribed. It is not for the Court of Justice to clarify the facts in preliminary ruling proceedings. (24) The referring court, the Cour de Cassation, as the court of appeal, may also be prevented from clarifying the facts further. Since the reference for a preliminary ruling relates to heavy fuel oil which meets the buyer's specifications, this assumption must therefore be taken as the basis for any further consideration.

Under Article 1(a) of the Waste Framework Directive the concept of 'waste' covers any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard.

That annex and the European Waste Catalogue clarify and illustrate that definition by providing lists of substances and objects which may be classified as waste. However, the annex and the European Waste Catalogue are only intended as guidance, in particular as the annex includes category Q16 'any materials, substances or products which are not contained in the above categories'. (25)

The crucial factor is whether the holder discards or intends or is required to discard an item. (26) The concept of 'waste' within the meaning of the Waste Framework Directive cannot be interpreted restrictively. (27)

The first question therefore seeks to clarify whether the holder discarded or intended or was required to discard the heavy fuel oil when it was still in the tanker. Transportation of a substance in a tanker is per se neither part of the discarding process nor evidence thereof. There is therefore no question of a completed discarding operation.

An obligation to discard (28) could exist where the substance in question is not available for any lawful use. In the case of heavy fuel oil this is conceivable where the requirements laid down in Council Directive 1999/32/EC of 26 April 1999 relating to a reduction in the sulphur content of certain liquid fuels and amending Directive 93/12/EEC (29) cannot be complied with. At the time in question, December 1999, however, no relevant Community rules were applicable and, moreover, that scenario would appear to be ruled out where as presumed in the reference for a preliminary ruling the heavy fuel oil meets the buyer's specifications.

Consequently, it must be examined whether the holder intended to discard the heavy fuel oil. The Waste Framework Directive does not provide any decisive criteria for determining the intention of the holder to discard a given substance or object. Nevertheless, the Court, which has been asked on a number of occasions for preliminary rulings on whether various substances are to be regarded as waste, has provided a number of indicators from which it may be possible to infer the holder's intent. (30) This must be determined in the light of all the circumstances, regard being had to the aim of the directive and the need to ensure that its effectiveness is not undermined. (31)

Mesquer bases its position that heavy fuel oil is waste on the assumption that it is a production residue. A production residue is a product which is not itself wanted for subsequent use. (32) If the holder cannot economically re-use that product without prior processing, it is a burden which the holder seeks to discard and is therefore essentially waste. (33)

Like the other parties, however, I am not convinced that heavy fuel oil, at least in the circumstances of the present case, is actually a production residue. In fact, it is a product. Heavy fuel oil is inevitably produced when crude oil is refined, as the United Kingdom states; however, that is also true of most other fractions that are produced by the refining of crude oil.

This is confirmed by the Reference Document on Best Available Techniques for Mineral Oil and Gas Refineries. (34) The Commission produced that document in collaboration with experts from the Member States on the basis of the directive concerning integrated pollution prevention and control. (35) According to the document, refineries convert natural raw materials such as crude oil and natural gas into useful saleable products, in particular fuels for the transport sector, combustion fuels for the generation of heat and power for industry and households, raw materials for the chemical industry, speciality products such as lubricating oils, paraffins/waxes and bitumen, and energy as a by-product in the form of steam and electricity.

Accordingly, the Reference Document does not classify heavy fuel oil as typical refinery waste. (36) Nor does it mention reducing the production of heavy fuel oil as an aim of the best available techniques within the meaning of the directive concerning integrated pollution prevention and control.

Heavy fuel oil must be classified as a product especially where it meets the user's specifications, as in the present case according to the question referred. Then it is the result of a technical choice and is a product which is wanted for subsequent use. (37) The requirements relating to such a technical choice should not be too high since many production processes give rise to the parallel production of products, which are not all equally attractive for producers, but are nevertheless wanted in the context of a production process which is as integrated and efficient as possible.

In accordance with the nature of a fuel, the planned combustion also cannot be regarded as a discarding process which might suggest an intention to discard. (38) Rather it is used mainly for the same purposes as other substances which are indisputably to be regarded as products. (39)

A fuel like heavy fuel oil is not therefore in principle a production residue from refining, but a wanted product.

This finding also confirms the fact that heavy fuel oil is covered for the purposes of the question referred by Directive 68/414 on strategic resources to which a stock-holding obligation attaches. The assumption of an intention to discard is not apparent where the Member States are required to maintain sufficient stocks of heavy fuel oil. (40) Rather that stock-holding obligation suggests that it is certain that heavy fuel oil that is produced will be used, which militates against its classification as waste. (41)

Contrary to the view taken by Mesquer, this assessment is also not called into question by the particular environmental risks emanating from heavy fuel oil and its use. The Court of Justice has recognised such risks as an indication of an intention to discard, but this has a secondary role compared with other evidence. (42) Many products have characteristics which harm the environment or may threaten the environment at least in the context of their use. However, those risks do not necessitate the application of the law on waste, but must be covered by specific rules on such products and/or their use.

A production residue is much more likely to exist, on the other hand, where a potential fuel results from a production process which is essentially geared to a different product. For example, the Court regarded 'LUWA-bottoms', which are obtained from a 'flow of hydrocarbons' (not further specified), as a production residue in the manufacture of propylene oxide and tertiary butyl alcohol.(43)

Refinery heavy fuel oil, on the other hand, could be regarded as a production residue only if, on account of special circumstances, e.g. insufficient demand or regulatory measures, it were to be regarded as a burden which the holder intends or is even required to discard. In such a situation, for which there is no clear evidence in the present case, its nature as waste could be ruled out only if reuse was not a mere possibility but a certainty, without any further processing prior to reuse and as an integral part of the production process. (44)

This counter-exception was applied to the recovery of leftover stone for filling in within the same mining operation. In that case it is entitled in particular to draw a distinction vis-à -vis mining waste the recovery of which in other areas is a mere possibility but not a certainty. (45)

However, the counter-exception should not be construed exhaustively, in particular regarding the characteristic of the continuing process of production. There could be doubts as to a continuing process in the present case since the heavy fuel oil is first transported for a considerable distance prior to recovery. If, however, the recovery of a production residue without any further processing is a certainty and is economically advantageous to the producer, it can also be ruled out that that residue constitutes a burden which he intends to discard. (46)

In summary, the answer to the first question must therefore be that 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 on strategic resources to which a stock-holding obligation attaches, cannot as such be treated as waste within the meaning of Article 1 of the Waste Framework Directive.

C The second question Nature of the leaked fuel oil as waste

With the second question the Cour de Cassation is seeking to ascertain whether a cargo of heavy fuel oil, transported by a ship and accidentally leaked into the sea, constitutes either through that leak or on account of being mixed with water and sediment waste falling within Category Q4 in Annex I to the Waste Framework Directive.

