Opinion of the Advocate General — ECLI:EU:C:2008:174
Date: 2008-03-13
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Waste;Pollution
Procedure: Reference for a preliminary ruling
Origin: France

summary, the answer to the first question must therefore be that heavy fuel oil, as the product of a refining process, meeting the user’s specifications and intended by the producer to be sold as a combustible fuel, and referred to in Directive 68/414 on strategic resources to which a stock-holding obligation attaches, cannot as such be treated as waste within the meaning of Article 1 of the Waste Framework Directive. C – The second question – Nature of the leaked fuel oil as waste 59. With the second question the Cour de Cassation is seeking to ascertain whether a cargo of heavy fuel oil, transported by a ship and accidentally leaked into the sea, constitutes – either through that leak or on account of being mixed with water and sediment – waste falling within Category Q4 in Annex I to the Waste Framework Directive. 60. Belgium and probably also Total take the view that the application of the Waste Framework Directive is precluded by the Liability Convention. Under Article III(4) of that Convention, no claim for compensation for pollution damage may be made against the owner or other persons otherwise than in accordance with the Convention. 61. Nevertheless, the Liability Convention is irrelevant to the second question because it does not contain any rules on whether oil products leaked in tanker accidents are waste. Instead the Convention must be examined below in the context of the third question because that question concerns responsibility under the law on waste and thus also liability. 62. Total also takes the view that the question whether the heavy fuel oil became waste through the leak is manifestly irrelevant to the main proceedings. The case concerns only heavy fuel oil which polluted the coastal areas of Mesquer. That part of the question does not therefore need to be answered. 63. This argument contradicts Total’s submissions on the second part of the question, however. Total takes the view that the mixture of heavy fuel oil, water and sediment which polluted the coast is to be treated as waste only if there is an obligation to discard the heavy fuel oil. Such an obligation – which relates to heavy fuel oil alone at its origin – can only arise, however, if the heavy fuel oil became waste prior to being mixed. 64. Consequently, the first part of the question is perfectly relevant according to Total’s own submissions and must be answered. 65. Total also takes a view which I have already held in a similar form, namely that the leaked substance should be considered together with the contaminated substance. (47) The matter would then hinge on whether the holder discards, intends to discard or is required to discard the mixture. This viewpoint may be reasonable under certain circumstances, in particular where the origin of the elements of a mixture can no longer be clarified. 66. The examination of the mixture is of no benefit, however, if – as in the context of the third question in the present case – responsibility for the generation of waste is to be ascertained. That responsibility is generally linked to the fate of the individual elements, in the present case heavy fuel oil, whilst the nature of the other elements as waste is the consequence of the pollution by the heavy fuel oil. It must therefore be examined whether the heavy fuel oil became waste. 67. Annex I to Directive 75/442, entitled ‘Categories of waste’, refers in heading Q4 to ‘materials spilled, lost or having undergone other mishap, including any materials, equipment, etc., contaminated as a result of the mishap’. This merely indicates that such materials may be waste. However, it is not possible per se to classify as waste hydrocarbons which are spilled by accident and which cause contamination. (48) As has already been stated in connection with the first question, substances and objects are waste under Article 1(a)(1) of the Waste Framework Directive only if their holder discards, intends to discard or is required to discard them. (49) 68. The spillage of heavy fuel oil in a tanker accident does not characterise – without further special indications – either an intention to discard or an obligation to discard. It must be examined, however, whether the holder did discard as a result of the spillage of the heavy fuel oil. 69. In this respect, in Van de Walle the Court drew a parallel with the case-law on production residues. That case concerned hydrocarbons leaked from a service station’s storage facilities into the surrounding ground. 70. The Court pointed out that a product which is not itself wanted for subsequent use and which the holder cannot economically re-use without prior processing must be considered to be a burden which the holder seeks to discard. (50) 71. It is clear, according to the Court, that accidentally spilled hydrocarbons which cause soil and groundwater contamination are (also) not a product which can be re-used without processing. Their marketing is very uncertain and, even if it were possible, implies preliminary operations that would be uneconomical for their holder. Those hydrocarbons are therefore substances which the holder did not intend to produce and which he discards, albeit involuntarily, at the time of distribution. (51) 72. As France, Italy, the United Kingdom and the Commission also argue, the same applies to heavy fuel oil which is discharged in a tanker accident and is mixed with water and sediment. Its usability is at least uncertain, if not completely ruled out. Thus the holder of the heavy fuel oil did discard it in the course of transportation, albeit involuntarily. 73. The Court also held in Van de Walle that the same classification as ‘waste’ applies to soil contaminated as the result of an accidental spill of hydrocarbons. In that case, the hydrocarbons cannot be separated from the land which they have contaminated and cannot be recovered or disposed of unless that land is also subject to the necessary decontamination. (52) 74. These considerations also apply in the present case. The heavy fuel oil can be treated on the basis of the law on waste only if the water mixed with it and the sediment were subject to the necessary treatment, either to separate the different elements or to be disposed of or recovered together. 75. The judgment in Van de Walle and Others has been criticised in legal literature, often because of its practical consequences. (53) In addition to arguments which were discussed or were less apparent in the judgment or at least in the Opinion, the objection has also been raised – rightly – that the sixth recital in the preamble to the Waste Framework Directive is not mentioned. (54) It states that ‘effective and consistent regulations on waste disposal … should be applied to movable property which the owner disposes of or is required to dispose of under the provisions of national law in force …’. 