Netherlands

The Netherlands is experiencing climate change litigation against a private actor in Milieudefensie et al. v. Royal Dutch Shell. The claimants alleged Shell’s contributions to climate change violated their duty of care under Dutch law and human rights obligations, seeking a ruling from the court ordering Shell to reduce their CO₂ emissions by 45% by 2030, compared to 2010 levels, and zero in 2050 in line the Paris Agreement.

Regarding standing, Dutch civil law enables associations to bring class actions against private entities.  Therefore, in Milieudefensie et al. v. Royal Dutch Shell, the plaintiffs claimed their standing based on the same legal norm used in Urgenda (Art. 3:305a Dutch Civil Code), which granted the claimants standing as representatives of present and future generations. Furthermore, under Dutch civil law, individuals are entitled to bring class actions only when they have a sufficiently concrete individual interest.

The plaintiffs claimed that the company had violated its social duty of care. More precisely, they resorted to the following legal grounds:

• Social standard of care derived from unwritten law: Under Dutch tort law (Art. 6:162 section 2 Dutch Civil Code), a tortious act can also be defined as “a violation of what according to unwritten law has to be regarded as proper social conduct.” When looking for a standard of unwritten law, different legal sources, including principle of laws, juridical views and customs, can be used. In Milieudefensie et al v. Shell, the plaintiffs interpreted the standard of care on the following legal grounds:
  • Kelderluik criteria (as interpreted in Urgenda): which was taken from the 1965 Supreme Court on damage caused unknowingly by creating a dangerous situation (Cellar Hatch case) and is used to determine whether a conduct equates to unlawful endangerment. The claimants explicitly referred to the interpretation of such criteria in the Urgenda case. The plaintiffs claimed that in Urgenda the Court had formulated a legal standard of a general nature, applicable in the climate context to all the “injurying parties” that fulfilled the Kelderluik criteria in a similar way to the state, and that such standard could be applied to Royal Dutch Shell.
  • Human rights, namely the right to life (Art. 2 ECHR) and private and family life (Art. 8 ECHR), which, based on the decision in Urgenda, the Court concluded that offer protection against dangerous climate change.
  • Soft law, namely the following sources as they had been endorsed by Shell:
    • UN Guiding Principles on Business and Human Rights (United Nations Human Rights Office of the High Commissioner, 2011), which was decisive in defining the content of the company’s standard of care. This included: avoidance of causing or contributing to human rights impacts through their activities and to address adverse impacts when they occur; and, seek to prevent or mitigate adverse impacts that are directly linked to their operations, products, or services by their business relationships, even if they have not contributed to those impacts. 
    • UN Global Compact
    • OECD Guidelines for Multinational Enterprises.

Based on the above, the plaintiffs claimed that Shell has an obligation to contribute to preventing climate change through the corporate policy it determines for the company group. The District Court, in its decision in May 2021, agreed with the plaintiffs that Royal Dutch Shell’s obligations ensued from the unwritten standard of care, that is, “the due care exercised in society”.

Finally, regarding Royal Dutch Shell specifically, the Court identified the following obligations:

• an obligation of result to reduce the emissions deriving from Shell group’s activities
• a best-efforts obligation, regarding Shell’s business relations, and end users, to “take the necessary steps to remove or prevent the serious risks ensuing from the CO² emissions generated by them and use its influence to limit any lasting consequences as much as possible.” (Based on the previous considerations, the court ordered Royal Dutch Shell to limit or cause to be limited its scope 1, 2 and 3 emissions– as due to the group’s activities (scope 1 emissions), its business relationships (scope 2 emissions), and the sold products  (scope 3 emissions)– by at least 45% at end of 2030, relative to 2019 levels.)

The Netherlands also witnessed climate change litigation against a private actor in 2017, when several complaints were submitted to the National Contact Point reporting on a violation the OECD Guidelines for Multinational Enterprises against the Dutch multinational ING Bank. (Complaints against ING Bank by Oxfam Novib, Greenpeace, BankTrack en Milieudefensie)

Under Dutch tort law, claimants can bring a tort claim by proving they have suffered damage caused (to some extent) by the private actor.

Claims can then be based on the following grounds:

• Violation of a duty of care under Dutch tort law (Dutch Civil Code, Art. 6:162): Although the Akpan v. Royal Dutch Shell PLC case was only successful against the Nigerian subsidiary (and not the parent company in the Netherlands), the Court ruled upon a violation of duty of care. The Court deemed the subsidiary liable for negligence due to the lack of preventive measures.
• OECD Guidelines for Multinational Enterprises: These guidelines include the duty to adopt ‘measurable objectives’ and ‘targets for improved environmental performance’ and to disclose greenhouse gas emissions, both ‘direct and indirect, current and future, corporate and product emissions’. Complains can be brought before the National Contact Point. Successful complaints might even give rise to further climate litigation before domestic civil courts.