Commune de Mesquer v Total France SA and Total International Ltd.
Date: 2008-06-24
30. It is settled case-law that questions on the interpretation of Community law referred by a national court, in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, to that effect, Joined Cases C‑222/05 to C‑225/05 Van der Weerd and Others  [2007] ECR I‑4233, paragraph 22 and the case-law cited).
31. Moreover, according to settled case-law, it is for the national court hearing a dispute to determine both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (Joined Cases C‑393/04 and C‑41/05 Air Liquide Industries Belgium  [2006] ECR I‑5293, paragraph 24 and the case-law cited).
38. Thus, in the context of that directive, the scope of the term ‘waste’ turns on the meaning of the term ‘discard’ (Case C‑129/96 Inter-Environnement Wallonie  [1997] ECR I‑7411, paragraph 26), and consequently, in accordance with the Court’s case-law, those terms must be interpreted in the light of the aim of the directive (Joined Cases C‑418/97 and C‑419/97 ARCO Chemie Nederland and Others  [2000] ECR I‑4475, paragraph 37), which, in the words of the third recital in the preamble to the directive, 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 preventive action should be taken (see Case C‑457/02 Niselli  [2004] ECR I‑10853, paragraph 33).
39. The Court has also held that, in view of the aim pursued by Directive 75/442, the concept of waste cannot be interpreted restrictively (see ARCO Chemie Nederland , paragraph 40).
40. That concept 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 (see, in particular, Case C‑9/00 Palin Granit and Vehmassalon kansanterveystyön kuntayhtymän hallitus  [2002] ECR I‑3533, paragraph 29 and the case-law cited).
41. In this respect, 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. That will be the case in particular where the substance used is a production residue, that is to say, a product not sought as such ( ARCO Chemie Nederland , paragraphs 83 and 84). The Court has thus said that leftover stone from extraction processes of a granite quarry which is not the product primarily sought by the operator in principle constitutes waste ( Palin Granit , paragraphs 32 and 33).
42. 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 (see Palin Granit , paragraph 34, and order in Case C‑235/02 Saetti and Frediani  [2004] ECR I‑1005, paragraph 35).
43. There is no reason to apply the provisions of Directive 75/442 to goods, materials or raw materials which have an economic value as products regardless of any form of processing and which, as such, are subject to the legislation applicable to those products (see Palin Granit , paragraph 35, and order in Saetti and Frediani , paragraph 35).
44. 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 ( Palin Granit , paragraph 36, and order in Saetti and Frediani , paragraph 36).
45. 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. 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 (see Palin Granit , paragraph 37).
47. 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 buyer’s specifications, as the referring court points out.
53. It should be noted, to begin with, that Annex I to Directive 75/442 provides lists of substances and objects that may be classified as waste. However, the lists are only intended as guidance, and the classification of waste is to be inferred primarily from the holder’s actions and the meaning of the term ‘discard’ (see Case C‑1/03 Van de Walle and Others  [2004] ECR I‑7613, paragraph 42).
56. Where 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 reuse on economically advantageous terms without prior processing, it must be regarded as a burden which the holder ‘discards’ (see Palin Granit , paragraphs 32 to 37, and Van de Walle , paragraph 46).
59. 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 be a significant financial burden. It follows that such hydrocarbons accidentally spilled at sea are to be regar ded 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 (see, to that effect, Van der Walle , paragraphs 47 and 50).
60. Moreover, the applicability of that directive is not called into question by the fact that the accidental spillage of hydrocarbons took place not on the land territory of a Member State but in its exclusive economic zone.
61. Without there being any need to rule on the applicability of the directive at the place where the ship sank, it suffices to observe that the hydrocarbons thus accidentally spilled drifted along the coast until they were washed up on it, so being discharged on the Member State’s land territory.
62. It follows that, in the circumstances of the sinking of an oil tanker such as those at issue in the main proceedings, Directive 75/442 applies ratione loci .
70. Under Article 8 of Directive 75/442, 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 (Case C‑494/01 Commission  v Ireland  [2005] ECR I‑3331, paragraph 179).
71. It follows from those provisions that 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 ( Van de Walle , paragraph 58).
74. 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. In those circumstances, the shipowner may thus be regarded as having produced that 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.
77. On this point, Article 15 of Directive 75/442 provides that 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.
80. In this regard, 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.
83. The obligation of a Member State to take all the 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. That duty to take all appropriate measures, whether general or particular, is binding on all the authorities of the Member States including, for matters within their jurisdiction, the courts (see Case C‑106/89 Marleasing  [1990] ECR I‑4135, paragraph 8, and Inter-Environnement Wallonie , paragraph 40).
84. It follows that, in applying national law, whether the provisions in question were adopted before or after the directive or derive from international agreements entered into by the Member State, the national court called on to interpret that law is required to do so, as far as possible, in the light of the wording and the purpose of the directive, in order to achieve the result pursued by the directive and thereby comply with the third paragraph of Article 249 EC (see, to that effect, Marleasing , paragraph 8).
85. Moreover, contrary to the arguments put forward by the Total companies at the hearing, the Community is not bound by the Liability Convention or the Fund Convention. 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 (see, by analogy, Case C‑379/92 Peralta  [1994] ECR I‑3453, paragraph 16, and Case C‑308/06 Intertanko and Others  [2008] ECR I‑0000, paragraph 47), 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 Council Decision 98/392/EC of 23 March 1998 (OJ 1998 L 179, p. 1), paragraph 3 of which confines itself, as the French Government pointed out at the hearing, to establishing a general obligation of cooperation between the parties to the convention.