CELEX: 62010CJ0053
Language: en
Date: 2011-09-15
Title: Judgment of the Court (First Chamber) of 15 September 2011.#Land Hessen v Franz Mücksch OHG.#Reference for a preliminary ruling: Bundesverwaltungsgericht - Germany.#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.#Case C-53/10.

Case C-53/10
      Land Hessen
      v
      Franz Mücksch OHG
      (Reference for a preliminary ruling from the Bundesverwaltungsgericht)
      (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)
      Summary of the Judgment
      1.        Environment – Control of major-accident hazards involving dangerous substances –  Directive 96/82 – Land-use planning
      (Council Directive 96/82, as amended by Directive 2003/105, Art. 12(1))
      2.        Environment – Control of major-accident hazards involving dangerous substances – Directive 96/82 – Land-use planning
      (Council Directive 96/82, as amended by Directive 2003/105, Art. 12(1))
      1.        Article 12(1) of Directive 96/82 on the control of major-accident hazards involving dangerous substances, as amended by Directive
         2003/105, must be interpreted as meaning that the obligation which it imposes on 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 applies also to a public authority responsible for issuing planning permissions, even when it has no discretion
         in the exercise of that prerogative.
      
      (see para. 35, operative part 1)
      2.        The obligation set out in Article 12(1) of Directive 96/82 on the control of major-accident hazards involving dangerous substances,
         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 when such a building is not separated by an appropriate distance from an existing
         establishment, when there are already several comparable buildings of public use at a distance from the establishment which
         is no greater or not significantly greater, when 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 when the requirements relating to
         healthy living and working conditions are satisfied. 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.
      
      (see para. 53, operative part 2)
JUDGMENT OF THE COURT (First Chamber)
      15 September 2011 (*)
      
      (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)
      In Case C‑53/10,
      REFERENCE for a preliminary ruling under Article 267 TFEU from the Bundesverwaltungsgericht (Germany), made by decision of
         3 December 2009, received at the Court on 2 February 2010, in the proceedings
      
      Land Hessen
      v
      Franz Mücksch OHG,
      intervener:
      Merck KGaA,
      THE COURT (First Chamber),
      composed of A. Tizzano (Rapporteur), President of the Chamber, J.-J. Kasel, M. Ilešič, E. Levits and M. Safjan, Judges,
      Advocate General: E. Sharpston,
      Registrar: B. Fülöp, Administrator,
      having regard to the written procedure and further to the hearing on 27 January 2011,
      after considering the observations submitted on behalf of:
      –        Franz Mücksch OHG, by S. Kobes, Rechtsanwalt,
      –        Merck KGaA, by C. Weidemann, Rechtsanwalt,
      –        the German Government, by J. Möller and C. Blaschke, acting as Agents,
      –        the European Commission, by G. von Rintelen and A. Sipos, acting as Agents,
      after hearing the Opinion of the Advocate General at the sitting on 14 April 2011
      gives the following
      Judgment
      1        This reference for a preliminary ruling concerns the 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 Directive
         2003/105/EC of the European Parliament and of the Council of 16 December 2003 (OJ 2003 L 345, p. 97) (‘Directive 96/82’).
         
      
      2        The reference has been made in proceedings between Land Hessen and Franz Mücksch OHG (‘Franz Mücksch’) concerning the siting
         by Franz Mücksch of a garden centre in the vicinity of a chemicals factory belonging to Merck KGaA (‘Merck’), which is situated
         in an area covered by Directive 96/82.
      
       Legal context 
       European Union law
      3        Recital 2 in the preamble to Directive 96/82 is worded as follows:
      
      ‘Whereas the objectives and principles of the Community’s environment policy, as set out in Article [174](1) and (2) [EC]
         and detailed in the European Community’s action programmes on the environment …, aim, in particular, at preserving and protecting
         the quality of the environment, and protecting human health, through preventive action’.
      
