NETHERLANDS Law and Practice Contributed by: Guido Koop, Jan de Heer and Nanne Kusters, Loyens & Loeff
6.6 Environmental Audits Under Sections 3.84 and 5.1.5 of the Environmental Activities Decree, entities are obliged to carry out an energy audit once every four years and to submit such audit report to the Netherlands Enterprise Agency ( Rijksdienst voor Ondernemend Nederland ). However, many companies voluntarily opt for certi- fication of their management systems, for instance under International Environmental Management Sys- tem standards (ISO 14001). Aside from the above, environmental permits often contain conditions in relation to monitoring and reporting. Please also see 6.5 ESG Requirements and 16.3 Cor- porate Disclosure Requirement . Statutory directors can be held liable for the proper performance of their duties and for the general course of affairs. A director who is culpable of a serious imput- able act in relation to the performance of their duties as a director can be held liable next to the company itself. It is, however, a high threshold more commonly invoked in matters relating to corporate law and statu- tory governance or bankruptcy. As stated in 6.4 Shareholder or Parent Company Liability , a de facto manager (a natural person who does not have to be a statutory director or executive) can be held liable (next to the company itself) if it was, in short, responsible for the prevention of a breach where it had the means and opportunity to prevent the breach from occurring. It is a relatively high standard and is not often successfully demonstrated in court by a public prosecutor. The fines are not different for a specific violation, but as “de facto managers” are always natural persons, they would generally be subjected to lower fines (compared to companies qualifying as offenders). 7. Personal Liability 7.1 Directors and Other Officers
Insuring Against Liability The company (or its directors and/or officers) can take out a directors’ and officers’ (D&O) insurance policy providing coverage for liabilities based on acts and omissions committed or omitted by the directors and officers. However, depending on the insurer and the policy, D&O insurance may exclude claims resulting from or based on, inter alia, the actual, alleged or threatened disposal, emission or escape of environ- mental contamination substances. Furthermore, exclusions may apply with respect to penalties for the breach of environmental law. 8. Insurance 8.1 Environmental Insurance There is no compulsory environmental insurance by law. However, it is possible to take out environmental damages insurance covering the financial risks of environmental damage, such as surface water or soil contamination. Environmental damages insurance generally does not cover damages relating to under- ground storage tanks. Generally, lenders will not be liable for the borrower’s environmental actions or property unless factual man- agement is present, or such is explicitly agreed upon. If the lender would have to step in on the borrower’s position (eg, ownership of land or a company), the associated liabilities connected to such position might (and often will) be transferred, such as liability relat- ing to soil contamination or permit compliance (for aspects of the environment, water, safety, etc). 9.2 Lender Protection The lender should (and typically will) refrain from exer- cising control or influence over the day-to-day man- agement decisions relating to environmental aspects. 9. Lender Liability 9.1 Financial Institutions/Lenders
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