In its judgment in ECO-WIND Construction of 28 May 2020 (C-727/17, EU:C:2020:393)  the Court of Justice of the European Union examined the compatibility with EU law of a Polish law provision that introduced a geographical restriction on the installation of wind turbines. The rule in question states that there must be a certain minimum distance between wind turbines and residential buildings, in particular at least equal to or greater than ten times the height of the wind turbine measured from ground level to the highest point of the structure, including the rotor and rotor blades.

The question of the compatibility with EU law has arisen mainly because Member States are not allowed to introduce measures having equivalent effect to quantitative restrictions and as technical rules adopted by Member States which may lead to such restrictions must be notified to the Commission in advance. Since such a restrictive effect may also arise from the Polish provision concerning the installation of wind turbines (especially because wind turbines higher than 100 meters can occupy only a maximum of 1% of Poland’s territory), the Court has examined, on the basis of a reference for a preliminary ruling, whether the provision constitutes a technical regulation within the meaning of Directive 2015/1535 /EU. In its judgment, the Court held that the rule in question did not constitute a 'technical specification' or 'other requirement' within the meaning of the Directive, since it covers only provisions concerning the product itself or its packaging or a condition capable of significantly influencing the composition, nature or marketing of a product. Although a restriction concerning the geographical location of the wind turbines may have an effect on their marketing, this effect is not direct enough to establish compliance with that definition element. However, it will be for the national court to decide, whether the legislation at issue constitutes a de facto prohibition of the manufacture, import, sale or use of the product. 

The Court did not find the regulation contrary to Directive 2006/123/EC on services in the internal market because the rule in question did not fall within the scope of the directive since the production of a good (in this case electricity) could not be considered a service in itself.

Finally, the Court stated that the national legislation in question did not undermine the achievement of the targets for the use of energy from renewable sources (therefore the implementation of Directive 2009/28/EC) because the Member States had large discretion as to the measures to be taken to reach the threshold prescribed by the directive (in case of Poland, in 2020, 15% of the energy produced must come from renewable energy sources). However, it is for the national court to decide whether the national provisions at issue were necessary and proportionate (or perhaps a less restrictive solution existed).