      4        Recital 22 in the preamble to Directive 96/82 states:
      
      ‘... in order to provide greater protection for residential areas, areas of substantial public use and areas of particular
         natural interest or sensitivity, it is necessary for land-use and/or other relevant policies applied in the Member States
         to take account of the need, in the long term, to keep a suitable distance between such areas and establishments presenting
         such hazards and, where existing establishments are concerned, to take account of additional technical measures so that the
         risk to persons is not increased’.
      
      5        Article 1 of Directive 96/82, headed ‘Aim’, provides:
      
      ‘This Directive is aimed at the prevention of major accidents which involve dangerous substances, and the limitation of their
         consequences for man and the environment, with a view to ensuring high levels of protection throughout the Community in a
         consistent and effective manner.’
      
      6        Article 3(1) to (7) of Directive 96/82 provides:
      
      ‘For the purposes of this Directive:
      1.      “establishment” shall mean the whole area under the control of an operator where dangerous substances are present in one or
         more installations, including common or related infrastructures or activities;
      
      2.      “installation” shall mean a technical unit within an establishment in which dangerous substances are produced, used, handled
         or stored. It shall include all the equipment, structures, pipework, machinery, tools, private railway sidings, docks, unloading
         quays serving the installation, jetties, warehouses or similar structures, floating or otherwise, necessary for the operation
         of the installation;
      
      3.      “operator” shall mean any individual or corporate body who operates or holds an establishment or installation or, if provided
         for by national legislation, has been given decisive economic power in the technical operation thereof;
      
      4.      “dangerous substance” shall mean a substance, mixture or preparation listed in Annex 1, Part 1, or fulfilling the criteria
         laid down in Annex 1, Part 2, and present as a raw material, product, by-product, residue or intermediate, including those
         substances which it is reasonable to suppose may be generated in the event of accident;
      
      5.      “major accident” shall mean 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;
      
      6.      “hazard” shall mean the intrinsic property of a dangerous substance or physical situation, with a potential for creating damage
         to human health and/or the environment;
      
      7.      “risk” shall mean the likelihood of a specific effect occurring within a specified period or in specified circumstances’.
      7        Article 5(1) of Directive 96/82, headed ‘General obligations of the operator’, provides:
      
      ‘Member States shall ensure that the operator is obliged to take all measures necessary to prevent major accidents and to
         limit their consequences for man and the environment.’
      
      8        Article 12(1) of Directive 96/82, headed ‘Land-use planning’, provides:
      
      ‘Member States shall ensure that the objectives of preventing major accidents and limiting the consequences of such accidents
         are taken into account in their land‑use policies and/or other relevant policies. They shall pursue those objectives through
         controls on:
      
      (a)      the siting of new establishments;
      (b)      modifications to existing establishments covered by Article 10;
      (c)      new developments such as transport links, locations frequented by the public and residential areas in the vicinity of existing
         establishments, where the siting or developments are such as to increase the risk or consequences of a major accident.
      
      Member States shall ensure that their land-use and/or other relevant policies and the procedures for implementing those policies
         take account of the need, in the long term, to maintain appropriate distances between establishments covered by this Directive
         and residential areas, buildings and areas of public use, major transport routes as far as possible, recreational areas and
         areas of particular natural sensitivity or interest and, in the case of existing establishments, of the need for additional
         technical measures in accordance with Article 5 so as not to increase the risks to people.’
      
       National legislation
      9        Paragraph 34(1) of the Building Code (Baugesetzbuch) of 23 September 2004, as most recently amended by the Law of 31 July
         2009 (BGBl 2009 I, p. 2585), which is headed ‘Permissibility of projects within a built-up area’, provides:
      
      ‘Within built-up areas, a project shall be permissible where, according to the type and scale of the use of the building,
         method of construction and the plot to be built on, it is in keeping with the features of its immediate surroundings and the
         provision of utilities has been secured. The requirements relating to healthy living and working conditions must be satisfied;
         the overall appearance of the locality may not be impaired.’
      