Belgium and probably also Total take the view that the application of the Waste Framework Directive is precluded by the Liability Convention. Under Article III(4) of that Convention, no claim for compensation for pollution damage may be made against the owner or other persons otherwise than in accordance with the Convention.

Nevertheless, the Liability Convention is irrelevant to the second question because it does not contain any rules on whether oil products leaked in tanker accidents are waste. Instead the Convention must be examined below in the context of the third question because that question concerns responsibility under the law on waste and thus also liability.

Total also takes the view that the question whether the heavy fuel oil became waste through the leak is manifestly irrelevant to the main proceedings. The case concerns only heavy fuel oil which polluted the coastal areas of Mesquer. That part of the question does not therefore need to be answered.

This argument contradicts Total's submissions on the second part of the question, however. Total takes the view that the mixture of heavy fuel oil, water and sediment which polluted the coast is to be treated as waste only if there is an obligation to discard the heavy fuel oil. Such an obligation which relates to heavy fuel oil alone at its origin can only arise, however, if the heavy fuel oil became waste prior to being mixed.

Consequently, the first part of the question is perfectly relevant according to Total's own submissions and must be answered.

Total also takes a view which I have already held in a similar form, namely that the leaked substance should be considered together with the contaminated substance. (47) The matter would then hinge on whether the holder discards, intends to discard or is required to discard the mixture. This viewpoint may be reasonable under certain circumstances, in particular where the origin of the elements of a mixture can no longer be clarified.

The examination of the mixture is of no benefit, however, if as in the context of the third question in the present case responsibility for the generation of waste is to be ascertained. That responsibility is generally linked to the fate of the individual elements, in the present case heavy fuel oil, whilst the nature of the other elements as waste is the consequence of the pollution by the heavy fuel oil. It must therefore be examined whether the heavy fuel oil became waste.

Annex I to Directive 75/442, entitled 'Categories of waste', refers in heading Q4 to 'materials spilled, lost or having undergone other mishap, including any materials, equipment, etc., contaminated as a result of the mishap'. This merely indicates that such materials may be waste. However, it is not possible per se to classify as waste hydrocarbons which are spilled by accident and which cause contamination. (48) As has already been stated in connection with the first question, substances and objects are waste under Article 1(a)(1) of the Waste Framework Directive only if their holder discards, intends to discard or is required to discard them. (49)

The spillage of heavy fuel oil in a tanker accident does not characterise without further special indications either an intention to discard or an obligation to discard. It must be examined, however, whether the holder did discard as a result of the spillage of the heavy fuel oil.

In this respect, in Van de Walle the Court drew a parallel with the case-law on production residues. That case concerned hydrocarbons leaked from a service station's storage facilities into the surrounding ground.

The Court pointed out that a product which is not itself wanted for subsequent use and which the holder cannot economically re-use without prior processing must be considered to be a burden which the holder seeks to discard. (50)

It is clear, according to the Court, that accidentally spilled hydrocarbons which cause soil and groundwater contamination are (also) not a product which can be re-used without processing. Their marketing is very uncertain and, even if it were possible, implies preliminary operations that would be uneconomical for their holder. Those hydrocarbons are therefore substances which the holder did not intend to produce and which he discards, albeit involuntarily, at the time of distribution. (51)

As France, Italy, the United Kingdom and the Commission also argue, the same applies to heavy fuel oil which is discharged in a tanker accident and is mixed with water and sediment. Its usability is at least uncertain, if not completely ruled out. Thus the holder of the heavy fuel oil did discard it in the course of transportation, albeit involuntarily.

The Court also held in Van de Walle that the same classification as 'waste' applies to soil contaminated as the result of an accidental spill of hydrocarbons. In that case, the hydrocarbons cannot be separated from the land which they have contaminated and cannot be recovered or disposed of unless that land is also subject to the necessary decontamination. (52)

These considerations also apply in the present case. The heavy fuel oil can be treated on the basis of the law on waste only if the water mixed with it and the sediment were subject to the necessary treatment, either to separate the different elements or to be disposed of or recovered together.

The judgment in Van de Walle and Others has been criticised in legal literature, often because of its practical consequences. (53) In addition to arguments which were discussed or were less apparent in the judgment or at least in the Opinion, the objection has also been raised rightly that the sixth recital in the preamble to the Waste Framework Directive is not mentioned. (54) It states that 'effective and consistent regulations on waste disposal ... should be applied to movable property which the owner disposes of or is required to dispose of under the provisions of national law in force ...'.

However, that recital does not necessarily exclude immovable property from the scope of the Waste Framework Directive. At most it can be inferred that the directive is not aimed at immovable property in principle. It would however be contrary to the aim of effective and consistent regulations on waste disposal laid down in the same recital to preclude the application of the law on waste where movable property becomes immovable as a result of being mixed with the ground. Rather, waste must not be excluded from the scope of the law on waste in this way. (55)

Nevertheless the Council and Parliament are at present considering a proposal for the revision of the Waste Framework Directive, which provides inter alia that the directive does not apply to land (in situ) including unexcavated contaminated soil and buildings permanently connected with land. (56)

In view of the ongoing legislative procedure, the Court should not anticipate the legislature by calling into question its case-law on this point.

It should also be pointed out that Article 2(1)(b)(iv) of the Waste Framework Directive does not exclude oil waste from the scope of the directive. Under that provision, waste waters, with the exception of waste in liquid form, are excluded from the scope of the Waste Framework Directive where waste waters are already covered by other legislation. Oil waste does not constitute waste waters since it does not result from the use or consumption of water. In so far as it is (still) liquid at all, it is in fact liquid waste.

The answer to the second question must therefore be that heavy fuel oil is to be treated as waste for the purposes of the Waste Framework Directive if it is discharged in a tanker accident and is mixed with water and sediment.

D The third question Responsibility for costs in connection with the leaked heavy fuel oil

With the third question the Cour de Cassation is seeking to ascertain whether Total, as the producer of heavy fuel oil and/or the seller and carrier, can be regarded as the producer and/or holder of waste within the meaning of Article 1(b) and (c) of the Waste Framework Directive and for the purposes of applying Article 15 of that directive, even though at the time of the accident which transformed it into waste the product was being transported by a third party.

Article 15 of the Waste Framework Directive lays down rules governing responsibility for bearing the cost of disposing of waste. The reference to that provision shows that the third question is intended to ascertain whether companies in the Total Group have to bear the cost of disposing of the spilled heavy fuel oil.

