Opinion of the Advocate General — ECLI:EU:C:2011:254
Date: 2011-04-14
Language of the case: German
Subject matter: Environment
Procedure: Reference for a preliminary ruling
Origin: Germany

summary expropriation or demolition orders, which are not contemplated by the directive). 47. That need must, on the other hand, be taken into account when evaluating Mücksch’s project, which involves changing the use of a plot of land within that area. The plot’s present use, as a scrap metal recycling facility, may be assumed to involve the regular presence of employees to operate the facility, together with less regular frequentation by persons delivering scrap to be recycled or collecting recycled products. The proposed garden centre seems likely to involve greater frequentation by members of the public as (potential) customers, without any probable drop in the number of employees or deliveries. The presence of more people within the ‘danger zone’ around Merck’s establishment, while obviously without effect on the risk of an accident occurring, could well render the consequences of such an accident more severe, if it were to occur. However, it is common ground that the safety measures currently taken by Merck are considered adequate even if public frequentation of the zone is increased to the extent predicted if Mücksch’s project goes ahead. This may suggest either that the increased frequentation is marginal in the context of the industrial estate as a whole (which, it will be recalled, already contains retail and wholesale outlets, workshops and a hotel), or that the safety measures in place represent more than the bare minimum required. 48. All of those factors seem to me to be relevant to the planning authority’s necessary consideration of the need, in the long term, to maintain appropriate distances. None of them, however, seems decisive for the final outcome of that consideration. 49. The fact that the project makes no change to the overall character of the zone, as a mixed-use area which will inevitably remain a mixed-use area for some time to come, and the fact that Merck will not have to take any more stringent safety measures if it is carried out, would appear to indicate that the project is at least compatible with the status quo. A possible increase in the severity of the consequences of any possible accident, on the other hand, does not appear to be so obviously compatible with the long-term aim of maintaining appropriate distances; projects which, on the contrary, decrease that severity would seem preferable as a general rule. 50. That said, I cannot find anything in Article 12(1) of the directive which would impose an automatic refusal of planning permission for any project resulting directly in an increase in public frequentation of the ‘danger zone’ around an establishment stocking dangerous substances. Indeed, such an increase might not be inimical to the long-term aim in all circumstances: for example, an increase in frequentation in one part of the zone, if coupled with, say, a decrease of frequentation in another part or the gradual displacement of all residential premises from the zone, (21) might enable more effective prevention and evacuation measures to be implemented, thus contributing to the overall aims of the directive. Moreover, it must be borne in mind that, even once the parameters of the ‘need, in the long term, to maintain appropriate distances’ have been determined, that need is itself merely one – albeit a very important one – of the factors to be taken into account when reaching a decision. Indeed, if the directive were to entail an absolute prohibition of the kind envisaged, it would be difficult to see how the second need which the same subparagraph requires to be taken into account – namely the need, ‘in the case of existing establishments, … for additional technical measures in accordance with Article 5 so as not to increase the risks to people’ – could often be relevant. 51. Finally, it should be borne in mind that the Seveso II Directive strikes a certain balance between the responsibilities of operators of establishments posing a risk (which concern principally safety measures and emergency plans) and those of the national authorities charged with supervising those establishments and the risks posed (including planners’ responsibility for taking account of the need, in the long term, to maintain appropriate distances). The approach advocated by Merck in the present proceedings, which would require overriding weight to be given to the interests of operators of establishments posing a risk, would, it seems to me, tip that balance too far in favour of the operators. 52. I conclude, therefore, that the factors to which the national court refers in the context of questions 2 and 3, while they must be taken into account when evaluating Mücksch’s planning application, cannot in themselves be decisive in determining the outcome of that evaluation but must be weighed against each other and against any other relevant considerations when reaching a decision. Conclusion 53. In the light of all the foregoing considerations, I am of the opinion that the Court should answer the questions raised by the Bundesverwaltungsgericht to the following effect: On a proper construction of Article 12(1) of Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances, (1) the need, in the long term, to maintain appropriate distances between establishments where dangerous substances are present and, in particular, buildings and areas of public use must be taken into account not only when determining land-use plans at a policy level but also throughout any procedure involving the evaluation of specific projects and a decision as to whether individual planning permission should be granted or refused; (2) where planning permission is sought for an individual project in an area in respect of which no land-use policy or plan has been established, the authority called upon to decide on the application must ensure that it takes that need into account; (3) in doing so, that authority must have regard to factors such as the presence of existing buildings and areas used by the public in the vicinity of the establishment concerned, the fact that the project will lead to increased frequentation of the area or the fact that it will not impose greater safety requirements on the establishment concerned; such individual factors are not, however, decisive in themselves as to the outcome of the planning application. 