      10      Paragraph 50 of the Federal Law on protection against pollution (Bundes‑Immissionsschutzgesetz) of 26 September 2002, as most
         recently amended by the Law of 11 August 2009 (BGBl 2009 I, p. 2723), which is headed ‘Planning’, is worded as follows:
      
      ‘As concerns regionally significant planning projects and measures, land allocated for a particular use shall be zoned so
         as to avoid as far as possible harmful environmental effects and the effects, caused in industrial areas by major accidents
         within the meaning of Article 3(5) of Directive [96/82], on areas which are exclusively or predominantly used for residential
         purposes and on other areas requiring protection, in particular areas of public use, important traffic routes, leisure areas,
         especially valuable or sensitive conservation areas, and buildings of public use. As concerns regional planning projects and
         measures in areas in which the pollution limits laid down by regulations in accordance with Paragraph 48a(1) are not exceeded,
         the maintenance of optimal air quality shall be one of the interests to be taken into consideration when weighing up the affected
         interests.’
      
      11      Paragraph 3(1) and (3) of the twelfth regulation implementing the Federal Law on protection against pollution [Zwölfte Verordnung
         zur Durchführung des Bundes Immissionsschutzgesetzes (Störfall-Verordnung)], as published on 8 June 2005 (BGBl. 2005 I, p.
         1598), which is headed ‘General obligations on operators’ states:
      
      ‘(1)      The operator shall take the necessary precautions to prevent major accidents, in accordance with the type and extent of the
         possible hazards; obligations under legal provisions other than those of the law relating to protection against pollution
         shall be unaffected.
      
      …
      (3)      In addition to subparagraph (1), precautionary measures shall be taken to keep the effects of major accidents to a minimum.’
       The dispute in the main proceedings and the questions referred for a preliminary ruling
      12      Franz Mücksch plans to build a garden centre on a plot of land belonging to him in the industrial estate Nordwest of the city
         of Darmstadt (Germany).
      
      13      The land is currently occupied by a scrap and metal recycling installation and is surrounded by a number of commercial premises,
         such as large retail outlets, wholesale outlets, workshops and a hotel. However, that area is not covered by a land-use development
         plan. According to the national court, in carrying out its mandatory duty as set out in Paragraph 34 of the Building Code,
         as amended, which prevented it from itself carrying out an assessment of the need to maintain appropriate distances, the city
         of Darmstadt thus gave Franz Mücksch preliminary planning permission in respect of his building plan (‘Bauvorbescheid’, ‘preliminary
         planning permission’).
      
      14       Merck is situated at around 250 metres from Franz Mücksch’s land. It operates installations in which chemical substances
         are used, inter alia chlorine, which is covered by Directive 96/82 and the provisions of the twelfth regulation implementing
         the Federal Law on protection against pollution. Merck successfully lodged an administrative objection opposing the preliminary
         planning permission.
      
      15      Franz Mücksh therefore appealed against that objection. In the course of those new proceedings, an ‘expert report on the compatibility
         of the area in which [Merck’s] establishment is situated and planning in the vicinity of that area in the light of Paragraph
         50 [of the Federal Law on protection against pollution] and Article 12 of [Directive 96/82]’ was drawn up at the request of
         the city of Darmstadt. In that report ‘compliance boundaries’ were established in respect of potential hazards posed by Merck’s
         installations. Franz Mücksch’s land lies completely within the perimeter circumscribing the compliance boundaries.
      
      16      The Verwaltungsgericht (Administrative Court) and the Verwaltungsgerichtshof (Higher Administrative Court) ordered Land Hessen
         to reject Merck’s objection. Merck and Land Hessen therefore appealed on a point of law before the Bundesverwaltungsgericht
         (Federal Administrative Court) against the judgment on appeal delivered by the Verwaltungsgerichtshof claiming that the interpretation
         of national law on which that court based its decision is not in conformity with Directive 96/82 in so far as the authorisation
         of Franz Mücksch’s project is incompatible with Article 12(1) of that directive.
      
