NETHERLANDS Law and Practice Contributed by: Guido Koop, Jan de Heer and Nanne Kusters, Loyens & Loeff
10. Civil Liability 10.1 Civil Claims
adequate measures to protect its citizens from the consequences of climate change. The courts ordered that the Dutch state should take additional measures to further reduce the emission of GHGs in the Nether- lands by at least 25% compared to 1990, before the end of 2020. This order was confirmed by the Dutch Supreme Court. Another landmark case in the private sector is the Shell case. On 26 May 2021, the Hague District Court ordered Shell (previously Royal Dutch Shell), both directly and via its group companies, to limit its CO₂ emissions by at least net 45% by the end of 2030, relative to 2019 levels. The Court concluded that Shell is obliged to ensure through the Shell group’s corpo- rate policy that the CO₂ emissions of the Shell group, its suppliers and its customers are reduced. This fol- lows from the unwritten standard of care applicable to Shell. In this respect, Shell has an “obligation of result” with respect to the Shell group’s CO₂ emissions and a material “best-efforts obligation” in respect of its suppliers and customers. Shell appealed, and the Court of Appeal overturned the ruling of the District Court on 12 November 2024. The Court of Appeal did uphold that Shell has an obligation to reduce its CO₂ emissions, but could not rule on the percentage of reduction. This case is now pending before the Supreme Court. Several other climate cases are pending: for exam- ple, a case by Greenpeace against the Dutch state in which it is being discussed whether the Dutch state takes sufficient action to prevent negative effects of climate change on the Caribbean part of the Nether- lands. Most of these climate cases are class actions, although not all claimants are seeking to claim damag- es; instead, these claimants often seek legal change through the courts. 11. Contractual Agreements 11.1 Transferring or Apportioning Liability Generally, under Dutch law, civil liability for dam- ages and breaches of law can be limited by means of indemnities and other contractual arrangements between parties, such as buyers and sellers. Indem- nities and other contractual arrangements between
Apart from contract liability, civil claims for compen- sation in environmental-related cases are generally tort-based. Typically, compensation can be awarded in the event of unlawful nuisance or violation of a per- mit causing damages to third parties, and based on a certain duty of care arising from specific environmen- tal legislation (eg, relating to soil protection) or even an “unwritten” duty of care. For instance, in Dutch case law, the liability of the Dutch state has been accepted based on its duty of care to take adequate measures to protect its citizens from the consequences of cli- mate change. The Dutch Civil Code further provides a basis for the strict civil liability of professional users and custodians of hazardous substances, as well as dumpsite and mine work operators. 10.2 Exemplary or Punitive Damages The concepts of exemplary or punitive damages are unknown under Dutch law, so cannot be awarded by courts. 10.3 Class or Group Actions The Netherlands has been at the forefront of collec- tive redress in Europe since the early 1990s. On 1 January 2020, the Act on Collective Damages in Class Actions (WAMCA) entered into effect. Class actions filed after the WAMCA took effect can relate to mon- etary damages (allegedly) caused by events on or after 15 November 2016. A class action can be litigated through the compe- tent Dutch civil court. The same rules apply for all class actions, regardless of whether monetary relief is sought and the legal grounds for damages. As a starting point, the judgment in a class action is bind- ing on all Dutch residents that fall within the scope of the claim organisation, with the exception of those
residents that opted out. 10.4 Landmark Cases
A landmark case that has set important precedent within other countries is the Urgenda case (also known as the “Climate Case”), in which a class action result- ed in both the District Court and the Court of Appeal of The Hague holding the Dutch state liable for not taking
328 CHAMBERS.COM
Powered by FlippingBook