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Notes on oral arguments 2

2020-12-01

District Court of The Hague​

Case numberC/09/571932 2019/379
Session01 December 2020

Admissibility

in the matter of:

  1. Vereniging Milieudefensie both on its own behalf, and in its capacity of representative ad litem and representative of the co-complainants who are listed on Annex A, which annex is attached to the summons and forms part thereof, having its registered office in Amsterdam, the Netherlands;
  2. Stichting Greenpeace Nederland, having its registered office in Amsterdam, the Netherlands;
  3. Landelijke Vereniging tot Behoud van de Waddenzee, having its registered office in Harlingen, the Netherlands;
  4. Stichting ter bevordering van de Fossielvrij-beweging, having its registered office in Amsterdam, the Netherlands;
  5. Stichting Both ENDS, having its registered office in Amsterdam, the Netherlands;
  6. Jongeren Milieu Actief, having its registered office in Amsterdam, the Netherlands;
  7. Stichting ActionAid, having its registered office in Amsterdam, the Netherlands.

Claimants

Hereinafter also called: “Milieudefensie et al.”

Counsel:

  • Mr R.H.J. Cox
  • Mr. D.M.J. Dexters
  • Mr. A.J.M. van Diem
  • Mr. S.J. Keuls

Versus

Royal Dutch Shell plc
Having its registered office in The Hague, the Netherlands

Defendant

Counsel:

  • Mr. D. Horeman
  • Mr. J. de Bie Leuveling Tjeenk,
  • Mr. N.H. van den Biggelaar

Admissibility

Your Honours,

Introduction​

  1. With regard to the admissibility issue, first of all the admissibility of the claim of the non-governmental organisations (NGOs) will be discussed. After this I will go into the admissibility of the claim of the individual citizens. In both parts the questions asked by the District Court regarding admissibility will be answered.

What has been established between the parties​

  1. Due to lack of challenge by RDS with regard to the admissibility of the NGOs, the following can be established.

  2. It is established between the parties that the NGOs who are acting as claimants in these proceedings, are all legal persons as referred to in Article 3:305a of the Dutch Civil Code. These are foundations and associations with full legal capacity.

  3. It is also established between the parties that the NGOs have attempted to a sufficient degree to achieve what they are claiming through dialogue with RDS.

  4. It is also established between the parties that NGOs can file collective actions to protect the living environment and that such lawsuits can serve to protect societal and collective interests of other persons.

  5. It is also established that the claimant NGOs, through their regular activities, are representing the collective interests they seek to protect by means of these proceedings. It is also established that these collective interests fall under the objects described in the articles of association of the NGOs. RDS in any event did not dispute (with substantiation) in its statement of defence what was set out in the summons with regard to each of the NGOs.

  6. Nor has RDS disputed the assertion of Milieudefensie et al. that when seeking to protect collective interests, the matter need not concern a clearly defined group whose interests are being protected. It may also concern the interests of an undefinable, very large group of people. Reference is made to the arguments set out in the summons, with reference to the decision in the Urgenda case of the Court of Appeal of The Hague and the legislative history of Article 3:305a of the Dutch Civil Code.1

  7. There is no debate that the NGOs can take action in the interests of future generations.2

  8. Nor is it disputed that striving for a sustainable society by its nature entails that the matter concerns interests of both the current and future generations and that this ensues from the common definition of sustainability as developed by the United Nations.3 This definition reads as follows:

    Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs.4

  9. Nor does RDS refute that a society can only be sustainable if in addition to the interests of the current generations, the interests of future generations are also taken into account. That the significance of this inter-generational aspect of sustainability has been acknowledged in international (climate) conventions, in (climate) legislation and regulations, and by various courts, has also not been refuted by RDS.5

  10. In this respect it is not unimportant that RDS itself also emphasises the importance of protecting future generations. In its statement of defence RDS has the following to say about this (quote):

    [..] consistently and publicly emphasises the importance of safeguarding a balance between the increasing energy needs and the retention of a sustainable world for future generations.6

  11. RDS thus shares the key interest in retaining a sustainable world to protect future generations, at least in words.

  12. That collective action to protect the living environment can in principle seek to represent the interests of current and/or future generations is thus not a matter of discussion.

  13. RDS furthermore acknowledges that collective action on the basis of Article 3:305a of the Dutch Civil Code cannot be made subject to the requirement that the collective action can count on the support of a considerable part of the eligible stakeholders. This too is therefore established between the parties.7 RDS acknowledges in this respect that Article 3:305a of the Dutch Civil Code does not encompass a representativity requirement.8

  14. With regard to the grounds for admissibility, there is a great deal that is not a matter of discussion between the parties. This brings me to RDS' defence on the point of admissibility. As stated, I will first go into the defence relating to the admissibility of the claim of the NGOs. After that I will go into the defence relating to the admissibility of the claim of the individual citizens.

RDS' inadmissibility defence​

  1. RDS' central defence relating to the admissibility of the NGOs can be read in paragraphs 356 and 360 of the statement of defence.

  2. In paragraph 360 RDS asserts that in this case, as regards the assessment of the wrongful act, there are facts and circumstances which are different for every individual from the NGOs' constituency and that therefore collective action is excluded.