      17      In those circumstances the Bundesverwaltungsgericht, taking the view that the resolution of the dispute before it turns on
         the interpretation of that directive, decided to stay the proceedings and to refer the following questions to the Court of
         Justice for a preliminary ruling:
      
      ‘(1)      Is Article 12(1) of … Directive [96/82] 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 imposed on planners who have to take decisions on land‑use by weighing up the public and
         private interests affected, or are they imposed also on the planning permission authorities that have to take a non-discretionary
         decision on the authorisation of a project in an already built-up area?
      
      (2)      If Article 12(1) of … Directive [96/82] is also addressed to the planning permission authorities that 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 at a distance from the establishment which is not greater
         or not significantly greater, 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 requirement to maintain distances?’
      
       Consideration of the questions referred
       The first question
      18      By its first question, the national court asks, in essence, whether Article 12(1) of Directive 96/82 is to 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 applies also to a public
         authority, such as the city of Darmstadt, responsible for issuing planning permissions, even though it has no discretion in
         the exercise of that prerogative.
      
      19      In that regard, it must be stated that, although it is true that the second subparagraph of Article 12(1) of Directive 96/82
         requires Member States to take account of the need to maintain appropriate distances in the first place in their land-use
         policies, the fact remains that, under that provision, Member States also have the same obligation in relation to other relevant
         policies and ‘procedures for implementing those policies’. It follows that that obligation also covers authorities participating
         in the execution of plans and policies connected with the objectives of preventing major accidents and limiting the consequences
         of such accidents, which are pursued by the abovementioned directive.
      
      20      Consequently, in so far as the planning permission authorities take part in the direct management of the procedures for issuing
         those planning permissions, as does the city of Darmstadt in the main proceedings, which issued the preliminary planning permission
         in favour of Franz Mücksch, they contribute to the implementation of the land-use policies referred to by Article 12(1).
      
      21      It follows that the absence, as in the main proceedings, of a land-use development plan cannot exempt those authorities from
         the obligation of taking into consideration, when assessing applications for planning permission, the need to maintain appropriate
         distances between establishments covered by Directive 96/82 and adjacent areas.
      
      22      First, if authorities that are not responsible for urban planning were permitted to plead the absence of a land-use development
         plan to avoid their obligation to take account of the need to maintain appropriate distances, that obligation would easily
         be circumvented and the practical effect of Directive 96/82 would be disregarded. In such circumstances the objective of limiting
         the consequences of major accidents for man and the environment, set out in Article 1 of that directive, and, more broadly,
         the objectives and principles of the European Union’s policy on the environment referred to in Article 174(1) EC, which include,
         inter alia, protecting health and improving the quality of the environment, would be undermined.
      
      23      Secondly, the interpretation mentioned in paragraph 21 of this judgment cannot be called into question by the fact that that
         directive merely lays down the obligation to take account of the need, in the long term, to maintain appropriate distances
         whilst leaving it to the assessment of the Member States to establish those distances.
      
      24      The second subparagraph of Article 12(1) of Directive 96/82 imposes on Member States, in unequivocal terms, an obligation
         to take into account the maintenance of appropriate distances in their land-use and/or other relevant policies and in the
         procedures for implementing those policies in order to achieve the objectives of preventing major accidents and limiting the
         consequences of such accidents. That provision nevertheless leaves to the competent authorities of the Member States discretion
         to specify those distances and that discretion must in any event be exercised within the limits of that obligation.
      
      25      As regards the persons to whom that obligation applies, the German Government submits that the requirement to maintain appropriate
         distances must be taken into consideration above all in planning decisions relating to land use, including those which seek
         to ascertain whether planning is necessary. It is therefore only exceptionally, in the interest of the practical effect of
         Directive 96/82, and by way of assessment, that such a requirement could be taken into account when decisions or authorisations
         are adopted without planning having been carried out to assess the public and private interests affected.
      
