Syndyk Masy Upadłości ECO-WIND Construction S.A. w upadłości anciennement v Samorządowe Kolegium Odwoławcze w Kielcach.
Date: 2020-05-28
36


Second, as regards the possible classification of the same requirement as a technical regulation on the basis that it falls within the category of ‘technical specifications’, it should be noted that a technical specification presupposes that the national measure prescribing it refers to the product or its packaging as such and that it therefore lays down one of the characteristics required of that product (judgments of 21 April 2005, Lindberg, C‑267/03, EU:C:2005:246, paragraph 57, and of 19 July 2012, Fortuna and Others, C‑213/11, C‑214/11 and C‑217/11, EU:C:2012:495, paragraph 28).
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In that regard, it is apparent from settled case-law that that category includes legislation which lays down a condition capable of significantly influencing the composition, nature or marketing of a product (judgments of 21 April 2005, Lindberg, C‑267/03, EU:C:2005:246, paragraphs 69 to 72, and of 19 July 2012, Fortuna and Others, C‑213/11, C‑214/11 and C‑217/11, EU:C:2012:495, paragraph 35), those ‘other requirements’ covering the requirements arising from consideration of the life cycle of the product in question after it has been placed on the market and relating, in particular, to its use.
42


The case in the main proceedings is therefore distinguishable from the cases that gave rise to the judgment of 19 July 2012, Fortuna and Others (C‑213/11, C‑214/11 and C‑217/11, EU:C:2012:495), in which the legislation at issue concerning the prohibition on issuing, renewing or amending authorisations for gaming activities outside casinos imposed conditions liable to affect the marketing of gaming machines and, therefore, was capable of directly affecting the trade in those machines (judgment of 19 July 2012, Fortuna and Others, C‑213/11, C‑214/11 and C‑217/11, EU:C:2012:495, paragraph 36).
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That category presupposes that the measure at issue has a scope that goes clearly beyond a limitation to certain uses of the product at issue and that it is not confined to a mere restriction on its use (judgments of 21 April 2005, Lindberg, C‑267/03, EU:C:2005:246, paragraph 76, and of 19 July 2012, Fortuna and Others, C‑213/11, C‑214/11 and C‑217/11, EU:C:2012:495, paragraph 31).
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That category is particularly intended to cover national measures which leave no room for any use that could reasonably be made of the product concerned other than a purely marginal one (judgments of 21 April 2005, Lindberg, C‑267/03, EU:C:2005:246, paragraph 77, and of 19 July 2012, Fortuna and Others, C‑213/11, C‑214/11 and C‑217/11, EU:C:2012:495, paragraph 32).
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It is settled case-law that the activity of producing a product cannot be regarded, in itself, as a service (see, to that effect, judgments of 7 May 1985, Commission v France, 18/84, EU:C:1985:175, paragraph 12, and of 11 July 1985, Cinethèque and Others, 60/84 and 61/84, EU:C:1985:329, paragraph 10).
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The Court has held that the Member States have a discretion as to the measures they consider appropriate for the purpose of reaching the mandatory national overall targets set in Article 3(1) and (2) of Directive 2009/28, read in conjunction with Annex I thereto (judgment of 20 September 2017, Elecdey Carcelen and Others, C‑215/16, C‑216/16, C‑220/16 and C‑221/16, EU:C:2017:705, paragraph 32).
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That interpretation is confirmed by the judgment of 21 July 2011, Azienda Agro‑Zootecnica Franchini and Eolica di Altamura (C‑2/10, EU:C:2011:502, paragraphs 72 and 73), in which the Court held that the national legislation at issue in the case giving rise to that judgment, which, in essence, entailed a total and automatic prohibition on the construction of wind turbines in areas forming part of the Natura 2000 network, had to be assessed in the light of the principle of proportionality, as set out in Article 13 of Directive 2009/28, since that legislation constituted a national rule relating to the administrative procedures for the authorisation of plants producing electricity from renewable energy sources.
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Accordingly, it is for that court to determine that the measures adopted by the Member State concerned do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation at issue in the main proceedings; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see, to that effect, judgment of 21 July 2011, Azienda Agro-Zootecnica Franchini and Eolica di Altamura, C‑2/10, EU:C:2011:502, paragraph 73).