76. However, that recital does not necessarily exclude immovable property from the scope of the Waste Framework Directive. At most it can be inferred that the directive is not aimed at immovable property in principle. It would however be contrary to the aim of effective and consistent regulations on waste disposal laid down in the same recital to preclude the application of the law on waste where movable property becomes immovable as a result of being mixed with the ground. Rather, waste must not be excluded from the scope of the law on waste in this way. (55) 77. Nevertheless the Council and Parliament are at present considering a proposal for the revision of the Waste Framework Directive, which provides inter alia that the directive does not apply to land (in situ) including unexcavated contaminated soil and buildings permanently connected with land. (56) 78. In view of the ongoing legislative procedure, the Court should not anticipate the legislature by calling into question its case-law on this point. 79. It should also be pointed out that Article 2(1)(b)(iv) of the Waste Framework Directive does not exclude oil waste from the scope of the directive. Under that provision, waste waters, with the exception of waste in liquid form, are excluded from the scope of the Waste Framework Directive where waste waters are already covered by other legislation. Oil waste does not constitute waste waters since it does not result from the use or consumption of water. In so far as it is (still) liquid at all, it is in fact liquid waste. 80. The answer to the second question must therefore be that heavy fuel oil is to be treated as waste for the purposes of the Waste Framework Directive if it is discharged in a tanker accident and is mixed with water and sediment. D – The third question – Responsibility for costs in connection with the leaked heavy fuel oil 81. With the third question the Cour de Cassation is seeking to ascertain whether Total, as the producer of heavy fuel oil and/or the seller and carrier, can be regarded as the producer and/or holder of waste within the meaning of Article 1(b) and (c) of the Waste Framework Directive and for the purposes of applying Article 15 of that directive, even though at the time of the accident which transformed it into waste the product was being transported by a third party. 82. Article 15 of the Waste Framework Directive lays down rules governing responsibility for bearing the cost of disposing of waste. The reference to that provision shows that the third question is intended to ascertain whether companies in the Total Group have to bear the cost of disposing of the spilled heavy fuel oil. 1. The relationship between the Waste Framework Directive and the Liability Convention 83. Total and Belgium are opposed to the application of Article 15 of the Waste Framework Directive, since responsibility for costs in connection with oil pollution damage at sea is regulated definitively in the Liability Convention and in the Fund Convention. Liability for oil pollution damage is ‘channelled’ to the owner of the ship, whilst claims against others, in particular against a charterer like Total International Ltd, are precluded. In addition to the limited liability on the part of the owner of the ship, oil pollution damage is covered by an international fund under the Fund Convention up to a total liability sum defined therein. These rules take precedence over the application of Article 15 of the Waste Framework Directive in the present case. 84. The two conventions have been ratified by nearly all the Member States, but not by the Community. They do not therefore form part of Community law and thus – contrary to the arguments made by Total at the hearing – are not binding on the Community. (57) The Commission also rightly stated at the hearing that the two conventions are not binding on the Community as customary international law. (58) As a result, the Court cannot interpret the conventions in preliminary ruling proceedings. (59) It may, however, examine the extent to which, even though those conventions are not binding on the Community, they can preclude the application of Article 15 of the Waste Framework Directive. Decision 2004/246 85. Total relies on Decision 2004/246 authorising the Member States to sign, ratify or accede to, in the interest of the European Community, the Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992, and authorising Austria and Luxembourg, in the interest of the European Community, to accede to the underlying instruments. 86. That decision can be construed as meaning that the Community has permitted the Member States to derogate from Community law in so far as this was necessary for accession to the Supplementary Protocol. The permitted derogations would then include the rules of the Liability Convention under Article 1(4) of Decision 2004/246. 87. In so far as the Liability Convention departs from the Waste Framework Directive, Decision 2004/246 should possibly have been based on the environmental competence under Article 175 of the Treaty. However, unless the decision is repealed or annulled, there is much evidence to suggest that at least the interested parties may rely on the applicability of a convention entered into by the Member State concerned which is approved by the Community. 88. Nevertheless, Decision 2004/246 was adopted only several years after the sinking of the Erika. On the other hand, the obligation to bear the cost of disposing of oil waste essentially arose when the accident occurred. Decision 2004/246 does not contain any indication that it is intended to cancel that obligation retroactively under certain circumstances. Since responsibility for costs is not a penalty, there is also no reason to assume that the principle of the most lenient penalty (60) runs counter to Article 15 of the Waste Framework Directive. 89. The legal situation at the time when the obligations under the law on waste arose is therefore crucial. As a result, Decision 2004/246 is irrelevant to the present case. Directive 2004/35/EC 90. Total and Belgium also cite Directive 2004/35 on environmental liability (61) as an argument against the application of the Waste Framework Directive. Article 4(2) of that directive precludes its application to environmental damage or to any imminent threat of such damage arising from an incident in respect of which liability or compensation falls within the scope of the Liability Convention, which is in force in the Member State concerned. 91. It is possible that Directive 2004/35 clarifies Article 15 of the Waste Framework Directive and the exception contained therein for the Liability Convention might therefore also have repercussions on Article 15 of the Waste Framework Directive. The Court does not have to decide on this in the present case, however. Directive 2004/35 was adopted after the events at issue and had to be transposed by 30 April 2007. It does not apply to damage caused by an emission, event or incident that took place before that date. Article 235 of the Law of the Sea Convention 92. At the hearing Total also relied on Article 235(3) of the Law of the Sea Convention. Under that provision, States must cooperate in the implementation and further development of international law with the objective of assuring prompt and adequate compensation in respect of all damage caused by pollution of the marine environment. 