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International Environmental Law Lesson 8: Case

Law
Role of the Court of Justice, the General Court and how national judges cooperate with the Court of Justice in
the interpretation of the EU law
National judges cooperate with the Court of Justice as regards to the interpretation and application of EU law
In fact, national judges have a very important role with regards to EU law (2 courts for 500 million people)
Whenever they have questions regarding the interpretation or validity of EU law, national judges may or are
obliged to pose preliminary rulings before the Court of Justice
o Are preliminary rulings issued by the Court of Justice compulsory or just non-binding
rulings/documents?
It is binding on the judges, and is also generally compulsory
Obligatory contents/binding effect refers to the entire European Union
o Judges who are not the ultimate judges in the state are not obliged to pose preliminary rulings, but the
courts of last resort are obliged to pose preliminary rulings whenever they have questions or doubts
on the interpretation or validity of EU law
Courts in Luxembourg General Court and European Court of Justice different roles in the EU
o General Court courts that solves cases posed by individuals, first instance for individuals in the EU,
individuals that seek annulment or to attack EU legal action (individuals pose suits before the General
Court)
o Court of Justice superior court in the EU and it has competence to rule on cases initiated by the
institutions of the EU, by member states, or by individuals that are trying to override a ruling issued by
the General Court
Also acts as a free court and a court of human rights/constitutional court for the European
Union
Role of a supreme court to create jurisprudence/case law
No doctrine of precedent in the EU, but in fact the supreme court has the last word
regarding the validity and interpretation of EU law
o Conflicts of powers between the states and EU

CASE 1: MARKKU SAHISTEDT V COMMISSION (2006), DIRECTIVE


NATURA 2000 ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS

Factual Background Council adopted Directive 92/43/EEC on the conservation of natural


habitats and of wild fauna and flora on 21 May 1992.
Aim: To contribute towards ensuring biodiversity through the
conservation of natural habitats and of wild fauna and flora in the
territory of the Member States to which the EC Treaty applies
Preamble: It is necessary to designate special areas of conservation in
order to create a coherent European ecological network in accordance
with a specified timetable. (Natura 2000)
Article 3(1): The network should include special areas of conservation as well
as special protection areas classified by the Member States pursuant to
Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds.
Article 1(l): special area of conservation means a site of Community
importance designated by the Member States through a statutory,
administrative and/or contractual act where the necessary conservation
measures are applied for the maintenance or restoration, at a favourable
conservation status, of the natural habitats and/or the populations of the
species for which the site is designated.
Article 4(1): Each Member State is to propose a list of sites indicating which
natural habitat types in Annex I and which species in Annex II that are native
to its territory the sites host.
Article 4(2): The Commission is to establish from those lists and on the basis
of the criteria set out in Annex III to the directive and in agreement with each
Member State, a draft list of sites of Community importance.
Article 4(4): Once a site of Community importance has been adopted, the
Member State concerned is to designate that site as a special area of
conservation as soon as possible and within six years at most, establishing
priorities in the light of the importance of the sites for the maintenance or
restoration, at a favourable conservation status, of a natural habitat type in
Annex I or a species in Annex II and for the coherence of Natura 2000, and in
the light of the threats of degradation or destruction to which those sites are
exposed.
Article 6:
1) For special areas of conservation, Member States shall establish the
necessary conservation measures involving, if need be, appropriate
management plans specifically designed for the sites or integrated into
other development plans, and appropriate statutory, administrative or
contractual measures which correspond to the ecological requirements of
the natural habitat types in Annex I and the species in Annex II present on
the sites.
2) Member States shall take appropriate steps to avoid, in the special areas
of conservation, the deterioration of natural habitats and the habitats of
species as well as disturbance of the species for which the areas have
been designated, in so far as such disturbance could be significant in
relation to the objectives of this Directive.
3) Any plan or project not directly connected with or necessary to the
management of the site but likely to have a significant effect thereon,
either individually or in combination with other plans or projects, shall be
subject to appropriate assessment of its implications for the site in view of
the sites conservation objectives. In light of the conclusions of the
assessment of the implications for the site and subject to the provisions of
paragraph 4, the competent national authorities shall agree to the plan or
project only after having ascertained that it will not adversely affect the
integrity of the site concerned and, if appropriate, after having obtained the
opinion of the general public.
4) If, in spite of a negative assessment of the implications for the site and in
the absence of alternative solutions, a plan or project must nevertheless
be carried out for imperative reasons of overriding public interest, including
those of a social or economic nature, the Member State shall take all
compensatory measures necessary to ensure that the overall coherence
of Natura 2000 is protected. It shall inform the Commission of the
compensatory measures adopted.
Where the site concerned hosts a priority natural habitat type and/or a
priority species, the only considerations which may be raised are those
relating to human health or public safety, to beneficial consequences of
primary importance for the environment or, further to an opinion from the
Commission, to other imperative reasons of overriding public interest.
The applicant MTK ry is an association of farmers and foresters, and
represents 163 000 economic operators in farming and forestry who
belong to it. The applicant owns lands in site FI 0200011, which has been
designated to be of Community importance for the Boreal
biogeographical region.
The Commission contends that the Court should:
o Dismiss the action as inadmissible
o Order the applicants to pay the costs
In their observations on the objection of inadmissibility, the applicants contend
that the Court should:
o Primarily:
Reject the objection of inadmissibility
Annual the contested decision
o In the alternative:
Annul the contested decision in so far as it classifies sites of
Community importance in Finland
Annul the contested decision, in the further alternative, in so
far as it classifies as sites of Community importance the sites
listed in Annex 1
As a measure of inquiry, order the Commission to produce the
Republic of Finlands proposals relating to the classification of
sites of Community importance, all the scientific data referred
to in recital 5 in the preamble to the contested decision, as
well as a list of the participants at the biogeographic seminars
referred to in recital 10 in that preamble and a list of the
members of the Habitats Committee referred to in recital 13 in
that preamble.
Law/Holding/Application Under Article 114 of the Rules of Procedure, if a party applies to the Court of
of Law to Facts First Instance for a decision on admissibility without going into the substance
of the case, the remainder of the proceedings on the objection of
inadmissibility is to be oral, unless the Court decides otherwise. In the present
case, the Court considers itself to be sufficiently informed by the documents in
the Court file and decides that there is no need to open the oral proceedings.
The fourth paragraph of Article 230 EC provides that [a]ny natural or legal
person may institute proceedings against a decision addressed to that person
or against a decision which, although in the form of a regulation or decision
addressed to another person, is of direct and individual concern to the former.
Since it is common ground that the contested decision is not addressed to the
applicants, it is appropriate to examine whether that decision is of direct or
individual concern to them.

