Limits to its applicability

Even if full harmonization were to be achieved, Community legislation would still impact differently different undertakings. As AG Jacobs has noted, 'the

56 Ray Schmitt (2006); De Sepibus (2007a).

57 See SAM Schiffahrt, fn. 59.

58 Joined Cases C-267-85/88 Wuidart and Others [1991] ECR I-435.

59 Joined Cases C-248-9/95 SAM Schiffahrt and Stapf v Germany [1997] ECR I-4475, paras. 24-25.

principle of equality cannot preclude the legislature from adopting a criterion of general application [...] it may affect different persons in different ways, but beyond certain limits any attempt to tailor the legislation to different circumstances is likely only to lead to new claims of unequal treatment'.60 The same can be said in respect of the principle of proportionality.61 The principle of equal treatment as a criterion for burden sharing constitutes one particular version of the principle of proportionality in respect of burden sharing of the costs imposed by regulation, since it mandates equal burdens for comparable individuals or firms. Hence, the reasoning made by AG Jacobs would seem to apply also more generally to the principle of proportionality. Furthermore, if we consider that the polluter pays principle constitutes a particular implementation of the proportionality principle, as suggested by the ECJ in Standley, then the same conclusion can be extended to it. The polluter pays principle can be used as a criterion for the distribution of burdens of regulation, with the criterion being the amount of pollution emitted by each polluter. Hence, a measure implementing the principle will inevitably impact different persons differently. Seeking to tailor legislation to each individual circumstance will likely lead to new claims of unequal treatment. This is important in relation to allocation methodologies. An allocation methodology which is based upon general criteria will by definition give advantage to some companies and damage others. By contrast, an allocation methodology which is based on the specific circumstances of each installation will tend to give each installation exactly what it needs in order to cover its emissions. But as this is impossible, since by definition the total amount of allowances allocated must be lower than actual emissions - if the emissions reduction target is to be fulfilled, in fact some installations will receive fewer allowances vis-à-vis other installations. Which installations are benefited and which are damaged will depend precisely on the criteria employed for the distribution. Those criteria should not breach the polluter pays principle, which means that, in general, the criterion for allocation must not have the effect that the worst polluters receive more allowances relative to the more efficient polluters. In this way, the principle of proportionality and the polluter pays principle reinforce each other. The principle of equality is a particular version of the former. Indeed, from the perspective of the polluter pays principle, two undertakings that compete in the internal market are only comparable when, in addition to being competitors, they emit similar amounts of pollutants per input or output. Only in that case would they be entitled to a similar amount of allowances. Hence, the polluter pays principle constitutes the relevant criterion to introduce allocation methodologies that treat different undertakings differently.

60 Joined Cases C-13-16/92 Driessen and others [1993] ECR I-4751 at p. 4780.

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