# C_2020255EN.01000201.xml

| 3.8.2020 | EN | Official Journal of the European Union | C 255/2 |
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3.8.2020

EN

Official Journal of the European Union

C 255/2

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Judgment of the Court (Fourth Chamber) of 28 May 2020 (request for a preliminary ruling from the Wojewódzki Sąd Administracyjny w Kielcach — Poland) — Syndyk Masy Upadłości ECO-WIND Construction S.A. w upadłości, formerly ECO-WIND Construction S.A. v Samorządowe Kolegium Odwoławcze w Kielcach

(Case C-727/17) (1)

(Reference for a preliminary ruling - Directive (EU) 2015/1535 - Standards and technical regulations - Wind generators - Directive 2006/123/EC - Concept of ‘service’ - Environment - Directive 2009/28/EC - Promotion of the use of energy from renewable sources - Mandatory national overall targets - National rule on the authorisation procedures applicable to plants for the production of electricity from renewable energy sources - Proportionality - Legislation of a Member State laying down restrictions on the location of wind turbines)

(2020/C 255/02)

Language of the case: Polish

Referring court

Wojewódzki Sąd Administracyjny w Kielcach

Parties to the main proceedings

Applicant: Syndyk Masy Upadłości ECO-WIND Construction S.A. w upadłości, formerly ECO-WIND Construction S.A.

Defendant: Samorządowe Kolegium Odwoławcze w Kielcach

Operative part of the judgment

| 1. | Article 1(1)(f) of Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services must be interpreted as meaning that the requirement that the installation of a wind turbine is subject to compliance with the condition of a minimum distance between it and buildings with a residential function does not constitute a technical regulation which must be notified under Article 5 of that directive, provided that that requirement does not lead to a purely marginal use of wind generators, which it is for the referring court to determine; |
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1.

Article 1(1)(f) of Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services must be interpreted as meaning that the requirement that the installation of a wind turbine is subject to compliance with the condition of a minimum distance between it and buildings with a residential function does not constitute a technical regulation which must be notified under Article 5 of that directive, provided that that requirement does not lead to a purely marginal use of wind generators, which it is for the referring court to determine;

| 2. | Article 15(2)(a) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market must be interpreted as meaning that legislation which makes the installation of a wind turbine subject to compliance with the condition of a minimum distance between that wind turbine and buildings with a residential function cannot be categorised as rules which make access to, or exercise of, a service activity subject to a territorial limit in the form, in particular, of limits fixed according to a minimum distance between service providers, which the Member States must notify to the European Commission in accordance with Article 15(7) of that directive; |
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2.

Article 15(2)(a) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market must be interpreted as meaning that legislation which makes the installation of a wind turbine subject to compliance with the condition of a minimum distance between that wind turbine and buildings with a residential function cannot be categorised as rules which make access to, or exercise of, a service activity subject to a territorial limit in the form, in particular, of limits fixed according to a minimum distance between service providers, which the Member States must notify to the European Commission in accordance with Article 15(7) of that directive;

| 3. | The first subparagraph of Article 3(1) and the first subparagraph of Article 13(1) of Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC, as amended by Directive (EU) 2015/1513 of the European Parliament and of the Council of 9 September 2015 must be interpreted as not precluding legislation which makes the installation of a wind turbine subject to compliance with the condition of a minimum distance between that wind turbine and buildings with a residential function, provided that that legislation is necessary and proportionate in the light of the mandatory national overall target of the Member State concerned, which it is for the referring court to determine. |
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3.

The first subparagraph of Article 3(1) and the first subparagraph of Article 13(1) of Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC, as amended by Directive (EU) 2015/1513 of the European Parliament and of the Council of 9 September 2015 must be interpreted as not precluding legislation which makes the installation of a wind turbine subject to compliance with the condition of a minimum distance between that wind turbine and buildings with a residential function, provided that that legislation is necessary and proportionate in the light of the mandatory national overall target of the Member State concerned, which it is for the referring court to determine.

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(1)  OJ C 134, 16.4.2018.

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