First Point: Direct Concern


For an individual to be directly concerned by a Community measure, in this
case the contested decision, it must directly affect the legal situation of the
individual and leave no discretion to the addressees of that measure,
who are entrusted with the task of implementing it, such implementation
being purely automatic and resulting from Community rules without the
application of other intermediate rules (Dreyfus v Commission [1998] ECR
I-2309, Salamander and Others v Parliament and Council)
Where a Community measure is addressed to a Member State by an
institution, if the action to be taken by the Member State to implement
that measure is automatic or is, in one way or another, a foregone
conclusion, it is of direct concern to any person affected by that action.
If, on the other hand, the measure leaves the Member State free to act or
not to act, or does not require it to act in a certain way, it is the Member
States action or inaction which is of direct concern to the person
affected, and not the measure itself. (Japan Tobacco and JT International v
Parliament and Council [2002] ECR II-3259)
The Court considers that it cannot be held that the contested decision
produces, by itself, effects on the applicants legal situation.
o The contested decision contains no provision as regards the
system of protection of sites of Community importance, such as
conservation measures or authorisation procedures to be
followed.
o Thus, it affects neither the rights or obligations of the landowners
nor the exercise of those rights.
o The inclusion of those sites in the list of sites of Community
importance imposes no obligation whatsoever on economic
operators or private persons.
As soon as a site is placed on the list of sites of Community importance, it is to
be subject to the provisions of Article 6(2) to 6(4).
o Article 6(2): The Member States are to take appropriate steps to
avoid, in the special areas of conservation, the deterioration of natural
habitats and the habitats of species as well as the disturbance of the
species for which the areas have been designated, in so far as such
disturbance could be significant in relation to the objectives of that
directive.
o Article 6(3): Any plan or project not directly connected with or
necessary to the management of the site but likely to have a
significant effect thereon is to undergo an appropriate assessment of
its implications for the site on the basis of the sites conservation
objectives. The competent national authorities are to agree to the plan
or project only after ascertaining that it would not adversely affect the
integrity of the site concerned.
o Article 6(4): If such a plan or project must nevertheless be carried out
for imperative reasons of overriding public interest, the Member State
is to take all compensatory measures necessary to ensure that the
overall coherence of the Natura 2000 network.
On perusal of those obligations, which bind the Member States concerned
once sites of Community importance have been designated by the
contested decision, it must be held that none of those obligations
applies directly to the applicants.
o All those obligations necessitate a measure on the part of the
Member State concerned, in order to specify how it intends to
implement the obligation in question, whether it relates to
necessary conservation measures (Article 6(1) of the habitats
directive), steps appropriate to avoid deterioration of the site
(Article 6(2) of the habitats directive), or this agreement to be
given by the competent national authorities to a project likely
to have a significant effect on it (Article 6(3) and (4) of the
habitats directive).
It thus follows from the habitats directive, on the basis of which the contested
decision was adopted, that it is binding on the Member State as to the
result to be achieved, whilst the choice of the conservation measures to
be undertaken and the authorisation procedures to be followed is left to
the competent national authorities.
o That conclusion cannot be undermined by the fact that the discretion
thus conferred on the Member States must be exercised in
accordance with the aims of the habitat directive.

Second Point
MTK ry claims that it represents the interests of its members and that the
contested decision has an identical impact on the majority of the
associations members and on the other applicants who are natural
persons.
In these circumstances, the Court considers that any effect on the legal
situation of the applicant associations members cannot be different
from the effect alleged by the individual applicants in the present case.
Since, as the Court has held, the individual applicants in the present
case cannot be regarded as being directly concerned by the contested
decision, neither can the applicant associations members.
The applicant association has not demonstrated that it has an interest of its
own in pursuing the action, such as a negotiating position affected by the
contested decision.

Conclusion: The applicants are not directly concerned by the contested decision and
the claims for annulment of the contested decision must be dismissed as inadmissible.

The applicants may still challenge the measures adopted in implementation of Article 6
of the habitats directive which affect them and, in that context, they retain the
possibility of relying on its illegality before the national courts, adjudicating in
accordance with Article 234 EC

Order issued by the Court of First Instance (aka the General Court, name changed after the entry into force of
the Lisbon Treaty)
Order is a very simple ruling courts issue orders when they think the case is very clear and there is settled
case law that excludes the necessity to give a complete judgment
o When court issues an order, there is no need for oral proceedings in the case
Two Finnish parties against the Commission of the European Communities
o States do not have to show any specific interests to intervene in a case
Finnish people were owners of land, and during that time, the land was listed in an area that was to be
protected, they were not happy about it as they felt that it would have an impact on their interests, e.g.
economic, etc.
Deals with two points of EU law, the first of which is admissibility of the suit/claim
The parties want to seek annulment of which Act?
Contested Act: Decision of the Commission (an individual Act of the Commission)
o Decision introduces an individual legal regime, and the decision was D92/43 (Natura 2000) which
obliges member states to identify habitats and species that must be protected by the state
o Directive 92/43 is not the contested Act but plays an important role in the case
How does the Directive work?
o States must list specific territories and communicate this list to the Commission
o The Commission will then issue decisions on the lists that the member states pose to it
The parties do not agree with the decision as their land has been included in the list of areas to be protected
o This has doubtful economic impact
o In order to maintain environmental equilibrium, states will have to implement conservative measures
For a decision to be annulled, a point of illegality must be introduced
Admissibility of the claim/suit
Before we know whether a decision is void, we have a problem of admissibility of the action for annulment
Action for annulment is open to individuals, but subject to strict conditions of admissibility
Individuals did not succeed, the court issued an order for absolute inadmissibility of the action

PRINCIPLES:
Regulatory Acts which are of direct concern to the plaintiff may be attacked by individuals before the General
Court
Other Acts, e.g. Decisions may also be annulled by individuals in cases where the action for annulment is
introduced by the addressees
Beyond these Cases, individuals must prove two criteria: The contested Act affects them directly and
individually (they are affected directed and individually by the contested act)

Court focuses on whether the contested Act affects the individual directly
Are these landowners directly concerned by the decision of the Commission that includes their land
in the list of areas under special protection? No
o The Contested Act is in fact addressed to the State
o However, if the Contested Act is a very precise and exhaustive act that does not leave any
discretionary power to the state at the implementation stage, then that Act will directly
concern the plaintiff if no room in the implementation stage of the Act
However, this is not the case in the current situation
Paragraph 53:
If, on the other hand, the measure leaves the Member State free to act or not to act, or does
not require it to act in a certain way, it is the Member States action or inaction which is of
direct concern to the person affected, and not the measure itself.
Contested Act does not precisely require the Member State to act in a certain way up to the State to
decide which type of conservative measure they would have to introduce to protect these areas
The exact measures to protect these areas depends not on the Commission but on the Member State
Court dismisses the case on the basis of lack of admissibility
Do these landowners have alternative proceedings to contest the validity of the proceedings? (the inclusion of
their land in the list)
o National courts can never declare the validity of EU law only the competence of the ECJ and
General Court
o The national court can introduce a preliminary ruling on the validity/initiate a preliminary ruling
Important paragraphs: 16, 53, 59, 60, and factual background