93. The Law of the Sea Convention forms an integral part of the Community legal order and is binding on the Community. (62) However, as France is perfectly right to argue, contrary to the view taken by Total, no binding effect vis-à-vis certain international conventions on liability for pollution damage can be inferred from Article 235(3) of the Law of the Sea Convention. It merely sets out the mandate to cooperate. Article 307 EC 94. Lastly, the first paragraph of Article 307 EC does not mean that the provisions of the Liability Convention take precedence over Article 15 of the Waste Framework Directive. The Liability Convention was agreed with French participation on 1 January 1958 and ratified by France only after the establishment of the Community. The first paragraph of Article 307 EC is not therefore applicable according to its wording. 95. A mutatis mutandis application of the first paragraph of Article 307 EC does not lead to any other conclusion. It is conceivable where an international obligation on the part of a Member State conflicts with a subsequently agreed measure of secondary law. France appears to have deposited the instrument of ratification for the Liability Convention in its 1969 version on 11 March 1975, (63) whilst the original version of the Waste Framework Directive was not adopted by the Council until 15 July 1975. 96. Nevertheless, there is no need here to examine further whether a mutatis mutandis application of the first paragraph of Article 307 EC is possible in this situation. The Liability Convention in its original version could not preclude the application of Article 15 of the Waste Framework Directive in the present case. A possible conflict between the version of the 1992 Liability Convention applicable at the time and Article 15 could only stem from the fact that the Liability Convention largely precludes claims against the charterer of a tanker whilst under Article 15 the charterer might be required to bear the cost of disposing of oil waste. However, this exclusion from liability was not yet contained in the Liability Convention of 1969. It is a more recent international obligation imposed on France compared with Article 15 of the Waste Framework Directive. 97. The present Article 15 of the Waste Framework Directive stems from an amendment to the directive in 1991, but the original version of the Waste Framework Directive already contained an Article 11 which was substantively identical to Article 15. 98. There could be a different assessment of the limitation of the liability of the ship’s owner since such a limitation was already laid down in Article V of the original version of the Liability Convention. In this respect the question could arise whether the adoption of the Waste Framework Directive which was immediately imminent when the Liability Convention was ratified precludes the mutatis mutandis application of the first paragraph of Article 307 EC. However, there is no need to examine this further here since the present proceedings do not concern the liability of the owner of the ship, but the liability of the owner of the cargo. Consistent interpretation 99. Thus the Liability Convention and the Fund Convention do not preclude the application of Article 15 of the Waste Framework Directive on the basis of the considerations mentioned so far. However, the arguments presented illustrate a broad political consensus for liability for oil pollution damage to be regulated by the Liability Convention and the Fund Convention. 100. That consensus is confirmed first by the fact that the two conventions are ratified by nearly all the Member States and secondly by several non-binding Community instruments cited by Total which also state that oil pollution damage is subject to the conventions. These are the First Environmental Action Programme, (64) the Commission proposal for a Council directive on civil liability for damage caused by waste, (65) the Communication from the Commission to the European Parliament and the Council on the safety of the seaborne oil trade, (66) and answers to two Parliamentary questions given by the Commission. (67) 101. Furthermore, a departure by Community law from those conventions would encumber France and possibly other Member States with a conflict between their obligations under Community law and those under international law. The obligation of loyalty between the Community and the Member States requires such conflicts to be avoided where possible. 102. Lastly, the cooperation obligation imposed on the Community under Article 235(3) of the Law of the Sea Convention implies at least that the Community must give special consideration to the efforts made by the States. This is also consistent with the objective of Community policy on the environment under the fourth intent of Article 174(1) of the Treaty of promoting measures at international level to deal with environmental problems. 103. Article 15 of the Waste Framework Directive must therefore be interpreted as far as possible as meaning that conflicts with the Liability Convention and the Fund Convention must be avoided. (68) 2. The interpretation of Article 15 of the Waste Framework Directive 104. It must now be examined whether the two companies in the Total Group, as the producer of heavy fuel oil and/or the seller and carrier under Article 15 of the Waste Framework Directive, must bear the cost of disposing of the spilled heavy fuel oil. The persons mentioned in Article 15 of the Waste Framework Directive 105. Article 15 of the Waste Framework Directive lays down rules governing responsibility for the cost of disposing of waste. Under the first indent, in accordance with the ‘polluter pays’ principle it is the responsibility of the holder who has waste handled by a waste collector or by an undertaking as referred to in Article 9. In addition, the second indent mentions the previous holders or the producer of the product from which the waste came. 106. In Van de Walle and Others the Court held that that provision imposes the financial burden of the disposal operations, in accordance with the principle of polluter pays, on the persons who cause the waste, whether they are holders or former holders of the waste or even producers of the product from which the waste came. (69) 107. It is therefore possible that Total France is responsible for the costs as producer of the heavy fuel oil, i.e. as producer of the product from which the waste came. 108. This can apply to Total International Ltd, on the other hand, only if it was the holder or at least the former holder of the oil waste. 109. Under Article 1(c) of the Waste Framework Directive holder means the producer of the waste or the natural or legal person who is in possession of it. According to the judgment in Van de Walle, the Waste Framework Directive therefore defines ‘holder’ broadly, without specifying whether the obligation to dispose of or recover waste is as a general rule a matter for the producer or the possessor of the waste. It is irrelevant for the purposes of possession whether he is the owner or the holder. (70) 110. It cannot be ruled out that during transportation Total International Ltd had actual physical control of the heavy fuel oil indirectly, represented by the transportation company and the crew. As a result of the accident, however, it lost any physical control at the point when the heavy fuel oil became waste. Total International Ltd thus never had physical control of the oil waste. 