The Court of Justice of the European Union answered the questions for a preliminary ruling in the ECO-Wind Construction v. Appeal Board in Kielce, which appealed against the refusal to consent to the construction of a wind farm in the Opat\u00f3w commune pursuant to the Act of 20 May 2016 on investments in wind farms. <\/p>\n\n\n\n
As is clear from the ruling, the Court of Justice of the European Union leaves the Polish courts to decide whether the Act directly affected the slowdown of wind energy development in Poland, and thus would require notification of its mechanisms regarding the location of wind farms. <\/p>\n\n\n\n (…) <\/em> In the present case, although the requirement that the installation of a wind turbine is subject to compliance with the condition of a minimum distance between that wind turbine and buildings with a residential function, imposed by the national legislation at issue in the main proceedings, admittedly includes a prohibition on installing a wind turbine at a minimum distance less than ten times the total height of the planned installation from any building having a residential function, it should be noted that that legislation does not, however, prohibit economic operators from continuing to install wind turbines and, therefore, using and marketing wind generators. <\/p><\/blockquote>\n\n\n\n However, at the hearing before the Court, the Commission stated, and was not contradicted by the Polish Government, that in the period from 2012 to 2016, that is to say, the period directly preceding the adoption of the Law on wind turbines, the capacities of installed wind turbines amounted to between 760 megawatts and 1\u00a0000 megawatts per annum, whereas, for the years 2017 and 2018 respectively, after the adoption of that law, those installed capacities did not amount to more than 12 megawatts and 6.7 megawatts per annum respectively. <\/p><\/blockquote>\n\n\n\n In the light of that information, it is for the referring court to determine whether 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 lead to a de facto prohibition on the marketing of wind generators, leaving room only for a use of them that is purely marginal. <\/p><\/blockquote>\n\n\n\n The Court held as follows: <\/strong><\/p>\n\n\n\n 1) Article\u00a01(1)(f) of Directive (EU) 2015\/1535 of the European Parliament and of the Council of 9\u00a0September 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\u00a05 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.<\/p>\n\n\n\n 2) Article\u00a015(2)(a) of Directive 2006\/123\/EC of the European Parliament and of the Council of 12\u00a0December 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\u00a015(7) of that directive.<\/p>\n\n\n\n 3) The first subparagraph of Article\u00a03(1) and the first subparagraph of Article\u00a013(1) of Directive 2009\/28\/EC of the European Parliament and of the Council of 23\u00a0April 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\u00a0September 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.<\/p>\n\n\n\n