1 Slide 2 Liability On 12 December 1999 the oil tanker Erika, flying the Maltese flag and chartered by Total International Ltd, sank about 35 nautical miles south-west of the Pointe de Penmarc’h (Finistère, France), spilling part of her cargo and oil from her bunkers at sea and causing pollution of the Atlantic coast of France. On 9 June 2000 the Commune de Mesquer brought proceedings against the Total companies in the Tribunal de commerce de Saint-Nazaire (Commercial Court, Saint- Nazaire), seeking inter alia a ruling that the companies should be liable for the consequences of the damage caused by the waste spread on the territory of the municipality and be ordered jointly and severally to pay the costs (some 70,000 €) incurred by the municipality for cleaning and anti-pollution measures. The Cour d’appel de Rennes accepted that the heavy fuel oil thus spilled and mixed with water and sand formed waste, but nevertheless considered that there was no provision under which the Total companies could be held liable, since they could not be regarded as producers or holders of that waste. The municipality appealed on a point of law to the Cour de cassation (Court of Cassation) which asked the following questions top the ECJ: Can the producer of the heavy fuel oil (Total raffinage [distribution]) 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?’ Article 15 Waste Framework Directive regulates the polluter-pays principle. 2 Slide 3 ECJ answer on Erika case (liability) The application of the ‘polluter pays’ principle within the meaning of the second sentence of the first subparagraph of Article 174(2) EC and Article 15 of Directive 75/442 would be frustrated if such persons involved in causing waste escaped their financial obligations as provided for by that directive. The directive does not rule out the possibility that, in certain cases, the cost of disposing of waste is to be borne by one or more previous holders. If it happens that the cost of disposal of the waste produced by an accidental spillage of hydrocarbons at sea is not borne by a liability fund (here: international Liability Convention and the Fund Convention), or cannot be borne because the ceiling for compensation for that accident has been reached, and that, in accordance with the limitations and/or exemptions of liability laid down, the national law of a Member State, including the law derived from international agreements, prevents that cost from being borne by the shipowner and/or the charterer, even though they are to be regarded as ‘holders’ within the meaning of Article 1(c) of Directive 75/442, such a national law will then, in order to ensure that Article 15 of that directive is correctly transposed, have to make provision for that cost to be borne by the producer of the product from which the waste thus spread came. In accordance with the ‘polluter pays’ principle, however, such a producer cannot be liable to bear that cost unless he has contributed by his conduct to the risk that the pollution caused by the shipwreck will occur. For the purposes of applying Article 15 of Directive 75/442, as amended by Decision 96/350, to the accidental spillage of hydrocarbons at sea causing pollution of the coastline of a MS: the national court may regard the seller of those hydrocarbons and charterer of the ship carrying them as a producer of that waste within the meaning of Article 1(b) of Directive 75/442, as amended by Decision 96/350, and thereby as a ‘previous holder’ for the purposes of applying the first part of the second indent of Article 15 of that directive, if that court, in the light of the elements which it alone is in a position to assess, reaches the conclusion that that seller-charterer contributed to the risk that the pollution caused by the shipwreck would occur, in particular if he failed to take measures to prevent such an incident, such as measures concerning the choice of ship; The polluter-pays principle is now regulated with a slightly different text in Article 14 Directive 2008/98/EC. 3 Slide 4 ECJ on Erika case (liability) answer part 2 If it happens that the cost of disposing of the waste produced by an accidental spillage of hydrocarbons at sea is not borne by the International Oil Pollution Compensation Fund, or cannot be borne because the ceiling for compensation for that accident has been reached, and that, in accordance with the limitations and/or exemptions of liability laid down, the national law of a Member State, including the law derived from international agreements, prevents that cost from being borne by the shipowner and/or the charterer, even though they are to be regarded as ‘holders’ within the meaning of Article 1(c) of Directive 75/442, as amended by Decision 96/350, such a national law will then, in order to ensure that Article 15 of that directive is correctly transposed, have to make provision for that cost to be borne by the producer of the product from which the waste thus spread came. In accordance with the ‘polluter pays’ principle, however, such a producer cannot be liable to bear that cost unless he has contributed by his conduct to the risk that the pollution caused by the shipwreck will occur. 4 Slide 5 Article 5 Nitrates Directive 1. Within a two-year period following the initial designation referred to in Article 3 (2) or within one year of each additional designation referred to in Article 3 (4), Member States shall, for the purpose of realizing the objectives specified in Article 1, establish action programmes in respect of designated vulnerable zones. 2. An action programme may relate to all vulnerable zones in the territory of a Member State or, where the Member State considers it appropriate, different programmes may be established for different vulnerable zones or parts of zones. 3. Action programmes shall take into account: (a) available scientific and technical data, mainly with reference to respective nitrogen contributions originating from agricultural and other sources; (b) environmental conditions in the relevant regions of the MS concerned. 4. Action programmes shall be implemented within four years of their establishment and shall consist of the following mandatory measures: (a) the measures in Annex III; Set of Measures are set in Annex III 5 Slide 6 (Standley Case, ECJ in paragraphs 46 – 53) So far as concerns the principle of proportionality, it should be observed first that under Article 5(3) of the Directive, the action programmes applicable to vulnerable zones are to take account of available scientific and technical data with reference to the respective nitrogen quantities originating from agricultural and other sources and of environmental conditions in the relevant regions. Next, the mandatory measures adopted under those programmes must take into account the characteristics of the vulnerable zone concerned (paragraph 1(3) of Annex III) and the Member States may fix amounts of livestock manure which maybe spread in the vulnerable zones that differ from those specified if they are justified on the basis of objective criteria and do not prejudice the attainment of the Directive's objectives (paragraph 2(b) of Annex III). Also, the MS are required to draw up and implement suitable monitoring programmes to assess the effectiveness of the action programmes (Article 5(6) of the Directive) and they are to review and, if necessary, revise their action programmes at least every four years (Article 5(7)). They can thus take account of changes of circumstance in relation to pollution from both agricultural and other sources. Finally, the codes of good agricultural practice adopted by the MS under Article 4(1)(a) of the Directive are to take account of conditions in the different regions of the Community (paragraph A of Annex II). It follows that the Directive contains flexible provisions enabling the MS to observe the principle of proportionality in the application of the measures which they adopt. It is for the national courts to ensure that that principle is observed. As regards the polluter pays principle, suffice it to state that the Directive does not mean that farmers must take on burdens for the elimination of pollution to which they have not contributed. As has been pointed out above, the MS are to take account of the other sources of pollution when implementing the Directive and, having regard to the circumstances, are not to impose on farmers costs of eliminating pollution that are unnecessary. Viewed in that light, the polluter pays principle reflects the principle of proportionality on which the Court has already expressed its view. The same applies to breach of the principle that environmental damage should as a priority be rectified at source, since the arguments of the applicants in the main proceedings are indissociable from their arguments relating to breach of the principle of proportionality. 6 Slide 7 as regards WFD: The polluter pays principle says that industries, businesses and agriculture must pay for the cost of water supplies and also for any waste water treatment of the run-off from their plants, premises or farms. All such costs associated with maintaining water quality are to be built into users’ water charges.