111. It is therefore possible that Total International Ltd is responsible for bearing the costs only if that company is to be regarded as the producer of the oil waste and was thus also the holder of the oil waste in accordance with Article 1(c) of the Waste Framework Directive. 112. Article 1(b) of the Waste Framework Directive defines producer as anyone whose activities produce waste (original producer) and/or anyone who carries out pre‑processing, mixing or other operations resulting in a change in the nature or composition of this waste. 113. The question whether that definition applies to Total International Ltd – as the Commission also argues – depends on whether it influenced the generation of the oil waste in such a way that that event is to be attributed to its own personal activity. This is taken to be the case if the accident could be attributed to a disregard of Total International Ltd’s contractual obligations or to any actions which could render that undertaking liable. (71) The extent to which Total International Ltd is therefore the producer of the oil waste can only be ascertained by the competent trial court, however. 114. The sentence pronounced on 16 January 2008, which has already been mentioned, also suggests that Total France may be regarded as the producer and holder of the waste on the basis of the same criteria in connection with the relevant factual findings. The Tribunal de grande instance found that Total International Ltd was not at fault for the sinking of the Erika, but another Total company, Total S.A., since that company had selected the ship and in doing so had not exercised due care. (72) It is for the competent national courts to examine whether the production of the waste can also be attributed to Total France. 115. It is thus possible that Total France is responsible for bearing the cost of disposing of the oil waste because it produced the heavy fuel oil, but also in the event that it produced the oil waste. Total International Ltd can be ordered to bear the cost only if it produced the oil waste. Selection of the party responsible for bearing the costs under Article 15 of the Waste Framework Directive in accordance with the polluter-pays principle 116. The question also arises whether Total France and possibly Total International Ltd must bear the cost of disposing of the oil waste because they fall within the group of persons referred to in Article 15 of the Waste Framework Directive. 117. In fact, the Commission seems to take the view that all those referred to in Article 15 of the Waste Framework Directive may be required to bear the cost of disposing of waste. On the other hand, at the hearing the United Kingdom maintained that Article 15 of the Waste Framework Directive does not establish any rules on liability, in particular because there are no rules therein governing the selection of the party responsible for bearing the costs. 118. However, the Court has given a different interpretation to Article 15 of the Waste Framework Directive. The judgment in Van de Walle concerned fuel leaked from a service station which contaminated the surrounding land. The responsible party in principle was the manager of the service station, who had bought the fuel to meet the service station’s operating needs, was therefore the holder and, for the purpose of his operations, had it in stock when it became waste within the meaning of Article 1(b) of Directive 75/442. (73) Only if exceptionally the poor condition of the service station’s storage facilities and the leak of hydrocarbons could be attributed to a disregard of contractual obligations by the petroleum undertaking which supplied that service station, or to any actions which could render that undertaking liable, could that undertaking be responsible. Then the activities of that undertaking could be considered to have produced waste within the meaning of Article 1(b) of Directive 75/442 and it could accordingly be regarded as the holder of the waste. (74) 119. According to the Court, the cost is therefore to be borne by the person who produced the waste. (75) However, Article 15 designates only the group of those who may possibly be responsible for bearing the cost, from whom it is necessary to select the person who is to bear the costs, in accordance with the polluter-pays principle. 120. This interpretation of the polluter-pays principle, as a principle governing the apportionment of costs, is consistent with other language versions which – unlike the German version – do not use a notion of causality, but state that the polluter pays (polluter pays, pollueur-payeur). Accordingly, the Court has interpreted the polluter-pays principle as an expression of the proportionality principle, which requires the Member States – and the Community legislature – to refrain from imposing on anyone costs that are unnecessary having regard to the circumstances. (76) In the case at issue the question was whether agriculture could be called on to reduce nitrate discharges more than is commensurate with its proportion of the total amount. With regard to the law on waste, it can be inferred, first of all, that a person cannot bear the cost of disposing of waste which comes from others. 121. If a product becomes waste, the final holder is in principle the producer of the waste since he discards the product. As Total argues, responsibility for costs on the part of the producer of the product – as is possible under Article 15 of the Waste Framework Directive – would therefore seem to run counter to the polluter-pays principle. 122. Nevertheless, some rules on dealing with waste impose the cost of its disposal in principle on the producer of the product which became waste. In this connection the Commission refers to Directive 2006/66/EC of 6 September 2006 on batteries and accumulators and waste batteries and accumulators and repealing Directive 91/157/EEC, (77) Article 8 of which provides that producers of batteries and accumulators are to bear the costs of their disposal as waste. (78) In addition, under Article 15 of European Parliament and Council Directive 94/62/EC of 20 December 1994 on packaging and packaging waste (79) the Member States may impose the costs of disposal under the law on waste on the producer of the packaging. (80) 123. Those rules have their basis in the fact that Article 15 of the Waste Framework Directive, and in particular the polluter-pays principle referred to therein, do not constitute clear and definitive rules on responsibility for costs. The polluter-pays principle can and must be clarified further. This is a priority task for the legislature. 124. Courts must apply and if necessary interpret that clarification and possibly verify whether it respects the limits of the polluter-pays principle. That principle is the criterion for any national transposition of Article 15 of the Waste Framework Directive, but it is also binding on the Community legislature since it is laid down in Article 174(2) of the Treaty as the basis for environmental policy. 