G. The Netherlands

Unofficial AI-generated summary based on the public title and abstract. Not an official translation.

🔬研究者:気候訴訟の法的論点と判例の詳細を理解するための貴重な資料。

🏢実務担当者:気候関連の法的リスクを評価する上で、裁判所の判断基準を把握できる。

🏛政策担当者:気候法制定や排出削減目標設定における法的義務の重要性を示す。

Achieving international climate change mitigation goals has been high on the political agenda in the Netherlands for several years. In this country report, we focus on two topics that dominated the debate in 2018. First, we discuss the Urgenda judgment that was delivered on 9 October, in which the Hague Court of Appeal decided to uphold the 2015 court decision. We look back on the reasoning of the court in 2015 and point out the most relevant legal elements of the judgment of the Court of Appeal. Second, we focus on a new proposal for a dedicated Dutch Climate Act. In our country report in 2016, we discussed the previous proposal for a Climate Act that was submitted to the House of Representatives. The legislative process of this first proposal was put on hold due to elections. In 2017, the leaders of four parties in Parliament (VVD, CDA, D66, and the Christian Union) presented their new coalition agreement, Confidence in the Future. The current national strategy to reach the climate goals consist of two pillars: (i) there will be a new national climate and energy agreement and (ii) the main points concerning climate and energy of the coalition agreement will be laid down in a Climate Act (Confidence in the Future, Coalition Agreement 2017–21, 41). In June, seven political parties reached a political agreement and presented to the press ‘the most ambitious Climate Act in the World.’ In this report, we give an outline of the proposed Climate Act and explain its role in the process of reaching climate goals in the Netherlands. As is well known around the world, on 24 June 2015, the civil section of District Court of The Hague ruled that the Netherlands had breached the standard of due care by implementing a policy that would lead to a reduction of carbon dioxide emissions by 2020 of less than 25 percent compared with 1990 emissions (Urgenda v The Netherlands, Doc. ECLI:NL:RBDHA:2015:7196). Any such policy of the Netherlands was seen by the court as being insufficient to avoid dangerous climate change and, therefore, was unlawful towards the Urgenda Foundation, a citizen’s platform that instituted the proceedings, partly on behalf of 886 Dutch individuals. The court ordered the state to cut carbon dioxide emissions by 25 percent by 2020 against a baseline of 1990 emissions. Besides the fact that the District Court found that there was a sufficient causal link between the actions of the Netherlands and the possibility of dangerous climate change, the reasoning of the court in 2015 was interesting for at least two reasons. First, there is the question of the legal obligation that was allegedly breached by government. The court argued that there was no specific written legal obligation of the state to do more than it was already doing. After concluding that Urgenda could derive no legal obligation of the state from international or European law, the relevant question was whether the actions of the Netherlands were, in fact, in breach of the standard of due care mentioned in Article 162 of Book 6 of the Dutch Civil Code. A doctrinal challenge for the court was how it could establish the actual scope of the duty of care of the Netherlands towards Urgenda as a matter of Dutch law. The court established from certain elements of the case law of the Dutch Supreme Court on negligent endangerment (or hazardous negligence) the factors for determining the scope of the duty of care owed by the state: (i) the nature and extent of climate change damage; (ii) the foreseeability of such damage; (iii) the chance that hazardous climate change will occur; (iv) the nature of the acts or omissions of the state; (v) the onerousness of taking precautionary measures; and (vi) the extent of the discretionary powers of the state, with due regard to public law principles. Somewhat remarkable was the court’s ruling that international agreements are also relevant to establish the scope of the duty of care. Using international agreements to establish the unwritten standard of due care of the state in this particular case is not the only argument for the court’s decision, but it is a remarkable one since the fact that these are concluded between states and the Dutch Constitution does not provide citizens with rights vis-à-vis the state on the basis of such agreements. As it had been established that the current government policy regarding mitigation of greenhouse gases did not comply with the standards deemed necessary by science and international climate policies to avoid dangerous climate change, the state was found to be in breach of its duty of care and, therefore, of acting unlawfully towards Urgenda. Urgenda had also argued that, under Articles 2 and 8 of the European Convention on Human Rights (ECHR), the state has a positive obligation to take protective measures towards its citizens. Urgenda claimed that the state had been acting contrary to Articles 2 