CASE 2: PAUL VAN DE WALLE, DANIEL LAURENT, THIERRY MERSCH V


TEXACO BELGIUM SA

Legislation Article 1 of Directive 75/442 provides (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 and/or anyone who carries out pre-processing, mixing or other
operations resulting in a change in the nature or composition of this waste, (c)
holder shall mean the producer of the waste or the natural or legal person
who is in possession of it.
Annex I 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, in heading Q7 to
substances which no longer perform satisfactorily (e.g. contaminated acids,
contaminated solvents, exhausted tempering salts, etc.), in heading Q14 to
products for which the holder has no further use (e.g. agricultural, household,
office, commercial and shop discards, etc) and, in heading Q15, to
contaminated materials, substances or products resulting from remedial
action with respect to land.
Article 15 of Directive 75/442 states: 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.
Article 2(1) of the Order of 7 March 1991 of the Council of the Brussels-Capital
Region defines waste as a substance or object which the holder discards or
intends or is required to discard.
Article 8 of the Order states: It is prohibited to abandon waste in a public or
private area outside the sites authorised for that purpose by the competent
public authority or without complying with the legislative provisions relating to
the disposal of waste.
Article 10 of the Order: Anyone producing or holding waste shall be required
to dispose of it or have it disposed of in accordance with the provisions of this
Order, under conditions which restrict harmful effects on soil, flora, fauna, air
and water and, in general, without adversely affecting the environment or
human health.
The Executive shall ensure that the cost of disposing of waste is borne by the
holder who has waste handled by a disposal undertaking or, failing that, by the
previous holders or the producer of the product from which the waste came.
Article 22 of the Order subjects to a penalty anyone who abandons his own
waste or that of others in breach of Article 8.
Factual Background The Brussels-Capital Region owns a building at 132 avenue du Pont de Luttre
in Brussels (Belgium). The renovation of that building which it had undertaken
in order to set up a social assistance centre had to be halted on 18 January
1993 as the result of the discovery that water saturated with hydrocarbons was
leaking into the cellar of the building from the wall which separates that
building from the adjacent building at 134 avenue du Pont de Luttre, where a
Texaco service station was at that time located.
The service station was covered by a commercial lease between Texaco
and the owner of the premises. Since 1988, it had been operated by a
manager under an operating agreement which provided that the land,
building, equipment and movable property for the operation were made
available to the manager by Texaco. The manager operated the service
station on his own behalf but did not have the right to make changes to the
premises without prior written permission from Texaco, which supplied the
service station with petroleum products and, in addition, retained control over
bookkeeping and supplies.
Following the discovery of the hydrocarbon leak, which was the result of
defects in the service stations storage facilities, Texaco took the view that
the station could no longer continue to operate and decide to terminate
the management contract in April 1993, alleging serious negligence on
the part of the manager. It subsequently terminated the commercial lease
in June 1993.
Although disclaiming liability, Texaco proceeded to decontaminate the
soil and replaced part of the storage facilities which gave rise to the
hydrocarbon leak. It carried out no further activities on the site after May
1994. The Brussels-Capital Region took the view that decontamination
had not been completed and paid for other remedial measures which it
considered necessary in order to carry out its building plan.
Since Texacos actions appeared to constitute infringements of the Order of 7
March 1991, and in particular Articles 8, 10 and 22 thereof, proceedings were
brought against Mr Van de Walle, Texacos managing director, Mr Laurent and
Mr Mersch, officers of the company and Texaco as a legal entity before the
Tribunal correctionnel of Brussles. The court acquitted the defendants,
exonerated Texaco and stated that it was not competent to rule on the
application by the party claiming damages.
The Ministere public (Public Prosecutor) and the party claiming damages
appealed against that judgment before the court which has made the
reference.
o The court considered that in order to be subject to criminal
sanctions under Article 22, the actions of the accused must
constitute abandonment of waste within the meaning of Article 8.
o It observed that Texaco had not rid itself of its waste by supplying
it to the service station and that neither the petrol delivered nor
the tanks which remained buried in the ground after the
decontamination activities carried out by that undertaking could
constitute waste within the meaning of Article 2(1) of the Order.
o However, the court was in doubt as to whether subsoil
contaminated as the result of an accidental spill of hydrocarbons
could be considered waste and stated that it doubted that that
classification was possible, since the land in question had not
been excavated and treated.
Issues:
1) Are Article 1(a), 1(b) and 1(c) of the Directive to be interpreted as being
applicable to a petroleum company which produces hydrocarbons and sells
them to a manager operating one of its service stations under a contract of
independent management excluding any relationship of subordination to the
company, if such hydrocarbons seep into ground, thus contaminating the soil
and groundwater?
2) Or must it be considered that the classification as waste within the meaning of
the abovementioned provisions applies only if the contaminated soil has been
excavated?
Law/Holding/Application Questions: 1) Whether hydrocarbons which are spilled unintentionally
of Law to Facts and cause soil and groundwater contamination may be considered to
be waste within the meaning of Article 1(a) of the Directive and
whether the soil thus contaminated may also be classified as waste
within the meaning of that provision even when it has not been
excavated, 2) Whether, in circumstances such as those in the main
action, the petroleum undertaking which supplies the service station
may be considered to be the producer or holder of such waste within
the meaning of Article 1(b) and (c) of the Directive
The Brussels-Capital Region takes the view that Texaco satisfies the
definition of holder of waste inasmuch as it held the hydrocarbons at
the outset, delivered them to the service station, closely controlled the
stations operations and pumped water from the aquifer in order to clean
the contaminated soil.
The hydrocarbons fall outside the classification as waste only until the service
station discards them for some reason, at which point they become waste,
including for the undertaking, such as Texaco, which produced and delivered
them.
A petroleum undertaking which produced and sold products which
have become waste must therefore be considered to be the holder of
waste within the meaning of Directive 75/442 if it had access to the
site where that waste was situated or had the right to take a decision
as to how its client carried out its operations or to inspect the
products storage facilities which are the source of spills to land and
groundwater. The petroleum undertaking which in fact dealt with some of
that waste is the holder of waste.
Hydrocarbons are specifically covered by heading Q4 of Annex I to Directive
75/442 and are, moreover, hazardous waste. They must therefore be
considered to be waste within the meaning of the Directive.
Soil contaminated by hydrocarbons must also be classified as waste. This is
clear from the terms of headings Q5, Q12 and Q13 of the Annex and from the
obligation for the holder of those substances to discard them.
o This obligation derives from the aim of Directive 75/442 to protect
human health and the environment, which could not be achieved if the
holder or producer of waste was not required to discard contaminated
soil or if he merely buried contaminated material in the soil.
Argument of Mr Van de Walle and Others:
o Texaco delivered petroleum products which were sound at the time
they were sold to the service station, an operation which cannot be
regarded as the production of waste or as indicative of an intention to
get rid of waste.
o The Community legislature defined waste as any substance which the
holder discards or intends or is required to discard in order to include
a subjective element beyond the objective element (registration of a
waste in a catalogue on the basis of its characteristics or degree of
toxicity), confining the scope to situations where there is action,
intention or obligation to discard those substances.
o Texaco was not ordered to decontaminate the site until January 1993,
after the discovery that hydrocarbons were being leaked. That order
should have been addressed to the operator of the service station.
Moreover, Texaco has always insisted that the soil decontamination
work it carried out was without prejudice.
o They maintain that with regards to the meaning of producer and
holder of waste, the wording of the question referred for a
preliminary ruling and the statement of grounds in the judgment
making the reference suggest that the Cour dappel of Brussels takes
the view that Texaco is neither the producer nor the holder of waste at
issue and that that court is concerned not with those definitions but
solely to have the Court define what constitutes waste.
o Only in the alternative, if the Court deems it necessary to consider
what is meant by producer and holder, that they contend that
Texaco merely delivered sound products to the service station and
therefore did not cause to exist, create or produce waste. In the event
that the products are not used, it is the person who no longer uses
those products who is the producer of the waste, not the person who
delivered them at the outset. Thus, it is only the manager of the
service station who must be considered the producer of the waste and
its holder.
o Several provisions in the service stations operating agreement, e.g.
Article 6(10), make clear that the manager was fully liable as an
operator and independent trader and that he was solely liable for
damage caused to third parties as the result of his operations.
Article 2: responsibility for the operation of the service station
was conferred on the manager by Texaco.
Article 6(2): the manager was required to maintain in perfect
condition and at his own expense the property [conferred]
and to ascertain on a daily basis that the pumps and other
equipment were functioning properly and immediately to
advise Texaco of repairs envisaged.
The Commissions arguments:
o Heading Q4 of Annex I to Directive 75/442 refers to materials spilled,
lost or having undergone other mishap, which expressly opts for the
Directive to cover the case where the holder of waste discards it
accidentally. This is not incompatible with Article 1 of the Directive,
which does not specify whether the action of discarding must be
intentional or not. The holder may not even be aware that he has
discarded a product.
o Q4 refers to any materials, equipment, etc., contaminated as a result
of the mishap, showing that Directive 75/442 treats materials
contaminated by waste in the same way as waste, so as to ensure
that where materials which constitute waste are spilled by accident,
the holder of those materials does not abandon the contaminated
substances or objects but becomes responsible for disposing of them.
o Soil contaminated by an accidental spillage of hydrocarbons, which
like water and air forms part of the environment, does not lend itself to
the recovery and disposal operations provided for under the Directive
and can only be subjected to decontamination. As a general rule, soil
contaminated by waste should not itself be considered to be waste.
However, this is different when soil must be excavated for the
purpose of decontamination. Once it is excavated, the soil is
no longer an element of the environment but rather movable
property which, because it is mixed with accidentally spilled
materials that are classified as waste, must be treated in the
same way as waste.
o The person who had hydrocarbons spilled by accident in his
possession at the time when they became waste, in this case the
manager of the service station who bought them from Texaco, must
be considered to be the holder. The substances became waste when
they leaked from the tanks. The petroleum undertaking is the producer
of the hydrocarbons, but only the retailer, through his operations,
produced waste by accident.