125. There is however a need to strike a balance between certain of the objectives and principles mentioned in Article 174. The implementation of those criteria is also complex. The review by the Court must therefore necessarily be limited to the question whether there was a manifest error of appraisal regarding the conditions for the application of Article 174 EC. (81) 126. Against this background, there can be no objection in principle to a decision by the Community legislature or by the national legislature to order the producer of a product from which waste came to bear the cost of its disposal. In the case of most products the producer must assume that they will become waste at some time when they are used as intended. By producing economic goods the producer therefore causes waste and is therefore also responsible in accordance with the polluter-pays principle. 127. Responsibility for costs on the part of the producer has some benefits. If the producer has to pay for disposal, there is an incentive to design the product in such a way that it can be disposed of as inexpensively as possible. This is consistent with the objective laid down in the third indent of Article 174(1) EC of prudent and rational utilisation of natural resources and the principle under Article 174(2) EC that environmental damage should as a priority be rectified at source. At the same time, the producer can integrate disposal costs into the price and pass them on to the final holder as the actual producer of the waste. Lastly, this arrangement for costs removes any incentive for the final holder to dispose of the product illegally in order to save disposal costs. 128. However, the special rules on the responsibility of the producer also suggest that the imposition of the disposal costs on the producer of the product requires express provision to that effect. In particular, the benefits described occur only if the producer and the final holder are aware of the arrangements governing costs. 129. Moreover, the considerations relating to responsibility for costs where products are used as intended cannot be applied unreservedly to waste which is created through extraordinary events. This is illustrated by the present case: when heavy fuel oil is used as intended, that is to say when it is combusted, gaseous derivatives which do not fall within the scope of the law on waste under Article 2(1)(a) of the Waste Framework Directive accumulate in the atmosphere, and possibly to a lesser extent solid waste. Its disposal would have been relatively inexpensive since it accumulates in a power station which is already equipped for that purpose. After the heavy fuel oil leaks and mixes with water and sediment, however, very much larger quantities of waste are created which can be collected and disposed of only with great difficulty. 130. The risk of such waste being created cannot therefore simply be imposed on the producer of the heavy fuel oil in accordance with the polluter-pays principle, but only in so far as he can influence the extraordinary creation of waste. 131. This is the explanation for the judgment in Van de Walle: the risk of the creation of waste as a result of an accident is borne by the person who is able to prevent the accident. Other persons are responsible only exceptionally where they can be accused of contributing independently to causing the waste. Application to the present case 132. If responsibility for costs on the part of the Total companies were to be assessed solely on the basis of Article 15 of the Waste Framework Directive, it would follow from the above considerations that as the producer of heavy fuel oil and/or the seller and carrier they may be ordered to bear the cost of disposing of oil waste following a shipping accident in so far as they can be accused of contributing personally to causing the leak of the heavy fuel oil. 133. However, a directive provision like Article 15 of the Waste Framework Directive cannot of itself impose obligations on an individual and cannot therefore be relied upon as such against an individual. (82) The stipulations of Article 15 can therefore be applied as against the Total companies only in so far as they have a basis in French law. 134. French law might preclude liability on the part of the Total companies. Article III(4)(c) of the Liability Convention, which applies in France, precludes in principle any claim for compensation against a charterer. Exceptions arise only when the damage resulted from the charterer’s personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result. The competent courts must decide whether that exclusion from liability is applicable to the Total companies. (83) 135. However, the exclusion from liability does not appear to be incompatible with Article 15 of the Waste Framework Directive, even if the persons concerned contributed to causing the waste, but is a permissible full utilisation of the scope which the polluter-pays principle allows the Member States in connection with implementation. 136. The Liability Convention and the Fund Convention clarify the apportionment of responsibility for costs in connection with oil accidents at sea. The channelling of responsibility for costs to the owner of the ship under the Liability Convention is consistent with the polluter-pays principle. As a rule, in the event of an accident the owner is responsible for the cargo of his ship becoming waste since he has responsibility for the command and condition of the ship which he operates or has operated. For certain cases where third parties are responsible for the damage, Article III(2) and (3) provide for exemption from liability for the ship’s owner. This form of liability is consistent with the liability which the Court established in connection with the manager of a service station in relation to hydrocarbons leaked from storage facilities into the surrounding ground. (84) 137. The barriers to claims against third parties which accompany the channelling of liability under Article III(4) of the Liability Convention, in particular vis-à-vis the charterer under Article III(4)(c), are compatible with the polluter-pays principle. First of all, claims can be made directly against those persons, in the event of increased responsibility, where the damage resulted from their personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result. Secondly, the owner may have recourse against them under Article III(5) of the Liability Convention. It is therefore ensured that these persons too may be ordered to bear costs for their contribution in accordance with the polluter-pays principle. It would be necessary to examine such a claim in particular if the Total companies are partially or wholly responsible for the ship’s accident, as the Tribunal de grande instance found (85) and as the Commission and France also consider to be possible. 138. However, under Article V of the Liability Convention liability on the part of the owner is limited if it is not proved that the pollution damage resulted from his personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result. If this limitation of liability applies, the individual claims under Article V(4) are settled only pro rata, that is to say partially, by the owner of the ship. This appears prima facie to be a breach of the polluter-pays principle. 