Netherlands

The Netherlands has experienced climate change litigation challenging the State for ineffective climate action in Urgenda Foundation v. State of the Netherlands. This case observed the claimants challenging the Dutch government for failing in being ambitious enough in their national climate change policy (to reduce greenhouse gas emissions by 17%). The claimants were successful, and the court concluded that failing to reduce greenhouse gas emissions by at least 25% by end of 2020 would find the Dutch Government in violation of Articles 2 and 8 of the European Convention on Human Rights (ECHR). The claimants based their claim on the following grounds, and under Dutch tort law (Dutch Civil Code, Book 6, Art.162), to establish an unlawful action or inaction:

• Establishing an action contrary to legal norms: the claimants argued that the current Dutch climate policy violates Article 2 and 8 ECHR and Article 21 of the Dutch Constitution. As these human rights target natural persons, NGOs cannot invoke these human rights. Nevertheless, they do play a role in interpreting open norms, such as the unwritten duty of care standard.
• Establishing a violation of the duty of care: in order to establish the unwritten duty of care standards, the Court heavily relied on a number of binding and non-binding rules and principles. Although the claimant cannot directly rely on international law obligations, as they are directed to States, they can play a role in interpreting open standards. The Court relied on the following grounds:
  • Article 2 and 8 ECHR
  • Article 21 of the Dutch Constitution (the economic right to the liveability of the country)
  • United Nations Framework Convention on Climate Change (UNFCCC): Article 3(1) (the principle of fairness or principle of common-but-differentiated responsibilities), Article 3(3) (the precautionary principle).
  • Treaty on the Functioning of the European Union (TFEU): Article 191(2) (the precautionary principle) and Article 191(3) (‘scientific consensus’)
  • The doctrine of hazardous negligence

Regarding standing, non-governmental organisations (NGOs) can initiate a public interest case (Article 3:303a Dutch Civil Code). In the Urgenda case, the District Court (The Hague District Court C/09/456689) clarified that Urgenda, as a legal person, cannot be considered as a victim under Art. 34 ECHR. However, based on the mentioned civil law norm, NGOs like Urgenda have standing to bring class actions on behalf of individuals whose rights under Art. 2 and 8 of the ECHR have been violated. Therefore, the Court accepted standing for the Urgenda Foundation as a representative of both current and future generations by referring to the aim of the foundation (i.e. striving for a more sustainable society) (s [2018] The Hague Court of Appeal 200.178.245/01).

Remedial action includes a court order to the State to change of its climate change policy, and more specifically, to achieve a stricter emission target (Urgenda case)

Additionally, there may be scope for further climate litigation challenging the state for ineffective climate actionunder Dutch tort law, concerning the Climate Plans under the new Climate Law of 2018, if they are found to be too weak. In addition, further tort cases could focus on insufficient adaptation measures. These could include grounds, such as human rights, international climate law and Article 21 of the Dutch Constitution (i.e. the economic right to the ‘liveability’ of the country).