Courts Reply
Article 1(a) of Directive 75/442 defines waste as any substance or object
in the categories set out in Annex I which the holder discards or
intendsto discard. The annex clarifies and illustrates that definition by
providing lists of substances and objects which can be classified as waste.
However, the lists are only intended as guidance and the classification of
waste is to be inferred primarily from the holders actions and the meaning of
the term discard.
Issue: Whether the accidental spill of hydrocarbons is an act by
which the holder discards them.
Principles:
1) The verb to discard must be interpreted in the light of the aim of
Directive 75/442 which, in the wording of the third recital in the preamble,
is the protection of human health and the environment against
harmful effects caused by the collection, transport, treatment,
storage and tipping of waste, and that of Article 174(2) EC, which
states that Community policy on the environment is to aim at a high
level of protection and is to be based, in particular, on the
precautionary principle and the principle that preventive action
should be taken.
2) When the substance or object in question is a production
residue, that is to say, a product which is not itself wanted for
subsequent use and which the holder cannot economically re-
use without prior processing, it must be considered to be a
burden which the holder seeks to discard.
o Accidentally spilled hydrocarbons which cause soil and
groundwater contamination are not a product which can be
re-used without processing. They are thus substances
which the holder did not intend to produce and which he
discards, albeit involuntarily, at the time of the
production or distribution operations which relate to them.
3) Directive 75/442 would be made redundant in part if hydrocarbons which
cause contamination were not considered waste on the sole ground that
they were spilled by accident. (Article 4, Article 8 and Article 15)
o If hydrocarbons which cause contamination are not
considered to be waste on the ground that they were
spilled by accident, their holder would be excluded from
the obligations which Directive 75/442 requires Member
States to impose on him, in contradiction to the prohibition
on the abandonment, dumping or uncontrolled disposal of
waste.
Thus, the holder of hydrocarbons which are accidentally spilled and which
contaminate soil and groundwater discards those substances, which must as
a result be classified as waste.
The same classification as waste within the meaning of Directive
75/442 applies to soil contaminated as the result of accidental spill of
hydrocarbons. In that case, the hydrocarbons cannot be separated from
the land which they have contaminated and cannot be covered or
disposed of unless that land is also subject to the necessary
decontamination. This is the only interpretation which ensures
compliance with the aims of protecting the natural environment and
prohibiting the abandonment of waste pursued by the Directive.
o The classification as waste in the case of land contaminated by
hydrocarbons does indeed therefore depend on the obligation on
the person who causes the accidental spill of those substances
to discard them. It cannot result from the implementation of
national laws governing the conditions of use, protection or
decontamination of the land where the spill occurred.
Since contaminated soil is considered to be waste by the mere
fact of its accidental contamination by hydrocarbons, its
classification as waste is not dependent on other operations
being carried out which are the responsibility of its owner or
which the latter decides to undertake. The fact that soil is not
excavated thus has no bearing on its classification as waste.

Whether the petroleum undertaking supplying the service station can be considered to
be the producer or holder of waste within the meaning of Article 1(b) and (c) of the
Directive
Article 1(c): the holder is the producer of the waste or the natural or legal
person who is in possession if it broad definition, 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 (the owner or the holder)
Article 8: those obligations, which are the corollary to the prohibition on the
abandonment, dumping or uncontrolled disposal of waste laid down in Article 4
of the Directive, are the responsibility of any holder of waste.
Article 15: In accordance with the principle of polluter pays, the cost of
disposing of waste must be borne by the holder who has waste handled by an
operator responsible for disposing of it and/or previous holders or the producer
of the product from which the waste came.
o The Directive therefore does not preclude the possibility that in certain
cases, the cost of disposing of waste is to be borne by one or several
previous holders, that is to say, one or more natural or legal persons
who are neither the producers nor the possessors of the waste.
From the above provisions, the Directive 75/442 distinguishes between
practical recovery or disposal operations, which it makes the
responsibility of any holder of waste, whether producer or
possessor, and the financial burden of these operations, which, in
accordance with the principle of polluter pays, it imposes 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.
The hydrocarbons spilled by accident as the result of a leak from
a service stations storage facilities had been bought by that
service station to meet its operating needs. They are therefore in
the possession of the service stations manager.
o Moreover, it is the manager who, for the purpose of his
operations, had them in stock when they became waste and
who may therefore be considered to be the person who
produced them within the meaning of Article 1(b) of
Directive 75/442.
o Under those conditions, since he is at once the possessor and
the producer of that waste, the service station manager
must be considered to be its holder within the meaning of
Article 1(c).
If in the main action, in the light of information which only the national court is
in a position to assess, it appears that the poor condition of the service
stations storage facilities and the leak of hydrocarbons can be attributed to a
disregard of contractual obligations by the petroleum undertaking which
supplies that service station, or to any actions which could render that
undertaking liable, the activities of that undertaking could be considered to
have produced waste within the meaning of Article 1(b) and it may
accordingly be regarded as the holder of the waste.
In the light of all the foregoing considerations, the answer to the question
referred by the national court must be that hydrocarbons which are
unintentionally spilled and cause soil and groundwater
contamination are waste within the meaning of Article 1(a) of
Directive 75/442.
o The same is true for soil contaminated by hydrocarbons,
even if it has not been excavated.
o In circumstances such as those in the main proceedings, the
petroleum undertaking which supplied the service station can
be considered to be the holder of that waste within the
meaning of Article 1(c) of Directive 75/442 only if the leak from
the service stations storage facilities which gave rise to the
waste can be attributed to the conduct of that undertaking.

Conclusion: Hydrocarbons which are unintentionally spilled and cause


soil and groundwater contamination are waste within the meaning of
Article 1(a) of Council Directive 75/442/EEC of 15 July 1975 on waste, as
amended by Council Directive 91/156/EEC of 18 March 1991. The same is
true for soil contaminated by hydrocarbons, even if it has not been
excavated. In circumstances such as those in the main proceedings, the
petroleum undertaking which supplied the service station can be
considered to be the holder of that waste within the meaning of Article
1(c) of Directive 75/442 only if the leak from the service stations storage
facilities which gave rise to the waste can be attributed to the conduct of
that undertaking.