139. However, the limited liability of the owner of the ship is supplemented under the Fund Convention by liability under the International Oil Pollution Damage Compensation Fund. Under Article 12, the Fund is financed by those who have received large quantities of crude oil or heavy fuel oil after sea transport. Through their demand those undertakings cause the oil transportation which creates the risk of oil accidents at sea. They too may therefore be apportioned the cost of disposing of oil waste which is created in the event of oil accidents in accordance with the polluter-pays principle. Liability under the Fund is excluded in the event of damage resulting from an act of war under Article 4(2) of the Fund Convention and may be limited, under Article 4(3), if the party which suffered the damage is partially at fault. In addition, under Article 9 of the Fund Convention there is the right of recourse against other responsible persons in relation to costs borne by the Fund. In the present case the Fund has therefore brought proceedings as a precaution against various persons, including the Total companies which are party to the present case. (86) 140. Liability under the Fund is also limited. This limited liability can mean that neither the ship’s owner nor the Fund bears some of the cost of disposing of waste resulting from oil pollution damage at sea. These remaining costs are borne either by the state, i.e. the community of taxpayers, or by certain persons who are likewise required to pay the costs under national law. 141. The imposition on individuals of the cost of disposing of waste which they have not caused would be incompatible with the polluter-pays principle. (87) Those concerned could therefore apply Article 15 of the Waste Framework Directive vis-à-vis such a demand made by State authorities. 142. On the other hand, the imposition of the remaining costs of disposal on the general public is compatible with the polluter-pays principle under Article 15 of the Waste Framework Directive. The general public at least accepts the relevant risks, since the States permit risky maritime oil transportation. At the same time, through the requirements laid down in Marpol 73/78 (88) the States guarantee a minimum level of maritime safety. The general public benefits from these transportation operations because they ensure the supply of a desired energy source. Without demand for oil products there would be no transportation. It is thus justified to apportion to the general public a causal contribution for oil accidents and some of the risk. 143. The Liability Convention and the Fund Convention show that the Contracting States, including nearly all the Member States, consider the limitation of liability to be reasonable and accept the risk of having to bear further costs. If oil damage exceeds the limits of the liability of the ship’s owner and of the Fund, the costs cannot really be afforded by private funds. More extensive insurance solutions also appear unlikely. 144. Furthermore, the liability on the part of the ship’s owner and the supplement under the Fund are not linked to fault. There is therefore a relatively high probability that oil pollution damage will be covered wholly or at least in part. 145. This is especially the case since the Supplementary Protocol to the Fund Convention (89) entered into force in 2005, creating a Supplementary Compensation Fund which is also to be financed by oil importers and raises the liability coverage considerably. 146. Consequently, it is compatible with Article 15 of the Waste Framework Directive and the polluter-pays principle contained therein to channel liability for oil accidents at sea to the owner of the ship and to limit the level of that liability in accordance with the Liability Convention and the Fund Convention. This conclusion accords with the obligation to avoid contradictions with the Liability Convention as far as possible when interpreting Community law. (90) 147. The answer to the third question must therefore be that the producer of heavy fuel oil and/or the seller and carrier may be ordered under Article 15 of the Waste Framework Directive to bear the cost of disposing of oil waste following a shipping accident if they can be accused of contributing personally to causing the leak of the heavy fuel oil. However, it is also compatible with that provision to limit the liability of the producer of heavy fuel oil and/or the seller and carrier in accordance with the Liability Convention and the Fund Convention. V – Conclusion 148. I therefore suggest that the Court give the following answers to the reference for a preliminary ruling: (1) Heavy fuel oil, as the product of a refining process, meeting the user’s specifications and intended by the producer to be sold as a combustible fuel, and referred to in Directive 68/414/EEC of 20 December 1968 imposing an obligation on Member States of the EEC to maintain minimum stocks of crude oil and/or petroleum products, cannot as such be treated as waste within the meaning of Article 1 of Council Directive 75/442/EEC of 15 July 1975 on waste. (2) Heavy fuel oil is to be treated as waste for the purposes of Directive 75/442 if it is discharged in a tanker accident and is mixed with water and sediment. (3) The producer of heavy fuel oil and/or the seller and carrier may be ordered under Article 15 of Directive 75/442 to bear the cost of disposing of oil waste following a shipping accident if they can be accused of contributing personally to causing the leak of the heavy fuel oil. However, it is also compatible with that provision to limit the liability of the producer of heavy fuel oil and/or the seller and carrier in accordance with the International Convention of 29 November 1969 on Civil Liability for Oil Pollution Damage, as amended by the Protocol of 1992, and the 1971 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, as amended by the Protocol of 1992. 1 – Original language: German. 2 – OJ 1975 L 194, p. 39, last amended, as far as the present case is concerned, by Commission Decision 96/350/EC of 24 May 1996 (OJ 1996 L 135, p. 32). Now consolidated by Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste (OJ 2006 L 114, p. 9). 3 – German version in the German Bundesgesetzblatt (Federal Law Gazette) 1975 II p. 305. 4 – The Protocol is printed in OJ 2004, L 78, p. 32. A full version of the Convention can be found at http://www.iopcfunds.org/npdf/Conventions%20English.pdf. 5 – The Protocol is printed in OJ 2004, L 78, p. 40. A full version of the Convention can be found at http://www.iopcfunds.org/npdf/Conventions%20English.pdf. 6 – According to http://www.imo.org/includes/blastData.asp/doc_id=693/status.xls, accessed on 5 March 2008, Belgium, Bulgaria, Denmark, Germany, Estonia, Greece, Spain, France, Ireland, Italy, Cyprus, Latvia, Lithuania, Luxembourg, Hungary, Malta, the Netherlands, Poland, Portugal, Romania, Slovenia, Finland, Sweden and the United Kingdom are contracting parties to the Convention, but not the Czech Republic, Austria or Slovakia. 