and 8 of the ECHR and that those actions constituted a violation of a personal right of each of the claimants in the sense of Article 162 of Book 6 of the Dutch Civil Code on liability for tort (unlawful acts). The court, however, found that the Urgenda Foundation itself did not have the status of a potential victim within the sense of Article 34 of the ECHR and, therefore, could not rely on these provisions. Urgenda, therefore, was refused a judgment on human rights grounds. Second, setting mitigation targets and finding efficient and effective instruments to achieve those targets is generally considered a matter of policy. Therefore, the argument goes, the Dutch system of separation of powers between the legislator and the judiciary does not allow for the order given by the court. The court was aware that its judgment might be perceived as encroaching on the powers of government. It held that Dutch law does not have a full separation of powers but, rather, a balanced system between the powers of state, with the court’s role understood in the following terms: ‘Separate from any political agenda, the court has to limit itself to its own domain, which is the application of law’ (Urgenda v The Netherlands, 4.95). Although both Urgenda and the state agreed that the emission of greenhouse gases, such as carbon dioxide, entails serious risks for life on Earth, the state lodged an appeal against the judgment of the district court. The same legal questions that were at the heart of the court’s judgment on the Urgenda case in 2015 were, of course, relevant in the judgment of the Hague Court of Appeal on 9 October 2018 (Doc. ECLI:NL:GHDHA:2018:2610, Urgenda appeal). Surprisingly to many in the Netherlands, the Hague Court of Appeal confirmed the District Court’s ruling. Moreover, the Court of Appeal seems to have found a stronger legal basis for its judgment, allowing Urgenda to proceed with its claim based on the violation of the human rights guaranteed by the ECHR. The court was not impressed with the constitutional arguments that the court order should be considered rewriting the constitutional system of checks and balances and that the court had overstepped its powers by giving the order. The first relevant issue was the question of whether Urgenda itself could, indeed, claim violation of human rights (on behalf of Dutch citizens). Different from the District Court, the Court of Appeal ruled that Article 34 of the ECHR does not stand in the way of such a claim being made by Urgenda. The court argued that Article 34 only stipulates who has access to the proceedings before the ECHR and does not provide a binding indication of parties that are allowed to claim the violation of a human right guaranteed by the convention. Furthermore, it argued that Urgenda represents a generation of Dutch citizens that could be—in the words of Article 34 of the ECHR—the victim of a violation by one of the high contracting parties of the rights set forth in the convention. A second relevant aspect of the ruling by the Court of Appeal is the question that concerns the legal grounds for upholding the judgment in the first instance. The Court of Appeal did not rule that the state was in breach of an unwritten standard of due care but, instead, blamed the state for breaching its human rights obligations as guaranteed by the ECHR. The judgment states that the current actions of the state to combat climate change are insufficient in light of the state’s human rights obligations; more precisely, they are a violation of Articles 2 and 8 of the ECHR, guaranteeing the right to life and to private and family life respectively. In fact, the court interprets these human rights in such a way that the resulting positive obligation for the government to combat dangerous life-threatening climate change is violated in the event that the government relies on a less ambitious carbon dioxide reduction target by the end of 2020 than the goal the Netherlands has as an Annex I country (under the Kyoto Protocol to the United Nations Framework Convention on Climate Change). This target is, on the basis of climate science arguments, a minimum reduction of 25 percent by 2020 (Urgenda appeal, para. 72). It is noteworthy that the reasoning of the Court of Appeal expressly mentions the precautionary principle and accepts this principle as a ‘generally accepted principle of international law’ (Urgenda appeal, para. 63). The government, of course, has discretion to choose between (legislative) measures to give substance to the positive obligation. However, according to the court, the precautionary principle entails that the state cannot opt for measures for which there is a real chance that the reduction will be lower than 25 percent in 2020. In short, the human rights guaranteed in the ECHR force the state to do more against climate change than the 19–27 percent carbon dioxide emission reduction that is expected when the current policy measures are carried out. Since all other relevant grounds for the appeal of the state were unfounded, the judg

• openalex https://doi.org/10.1093/yiel/yvz028first seen 2026-08-02 17:12:54