Legal issues posed by the case:


o Question of who is the producer of the waste and whether or not the soil that is contaminated qualifies
as waste, who should dispose of it
Whether the leaking oil is considered waste
What happens to the contaminated soil, whether there is an obligation to clear/manage this waste
This case refers to D75/442 which has been replaced be D2008/98
o Very similar to the original directive regarding waste in the EU22
Idea of being hazardous or not does not depend on whether the waste originated from an accident
In order for waste to be considered hazardous, the waste must fulfil one of the requirements under Annex I of
the Directive
This case refers to non-excavated, contaminated soil
o D75/442 did not make any reference to this situation it was interpreted that such waste was
included in the regime (such waste was included in the situation)
o But D2008/98 now expressly excludes this sort of waste from the directive so the position has
changed since D75/442
Whether Texaco or Van De Walle is responsible for the removal of the waste they are both denunciated
before the criminal court in Belgium
o Directive is not definitive on this point
o The Directive states that it is the owner according to the Polluter Pays Principle, or even the
original producer
o If you cannot find the owner, you might have to reach the original producer
Whether the supplier of the oil was responsible of the producer of the waste?
Which part of the statement points to the original producer, the oil station?
o Texaco had contracted that the operator (Van De Walle) would maintain the oil station in a good
condition
o According to this statement, Van De Walle would assume the obligation of cleaning up
But even if Van De Walle was negligent, Texaco, as the owner, would have the obligation/duty to control the
activities of this operator
In this case, the responsibility really points to Van De Walle as Van De Walle had in the first place had
assumed the obligation to maintain the station, he would be the first in line to be asked to eliminate the waste
Important paragraphs: 4, 19, 20, 21, 24, 52 and 59