1. The relationship between the Waste Framework Directive and the Liability Convention

Total and Belgium are opposed to the application of Article 15 of the Waste Framework Directive, since responsibility for costs in connection with oil pollution damage at sea is regulated definitively in the Liability Convention and in the Fund Convention. Liability for oil pollution damage is 'channelled' to the owner of the ship, whilst claims against others, in particular against a charterer like Total International Ltd, are precluded. In addition to the limited liability on the part of the owner of the ship, oil pollution damage is covered by an international fund under the Fund Convention up to a total liability sum defined therein. These rules take precedence over the application of Article 15 of the Waste Framework Directive in the present case.

The two conventions have been ratified by nearly all the Member States, but not by the Community. They do not therefore form part of Community law and thus contrary to the arguments made by Total at the hearing are not binding on the Community. (57) The Commission also rightly stated at the hearing that the two conventions are not binding on the Community as customary international law. (58) As a result, the Court cannot interpret the conventions in preliminary ruling proceedings. (59) It may, however, examine the extent to which, even though those conventions are not binding on the Community, they can preclude the application of Article 15 of the Waste Framework Directive.

Decision 2004/246

Total relies on Decision 2004/246 authorising the Member States to sign, ratify or accede to, in the interest of the European Community, the Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992, and authorising Austria and Luxembourg, in the interest of the European Community, to accede to the underlying instruments.

That decision can be construed as meaning that the Community has permitted the Member States to derogate from Community law in so far as this was necessary for accession to the Supplementary Protocol. The permitted derogations would then include the rules of the Liability Convention under Article 1(4) of Decision 2004/246.

In so far as the Liability Convention departs from the Waste Framework Directive, Decision 2004/246 should possibly have been based on the environmental competence under Article 175 of the Treaty. However, unless the decision is repealed or annulled, there is much evidence to suggest that at least the interested parties may rely on the applicability of a convention entered into by the Member State concerned which is approved by the Community.

Nevertheless, Decision 2004/246 was adopted only several years after the sinking of the Erika. On the other hand, the obligation to bear the cost of disposing of oil waste essentially arose when the accident occurred. Decision 2004/246 does not contain any indication that it is intended to cancel that obligation retroactively under certain circumstances. Since responsibility for costs is not a penalty, there is also no reason to assume that the principle of the most lenient penalty (60) runs counter to Article 15 of the Waste Framework Directive.

The legal situation at the time when the obligations under the law on waste arose is therefore crucial. As a result, Decision 2004/246 is irrelevant to the present case.

Directive 2004/35/EC

Total and Belgium also cite Directive 2004/35 on environmental liability (61) as an argument against the application of the Waste Framework Directive. Article 4(2) of that directive precludes its application to environmental damage or to any imminent threat of such damage arising from an incident in respect of which liability or compensation falls within the scope of the Liability Convention, which is in force in the Member State concerned.

It is possible that Directive 2004/35 clarifies Article 15 of the Waste Framework Directive and the exception contained therein for the Liability Convention might therefore also have repercussions on Article 15 of the Waste Framework Directive. The Court does not have to decide on this in the present case, however. Directive 2004/35 was adopted after the events at issue and had to be transposed by 30 April 2007. It does not apply to damage caused by an emission, event or incident that took place before that date.

Article 235 of the Law of the Sea Convention

At the hearing Total also relied on Article 235(3) of the Law of the Sea Convention. Under that provision, States must cooperate in the implementation and further development of international law with the objective of assuring prompt and adequate compensation in respect of all damage caused by pollution of the marine environment.

The Law of the Sea Convention forms an integral part of the Community legal order and is binding on the Community. (62) However, as France is perfectly right to argue, contrary to the view taken by Total, no binding effect vis-à -vis certain international conventions on liability for pollution damage can be inferred from Article 235(3) of the Law of the Sea Convention. It merely sets out the mandate to cooperate.

Article 307 EC

Lastly, the first paragraph of Article 307 EC does not mean that the provisions of the Liability Convention take precedence over Article 15 of the Waste Framework Directive. The Liability Convention was agreed with French participation on 1 January 1958 and ratified by France only after the establishment of the Community. The first paragraph of Article 307 EC is not therefore applicable according to its wording.

A mutatis mutandis application of the first paragraph of Article 307 EC does not lead to any other conclusion. It is conceivable where an international obligation on the part of a Member State conflicts with a subsequently agreed measure of secondary law. France appears to have deposited the instrument of ratification for the Liability Convention in its 1969 version on 11 March 1975, (63) whilst the original version of the Waste Framework Directive was not adopted by the Council until 15 July 1975.

Nevertheless, there is no need here to examine further whether a mutatis mutandis application of the first paragraph of Article 307 EC is possible in this situation. The Liability Convention in its original version could not preclude the application of Article 15 of the Waste Framework Directive in the present case. A possible conflict between the version of the 1992 Liability Convention applicable at the time and Article 15 could only stem from the fact that the Liability Convention largely precludes claims against the charterer of a tanker whilst under Article 15 the charterer might be required to bear the cost of disposing of oil waste. However, this exclusion from liability was not yet contained in the Liability Convention of 1969. It is a more recent international obligation imposed on France compared with Article 15 of the Waste Framework Directive.

The present Article 15 of the Waste Framework Directive stems from an amendment to the directive in 1991, but the original version of the Waste Framework Directive already contained an Article 11 which was substantively identical to Article 15.

There could be a different assessment of the limitation of the liability of the ship's owner since such a limitation was already laid down in Article V of the original version of the Liability Convention. In this respect the question could arise whether the adoption of the Waste Framework Directive which was immediately imminent when the Liability Convention was ratified precludes the mutatis mutandis application of the first paragraph of Article 307 EC. However, there is no need to examine this further here since the present proceedings do not concern the liability of the owner of the ship, but the liability of the owner of the cargo.

Consistent interpretation

Thus the Liability Convention and the Fund Convention do not preclude the application of Article 15 of the Waste Framework Directive on the basis of the considerations mentioned so far. However, the arguments presented illustrate a broad political consensus for liability for oil pollution damage to be regulated by the Liability Convention and the Fund Convention.

That consensus is confirmed first by the fact that the two conventions are ratified by nearly all the Member States and secondly by several non-binding Community instruments cited by Total which also state that oil pollution damage is subject to the conventions. These are the First Environmental Action Programme, (64) the Commission proposal for a Council directive on civil liability for damage caused by waste, (65) the Communication from the Commission to the European Parliament and the Council on the safety of the seaborne oil trade, (66) and answers to two Parliamentary questions given by the Commission. (67)

Furthermore, a departure by Community law from those conventions would encumber France and possibly other Member States with a conflict between their obligations under Community law and those under international law. The obligation of loyalty between the Community and the Member States requires such conflicts to be avoided where possible.

Lastly, the cooperation obligation imposed on the Community under Article 235(3) of the Law of the Sea Convention implies at least that the Community must give special consideration to the efforts made by the States. This is also consistent with the objective of Community policy on the environment under the fourth intent of Article 174(1) of the Treaty of promoting measures at international level to deal with environmental problems.