      26      However, it must be pointed out that, although it is true that that requirement will most often be implemented by the competent
         planning authorities, nothing in Directive 96/82 precludes, for example, those authorities from merely, in their planning
         instruments, transferring the obligation to take into account appropriate distances to the authorities responsible for implementing
         land-use plans, for reasons of the proximity of those implementing authorities with regard to the projects on which they must
         decide. In that respect, the fact remains that that directive imposes on the authorities of the Member States only the obligation
         to comply with that requirement at some point in time in the procedure for implementing land-use plans or policies and it
         is, by contrast, for the Member States to choose that point in time.
      
      27      Furthermore, it must be noted that that directive did not set out anything as regards the method for determining appropriate
         distances or as regards the manner in which to apply them, but merely requires account to be taken of them without specifying
         the hierarchical level of the authorities responsible for the land-use policies and the procedures for implementing those
         policies. It follows that such a determination, as well as the assessment of the relevant factors for that purpose, constitutes
         an activity which, with a view to ensuring the practical effect of the obligation to maintain those distances, must be capable
         of being carried out at all decision-making levels by the competent administrative authorities of the Member States.
      
      28      As regards the fact that, under national law, the city of Darmstadt had to issue the preliminary planning permission as a
         matter of carrying out a mandatory duty, as stated in paragraph 13 of the present judgment, which prevented it from itself
         carrying out an assessment of the need to maintain appropriate distances, it is important to point out that, the planning
         authorities having taken no account at all of those distances, it becomes all the more important, for the purpose of ensuring
         the effectiveness of Article 12(1) of Directive 96/82, for the authority entitled to issue the planning permission to fulfil
         that obligation itself.
      
      29      In that regard, it must be borne in mind, first, that the obligation, arising from a directive, to achieve the result envisaged
         by that directive and the duty to take all appropriate measures, whether general or particular, to ensure the fulfilment of
         that obligation in accordance with the principle of sincere cooperation in the second subparagraph of Article 4(3) TEU is
         binding on all the authorities of the Member States (Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others [2004] ECR I‑8835, paragraph 110, and Joined Cases C‑444/09 and C‑456/09 Gavieiro Gavieiro and Iglesias Torres [2010] ECR I‑0000, paragraph 72).
      
      30      Secondly, it is settled case-law that Member States may not plead provisions, practices or circumstances in their internal
         legal orders to justify a failure to comply with obligations under directives (Case C‑33/90 Commission v Italy [1991] ECR I‑5987, paragraph 24, and Case C‑388/01 Commission v Italy [2003] ECR I‑721, paragraph 27).
      
      31      It follows that, in the case in the main proceedings, the city of Darmstadt should have taken the necessary measures to comply
         with the obligation under Directive 96/82 to assess the need to maintain appropriate distances. 
      
      32      As to its being impossible for the city of Darmstadt, on account of the mandatory duty which it has in the present case, to
         take account of appropriate distances, it must be stated, as was pointed out by the Advocate General at point 44 of her Opinion,
         that it is for the national court to have recourse to the principle that national law must be interpreted in conformity with
         EU law, which is inherent in the EC Treaty system in that it enables the national court to ensure, for matters within its
         jurisdiction, the full effectiveness of European Union law when it determines the dispute before it (see, to that effect,
         Case C‑160/01 Mau [2003] ECR I‑4791, paragraph 34, and Case C‑555/07 Kücükdeveci [2010] ECR I‑0000, paragraph 48).
      
      33      In that regard, it is important to point out that the principle of interpreting national law in conformity with EU law thus
         imposed by EU law requires the national court to consider national law as a whole in order to assess to what extent it may
         be applied so as not to produce a result contrary to that sought by the directive at issue (see, to that effect, Pfeiffer and Others, paragraph 115, and Case C‑239/09 Seydaland Vereinigte Agrarbetriebe [2010] ECR I‑0000, paragraph 50).
      
      34      Furthermore, although the main proceedings are between a public authority and an individual, it is important to bear in mind
         that the Court has held that a Member State may, in principle, impose on individuals an interpretation of national law in
         keeping with the Directive (Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969, paragraphs 12 to 14, and Case C‑321/05 Kofoed [2007] ECR I‑5795, paragraph 45).
      