CASE 3: ARCELOR SA V COUNCIL OF THE EUROPEAN UNION AND


EUROPEAN PARLIAMENT

Contested Directive Directive 2003/87/EC if the European Parliament and of the Council of 13
October 2003 establishing a scheme for greenhouse gas emission allowance
trading within the Community and amending Council Directive 96/61/EC (the
contested directive) which came into force on 25 October 2003, establishes
a scheme for greenhouse gas emission allowance trading within the
European Community (allowance trading scheme) in order to promote
reductions of greenhouse gas emissions, in particular carbon dioxide in
a cost-effective and economically efficient manner (Article 1 of the
contested directive).
It is based on the Communitys obligations under the United Nations
Framework Convention on Climate Change and the Kyoto Protocol.
The Kyoto Protocol sets out three mechanisms to permit the participating
countries to achieve their objectives to reduce greenhouse gas
emissions, namely, first, the international trade in emission allowances,
second, the joint implementation of reduction projects and third, the
clean development mechanism, the last two also being known as
flexible mechanism.
Within the framework of the allowance trading scheme, the operators of the
installations must cover their greenhouse gas emissions by allowances which
are allocated to them in accordance with national allocation plans. If an
operator succeeds in reducing its emissions, it may sell the excess allowances
to other operators. Conversely, the operator of an installation from which the
emissions are excessive may buy the necessary allowances from an operator
with a surplus.
The allowance trading scheme is founded first, on the requirement to hold a
permit before emitting greenhouse gases (Articles 4 to 8 of the contested
directive) and second, on the principle of allowances authorising the permit-
holding operator to emit a certain quantity of those gases, with an obligation
on that operator to surrender each year the amount of allowances equal to the
total emissions from that installation. (Article 12(3) of the contested directive)
Article 9(1): Each Member State shall develop a [NAP] stating the total
quantity of allowances that it intends to allocate for that period and how it
proposes to allocate them. The [NAP] shall be based on objective and
transparent criteria, including those listed in Annex III, taking due account of
comments from the public.
Article 9(3): Within three months of notification of a [NAP] by a Member State,
the Commission may reject that [NAP], or any aspect thereof, on the basis that
it is incompatible with the criteria listed in Annex III or with Article 10 [of the
contested directive]. The Member State shall only take a decision under Article
11(1) or (2) if proposed amendments are accepted by the Commission.
Article 10: Member States are to allocate free of charge at least 95% of the
allowances for the first allocation period, and at least 90% for the second
allocation period.
Article 11: 1. For the three-year period beginning 1 January 2005, each
Member State shall decide upon the total quantity of allowances it will allocate
for that period and the allocation of those allowances to the operator of each
installation. This decision shall be taken at least three months before the
beginning of the period and be based on its [NAP] developed pursuant to
Article 9 and in accordance with Article 10, taking due account of comments
from the public.
2. For the five-year period beginning 1 January 2008 and for each subsequent
fie-year period, each Member State shall decide upon the total quantity of
allowances it will allocate for that period and initiate the process for the
allocation of those allowances to the operator of each installation. This
decision shall be taken at least 12 months before the beginning of the relevant
period and be based on the Member States [NAP] developed pursuant to
Article 9 and in accordance with Article 10, taking due account of comments
from the public.
Article 12(3): By April 30 each year, the operator of each installation is to
surrender to the competent authority a number of allowances equal to the total
emissions from that installation during the preceding calendar year, in order
that those allowances can subsequently be cancelled.
Article 16(2): Member States are required to ensure publication of the names
of operators which are in breach of requirements to surrender sufficient
allowances under Article 12(3) of the contested directive.
Article 16(3) and (4): Any operator which does not surrender sufficient
allowances to cover its emissions during the preceding year is to be held liable
for the payment of an excess emissions penalty amounting to EUR 40 in the
first period and EUR 100 in subsequent periods for each excess tonne of CO2
equivalent emitted but not covered by a surrendered allowance. Moreover,
payment of the excess emissions penalty does not release the operator from
the obligation to surrender an amount of allowances equal to its total
emissions.
Factual Background The applicant, Arcelor SA, was formed following a merger between ARBED,
Aceralla and Usinor in 2001. Since its merger with Mittal in 2006, the applicant
has been known as ArcelorMittal and has become the worlds largest steel
producer. However, at the time when the present action was brought, with a
production volume of 44 million tonnes per year, more than 90% of which was
produced in the European Union , the applicant accounted for less than 5% of
the worlds steel production. It has 17 installations in the European Union
for the production of pig iron and steel, which are located in France,
Belgium, Spain and Germany.
The applicant claims that the Court should declare Articles 4, 6(2)(e), 9,
12(3) and 16(2), (3) and (4), in conjunction with Article 2, Annex I and
Annex III, criterion 1, of the contested directive void to the extent that
those provisions apply to installations for the production of pig iron or
steel, including continuous casting, with a capacity exceeding 2.5 tonnes
per hour.
Law/Holding/Application Issue: Admissibility of the Application for Annulment
of Law to Facts It is settled case law that the fact that that Treaty provision does not expressly
recognise the admissibility of actions brought by private persons for annulment
of a directive within the meaning of the third paragraph of Article 249 EC is not
of itself sufficient to render such actions inadmissible. The Community
institutions cannot, merely by means of their choice of legal instrument,
deprive individuals of the judicial protection which is afforded to them by the
Treaty, even if that legal instrument is a directive.
Similarly, the mere fact that the contested provisions form part of a measure of
general application which constitutes a real directive and not a decision, within
the meaning of the fourth paragraph of Article 249 EC, taken in the form of a
directive is not of itself sufficient to exclude the possibility that those provisions
may be of direct and individual concern to an applicant.
In the present case, the contested directive, by means of both its form and its
substance, is a measure of general application which applies to objectively
defined situations and gives rise to legal effects in respect of categories of
persons defined in general or abstract terms, namely, all operators of
installations which pursue one of the activities listed in Annex I to the
contested directive, including the production of pig iron and steel undertaken
by the applicant.
However, it cannot be excluded that, in certain circumstances, the provisions
of such a measure of general application may concern certain individuals
directly and individually.
In addition, it is settled case law that the condition that the measure
forming the subject-matter of the proceedings must be of direct
concern to a natural or legal person, within the meaning of the
fourth paragraph of Article 230 EC, requires that that measure
should affect directly the legal situation of the individual and leave
no discretion to its addressees, who are entrusted with the task of
implementing it, such implementation being purely automatic and
resulting from Community rules without the application of other
intermediate rules. (Front national v Parliament [2004] ECR I-6289,
Regione Siciliana v Commission [2007] ECR I-2591)
o The Court considers it appropriate to examine, in the first place,
whether the applicant is individually concerned by the
contested provisions. Only then, if necessary, will the
Court also examine whether the applicant is directly
concerned by those provisions.
o It has been held in settled case law, natural or legal persons
other than those to whom a measure is addressed may
claim to be individually concerned, for the purposes of the
fourth paragraph of Article 230 EC, only if that measure
affects them by reason of certain attributes which are
peculiar to them or by reason of circumstances in which
they are differentiated from all other persons and by virtue
of these factors distinguishes them individually just as in
the case of the person to whom the measure is addressed.
(Plaumann v Commission [1963] ECR 95, Union de Pequenos
Agricultores v Council, P Commission v Jego-Quere [2004] ECR I-
3425)
In the light of the foregoing, it is necessary to examine whether the
obligations which may result from the contested provisions are
capable of distinguishing the applicant individually as an
addressee. In that regard, it should be noted that the applicant seeks the
annulment, first, of Article 4 of the contested directive, which establishes the
requirement to hold an emissions permit, second, if Article 6(2)(e) and Article
12(3) of that directive, which provide for the obligation to surrender a number
of allowances equal to the total emissions from the installation during the
preceding calendar year, third, of Article 9, in conjunction with criterion 1 of
Annex III to the contested directive, concerning the establishment of NAPs and
the alleged obligation on Member States to issue installation operators with a
maximum quantity of emission allowances, and fourth, of Article 16(2), (3) and
(4) of the contested directive, concerning penalties for failure to comply with
the obligation to surrender, in so far as all those provisions apply to pig iron
and steel producers by virtue of Article 2 of the contested directive, in
conjunction with Annex thereto.
There is no express or specific provision which is either high-
ranking or of secondary legislation which would have required the
Community legislature, when adopting the contested directive, to
take any particular account of the situation of pig iron and steel
producers, let alone of the applicants situation, vis--vis the situation
of operators in the other industrial sectors referred to in Annex I to that
directive.
o The applicant does not put forward any concrete high-
ranking rule which concerns it specifically or, at the very
least, the pig iron and steel producers, which is capable of
creating such an obligation in its favour.
o The applicant has not established that the contested provisions, in
particular the requirement of an emissions permit in Article 4 of the
contested directive, the obligation to surrender in Article 12(3), in
conjunction with Article 6(2)(e), and the penalties laid down in Article
16(2), (3) and (4) of that directive infringed its fundamental rights and
caused it serious harm in such a way as to distinguish it
individually as an addressee from any other operator
concerned by those provisions.
o Those provisions apply, in a general and abstract manner, to all
operators listed in Annex I to the contested directive and to objectively
determined situations. They are therefore capable of affecting the
legal position of all those operators in the same way.
The possibility of determining at the time of adoption of the
contested measure, more or less precisely the number, or even
the identity, of the persons to whom a measure applies by no
means implies that it must be regarded as being of individual
concern to those persons as long as it is established that that
application takes effect by virtue of an objective legal or factual
situation defined by the measure in question. The fact that certain
operators are more affected economically by a measure of general
application than others is not sufficient to distinguish them
individually from all other operators, since the application of that
measure takes effect by virtue of an objectively determined
situation.
o The applicant is affected by the contested provisions primarily in its
objective capacity as an installation operator producing greenhouse
gas emissions, on the one hand, and as a pig iron and steel producer,
on the other, in the same way as any other operator or pig iron or steel
producer whose activity is listed in Annex I to the contested directive.
o Even if the applicant was one of a group of only 15 pig iron or steel
producers operating within the internal market, that fact alone is not
sufficient to distinguish it individually, in the same way as an
addressee, from all other operators pursuing activities covered by
Annex I to the contested directive, including pig iron and steel
producers in that same group.
o Even considering that pig iron and steel producers
constitute a group of operators which is particularly
affected, they are all liable to suffer the same legal and
factual consequences as the applicant by reason of an
objectively determined situation, namely the inclusion of
their activity in Annex I to the contested directive. The
alleged technical and economic impossibility for those producers,
compared with operators in other industrial sectors, to reduce their
greenhouse has emissions further and to pass on to their customers
the additional costs incurred in purchasing emission allowances,
affects the pig iron and steel production sector as a whole
and in exactly the same way.
o The applicant has failed to demonstrate that those pig iron
and steel producers had particular characteristics which
distinguished them from other producers or new entrants,
for example the fact that they held earlier specific rights.
Even supposing that those producers held emission rights granted
under Directive 96/61, those alleged rights, far from being specific or
unique to the applicant, would have benefitted in the same way all
operators pursuing the activities listed in Annex I to the contested
directive.
o The mere fact that entry on to the relevant market is possible only by
means of acquisition of a producer which is already established on the
market does not rule out the possibility that the identity of the producer
or new entrant which buys it out may change and thus alter the
composition of the group of producers at issue.
The applicant fails to give any reasons why the pig iron and steel
producers in competition with it are not exposed to adaptation
problems and to similar difficulties as regards their size, volume of
production and their efforts to reduce emissions.
o The obligations resulting from the contested provisions apply in
a uniform and general manner to all installation operators
whose production exceeds the threshold set out therein,
irrespective of their size. In addition, the extent of those
obligations depends solely on the quantity of greenhouse gas
emissions which, in the absence of proof of the contrary, is likely to
increase with the size and production capacity of the installation at
issue, in such a way that all operators concerned are in a comparable
situation.
o Thus, the applicant cannot reasonably claim that it is particularly
affected in such a way as to distinguish it individually in the same
manner as an addressee and consequently, there is no need to
examine whether it is directly concerned in that regard.
The applicant has failed sufficiently to demonstrate that its alleged
unique lock-in situation, in particular as a result of the restructuring of
its group, was capable of distinguishing it individually from all other
operators. Even if it were the only pig iron and steel producer established in
the internal market which had undertaken such restructuring, the applicant has
not shown that there were no other producers in the other sectors covered by
Annex I to the contested directive which were affected by similar
consequences following the implementation of that directive on the ground that
they undertook or abandoned similar steps.
o The applicant has not proved that the fact that it was affected by
reason of its alleged unique lock-in situation was due specifically to
the legal effects of the contested provisions in such a way as to
concern it directly.
o The possible harm suffered by the applicant because of the price
increase for the acquisition of allowances and/or a possible loss of
allowances, even though it may be substantial and greater than for
other operators, following the closure of one of its installations or the
withdrawal of the allowances allocated to that installation by the
national authorities, cannot be attributed to the obligations resulting
from those provisions in order to enable the applicant to base its claim
that it is directly concerned within the meaning of the fourth paragraph
of Article 230 EC.
o Throughout the proceedings, the applicant has been unable to specify
or anticipate, with regard to the contested directive and Decision
2002/358, either the quantity of allowances which the Member States
will allocate it free of charge for its production installations established
in the internal market or the extent of the possible burden which it
would have to assume in the event that those allowances prove to be
insufficient.
As regards the long-term agreements for the supply of gas which the
applicant claims to have concluded with several power stations prior to
the entry into force of the contested directive, those agreements are also
not capable of distinguishing the applicant individually in relation to the
contested provisions. Those provisions govern, in a general and abstract
manner, the obligations of operators which are subject to the allowance
trading scheme, but do not specify the conditions or specific rules for the
allocation or withdrawal of emission allowances by the Member States. The
possibility that the performance of those gas supply agreements may be
affected can result only from national rules governing the allocation of
allowances, with the result that, in this regard, the applicant also has no basis
on which to support its claim that it is directly concerned.
o The applicant has neither specified the extent to which those gas
supply agreements link it to third party power stations, nor indicated
whether the latter were in a position to obtain emissions allowances of
their own accord or needed them because they were included in that
annex, nor explained under what circumstances a possible lack of
allowances for those power stations affected the performance of those
agreements.
The fact that a person intervenes in one way or another in the procedure
leading to the adoption of a Community measure may distinguish that
person as an individual in relation to the measure in question only when
the applicable Community law grants that person certain procedural
guarantees. Except where there is an express provision to the contrary,
neither the processof enacting measures of general application nor those
measures themselves require, under the general principles of Community law,
such as the right to a hearing, the participation of the persons affected as the
interests of those persons are deemed to be represented by the political
bodies called to adopt those measures.
o The process of enacting and adopting the contested directive, under
Article 175(1) EC and Article 251 EC, constituted a decision-making
process involving the joint participation of the Council and the
Parliament as the Community legislature and resulting in the adoption
of a measure of general application. No form of intervention on the
part of operators is foreseen in that context and, second, the applicant
has neither claimed nor shown that it had procedural rights capable of
establishing its standing to bring an action within the meaning of the
case law.