Article 15 of the Waste Framework Directive must therefore be interpreted as far as possible as meaning that conflicts with the Liability Convention and the Fund Convention must be avoided. (68)

2. The interpretation of Article 15 of the Waste Framework Directive

It must now be examined whether the two companies in the Total Group, as the producer of heavy fuel oil and/or the seller and carrier under Article 15 of the Waste Framework Directive, must bear the cost of disposing of the spilled heavy fuel oil.

The persons mentioned in Article 15 of the Waste Framework Directive

Article 15 of the Waste Framework Directive lays down rules governing responsibility for the cost of disposing of waste. Under the first indent, in accordance with the 'polluter pays' principle it is the responsibility of the holder who has waste handled by a waste collector or by an undertaking as referred to in Article 9. In addition, the second indent mentions the previous holders or the producer of the product from which the waste came.

In Van de Walle and Others the Court held that that provision imposes the financial burden of the disposal operations, in accordance with the principle of polluter pays, 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. (69)

It is therefore possible that Total France is responsible for the costs as producer of the heavy fuel oil, i.e. as producer of the product from which the waste came.

This can apply to Total International Ltd, on the other hand, only if it was the holder or at least the former holder of the oil waste.

Under Article 1(c) of the Waste Framework Directive holder means the producer of the waste or the natural or legal person who is in possession of it. According to the judgment in Van de Walle, the Waste Framework Directive therefore defines 'holder' broadly, without specifying whether the obligation to dispose of or recover waste is as a general rule a matter for the producer or the possessor of the waste. It is irrelevant for the purposes of possession whether he is the owner or the holder. (70)

It cannot be ruled out that during transportation Total International Ltd had actual physical control of the heavy fuel oil indirectly, represented by the transportation company and the crew. As a result of the accident, however, it lost any physical control at the point when the heavy fuel oil became waste. Total International Ltd thus never had physical control of the oil waste.

It is therefore possible that Total International Ltd is responsible for bearing the costs only if that company is to be regarded as the producer of the oil waste and was thus also the holder of the oil waste in accordance with Article 1(c) of the Waste Framework Directive.

Article 1(b) of the Waste Framework Directive defines producer as anyone whose activities produce waste (original producer) and/or anyone who carries out pre'processing, mixing or other operations resulting in a change in the nature or composition of this waste.

The question whether that definition applies to Total International Ltd as the Commission also argues depends on whether it influenced the generation of the oil waste in such a way that that event is to be attributed to its own personal activity. This is taken to be the case if the accident could be attributed to a disregard of Total International Ltd's contractual obligations or to any actions which could render that undertaking liable. (71) The extent to which Total International Ltd is therefore the producer of the oil waste can only be ascertained by the competent trial court, however.

The sentence pronounced on 16 January 2008, which has already been mentioned, also suggests that Total France may be regarded as the producer and holder of the waste on the basis of the same criteria in connection with the relevant factual findings. The Tribunal de grande instance found that Total International Ltd was not at fault for the sinking of the Erika, but another Total company, Total S.A., since that company had selected the ship and in doing so had not exercised due care. (72) It is for the competent national courts to examine whether the production of the waste can also be attributed to Total France.

It is thus possible that Total France is responsible for bearing the cost of disposing of the oil waste because it produced the heavy fuel oil, but also in the event that it produced the oil waste. Total International Ltd can be ordered to bear the cost only if it produced the oil waste.

Selection of the party responsible for bearing the costs under Article 15 of the Waste Framework Directive in accordance with the polluter-pays principle

The question also arises whether Total France and possibly Total International Ltd must bear the cost of disposing of the oil waste because they fall within the group of persons referred to in Article 15 of the Waste Framework Directive.

In fact, the Commission seems to take the view that all those referred to in Article 15 of the Waste Framework Directive may be required to bear the cost of disposing of waste. On the other hand, at the hearing the United Kingdom maintained that Article 15 of the Waste Framework Directive does not establish any rules on liability, in particular because there are no rules therein governing the selection of the party responsible for bearing the costs.

However, the Court has given a different interpretation to Article 15 of the Waste Framework Directive. The judgment in Van de Walle concerned fuel leaked from a service station which contaminated the surrounding land. The responsible party in principle was the manager of the service station, who had bought the fuel to meet the service station's operating needs, was therefore the holder and, for the purpose of his operations, had it in stock when it became waste within the meaning of Article 1(b) of Directive 75/442. (73) Only if exceptionally the poor condition of the service station's storage facilities and the leak of hydrocarbons could be attributed to a disregard of contractual obligations by the petroleum undertaking which supplied that service station, or to any actions which could render that undertaking liable, could that undertaking be responsible. Then the activities of that undertaking could be considered to have produced waste within the meaning of Article 1(b) of Directive 75/442 and it could accordingly be regarded as the holder of the waste. (74)

According to the Court, the cost is therefore to be borne by the person who produced the waste. (75) However, Article 15 designates only the group of those who may possibly be responsible for bearing the cost, from whom it is necessary to select the person who is to bear the costs, in accordance with the polluter-pays principle.

This interpretation of the polluter-pays principle, as a principle governing the apportionment of costs, is consistent with other language versions which unlike the German version do not use a notion of causality, but state that the polluter pays (polluter pays, pollueur-payeur). Accordingly, the Court has interpreted the polluter-pays principle as an expression of the proportionality principle, which requires the Member States and the Community legislature to refrain from imposing on anyone costs that are unnecessary having regard to the circumstances. (76) In the case at issue the question was whether agriculture could be called on to reduce nitrate discharges more than is commensurate with its proportion of the total amount. With regard to the law on waste, it can be inferred, first of all, that a person cannot bear the cost of disposing of waste which comes from others.

If a product becomes waste, the final holder is in principle the producer of the waste since he discards the product. As Total argues, responsibility for costs on the part of the producer of the product as is possible under Article 15 of the Waste Framework Directive would therefore seem to run counter to the polluter-pays principle.

Nevertheless, some rules on dealing with waste impose the cost of its disposal in principle on the producer of the product which became waste. In this connection the Commission refers to Directive 2006/66/EC of 6 September 2006 on batteries and accumulators and waste batteries and accumulators and repealing Directive 91/157/EEC, (77) Article 8 of which provides that producers of batteries and accumulators are to bear the costs of their disposal as waste. (78) In addition, under Article 15 of European Parliament and Council Directive 94/62/EC of 20 December 1994 on packaging and packaging waste (79) the Member States may impose the costs of disposal under the law on waste on the producer of the packaging. (80)

Those rules have their basis in the fact that Article 15 of the Waste Framework Directive, and in particular the polluter-pays principle referred to therein, do not constitute clear and definitive rules on responsibility for costs. The polluter-pays principle can and must be clarified further. This is a priority task for the legislature.