      35      Consequently, the answer to the first question is that Article 12(1) of Directive 96/82 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, responsible for issuing planning permissions, even when it has no discretion in the exercise of that prerogative.
      
       The second and third questions
      36      By its second and third questions, which it is appropriate to examine together, the national court asks, in essence, what
         the scope is of the obligation set out in Article 12(1) of Directive 96/82 under which Member States must take account of
         appropriate distances. It seeks to ascertain, first, whether that obligation is to be interpreted as requiring Member States
         to prohibit the siting of a building of public use in circumstances such as those described by the national court by imposing
         an absolute prohibition on worsening the situation. Secondly, that court raises the question whether that obligation precludes
         national legislation, such as that at issue in the main proceedings, which provides that it is mandatory to authorise the
         siting of such a building in those circumstances, without the hazards connected with the siting of such a building within
         the perimeter of the compliance boundaries having been duly assessed at the planning stage or at that of the individual decision.
      
      37      It is important to point out at the outset that the land-use planning, provided for in Article 12(1) of Directive 96/82, is
         based on the principle that land uses incompatible with each other must be separated by appropriate distances. In that regard,
         clearly those distances, as such, essentially constitute a factor that makes it possible to determine the areas covered by
         that directive, the objectives of which seek, first, to prevent major accidents and limit the damage they cause and, secondly,
         to define those areas in relation to those which are not covered.
      
      38      Furthermore, in the cases referred to in point (c) of the first subparagraph of Article 12(1) of Directive 96/82, of which
         the dispute in the main proceedings is one, controls on new developments in the vicinity of existing establishments must in
         particular be carried out where those developments are such as to increase the risk or consequences of a major accident.
      
      39      It is by reference to those principles that the second and third questions referred by the national court must be examined.
      
      40      In the first place, as regards the possible prohibition of worsening the situation, it is necessary to analyse the scope of
         the obligation set out in Article 12(1) of Directive 96/82. In that regard, it is important to point out that, as was stated
         in paragraph 24 of this judgment, that obligation admittedly imposes on Member States, in unequivocal terms, a requirement
         to take into account appropriate distances. The fact remains that, as Franz Mücksch and the European Commission state, the
         Member States retain discretion in the application of that requirement.
      
      41      That discretion may be inferred from the wording of the provision in question, in so far as, although it is true that Member
         States are required to ensure that their land-use policies take into consideration the need to maintain appropriate distances,
         the fact remains that Article 12(1) requires merely that those policies ‘take account’ of the maintenance of those distances.
      
      42      The expression ‘take account of the need … to maintain appropriate distances’, the rest of the wording of Article 12(1) of
         Directive 96/82 and recital 22 in the preamble to that directive cannot be interpreted as meaning that they require any project
         falling short of the appropriate distances to be refused.
      
      43      Furthermore, the grant of such a discretion is apparent from the fact that, in the light of the fundamental objectives of
         Directive 96/82 of preventing major accidents which involve dangerous substances and limiting the consequences thereof, as
         referred to in Article 1 of that directive, the implementation of Article 12(1)(c) of the directive requires the national
         authorities in charge of land‑use policies, inter alia as regards built-up areas, to carry out certain activities, such as
         an assessment of the increase in the risk or consequences of accidents, which requires an assessment not only of the risks
         and damages, but also of all the other relevant factors in each specific case.
      
      44      It is clear that those factors vary, most often substantially, depending on the particular data in respect of the areas subject
         to planning or of those in which individual decisions may be adopted although there is no land-use plan relating to them.
         Those specific factors may include, in addition to the nature of the dangerous substances in question, the likelihood of a
         major accident’s occurring during the use of an establishment covered by Directive 96/82, as well as the consequences for
         human health and the environment resulting from a possible accident; the nature of the activity of the new site or the intensity
         of its use by the public; and the ease with which emergency teams may act if there are accidents. Furthermore, as the national
         court correctly points out, all those specific factors may be combined with the taking into consideration of socio-economic
         factors.
      