Arcelor is a huge company in the steel industry, largest in the world


Whether the fact of being the largest company in the world is an argument to prove that the company is
individually concerned by the contested Act
o No, this fact does not prove individual concern
Arcelor initiates an action for annulment in front of the General Court with regards to the Emissions Trading
Directive of the EU
o Related to carbon trading, limit on how much carbon you can emit into the environment
o There is a European market on CO2 emissions, enterprises have a cap on emissions, if they do not
achieve this level, they can trade with the remaining ones
o You can earn money if you are environmentally sound; if you pollute, you have a burden, cost of
pollution is higher
Arcelor feels that this system is discriminatory because not all sectors are involved, just a few sectors of the
industry are required to comply with this system
Do we have a pronunciation from the General Court on the substance of the case? Do we finally know
whether the Directive is valid or not?
o No, here we have a ruling on the admissibility of the claim. If we do not have access to court, we have
no idea on whether the contested Act is void or not
Only reached the question of the admissibility of the claim/suit of Arcelor, no decision on the substance of the
case

Admissibility of the Claim


Arcelor is not individually concerned by the Directive
Individual concern only if the contest Act affects the plaintiff in a particular way according to his or
her individual characteristics
o Need to show the Act affects you in a manner that differentiates your position from all the
others
Does being the leading producer of steel in the world place Arcelor in a different position from all other
industries in the world? No, it is not relevant
o Enterprise is not the only one affected, there are others
o But even if it is not the only one in the world, the contested Act generally establishes a broad scope of
application, it would be very difficult to prove individual concern
How the contested Act lays down its scope of application is important
Direct concern
o Since no individual concern was found, they did not get into direct concern
o Member states have broad discretion to implement the trading scheme
o Court did not go into the question of direct concern, but no direct concern anyhow as a directive does
not directly concern any individual person
o A directive needs specific implementing legislation on the part of Member States of the EU
Individuals do not have locus standi to contest the Act, but could try to obtain the same results by
contesting the implementing legislation in national courts
Up to the judge of national courts to introduce preliminary rulings
Important paragraphs: 99, Omit Part II of the case dealing with damages

CASE 4: COMMUNE DE MESQUER V TOTAL FRANCE SA AND TOTAL


INTERNATIONAL LTD
Law/Holding/Application 1) A substance such as heavy fuel oil sold as a combustible fuel does not
of Law to Facts constitute waste within the meaning of Directive75/442 on waste, as amended
by Decision 96/350, where it is exploited or marketed on economically
advantageous terms and is capable of actually being used as a fuel
without requiring prior processing.
Hydrocarbons accidentally spilled at sea following a shipwreck,
mixed with water and sediment and drifting along the coast of a
Member State until being washed up on that coast, constitute waste
within the meaning of Article 1(a) of that directive, where they are no
longer capable of being exploited or marketed without prior
processing.
2) 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 on waste, as amended by Decision 96/350, would be
frustrated if persons involved in causing waste, whether holders or
former holders of the waste or even producers of the product from
which the waste came, escaped their financial obligations as
provided for by that directive, even though the origin of the
hydrocarbons which were spilled at sea, albeit unintentionally, and
caused pollution of the coastal territory of a Member State was
clearly established.
3) The Community is not bound by the International Convention on Civil Liability for il
Pollution Damage or the International Convention on the Establishment of an
International Fund for Compensation for Oil Pollution Damage. In the first place,
the Community has not acceded to those international instruments and, in the
second place, it cannot be regarded as having taken the place of its Member
States, if only because not all of them are parties to those conventions, or as
being indirectly bound by those conventions as a result of Article 235 of the
United Nations Convention on the Law of the Sea signed at Montego Bay on 10
December 1982, which entered into force on 16 November 1994 and was
approved by Decision 98/392, paragraph 3of which confines itself to establishing
a general obligation of cooperation between the parties to the convention.
4) For the purpose of applying Article 15 of Directive 75/442 on waste, as amended
by Decision 96/350 to the accidental spillage of hydrocarbons at sea causing
pollution of the coastline of a Member State:
The national court 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, 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
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, 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.
Issues 1) Whether heavy fuel oil sold as a combustible fuel maybe classified as
waste within the meaning of Article 1(a) of Directive 75/442
Article 1(a): any substance or object in the categories set out in Annex
I to the directive which the holder discards or intends or is required to
discard is to be regarded as waste
Those terms must be interpreted in the light of the aim of the directive
(ARCO Chemie Nederland and Others [2000] ECR I-4475) which
consists in the protection of human health and the environment
against harmful effects caused by the collection, transport, treatment,
storage and tipping of waste, having regard to Article 174(2) EC,
which provides that Community policy on the environment is to aim at
a high level of protection and is to be based, in particular, on the
precautionary principle and the principle that prevention action should
be taken. (Niselli [2004] ECR I-10853).
The concept of waste cannot be interpreted restrictively. It can cover
all objects and substances discarded by their owner, even
if they have a commercial value and are collected on a
commercial basis for recycling, reclamation or reuse. (Palin
Granit and Vehmassalon kansanterveystyon kuntayhtyman hallitus
[2002] ECR I-3533)
Certain circumstances may constitute evidence that a substance
or object has been discarded or of an intention or
requirement to discard it within the meaning of Article 1(a)
of Directive 75/442.
o E.g. where the substance used is a production residue,
that is to say, a product not sought as such
o However, goods, materials or raw materials resulting from a
manufacturing or extraction process which is not primarily
intended to produce that item may constitute not a residue but
a by-product which the undertaking does not wish to discard
but intends to exploit or market on economically
advantageous terms in a subsequent process without prior
processing.
o However, having regard to the obligation to interpret the
concept of waste widely in order to limit its inherent nuisance
and harmful effects, the reasoning concerning by-products
should be confined to situations in which the reuse of goods,
materials or raw materials is not a mere possibility but a
certainty, without prior processing and as an integral part of
the production process.
In addition to the criterion of whether a substance constitutes a
production residue, a second relevant criterion for determining
whether or not the substance is waste within the meaning of Directive
75/442 is thus the degree of likelihood that the substance will
be reused without prior processing.
o If, in addition to the mere possibility of reusing the substance,
there is also an economic advantage to the holder in so doing,
the likelihood of such reuse is high. In that case, the
substance in question can no longer be considered a
substance which its holder seeks to discard and must be
regarded as a genuine product.
o The substance in question is obtained as a result of the
process of refining oil. However, this residual substance is
capable of being exploited commercially on economically
advantageous terms, as is confirmed by the fact that it was
the subject of a commercial transaction and meets the buyers
specifications. Thus, heavy fuel oil sold as a combustible fuel
does not constitute waste within the meaning of Directive
75/442.
2) Whether heavy fuel oil that is accidentally spilled into the sea following a
shipwreck must in such circumstances be classified as waste within the
meaning of category Q4 in Annex I to Directive 75/442.
3) Whether, in the event of the sinking of an oil tanker, the producer of the
heavy fuel oil spilled at sea and/or the seller of the fuel and charterer of
the ship carrying the fuel may be required to bear the cost of disposing
of the waste thus generated, even though the substance spilled at sea
was transported by a third party, in this case a carrier by sea
Law/Holding/Application First and Second Issues
of Law to Facts The fact that Annex I to Directive 75/442, entitled Categories of waste refers
in point Q4 to Materials spilled, lost or having undergone other mishap,
including any materials, equipment, etc., contaminated as a result of the
mishap thus merely indicates that such materials may fall within the scope of
waste. It cannot therefore suffice to classify as waste hydrocarbons which are
accidentally spilled at sea and cause pollution to the territorial waters and then
the coastline of a Member State.
It must be examined whether such an accidental spillage of
hydrocarbons is an act by which the holder discards them within
the meaning of Article 1(a) of Directive 75/442.
Where the substance or object in question is a production residue, that
is, a product which is not itself wanted for subsequent use and
which the holder cannot reuse on economically advantageous
terms without prior processing, it must be regarded as a burden
which the holder discards.
o In the case of hydrocarbons which are accidentally spilled and cause
soil and groundwater contamination, the Court has held that they do
not constitute a product which can be reused without prior pricessing
(Van der Walle).
o The same conclusion must be reached in the case of hydrocarbons
which are accidentally spilled at sea and cause pollution of the
territorial waters and then the coastline of a Member State.
o It is common ground that the exploiting or marketing of such
hydrocarbons, spread or forming an emulsion in the water or
agglomerated with sediment, is very uncertain or even
hypothetical. It is also agreed that, even assuming that it is
technically possible, such exploiting or marketing would in any
event imply prior processing operations which, far from being
economically advantageous for the holder of the substance,
would in fact by a significant financial burden. It follows that such
hydrocarbons accidentally spilled at sea are to be regarded
as substances which the holder did not intend to produce
and which he discards, albeit involuntarily, while they
are being transported, so that they must be classified as
waste within the meaning of Directive 75/442. (Van der Walle)
Consequently, the answer to the second question must be that hydrocarbons
accidentally spilled at sea following a shipwreck, mixed with water and
sediment and drifting along the coast of a Member State until being washed
up on that coast, constitute waste within the meaning of Article 1(a), where
they are no longer capable of being exploited or marketed without prior
processing.