Courts must apply and if necessary interpret that clarification and possibly verify whether it respects the limits of the polluter-pays principle. That principle is the criterion for any national transposition of Article 15 of the Waste Framework Directive, but it is also binding on the Community legislature since it is laid down in Article 174(2) of the Treaty as the basis for environmental policy.

There is however a need to strike a balance between certain of the objectives and principles mentioned in Article 174. The implementation of those criteria is also complex. The review by the Court must therefore necessarily be limited to the question whether there was a manifest error of appraisal regarding the conditions for the application of Article 174 EC. (81)

Against this background, there can be no objection in principle to a decision by the Community legislature or by the national legislature to order the producer of a product from which waste came to bear the cost of its disposal. In the case of most products the producer must assume that they will become waste at some time when they are used as intended. By producing economic goods the producer therefore causes waste and is therefore also responsible in accordance with the polluter-pays principle.

Responsibility for costs on the part of the producer has some benefits. If the producer has to pay for disposal, there is an incentive to design the product in such a way that it can be disposed of as inexpensively as possible. This is consistent with the objective laid down in the third indent of Article 174(1) EC of prudent and rational utilisation of natural resources and the principle under Article 174(2) EC that environmental damage should as a priority be rectified at source. At the same time, the producer can integrate disposal costs into the price and pass them on to the final holder as the actual producer of the waste. Lastly, this arrangement for costs removes any incentive for the final holder to dispose of the product illegally in order to save disposal costs.

However, the special rules on the responsibility of the producer also suggest that the imposition of the disposal costs on the producer of the product requires express provision to that effect. In particular, the benefits described occur only if the producer and the final holder are aware of the arrangements governing costs.

Moreover, the considerations relating to responsibility for costs where products are used as intended cannot be applied unreservedly to waste which is created through extraordinary events. This is illustrated by the present case: when heavy fuel oil is used as intended, that is to say when it is combusted, gaseous derivatives which do not fall within the scope of the law on waste under Article 2(1)(a) of the Waste Framework Directive accumulate in the atmosphere, and possibly to a lesser extent solid waste. Its disposal would have be relatively inexpensive since it accumulates in a power station which is already equipped for that purpose. After the heavy fuel oil leaks and mixes with water and sediment, however, very much larger quantities of waste are created which can be collected and disposed of only with great difficulty.

The risk of such waste being created cannot therefore simply be imposed on the producer of the heavy fuel oil in accordance with the polluter-pays principle, but only in so far as he can influence the extraordinary creation of waste.

This is the explanation for the judgment in Van de Walle: the risk of the creation of waste as a result of an accident is borne by the person who is able to prevent the accident. Other persons are responsible only exceptionally where they can be accused of contributing independently to causing the waste.

Application to the present case

If responsibility for costs on the part of the Total companies were to be assessed solely on the basis of Article 15 of the Waste Framework Directive, it would follow from the above considerations that as the producer of heavy fuel oil and/or the seller and carrier they may be ordered to bear the cost of disposing of oil waste following a shipping accident in so far as they can be accused of contributing personally to causing the leak of the heavy fuel oil.

However, a directive provision like Article 15 of the Waste Framework Directive cannot of itself impose obligations on an individual and cannot therefore be relied upon as such against an individual. (82) The stipulations of Article 15 can therefore be applied as against the Total companies only in so far as they have a basis in French law.

French law might preclude liability on the part of the Total companies. Article III(4)(c) of the Liability Convention, which applies in France, precludes in principle any claim for compensation against a charterer. Exceptions arise only when the damage resulted from the charterer's personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result. The competent courts must decide whether that exclusion from liability is applicable to the Total companies. (83)

However, the exclusion from liability does not appear to be in compatible with Article 15 of the Waste Framework Directive, even if the persons concerned contributed to causing the waste, but is a permissible full utilisation of the scope which the polluter-pays principle allows the Member States in connection with implementation.

The Liability Convention and the Fund Convention clarify the apportionment of responsibility for costs in connection with oil accidents at sea. The channelling of responsibility for costs to the owner of the ship under the Liability Convention is consistent with the polluter-pays principle. As a rule, in the event of an accident the owner is responsible for the cargo of his ship becoming waste since he has responsibility for the command and condition of the ship which he operates or has operated. For certain cases where third parties are responsible for the damage, Article III(2) and (3) provide for exemption from liability for the ship's owner. This form of liability is consistent with the liability which the Court established in connection with the manager of a service station in relation to hydrocarbons leaked from storage facilities into the surrounding ground. (84)

The barriers to claims against third parties which accompany the channelling of liability under Article III(4) of the Liability Convention, in particular vis-à -vis the charterer under Article III(4)(c), are compatible with the polluter-pays principle. First of all, claims can be made directly against those persons, in the event of increased responsibility, where the damage resulted from their personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result. Secondly, the owner may have recourse against them under Article III(5) of the Liability Convention. It is therefore ensured that these persons too may be ordered to bear costs for their contribution in accordance with the polluter-pays principle. It would be necessary to examine such a claim in particular if the Total companies are partially or wholly responsible for the ship's accident, as the Tribunal de grande instance found (85) and as the Commission and France also consider to be possible.

However, under Article V of the Liability Convention liability on the part of the owner is limited if it is not proved that the pollution damage resulted from his personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result. If this limitation of liability applies, the individual claims under Article V(4) are settled only pro rata, that is to say partially, by the owner of the ship. This appears prima facie to be a breach of the polluter-pays principle.

However, the limited liability of the owner of the ship is supplemented under the Fund Convention by liability under the International Oil Pollution Damage Compensation Fund. Under Article 12, the Fund is financed by those who have received large quantities of crude oil or heavy fuel oil after sea transport. Through their demand those undertakings cause the oil transportation which creates the risk of oil accidents at sea. They too may therefore be apportioned the cost of disposing of oil waste which is created in the event of oil accidents in accordance with the polluter-pays principle. Liability under the Fund is excluded in the event of damage resulting from an act of war under Article 4(2) of the Fund Convention and may be limited, under Article 4(3), if the party which suffered the damage is partially at fault. In addition, under Article 9 of the Fund Convention there is the right of recourse against other responsible persons in relation to costs borne by the Fund. In the present case the Fund has therefore brought proceedings as a precaution against various persons, including the Total companies which are party to the present case. (86)

Liability under the Fund is also limited. This limited liability can mean that neither the ship's owner nor the Fund bears some of the cost of disposing of waste resulting from oil pollution damage at sea. These remaining costs are borne either by the state, i.e. the community of taxpayers, or by certain persons who are likewise required to pay the costs under national law.

The imposition on individuals of the cost of disposing of waste which they have not caused would be incompatible with the polluter-pays principle. (87) Those concerned could therefore apply Article 15 of the Waste Framework Directive vis-à -vis such a demand made by State authorities.