      45      Although Member States are required, when drawing up land-use policies, to take into account the need to maintain appropriate
         distances and, at the very least implicitly, to determine those distances, such an obligation does not however imply that
         they must establish such distances as the sole criterion for authorisation or refusal in the light of the location of projects
         for new sitings in the vicinity of existing establishments. In those circumstances, it is possible to guarantee the full effectiveness
         of the need to maintain appropriate distances only if Member States are recognised as having discretion.
      
      46      Consequently, having regard to the wording of Article 12(1) of Directive 96/82 and to the requirement to assess factors that
         are to a large extent dependent on matters specific to each case, it must be pointed out, as has the national court and contrary
         to what Merck maintains, that the obligation to maintain appropriate distances cannot be understood in an absolute manner
         as meaning that it requires the prohibition of any project for a new siting in a built-up area in which there are establishments
         covered by that directive, including cases where that siting concerns a building of public use such as that at issue in the
         main proceedings.
      
      47      That interpretation cannot be called into question by the temporal criterion that it is necessary to maintain ‘in the long
         term’ appropriate distances between establishments covered by Directive 96/82 and buildings of public use. In that regard,
         it must be noted, first, that, as Merck correctly points out, that expression implies a certain respect for the status quo,
         in the sense that the authorities responsible for the implementation of land-use plans cannot impose compliance with those
         distances on developments which already exist when those distances are established for the first time at a later stage. Secondly,
         as the Advocate‑General pointed out at point 40 of her Opinion, that expression must be understood as a requirement that seeks
         to keep those distances when they are already observed and to introduce them in the future as a long-term goal when they have
         not yet been implemented.
      
      48      Neither of those two interpretations of the expression ‘in the long term’ is capable of strengthening the binding nature of
         Article 12(1) of Directive 96/82 in such a way that that provision imposes a prohibition of worsening the situation and therefore
         prohibits any siting of a building of public use near an existing establishment.
      
      49      As regards, in the second place, the question whether the obligation set out in Article 12(1) of the directive precludes national
         legislation that provides that it is mandatory to authorise the siting of a building without the hazards connected with the
         siting of such a building within the perimeter of those distances having been duly assessed at the planning stage or at that
         of the individual decision, it is important to point out that the discretion enjoyed by Member States cannot be interpreted,
         as the Commission has stated, as being such as to permit those Member States to disregard the taking into account of appropriate
         distances.
      
      50      Although Directive 96/82 leaves to the national authorities the task of calculating those distances and of determining them
         in the light of all the relevant factors, the ‘taking into account’ of appropriate distances requires however that, during
         the risk assessment, those distances are actually taken into consideration with other factors, whether generally at the time
         when land-use plans are drawn up or, in the absence of planning, specifically, inter alia, when decisions on planning permissions
         are adopted.
      
      51      It follows that, in so far as national legislation requires that it is mandatory to issue an authorisation for the siting
         of a building without the hazards connected with the siting of such a building within the perimeter of the appropriate distances
         having been duly assessed at the planning stage or at that of the individual decision, such legislation is such as to render
         meaningless the obligation to take account of the maintenance of appropriate distances and, therefore, to render that obligation
         redundant. Consequently, it must be held that Article 12(1) of Directive 96/82 precludes national legislation that provides
         that it is mandatory to issue an authorisation in such circumstances.
      
      52      In that regard, it is for the national court, in accordance with the principles set out in paragraphs 32 to 34 of the present
         judgment, in so far as is possible, to interpret the national law in conformity with that directive.
      
      53      In view of the foregoing considerations, the answer to the second and third questions is that the obligation set out in Article
         12(1) of Directive 96/82 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.
      
       Costs
      54      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
         the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
         of those parties, are not recoverable.
      
      On those grounds, the Court (First Chamber) hereby rules:
      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.
      [Signatures]
      * Language of the case: German.