Third Issue
Article 15 polluter pays principle the cost of disposing the waste is to be
borne by the previous holders or the producer of the product from which the
waste came
Article 8 any holder of waste is obliged to have it handled by a private or
public waste collector or by an undertaking which carries out the operations
listed in Annex II A or B to the directive or to recover or dispose of it himself in
accordance with the provisions of the directive
Directive 75/442 distinguishes the actual recovery or disposal operations
which it makes the responsibility of any holder of waste, whether producer or
possessor, from the financial burden of those operations, which, in
accordance with the polluter pays principle, it imposes 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.
o 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 person
involved in causing waste escaped their financial obligations as
provided for by that directive, even though the origin of the
hydrocarbons which were spilled at sea, albeit unintentionally and
caused pollution of the coast territory of a Member State was clearly
established.

The terms holder and previous holders


The Court has held, in the case of hydrocarbons spilled by accident as
the result of a leak from a service stations storage facilities which had
been bought by that service station to meet its operating needs, that
those hydrocarbons were in fact in the possession of the service
stations manager. The Court thus found that, in that context, the person
who, for the purpose of his activity, had the hydrocarbons in stock when
they became waste could be regarded as the person who produced
them within the meaning of Article 1(b) of Directive 75/442.
o Since he is at once the possessor and the producer of that
waste, such a service station manager must be regarded as its
holder within the meaning of Article 1(c) of that directive.
In the same way, in the case of hydrocarbons spilled by accident at sea, it
must be held that the owner of the ship carrying those hydrocarbons is
in fact in possession of them immediately before they become waste
within the meaning of Article 1(b) of Directive 75/442, and on that basis
be categorised as a holder within the meaning of Article 1(c) of that
directive.
However, that 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.

Determination of the persons liable to bear the cost of disposing of the waste
Article 15 of Directive 75/442: Certain categories of persons, in this case the
previous holders or the producer of the product from which the waste came,
may, in accordance with the polluter pays principle, be responsible for
bearing the cost of disposing of waste. That financial obligation is thus
imposed on them because of their contribution to the creation of the waste
and, in certain cases, to the consequent risk of pollution.
For hydrocarbons accidentally spilled at sea following the sinking of an oil
tanker, the national court may therefore consider that the seller of the
hydrocarbons and charterer of the ship carrying them has produced waste, 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.
o In such circumstances, the second indent of Article 15 provides that
the cost of disposing of the waste is to be borne either by the
previous holders or by the producer of the product from which the
waste in question came.
In accordance with Article 249 EC, while the Member States as the
addressees of Directive 75/442 have the choice of form and methods, they are
bound as to the result to be achieved in terms of financial liability for the cost
of disposing of waste. They are therefore obliged to ensure that their national
law allows that cost to be allocated either to the previous holders or to the
producer of the product from which the waste came.
o Article 15 does not preclude the Member States from laying down,
pursuant to their relevant international commitments such as the
Liability Convention and the Fund Convention, that the shipowner and
the charterer can be liable for the damage caused by the discharge of
hydrocarbons at sea only up to maximum amounts depending on the
tonnage of the vessel and/or in particular circumstances linked to their
negligent conduct.
o That provision also does not preclude a compensation fund such as
the Fund with resources limited to a maximum amount for each
accident from assuming liability, pursuant to those international
commitments, in place of the 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.
o The obligation of a Member State to take all measures necessary to
achieve the result prescribed by a directive is a binding obligation
imposed by the third paragraph of Article 249 EC and by the directive
itself.
In order to apply Article 15 of Directive 75/442 to the accidental spillage of
hydrocarbons at sea causing pollution to the coastline of a Member State:
o 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, 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
o 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, 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.

Shipwreck of a ship carrying oil in front of the French coast, particularly in front of the Masquer village
Total said that French Commune did not have standing to pursue the suit
First question: Whether the oil has become waste, whether the definition of waste applies here
o Oil spilled into water (melded with other substances) can be considered waste, but oil as such cannot
be considered waste
Second question: Whose responsibility is it for the cleanup?
o This is not a question that the Court of Justice addresses in a definitive manner
o The Directive on waste is first not definitive on this point (who is going to assume the responsibility of
cleanup, the previous holder)
Was the original producer of the waste, i.e. Total France, responsible for this?
The owner of the ship has its own responsibility
What if this fact cannot reach the cost of the whole cleanup?
If it can be proved that the original producer contributed to the risk that led to the accident, in other
words, if we assume that Texaco was acting in a negligent manner when choosing the ship that had to
transport this dangerous substance, then Texaco would be responsible for this
o But then again, the Court of Justice is not definitive on this point
o The national court is the one that will definitively settle the case, not up to the Court of Justice
to consider the facts of the case, up to the national courts
o Both were responsible for the contracting of the ship
o When dealing with a dangerous substance, you have to be careful with regards to who is transport it
the responsibility still follows those who produce it