7 – According to the International Monetary Fund, http://www.imf.org/external/np/fin/data/rms_mth.aspx?SelectDate=1999-12-31&reportType=CVSDR. A Special Drawing Right represents a basket of currencies consisting of 0.41 euro, 18.4 Yen, 0.0903 pounds sterling and 0.632 US dollars. 8 – Note 92FUND/EXC.28/4 by the Director of the International Oil Pollution Compensation Fund of 15 February 2005, http://www.iopcfund-docs.org/ds/pdf/92exc28-4_e.pdf, p. 2. See also the Communication from the Commission to the European Parliament and the Council on a second set of Community measures on maritime safety following the sinking of the oil tanker Erika, COM(2000) 802 final, p. 59. 9 – According to http://www.imo.org/includes/blastData.asp/doc_id=693/status.xls, accessed on 5 March 2008, Belgium, Bulgaria, Denmark, Germany, Estonia, Greece, Spain, France, Ireland, Italy, Cyprus, Latvia, Lithuania, Luxembourg, Hungary, Malta, the Netherlands, Poland, Portugal, Slovenia, Finland, Sweden and the United Kingdom are parties to the Convention, but not the Czech Republic, Austria, Romania or Slovakia. 10 – Note 92FUND/EXC.28/4 (cited in footnote 8, p. 2). 11 – Third United Nations Conference on the Law of the Sea, Official Documents, Vol. XVII, 1984, Doc. A/Conf.62/122, p. 157-231. 12 – OJ, English Special Edition 1968(II), p. 586, as amended by Council Directive 98/93/EC of 14 December 1998, OJ 1998 L 358, p. 100. 13 – OJ 2004 L 78, p. 99, as amended by Council Decision 2004/664/EC of 24 September 2004 adapting Decision 2004/246/EC by reason of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, OJ 2004 L 303, p. 28. 14 – OJ 2001 L 12, p. 1. 15 – Judgment of the Tribunal de grande instance de Paris of 16 January 2008 (9934895010, p. 236), quoted from http://www.fortunes-de-mer.com/documents%20pdf/jurisprudence/Arrets/7%20TC%20Paris%2016012008%20Erika.pdf. 16 – Judgment of the Tribunal de grande instance de Paris of 16 January 2008 (cited in footnote 15, p. 245 and 274). 17 – Judgment of the Tribunal de grande instance de Paris of 16 January 2008 (cited in footnote 15, p. 245). 18 – Judgment of the Tribunal de grande instance de Paris of 16 January 2008 (cited in footnote 15, p. 228). 19 – Case C‑252/05 Thames Water Utilities [2007] ECR I‑3883. 20 – Joined Cases C-295/04 to C-298/04 Manfredi and Others [2006] ECR I-6619, paragraph 27. 21 – See, inter alia, Case C-415/93 Bosman [1995] ECR I-4921, paragraph 61, and Case C-344/04 IATA and ELFAA [2006] ECR I‑403, paragraph 24. 22 – See Bosman (paragraph 59) and IATA and ELFAA (paragraph 24), both cited in footnote 21. 23 – The Cour de Cassation refers to Directive 68/414 as amended by Directive 98/93. 24 – Joined Cases C‑482/01 and C‑493/01 Orfanopoulos and Oliveri [2004] ECR I‑5257, paragraph 42, and Case C‑246/04 Turn- und Sportunion Waldburg [2006] ECR I‑589, paragraph 21. 25 – See Case C-9/00 Palin Granit and Vehmassalon Kansanterveystyön Kuntayhtymän hallitus [2002] ECR I-3533, paragraph 22, Case C-194/05 Commission v Italy [2007] ECR I-0000, paragraph 34, Case C-195/05 Commission v Italy [2007] ECR I-0000, paragraph 32, and Case C-263/05 Commission v Italy [2007] ECR I-0000, paragraph 32. 26 – Case C‑129/96 Inter‑Environnement Wallonie [1997] ECR I‑7411, paragraph 26, Case C‑176/05 KVZ retec [2007] ECR I‑1721, paragraph 51, and Commission v Italy (cited in footnote 25). 27 – Joined Cases C-418/97 and C-419/97 ARCO Chemie Nederland and Others [2000] ECR I-4475, paragraphs 37 to 40, Palin Granit (cited in footnote 25, paragraph 23), Case C‑1/03 Van de Walle and Others [2004] ECR I‑7613, paragraph 45, KVZ retec (cited in footnote 26, paragraph 61), Case C-194/05 Commission v Italy (cited in footnote 25, paragraph 33), Case C-195/05 Commission v Italy (cited in footnote 25, paragraph 35) and Case C-263/05 Commission v Italy (cited in footnote 25, paragraph 33). 28 – KVZ retec (cited in footnote 26, paragraph 53 et seq.). 29 – OJ 1999 L 121, p. 13, last amended by Directive 2005/33/EC of the European Parliament and of the Council of 6 July 2005, OJ 2005 L 191, p. 59. 30 – Palin Granit (cited in footnote 25, paragraph 25). See also my Opinion in Case C-176/05 KVZ retec [2007] ECR I‑1721, point 73. 31 – ARCO Chemie Nederland and Others (cited in footnote 27, paragraph 73). 32 – ARCO Chemie Nederland and Others (cited in footnote 27, paragraph 84), Case C-194/05 Commission v Italy (cited in footnote 25, paragraph 34), Case C-195/05 Commission v Italy (cited in footnote 25, paragraph 36), and Case C-263/05 Commission v Italy (cited in footnote 25, paragraph 34). 33 – Van de Walle and Others (cited in footnote 27, paragraph 46) and – conversely – Case C-194/05 Commission v Italy (cited in footnote 25, paragraph 37 et seq.), Case C-195/05 Commission v Italy (cited in footnote 25, paragraph 39 et seq.), and Case C-263/05 Commission v Italy (cited in footnote 25, paragraph 37 et seq.). 34 – As at February 2003, http://ec.europa.eu/comm/environment/ippc/brefs/ref_bref_0203.pdf, p. 1. 35 – Council Directive 96/61/EC of 24 September 1996 (OJ 1996 L 257, p. 26). 36 – Cited in footnote 34, p. 379. The main forms of waste are sludges, spent process catalysts, filter clay and incinerator ash, and examples of other waste fractions are waste from flue gas desulphurisation, fly ash, bottom ash, spent activated carbon, filter dust, inorganic salts such as ammonium sulphate and lime from water pretreatment, oil-contaminated soil, bitumen, sweepings, spent acid and caustic solutions, and chemicals. 37 – See Order in Case C-235/02 Saetti and Frediani [2004] ECR I‑1005, paragraph 45. 38 – ARCO Chemie Nederland and Others (cited in footnote 27, paragraph 44 et seq., but in contrast see paragraph 85), Palin Granit (cited in footnote 25, paragraph 27) and Case C‑457/02 Niselli [2004] ECR I‑10853, paragraph 37. 39 – See Order in Saetti and Frediani (cited in footnote 37, paragraph 45). 40 – However, contrary to the view taken by Total, the classification of heavy fuel oil for tax-law purposes does not permit any inferences to be drawn regarding the intention to discard. 41 – See Order in Saetti and Frediani (cited in footnote 37, paragraph 45). 42 – ARCO Chemie Nederland and Others (cited in footnote 27, paragraph 66 et seq.). 43 – ARCO Chemie Nederland and Others (cited in footnote 27, paragraph 84 et seq.). 44 – Palin Granit (cited in footnote 25, paragraph 36), Case C-194/05 Commission v Italy (cited in footnote 25, paragraph 37 et seq.), Case C-195/05 Commission v Italy (cited in footnote 25, paragraph 39 et seq.), and Case C-263/05 Commission v Italy (cited in footnote 25, paragraph 37 et seq.). 45 – Case C‑114/01 AvestaPolarit Chrome [2003] ECR I‑8725, paragraph 36 et seq. 46 – Case C‑416/02 Commission v Spain [2005] ECR I‑7487, paragraph 87 et seq., and C‑121/03 Commission v Spain [2005] ECR I‑7569, paragraph 58 et seq. 47 – See my Opinion in Case C-1/03 Van de Walle and Others [2004] ECR I‑7613, point 24. 48 – Van de Walle and Others (cited in footnote 27, paragraph 43). 49 – See above, point 39. 50 – Van de Walle and Others (cited in footnote 27, paragraph 46). 51 – Van de Walle and Others (cited in footnote 27, paragraph 47), confirmed by Thames Water Utilities (cited in footnote 19, paragraph 28). 