29.10.2011

Official Journal of the European Union

C 319/5

(Case C-53/10) (<span class="super">1</span>)

(Environment - Directive 96/82/EC - Control of major-accident hazards involving dangerous substances - Prevention - Appropriate distances between areas of public use and establishments where large quantities of dangerous substances are present)

2011/C 319/08

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: Land Hessen

Defendant: Franz Mücksch OHG

Intervener: Merck KGaA

Re:

Reference for a preliminary ruling — Bundesverwaltungsgericht — Interpretation of Article 12(1) of Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances (OJ 1997 L 10, p. 13), as amended by Regulation (EC) No 1137/2008 of the European Parliament and of the Council of 22 October 2008 adapting a number of instruments subject to the procedure laid down in Article 251 of the Treaty to Council Decision 1999/468/EC, with regard to the regulatory procedure with scrutiny (OJ 2008 L 311, p. 1) — Prevention of major accidents — Extent of the obligation on Member States to ensure that their land-use policies take account of the need, in the long term, to maintain appropriate distances between areas of public use and establishments where large quantities of dangerous substances are present — Construction of a garden centre near such an establishment — Existence of several other businesses in the same area at risk

Operative part of the judgment

1.Article 12(1) of Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances, as amended by Directive 2003/105/EC of the European Parliament and of the Council of 16 December 2003, must be interpreted as meaning that the obligation of Member States to ensure that account is taken of the need, in the long term, to maintain appropriate distances between establishments covered by that directive and buildings of public use also applies to a public authority, such as the city of Darmstadt (Germany), responsible for issuing planning permissions, even when it has no discretion in the exercise of that prerogative.

2.The obligation set out in Article 12(1) of Directive 96/82, as amended by Directive 2003/105, to take account of the need, in the long term, to maintain appropriate distances between establishments covered by that directive and buildings of public use does not require the competent national authorities to prohibit the siting of a building of public use in circumstances such as those of the case in the main proceedings. By contrast, that obligation precludes national legislation that provides that it is mandatory to issue an authorisation for the siting of such a building without the hazards connected with the siting of the building within the perimeter of those distances having been duly assessed at the planning stage or at that of the individual decision.

(<span class="super">1</span>) OJ C 113, 1.5.2010.