NETHERLANDS Law and Practice Contributed by: Guido Koop, Jan de Heer and Nanne Kusters, Loyens & Loeff
17.3 Key Issues in Environmental Due Diligence Currently, nitrogen deposition is a major focus of attention in the Dutch market: nitrogen deposition lev- els onto protected Natura 2000 nature conservation areas are generally too high, as a result of which any additional nitrogen deposition (eg, caused by a new business activity within a 25-kilometre range of a Nat- ura 2000 area) can trigger the need for a nature permit. Recent case law from December 2024 has made it more challenging to obtain a nature permit: the trig- ger for reassessing the nature permitting situation has become stricter; and the potential use of previously permitted deposition allowances has become harder. As such, nature permits are still hard to come by given that most Natura 2000 areas are already overexposed to nitrogen deposition. A second major focus of attention in the Netherlands currently is the congestion of the electricity grid. Vari- ous grid operators have queues for grid connections, and businesses may not always be able to obtain a grid connection with their desired capacity. Water is becoming an increasingly important topic, as the end-of-2027 deadline for compliance with the Water Framework Directive is closing in. ESG is increasingly becoming part of standard envi- ronmental due diligence in the Netherlands, following the roll-out of several directives and regulations at the European level.
For real estate transactions (depending on the deal), both zoning and permit review is usual, focusing on property-related aspects such as zoning compliance, building requirements and fire safety. Depending on the asset or share transfer of the property, a different review might be performed. For M&A transactions (and, to a lesser extent, finance deals), environmental due diligence is performed on aspects of compliance and permits for health, safety and environmental aspects. An increasingly applied mechanism in M&A transactions is a warranty and indemnity insurance that also covers most of the envi- ronmental aspects (although usually excluding soil). Depending on the target (and its environmental activi- ties) and the character of the deal (asset or share), several environmental aspects can and often will be reviewed, such as: • the presence of and compliance with permits and approvals; • the enforcement actions completed, pending or announced; • site-related aspects (zoning, soil and groundwater, nitrogen deposition, water, asbestos, occupational safety, etc); and • production-related aspects (chemicals, product safety, reporting requirements, etc). 17.2 Disclosure of Environmental Information A seller is not generally required to disclose any envi- ronmental information to a purchaser, although there might be a duty to disclose information that is spe- cifically requested by a potential purchaser. Once a purchaser explicitly indicates that it is interested in particular information (eg, relating to the environment), the seller is obliged to provide that information (to a reasonable extent), to avoid being liable for misinform- ing the purchaser.
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