On the other hand, the imposition of the remaining costs of disposal on the general public is compatible with the polluter-pays principle under Article 15 of the Waste Framework Directive. The general public at least accepts the relevant risks, since the States permit risky maritime oil transportation. At the same time, through the requirements laid down in Marpol 73/78 (88) the States guarantee a minimum level of maritime safety. The general public benefits from these transportation operations because they ensure the supply of a desired energy source. Without demand for oil products there would be no transportation. It is thus justified to apportion to the general public a causal contribution for oil accidents and some of the risk.

The Liability Convention and the Fund Convention show that the Contracting States, including nearly all the Member States, consider the limitation of liability to be reasonable 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. More extensive insurance solutions also appear unlikely.

Furthermore, the liability on the part of the ship's owner and the supplement under the Fund are not linked to fault. There is therefore a relatively high probability that oil pollution damage will be covered wholly or at least in part.

This is especially the case since the Supplementary Protocol to the Fund Convention (89) entered into force in 2005, creating a Supplementary Compensation Fund which is also to be financed by oil importers and raises the liability coverage considerably.

Consequently, it is compatible with Article 15 of the Waste Framework Directive and the polluter-pays principle contained therein to channel liability for oil accidents at sea to the owner of the ship and to limit the level of that liability in accordance with the Liability Convention and the Fund Convention. This conclusion accords with the obligation to avoid contradictions with the Liability Convention as far as possible when interpreting Community law. (90)

The answer to the third question must therefore be that the producer of heavy fuel oil and/or the seller and carrier may be ordered under Article 15 of the Waste Framework Directive 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 Liability Convention and the Fund Convention.

V Conclusion

I therefore suggest that the Court give the following answers to the reference for a preliminary ruling:

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.

1 Original language: German.

2 OJ 1975 L 194, p. 39, last amended, as far as the present case is concerned, by Commission Decision 96/350/EC of 24 May 1996 (OJ 1996 L 135, p. 32). Now consolidated by Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste (OJ 2006 L 114, p. 9).

3 German version in the German Bundesgesetzblatt (Federal Law Gazette) 1975 II p. 305.

4 The Protocol is printed in OJ 2004, L 78, p. 32. A full version of the Convention can be found at http://www.iopcfunds.org/npdf/Conventions%20English.pdf.

5 The Protocol is printed in OJ 2004, L 78, p. 40. A full version of the Convention can be found at http://www.iopcfunds.org/npdf/Conventions%20English.pdf.

6 According to http://www.imo.org/includes/blastData.asp/doc_id=693/status.xls, accessed on 5 March 2008, Belgium, Bulgaria, Denmark, Germany, Estonia, Greece, Spain, France, Ireland, Italy, Cyprus, Latvia, Lithuania, Luxembourg, Hungary, Malta, the Netherlands, Poland, Portugal, Romania, Slovenia, Finland, Sweden and the United Kingdom are contracting parties to the Convention, but not the Czech Republic, Austria or Slovakia.

7 According to the International Monetary Fund, http://www.imf.org/external/np/fin/data/rms_mth.aspx?SelectDate=1999-12-31&reportType=CVSDR. A Special Drawing Right represents a basket of currencies consisting of 0.41 euro, 18.4 Yen, 0.0903 pounds sterling and 0.632 US dollars.

8 Note 92FUND/EXC.28/4 by the Director of the International Oil Pollution Compensation Fund of 15 February 2005, http://www.iopcfund-docs.org/ds/pdf/92exc28-4_e.pdf, p. 2. See also the Communication from the Commission to the European Parliament and the Council on a second set of Community measures on maritime safety following the sinking of the oil tanker Erika, COM(2000) 802 final, p. 59.

9 According to http://www.imo.org/includes/blastData.asp/doc_id=693/status.xls, accessed on 5 March 2008, Belgium, Bulgaria, Denmark, Germany, Estonia, Greece, Spain, France, Ireland, Italy, Cyprus, Latvia, Lithuania, Luxembourg, Hungary, Malta, the Netherlands, Poland, Portugal, Slovenia, Finland, Sweden and the United Kingdom are parties to the Convention, but not the Czech Republic, Austria, Romania or Slovakia.

10 Note 92FUND/EXC.28/4 (cited in footnote 8, p. 2).

11 Third United Nations Conference on the Law of the Sea, Official Documents, Vol. XVII, 1984, Doc. A/Conf.62/122, p. 157-231.

12 OJ, English Special Edition 1968(II), p. 586, as amended by Council Directive 98/93/EC of 14 December 1998, OJ 1998 L 358, p. 100.

13 OJ 2004 L 78, p. 99, as amended by Council Decision 2004/664/EC of 24 September 2004 adapting Decision 2004/246/EC by reason of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, OJ 2004 L 303, p. 28.

14 OJ 2001 L 12, p. 1.

15 Judgment of the Tribunal de grande instance de Paris of 16 January 2008 (9934895010, p. 236), quoted from http://www.fortunes-de-mer.com/documents%20pdf/jurisprudence/Arrets/7%20TC%20Paris%2016012008%20Erika.pdf.

16 Judgment of the Tribunal de grande instance de Paris of 16 January 2008 (cited in footnote 15, p. 245 and 274).

17 Judgment of the Tribunal de grande instance de Paris of 16 January 2008 (cited in footnote 15, p. 245).

18 Judgment of the Tribunal de grande instance de Paris of 16 January 2008 (cited in footnote 15, p. 228).

19 Case C-252/05 Thames Water Utilities [2007] ECR I-3883.

20 Joined Cases C-295/04 to C-298/04 Manfredi and Others [2006] ECR I-6619, paragraph 27.

21 See, inter alia, Case C-415/93 Bosman [1995] ECR I-4921, paragraph 61, and Case C-344/04 IATA and ELFAA [2006] ECR I-403, paragraph 24.

22 See Case C-415/93 Bosman (paragraph 59) and Case C-344/04 IATA and ELFAA (paragraph 24), both cited in footnote 21.

23 The Cour de Cassation refers to Directive 68/414 as amended by Directive 98/93.

24 Joined Cases C-482/01 and C-493/01 Orfanopoulos and Oliveri [2004] ECR I-5257, paragraph 42, and Case C-246/04 Turn- und Sportunion Waldburg [2006] ECR I-589, paragraph 21.

25 See Case C-9/00 Palin Granit and Vehmassalon Kansanterveystyön Kuntayhtymän hallitus [2002] ECR I-3533, paragraph 22, Case C-194/05 Commission v Italy [2007] ECR I-0000, paragraph 34, Case C-195/05 Commission v Italy [2007] ECR I-0000, paragraph 32, and Case C-263/05 Commission v Italy [2007] ECR I-0000, paragraph 32.

