# C_2010113EN.01001702.xml

| 1.5.2010 | EN | Official Journal of the European Union | C 113/17 |
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1.5.2010

EN

Official Journal of the European Union

C 113/17

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Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 2 February 2010 — Land Hessen v Franz Mücksch OHG, Intervener: Merck KG aA

(Case C-53/10)

2010/C 113/26

Language of the case: German

Referring court

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Parties to the main proceedings

Applicant: Land Hessen

Applicant:

Defendant: Franz Mücksch OHG

Defendant:

Intervener: Merck KG aA

Intervener:

Questions referred

Questions referred

| 1. | Is Article 12(1) of Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances, (1) most recently amended by Regulation (EC) No 1137/2008 of the European Parliament and of the Council of 22 October 2008 (2) — the Seveso II Directive — to be interpreted as meaning that the Member States’ obligations contained therein, in particular the obligation to ensure that their land-use policies and the procedures for implementing those policies take account of the need, in the long term, to maintain appropriate distances between the establishments covered by the directive and buildings of public use, are addressed to planners who have to take decisions on land-use by weighing up the public and private interests affected, or are they also addressed to the planning permission authorities who have to take a non-discretionary decision on the authorisation of a project in an already built-up area? |
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1.

Is Article 12(1) of Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances, (1) most recently amended by Regulation (EC) No 1137/2008 of the European Parliament and of the Council of 22 October 2008 (2) — the Seveso II Directive — to be interpreted as meaning that the Member States’ obligations contained therein, in particular the obligation to ensure that their land-use policies and the procedures for implementing those policies take account of the need, in the long term, to maintain appropriate distances between the establishments covered by the directive and buildings of public use, are addressed to planners who have to take decisions on land-use by weighing up the public and private interests affected, or are they also addressed to the planning permission authorities who have to take a non-discretionary decision on the authorisation of a project in an already built-up area?

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| 2. | If Article 12(1) of the Seveso II Directive is also addressed to the planning permission authorities who have to take a non-discretionary decision on the authorisation of a project in an already built-up area:
  Do the abovementioned obligations include the prohibition on authorising the siting of a building of public use which fails to maintain — as required by the principles applicable to overall planning — an appropriate distance from an existing establishment, where there are already several comparable buildings of public use close to the establishment, where the operator does not — as a result of the new project — have to reckon with additional requirements concerning the limitation of the consequences of an accident, and where the requirements relating to healthy living and working conditions are satisfied? |
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2.

If Article 12(1) of the Seveso II Directive is also addressed to the planning permission authorities who have to take a non-discretionary decision on the authorisation of a project in an already built-up area:

Do the abovementioned obligations include the prohibition on authorising the siting of a building of public use which fails to maintain — as required by the principles applicable to overall planning — an appropriate distance from an existing establishment, where there are already several comparable buildings of public use close to the establishment, where the operator does not — as a result of the new project — have to reckon with additional requirements concerning the limitation of the consequences of an accident, and where the requirements relating to healthy living and working conditions are satisfied?

| 3. | If the answer to this question is in the negative:
  Does a legislative provision under which it is mandatory to authorise the siting of a building of public use in the circumstances set out in the previous question sufficiently take into account the need to maintain distances? |
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3.

If the answer to this question is in the negative:

Does a legislative provision under which it is mandatory to authorise the siting of a building of public use in the circumstances set out in the previous question sufficiently take into account the need to maintain distances?

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(1)  OJ 1997 L 10, p. 13.

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(2)  OJ 2008 L 311, p. 1.

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