52 – Van de Walle and Others (cited in footnote 27, paragraph 52). 53 – See, for example, Ludger-Anselm Versteyl, Altlast = Abfall – Vom Ende des ‘beweglichen’ Abfallbegriffs, Neue Zeitschrift für Verwaltungsrecht 2004, p. 1297, Lucas Bergkamp, A new court-made environmental liability regime for Europe, [2004] 4 Environmental Liability p. 171, Philippe, Billet, Le déchet, qualification incertaine des sols pollués, Revue juridique de l'environnement, 2005, p. 309, Frank Petersen and Melanie Lorenz, Das ‘Van de Walle’-Urteil des EuGH – Sanierung von Altlasten nach Abfallrecht?, Neue Zeitschrift für Verwaltungsrecht 2005, p. 257, Christoph Riese and Nora Karsten, Ist unausgekofferter kontaminierter Boden Abfall?, Zeitschrift für Umweltrecht 2005, p. 75, Heike Jochum, Neues zum europäischen Bodenschutz- und Abfallrecht – Sind die bodenschutzrechtlichen Bestimmungen der Umwelthaftungsrichtlinie und die Abfallrichtlinie nach dem ‘Spatenprinzip’ zu trennen?, Neue Zeitschrift für Verwaltungsrecht 2005, p. 140, Nikolaus Schultz, Ein Jahr nach ‘van de Walle’ – viel Lärm um nichts?, Zeitschrift für europäisches Umwelt- und Planungsrecht 2005, p. 230, Lothar Knopp, EuGH erweitert Abfallbegriff für Altlasten – erhebliche Kostenrisiken nicht ausgeschlossen, Betriebs-Berater, Vol. 51/52 2004, I., Daniel Lawrence, European Court lays waste to contaminated land, Construction law, January/February 2005, p. 26, Stephan Müller, Zählen verseuchte Grundstücke neuerdings zum Abfall?, Frankfurter Allgemeine Zeitung, 1 December 2004, p. 25. 54 – See Billet (cited in footnote 53, p. 318 et seq.), Riese/Karsten (cited in footnote 53, p. 77), Petersen/Lorenz (cited in footnote 53, p. 258) and Schultz (cited in footnote 53, p. 231) and the largely consistent comments made by Anno Oexle, Europäische Zeitschrift für Wirtschaftsrecht 2004, p. 627 (628), and Jens Hamer, Bodenschutz und Umwelthaftungsrecht made in Luxembourg, European Law Reporter, 2004, p. 477 (482). 55 – See also Hamer (cited in footnote 54, p. 482). 56 – Article 2(1)(b) of the common position of the Council on the adoption of a Directive of the European Parliament and of the Council on waste and repealing certain directives, Council document 11406/07 of 20 November 2007, accepted by the Commission, COM(2007) 863 of 9 January 2008. A similar, but conditional restriction is already contained in Article 2(1)(f) of the Commission proposal, COM(2005) 667 of 21 December 2005, OJ 2006 C 70, p. 6. On the other hand, at first reading on 13 February 2007 the European Parliament rejected that restriction, apparently going against the report of the competent committee, OJ 2007 C 287 E p. 136 (141). 57 – See my Opinion in Case C‑308/06 Intertanko and Others [2007] ECR I-0000, point 37 et seq., with further references, on the International Convention for the Prevention of Pollution from Ships (Marpol 73/78). 58 – With regard to the binding effect of customary international law see Case C‑286/90 Poulsenand Diva Navigation [1992] ECR I‑6019, paragraph 9 et seq., and Case C‑162/96 Racke [1998] ECR I‑3655, paragraph 45. 59 – Case C‑158/91 Levy [1993] ECR I‑4287, paragraph 21, Case C‑379/92 Peralta [1994] ECR I-3453, paragraph 16 et seq., and Case C‑124/95 Centro-Com [1997] ECR I‑81, paragraph 58. 60 – See Joined Cases C‑387/02, C‑391/02 and C‑403/02 Berlusconi and Others [2005] ECR I‑3565, paragraph 66 et seq. 61 – Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (OJ 2004 L 143, p. 56). 62 – Case C‑459/03 Commission v Ireland (MOX plant) [2006] ECR I‑4635, paragraph 82; see specifically my Opinion in Case C‑308/06 Intertanko and Others (cited in footnote 57, point 46 et seq.). 63 – According to http://www.comitemaritime.org/ratific/imo/imoidx.html. Decree 75-553 of 26 June 1975, Journal officiel 1975, p. 6716 of 3 July 1975 announces publication, relies on a power of ratification of 1971 and states that the Convention entered into force on 19 June 1975. 64 – OJ 1973 C 112, p. 1. 65 – OJ 1989 C 251, p. 3. 66 – COM(2000) 142 fin., p. 6. 67 – Answers given by Mrs Wallström on behalf of the Commission to Question E-0842/00 from Chris Davies MEP on the Erika disaster and environmental liability, OJ 2001 C 53 E, p. 30, and to Question E-1752/03 from Eija-Riitta Korhola MEP on use of impact assessment and liability insurance to deal with oil damage, OJ 2004 C 51 E, p. 137. 68 – See also my Opinion in Intertanko and Others (cited in footnote 57, point 78). 69 – Van de Walle and Others (cited in footnote 27, paragraph 58). 70 – Van de Walle and Others (cited in footnote 27, paragraph 55). 71 – Van de Walle and Others (cited in footnote 27, paragraph 60). 72 – Judgment of the Tribunal de grande instance de Paris of 16 January 2008 (cited in footnote 15, p. 228). However, Note 92FUND/EXC.34/6/Add.1 by the Director of the International Oil Pollution Compensation Fund of 20 September 2006, http://www.iopcfund-docs.org/ds/pdf/92exc34-6eadd1.pdf, p. 8, states, on the basis of the investigations in progress at the time, that Total could not detect the ship’s defects. 73 – Van de Walle and Others (cited in footnote 27, paragraph 59). 74 – Van de Walle and Others (cited in footnote 27, paragraph 60). 75 – Van de Walle and Others (cited in footnote 27, paragraph 58). 76 – Case C‑293/97 Standley and Others [1999] ECR I‑2603, paragraph 52. 77 – OJ 1991 L 266, p. 1. 78 – Similar rules are contained in Article 5(4) of Directive 2000/53/EC of 18 September 2000 on end-of life vehicles (OJ 2000 L 269, p. 34) and in Article 8 of Directive 2002/96/EC of 27 January 2003 on waste electrical and electronic equipment (OJ 2002 L 37, p. 24). 79 – OJ 1994 L 365, p. 10. 80 – Order in Case C-26/05 Plato Plastik Robert Frank [2006] ECR I-24, paragraph 34. 81 – Case C‑284/95 Hi-Tech [1998] ECR I‑4301, paragraph 37, and Case C-86/03 Greece v Commission [2005] ECR I‑10979, paragraph 88, both regard to the Community legislature. 82 – See inter alia Case 152/84 Marshall [1986] ECR 723, paragraph 48, Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others [2004] ECR I‑8835, paragraph 108, and Case C-80/06 Carp [2007] ECR I-4473, paragraph 20. 83 – The judgment of the Tribunal de grande instance de Paris of 16 January 2008 (cited in footnote 15, p. 35) ruled this out in the case of Total S.A. 84 – Van de Walle and Others (cited in footnote 27, paragraph 59). 85 – Judgment of 16 January 2008 (cited in footnote 15, p. 228). 86 – Note 92FUND/EXC.33/5 by the Director of the International Oil Pollution Compensation Fund of 4 May 2006, http://www.iopcfund-docs.org/ds/pdf/92exc33-5_e.pdf, p. 5 et seq. 87 – See point 120 above. 88 – International Convention for the Prevention of Pollution from Ships 1973, as modified by the Protocol of 1978 thereto (UN Treaty Series, Vol. 1341, No. 22484). 89 – Printed in OJ 2004 L 78, p. 24. According to the Fund, http://www.iopcfund.org/92members.htm#suppfund, in addition to four other States, Belgium, Denmark, Germany, Greece, Spain, France, Ireland, Italy, Latvia, Lithuania, the Netherlands, Portugal, Slovenia, Finland, Sweden and the United Kingdom have ratified the Protocol and on 30 March 2008 they will be joined by Hungary. 90 – See point 99 et seq. above.