26 Case C-129/96 Inter'Environnement Wallonie [1997] ECR I-7411, paragraph 26, Case C-176/05 KVZ retec [2007] ECR I-1721, paragraph 51, and Commission v Italy (cited in footnote 25).

27 Joined Cases C-418/97 and C-419/97 ARCO Chemie Nederland and Others [2000] ECR I-4475, paragraphs 37 to 40, Case C-9/00 Palin Granit (cited in footnote 25, paragraph 23), Case C-1/03 Van de Walle and Others [2004] ECR I-7613, paragraph 45, Case C-176/05 KVZ retec (cited in footnote 26, paragraph 61), Case C-194/05 Commission v Italy (cited in footnote 25, paragraph 33), Case C-195/05 Commission v Italy (cited in footnote 25, paragraph 35) and Case C-263/05 Commission v Italy (cited in footnote 25, paragraph 33).

28 Case C-176/05 KVZ retec (cited in footnote 26, paragraph 53 et seq.).

29 OJ 1999 L 121, p. 13, last amended by Directive 2005/33/EC of the European Parliament and of the Council of 6 July 2005, OJ 2005 L 191, p. 59.

30 Case C-9/00 Palin Granit (cited in footnote 25, paragraph 25). See also my Opinion in Case C-176/05 KVZ retec [2007] ECR I-1721, point 73.

31 Joined Cases C-418/97 and C-419/97 ARCO Chemie Nederland and Others (cited in footnote 27, paragraph 73).

32 Joined Cases C-418/97 and C-419/97 ARCO Chemie Nederland and Others (cited in footnote 27, paragraph 84), Case C-194/05 Commission v Italy (cited in footnote 25, paragraph 34), Case C-195/05 Commission v Italy (cited in footnote 25, paragraph 36), and Case C-263/05 Commission v Italy (cited in footnote 25, paragraph 34).

33 Case C-1/03 Van de Walle and Others (cited in footnote 27, paragraph 46) and conversely Case C-194/05 Commission v Italy (cited in footnote 25, paragraph 37 et seq.), Case C-195/05 Commission v Italy (cited in footnote 25, paragraph 39 et seq.), and Case C-263/05 Commission v Italy (cited in footnote 25, paragraph 37 et seq.).

34 As at February 2003, http://ec.europa.eu/comm/environment/ippc/brefs/ref_bref_0203.pdf, p. 1.

35 Council Directive 96/61/EC of 24 September 1996 (OJ 1996 L 257, p. 26).

36 Cited in footnote 34, p. 379. The main forms of waste are sludges, spent process catalysts, filter clay and incinerator ash, and examples of other waste fractions are waste from flue gas desulphurisation, fly ash, bottom ash, spent activated carbon, filter dust, inorganic salts such as ammonium sulphate and lime from water pretreatment, oil-contaminated soil, bitumen, sweepings, spent acid and caustic solutions, and chemicals.

37 See Order in Case C-235/02 Saetti and Frediani [2004] ECR I-1005, paragraph 45.

38 Joined Cases C-418/97 and C-419/97 ARCO Chemie Nederland and Others (cited in footnote 27, paragraph 44 et seq., but in contrast see paragraph 85), Case C-9/00 Palin Granit (cited in footnote 25, paragraph 27) and Case C-457/02 Niselli [2004] ECR I-10853, paragraph 37.

39 See Order in Case C-235/02 Saetti and Frediani (cited in footnote 37, paragraph 45).

40 However, contrary to the view taken by Total, the classification of heavy fuel oil for tax-law purposes does not permit any inferences to be drawn regarding the intention to discard.

41 See Order in Case C-235/02 Saetti and Frediani (cited in footnote 37, paragraph 45).

42 Joined Cases C-418/97 and C-419/97 ARCO Chemie Nederland and Others (cited in footnote 27, paragraph 66 et seq.).

43 Joined Cases C-418/97 and C-419/97 ARCO Chemie Nederland and Others (cited in footnote 27, paragraph 84 et seq.).

44 Case C-9/00 Palin Granit (cited in footnote 25, paragraph 36), Case C-194/05 Commission v Italy (cited in footnote 25, paragraph 37 et seq.), Case C-195/05 Commission v Italy (cited in footnote 25, paragraph 39 et seq.), and Case C-263/05 Commission v Italy (cited in footnote 25, paragraph 37 et seq.).

45 Case C-114/01 AvestaPolarit Chrome [2003] ECR I-8725, paragraph 36 et seq.

46 Case C-416/02 Commission v Spain [2005] ECR I-7487, paragraph 87 et seq., and C-121/03 Commission v Spain [2005] ECR I-7569, paragraph 58 et seq.

47 See my Opinion in Case C-1/03 Van de Walle and Others [2004] ECR I-7613, point 24.

48 Case C-1/03 Van de Walle and Others (cited in footnote 27, paragraph 43).

49 See above, point 39.

50 Case C-1/03 Van de Walle and Others (cited in footnote 27, paragraph 46).

51 Case C-1/03 Van de Walle and Others (cited in footnote 27, paragraph 47), confirmed by Case C-252/05 Thames Water Utilities (cited in footnote 19, paragraph 28).

52 Case C-1/03 Van de Walle and Others (cited in footnote 27, paragraph 52).

53 See, for example, Ludger-Anselm Versteyl, Altlast = Abfall Vom Ende des 'beweglichen' Abfallbegriffs, Neue Zeitschrift für Verwaltungsrecht 2004, p. 1297, Lucas Bergkamp, A new court-made environmental liability regime for Europe, [2004] 4 Environmental Liability p. 171, Philippe, Billet, Le déchet, qualification incertaine des sols pollués, Revue juridique de l'environnement, 2005, p. 309, Frank Petersen and Melanie Lorenz, Das 'Van de Walle'-Urteil des EuGH Sanierung von Altlasten nach Abfallrecht?, Neue Zeitschrift für Verwaltungsrecht 2005, p. 257, Christoph Riese and Nora Karsten, Ist unausgekofferter kontaminierter Boden Abfall?, Zeitschrift für Umweltrecht 2005, p. 75, Heike Jochum, Neues zum europäischen Bodenschutz- und Abfallrecht Sind die bodenschutzrechtlichen Bestimmungen der Umwelthaftungsrichtlinie und die Abfallrichtlinie nach dem 'Spatenprinzip' zu trennen?, Neue Zeitschrift für Verwaltungsrecht 2005, p. 140, Nikolaus Schultz, Ein Jahr nach 'van de Walle' viel Lärm um nichts?, Zeitschrift für europäisches Umwelt- und Planungsrecht 2005, p. 230, Lothar Knopp, EuGH erweitert Abfallbegriff für Altlasten erhebliche Kostenrisiken nicht ausgeschlossen, Betriebs-Berater, Vol. 51/52 2004, I., Daniel Lawrence, European Court lays waste to contaminated land, Construction law, January/February 2005, p. 26, Stephan Müller, Zählen verseuchte Grundstücke neuerdings zum Abfall?, Frankfurter Allgemeine Zeitung, 1 December 2004, p. 25.