1 – Original language: English. 2 – 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; hereinafter ‘the Seveso II Directive’ or ‘the directive’). The commonly used nickname derives from an accidental release of industrial dioxins at the Italian town of Seveso in 1976, which was the stimulus for its predecessor, Council Directive 82/501/EEC of 24 June 1982 on the major-accident hazards of certain industrial activities (OJ 1982 L 230, p. 1; ‘the Seveso I Directive’). The directive has been amended on a number of occasions (see, in particular, footnote 7 below). A proposal for its replacement (Proposal for a Directive of the European Parliament and of the Council on control of major-accident hazards involving dangerous substances, COM(2010) 781 final) was submitted to the Council by the Commission on 21 December 2010. 3 – For a discussion of what is meant by ‘land-use planning’ and the varying terminology used in different Member States, see section 2.1 of Land use planning guidelines in the context of Article 12 of the Seveso II Directive 96/82/EC as amended by Directive 105/2003/EC, European Commission Joint Research Centre, Institute for the Protection and Security of the Citizen, Hazard Assessment Unit, September 2006. 4 – The Seveso I Directive (see footnote 2 above). 5 – Article 10 requires Member States to ensure that, in the event of modification of an establishment, the operator reviews and where necessary revises its major-accident prevention policy, management systems and procedures, and safety report. 6 – Article 5 requires Member States to oblige operators (1) to take all measures necessary to prevent major accidents and limit their consequences for man and the environment and (2) to prove that those measures have been taken. 7 – Second subparagraph as amended by Directive 2003/105/EC of the European Parliament and of the Council of 16 December 2003 (OJ 2003 L 345, p. 97). Rather than a substantive amendment, that appears to be a ‘clarification’, as referred to in recital 14 of the preamble to the amending directive; previously, ‘buildings … of public use’, ‘major transport routes as far as possible’, and ‘recreational areas’ did not appear in the list of areas in relation to which appropriate distances must be maintained. 8 – Baugesetzbuch (BauGB), of 2004. 9 – Gesetz zum Schutz vor schädlichen Umwelteinwirkungen durch Luftverunreinigung, Geräusche, Erschütterungen und ähnliche Vorgänge (Bundes-Immissionsschutzgesetz or BImSchG), of 2002. 10 – Under Article 3(5) of the directive, ‘major accident’ means ‘an occurrence such as a major emission, fire, or explosion resulting from uncontrolled developments in the course of the operation of any establishment covered by this Directive, and leading to serious danger to human health and/or the environment, immediate or delayed, inside or outside the establishment, and involving one or more dangerous substances’. 11 – Zwölfte Verordnung zur Durchführung des Bundes Immissionsschutzgesetzes (12. BlmSchV), of 2005. 12 – ‘Bauvorbescheid’; the German Government explains in its observations that this is a type of binding preliminary decision which often concerns only compliance with planning laws. It provides a degree of legal certainty but does not itself authorise building works to begin. 13 – It was stated at the hearing that significant quantities of the toxic gas chlorine are stored on the premises and used in the production of, in particular, liquid crystals. 14 – The German Government states in its observations that it is rare for the requirement to draw up such a plan to give rise to an enforceable duty to do so. 15 – See footnote 3 above. 16 – In Case C-36/10 Commission v Belgium (judgment of 30 September 2010), the Commission argued, without being challenged in that regard by the Member State, that it was insufficient to transpose the second subparagraph of Article 12(1) of the Seveso II Directive by requiring that the need to maintain appropriate distances be taken into account only at the stage of deciding on planning applications. 17 – Impact assessment study into possible options for amending the Seveso Directive, European Commission, Directorate-General Environment, September 2010 (http://ec.europa.eu/environment/seveso/pdf/Seveso%20IA_Final%20report.pdf), p. 94. The legislative proposal is cited in footnote 2 above. 18 – SEC(2010) 1590 final, section 2.5, p. 13. 19 – See point 16 above. As I have noted, there can be no fixed definition of what constitutes an appropriate distance, but it must imply some margin of appreciation on the part of the authority determining it and, where appropriate, the courts reviewing such determination. 20 – It is common ground that Merck’s establishment was originally situated at a greater distance from the city, parts of which have crept towards it – reminding the agent for the German Government, as he stated at the hearing, of Birnam Wood coming to Dunsinane (Macbeth, Act 5). 21 – In this context, it should be borne in mind that residential accommodation is often used 24 hours a day, seven days a week, whereas industrial or commercial premises are frequented during more limited periods.