Slide 2 Liability - European Commissionec.europa.eu/environment/legal/law/pdf/principles/4 Polluter...

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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.

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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.

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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.

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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

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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.

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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.

However, almost every human use of water pollutes it. Domestic washing, cleaning, toilet

and sewer systems, all add dirt, waste and chemicals to the water we use. And so the

polluter pays principle applies to domestic water usage too. Under the WFD, domestic

users will pay for the water they use and also for the post-use treatment of that water.

Water Charges

The WFD does not allow governments to profit from water charges, but the directive

recommends two policies which will push water charges upward. First, governments are

directed to price water at a sufficiently high level so as that users will be motivated to

reduce their water usage. (Higher water charges, together with more water-efficient

technologies, have been an important factor in falling domestic water usage in many

European countries.)

Second, governments are encouraged to take a long-term economic view. In principle, this

means that prices might fall due to anticipated falling costs of supplying water in the future.

In practice, it is more likely to mean that governments will factor into current prices

anticipated future increases in the cost of maintaining an adequate water supply due to

higher demand, increased industrial activity, the need to replace or upgrade infrastructure,

or more exacting environmental standards, etc.

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Slide 8 Emission Trading System

Inform on EU ETS system (for further info see source at the end of tis slide)

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Slide 9 draft Soil Protection Directive

The draft Directive allows MS to set their own levels of ambition on targets

and to select the measures under the programmes and remediation strategies

which they consider most appropriate and most cost-effective. Therefore, the

costs and benefits will depend on this level of ambition and will also vary

according to the extent to which Member States make use of the possibilities

offered by existing legislation, such as cross-compliance within the CAP, to

contribute to soil protection.

Different scenarios of measures can be envisaged, based on different levels

of ambition.

Common to all scenarios is that additional costs would only start to apply from

around 2015 onwards and may be borne either by the land users and the

polluter and/or by the public administration, depending on the decisions

ultimately taken by Member States. The benefits would be shared mainly by

society at large and a number of economic operators.

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extended producer responsibility

Aim: Strengthen the re-use and the prevention, recycling and other recovery

of waste

Legislative and non-legislative measures:

Acceptance of returned products

Financial responsibility

Design of products (reduce impact, suitable for multiple use, technically

durable etc.)

EP re-emphasised in resolution on 13.2.2007 that proper implementation of

the concept of producer responsibility is a strong instrument to prevent waste;

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Slide 11

Packaging Directive allows MS to make use of PPP

(Explain DSD system)

See slide 10 notes – here for WEEE


of waste





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durable etc.)

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See slide 10 notes – here for batteries


of waste





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durable etc.)

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Slide 14 Batteries Directive

Articles of relevance

Article 9: use economic instruments to promote the collection of waste

batteries and accumulators or to promote the use of batteries and

accumulators containing less polluting substances, for instance by adopting

differential tax rates

Article 16: Member States shall ensure that producers, or third parties

acting on their behalf, finance any net costs arising from:

(a) the collection, treatment and recycling of all waste portable batteries

and accumulators collected in accordance with Article 8(1) and (2); and

(b) the collection, treatment and recycling of all waste industrial and

automotive batteries and accumulators collected in accordance with Articles

8(3) and (4).

Member States shall oblige producers, or third parties acting on their behalf,

to finance any net costs arising from public information campaigns on the

collection, treatment and recycling of all waste portable batteries and

accumulators

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