54 See Billet (cited in footnote 53, p. 318 et seq.), Riese/Karsten (cited in footnote 53, p. 77), Petersen/Lorenz (cited in footnote 53, p. 258) and Schultz (cited in footnote 53, p. 231) and the largely consistent comments made by Anno Oexle, Europäische Zeitschrift für Wirtschaftsrecht 2004, p. 627 (628), and Jens Hamer, Bodenschutz und Umwelthaftungsrecht made in Luxembourg, European Law Reporter, 2004, p. 477 (482).

55 See also Hamer (cited in footnote 54, p. 482).

56 Article 2(1)(b) of the common position of the Council on the adoption of a Directive of the European Parliament and of the Council on waste and repealing certain directives, Council document 11406/07 of 20 November 2007, accepted by the Commission, COM(2007) 863 of 9 January 2008. A similar, but conditional restriction is already contained in Article 2(1)(f) of the Commission proposal, COM(2005) 667 of 21 December 2005, OJ 2006 C 70, p. 6. On the other hand, at first reading on 13 February 2007 the European Parliament rejected that restriction, apparently going against the report of the competent committee, OJ 2007 C 287 E p. 136 (141).

57 See my Opinion in Case C-308/06 Intertanko and Others [2007] ECR I-0000, point 37 et seq., with further references, on the International Convention for the Prevention of Pollution from Ships (Marpol 73/78).

58 With regard to the binding effect of customary international law see Case C-286/90 Poulsenand Diva Navigation [1992] ECR I-6019, paragraph 9 et seq., and Case C-162/96 Racke [1998] ECR I-3655, paragraph 45.

59 Case C-158/91 Levy [1993] ECR I-4287, paragraph 21, Case C-379/92 Peralta [1994] ECR I-3453, paragraph 16 et seq., and Case C-124/95 Centro-Com [1997] ECR I-81, paragraph 58.

60 See Joined Cases C-387/02, C-391/02 and C-403/02 Berlusconi and Others [2005] ECR I-3565, paragraph 66 et seq.

61 Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (OJ 2004 L 143, p.56).

62 Case C-459/03 Commission v Ireland (MOX plant) [2006] ECR I-4635, paragraph 82; see specifically my Opinion in Case C-308/06 Intertanko and Others (cited in footnote 57, point 46 et seq.).

63 According to http://www.comitemaritime.org/ratific/imo/imoidx.html. Decree 75-553 of 26 June 1975, Journal officiel 1975, p. 6716 of 3 July 1975 announces publication, relies on a power of ratification of 1971 and states that the Convention entered into force on 19 June 1975.

64 OJ 1973 C 112, p. 1.

65 OJ 1989 C 251, p. 3.

66 COM (2000)142 fin., p. 6.

67 Answers given by Mrs Wallström on behalf of the Commission to Question E-0842/00 from Chris Davies MEP on the Erika disaster and environmental liability, OJ 2001 C 53 E, p. 30, and to Question E-1752/03 from Eija-Riitta Korhola MEP on use of impact assessment and liability insurance to deal with oil damage, OJ 2004 C 51 E, p. 137.

68 See also my Opinion in Case C-308/06 Intertanko and Others (cited in footnote 57, point 78).

69 Case C-1/03 Van de Walle and Others (cited in footnote 27, paragraph 58).

70 Case C-1/03 Van de Walle and Others (cited in footnote 27, paragraph 55).

71 Case C-1/03 Van de Walle and Others (cited in footnote 27, paragraph 60).

72 Judgment of the Tribunal de grande instance de Paris of 16 January 2008 (cited in footnote 15, p. 228). However, Note 92FUND/EXC.34/6/Add.1 by the Director of the International Oil Pollution Compensation Fund of 20 September 2006, http://www.iopcfund-docs.org/ds/pdf/92exc34-6eadd1.pdf, p. 8, states, on the basis of the investigations in progress at the time, that Total could not detect the ship's defects.

73 Case C-1/03 Van de Walle and Others (cited in footnote 27, paragraph 59).

74 Case C-1/03 Van de Walle and Others (cited in footnote 27, paragraph 60).

75 Case C-1/03 Van de Walle and Others (cited in footnote 27, paragraph 58).

76 Case C-293/97 Standley and Others [1999] ECR I-2603, paragraph 52.

77 OJ 1991 L 266, p. 1.

78 Similar rules are contained in Article 5(4) of Directive 2000/53/EC of 18 September 2000 on end-of life vehicles (OJ 2000 L 269, p. 34) and in Article 8 of Directive 2002/96/EC of 27 January 2003 on waste electrical and electronic equipment (OJ 2002 L 37, p. 24).

79 OJ 1994 L 365, p. 10.

80 Order in Case C-26/05 Plato Plastik Robert Frank [2006] ECR I-24, paragraph 34.

81 Case C-284/95 Hi-Tech [1998] ECR I-4301, paragraph 37, and Case C-86/03 Greece v Commission [2005] ECR I-10979, paragraph 88, both regard to the Community legislature.

82 See inter alia Case 152/84 Marshall [1986] ECR 723, paragraph 48, Joined Cases C-397/01 to C-403/01 Pfeiffer and Others [2004] ECR I-8835, paragraph 108, and Case C-80/06 Carp [2007] ECR I-4473, paragraph 20.

83 The judgment of the Tribunal de grande instance de Paris of 16 January 2008 (cited in footnote 15, p. 35) ruled this out in the case of Total S.A.

84 Case C-1/03 Van de Walle and Others (cited in footnote 27, paragraph 59).

85 Judgment of 16 January 2008 (cited in footnote 15, p. 228).

86 Note 92FUND/EXC.33/5 by the Director of the International Oil Pollution Compensation Fund of 4 May 2006, http://www.iopcfund-docs.org/ds/pdf/92exc33-5_e.pdf, p. 5 et seq.

87 See point 120 above.

88 International Convention for the Prevention of Pollution from Ships 1973, as modified by the Protocol of 1978 thereto (UN Treaty Series, Vol. 1341, No. 22484).

89 Printed in OJ 2004 L 78, p. 24. According to the Fund, http://www.iopcfund.org/92members.htm#suppfund, in addition to four other States, Belgium, Denmark, Germany, Greece, Spain, France, Ireland, Italy, Latvia, Lithuania, the Netherlands, Portugal, Slovenia, Finland, Sweden and the United Kingdom have ratified the Protocol and on 30 March 2008 they will be joined by Hungary.

90 See point 99 et seq. above.