In delivering its preliminary ruling in the case between the French community of Mesquer and companies in the Total Group, concerning an oil spillage incident involving the oil tanker Erika off the Brittany coast, the ECJ has endorsed an earlier opinion given by Advocate General Kokott by confirming that the ‘Polluter Pays Principle’ can extend to cover cleanup costs resulting from an oil spill at sea.

The Court held that although heavy fuel oil, capable of being sold as a combustible fuel without prior processing, could not constitute waste, the same heavy fuel oil could constitute waste if it was accidentally spilled at sea, mixed with water and sediment, and had subsequently washed up on shore, since it would no longer be capable of being sold as a combustible fuel without prior processing.

In its judgment the Court also said that the ‘Polluter Pays Principle’ was capable of being extended to impose financial liability, for a pollution incident, upon the seller of the heavy fuel oil and the charterer or a ship used for its transit, providing it could be shown that they had in some way contributed to the spillage by failing to take measures to prevent it.

The full judgment of the ECJ in the case (C-188/07) can be found here.

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