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Equal treatment and legal certainty

Among general principles of EU law that have an impact on defining environmental policy and its implementation is the principle of non-discrimination on the ground of nationality and the principle of equal treatment. These two principles are discussed here briefly and only with respect to their relevance for environmental policy.173

According to Article 18 TFEU, any discrimination based on nationality shall be prohibited in all areas covered by the Treaty. Court of Justice practice shows that not only overt discrimination because of nationality—or, in the case of a company, its seat—but also all covert forms of discrimination that, by the application of other distinguishing criteria, lead to the same result, are forbiddenTh4 In the CEZ case, the Court examined the admissibility of Austrian rules that provided different possibilities for bringing an action for discontinuation of disturbances from a company’s activity depending on whether it was located in the country where the complaint was lodged or in another EU Member State. According to these rules, a company permitted to carry out an activity (in this case operate a nuclear power plant) in another Member State could be the subject of an action before the Austrian courts regarding discontinuation of disturbances or risk of disturbances to real estate near the facility. A company that operated a similar facility in Austria could not be the subject of such a claim. The Court found this to be contrary to the principle of prohibition of discrimination on grounds of nationality.175

According to the Court, the principle of equal treatment means that similar situations should not be treated differently, and that different situations should not be treated alike unless there is objective justification for such treatment. 176 A difference in treatment is justified if it is based on a reasonable and objective criterion. The difference should also be connected with a final objective pursued by the legislation and be proportionate to the objective it seeks to achieve.177 If the difference in treatment is the result of legal acts adopted by the EU, it is up to the

EU legislator to show that the objective criteria cited as reasons for different treatment are fulfilled.178 The principle of equal treatment has been applied in several environment-related cases, particularly those related to the EU system for trade in emission rights for certain greenhouse gasesTh9

Another basic EU law principle in this context is the principle of legal certainty or rule of law, according to which it is required that legal rules shall be clear and precise so that everybody can be informed unambiguously of his/her rights and obligations. However, given that the meaning and scope of legal rules are normally somewhat imprecise and unclear, the Court of Justice seems not to have a very high requirement on clarity.180 Legal certainty has not in most cases been considered as an obstacle to the application of EU environmental legal acts.181 The requirement of clarity applies even for national measures that transpose EU law.182

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