  3. In paragraph 356 RDS concludes that the climate problem comes with complex balancing of interests; that other interests will be affected by the requested orders; that the parties whose interests are being affected cannot evade the consequences of the requested order and that partly for that reason there is a lack of the requisite 'similar interests' referred to in Article 3:305a of the Dutch Civil Code.

  4. The defences and reasoning of RDS nevertheless fail. I will explain this.

The distinction between divisible and indivisible collective interests​

  1. First of all, RDS makes no distinction between divisible and indivisible collective interests. As soon as this distinction is taken into account, it becomes clear that the (mere) circumstance that no one can evade the working of the court order sought against RDS, is precisely what the legislator had in mind in relation to a collective action such as this one.

  2. The following can be said about the distinction between divisible and indivisible collective interests.

  3. A divisible collective interest concerns cases in which there are equally as many acts as persons whose rights are being protected in the collective action.9

  4. For example, think of a residents' association which seeks to protect the collective interests of residents in relation to noise nuisance due to the expansion of an airport. The collective action taken by the foundation aims, for example, to obtain an order for the insulation of the 500 affected homes. There will then be 500 potential stakeholders and an individual act must be provided for each of those stakeholders.

  5. It is possible, however, that 100 of the 500 residents on whose behalf action is taken do not want their home to be insulated because they think the building work to install the insulation for their homes will be more burdensome than the noise nuisance caused by the airport. These 100 persons do not want to be forced to opt for building work; they want to be able to evade the judgment and the order.

  6. Paragraph 5 of Article 3:305a of the Dutch Civil Code takes account of these kinds of situations and gives the 100 residents the option of opting out of the scope of the order. In this manner all interests are served in the right way.

  7. Paragraph 5 of Article 3:305a of the Dutch Civil Code was written with these kinds of divisible collective interests in mind. In the legislative history a comparable example relating to home insulation is cited to make clear that Paragraph 5 is intended for these kinds of divisible collective interests.10

  8. The divisible collective action is also called 'group action'. In addition to the divisible action, however, there is also the indivisible collective action. The indivisible collective action is also referred to as a 'general interest action'. In their opinion in the Urgenda case Deputy Procurator General Langemeijer and Advocate General Wissink word this as follows:

    Article 3:305a DCC offers a basis for both 'group actions' and 'general interest actions'. Where group actions are involved, the collective interests of a specific or specifiable number of individuals are represented. General interest actions involve a legal entity representing general interests that cannot be individualised because they accrue to a much larger, and thus diffuse and unspecific group of persons..11

  9. Article 3:305a(5) of the Dutch Civil Code takes account of the existence of group actions and general interest actions. The relevant paragraph reads (quote):

    A court judgment will not have consequences with regard to a person whose interests the legal action is intended to protect and who objects to falling within the scope of the judgment, [unless the nature of the judgment entails that the scope cannot be excluded with regard to this person only]. (emphasis added by counsel)

  10. In the last passage of this paragraph "unless the nature of the judgment entails that the scope cannot be excluded with regard to this person only", the legislator has made it clear that in the case of an indivisible collective interest (i.e. in the case of a general interest action) it is excluded that someone can opt out. If there were such option, a single individual could frustrate a general interest action and make it impossible. This is undesirable and has therefore been excluded by the legislator.

A clean atmosphere as indivisible collective interest​

  1. With indivisible interests, i.e. a general interest action, the issue is in fact the injunction or order to enjoin or effect a particular action which serves the public interest, which is why no one can object to it. See in this respect also the explanation of Article 3:305a(5) of the Dutch Civil Code (quote):

    Interested parties cannot exclude the scope of the court decision when action is taken to protect interests which are not easily protected by means of individual actions, such as the [interest in a clean atmosphere]. In that case, in which there is an 'indivisible legal relationship', the matter concerns the order to effect one performance, whereby [everyone is an interested party]. If exclusion were possible in that case too, one individual could fully obstruct the collective action.12 (emphasis added by counsel)

  2. This quote clarifies a great deal, if not everything. In order to stay with the terminology of the quote: in this case against RDS the lawsuit aims to protect an indivisible public interest, i.e. the public interest in a clean and safe atmosphere; an atmosphere which remains protected from an excessively high CO2 concentration so that dangerous climate change can be prevented. There is universal consensus that this is an indivisible public interest.

The definition of a safe atmosphere is the same all over the world​

  1. Not only is there worldwide consensus on the indivisibility of the public interest of preventing dangerous climate change, there is also a specific worldwide threshold value which must be observed to prevent the general danger connected therewith. This worldwide threshold value is the same for everyone in the world.

  2. The worldwide climate definition of a safe atmosphere is, with the 2˚C goal of the 2007 Bali Agreement (and the further UN decisions based thereon) fixed at a CO2eq concentration in the atmosphere of 450 ppm as maximum threshold value. Since the more stringent temperature goal of the Paris Agreement, that threshold value was adjusted downward and is now a maximum of 430 ppm. This was also explained in detail in the summons and it was pointed out that these facts were also established by the District Court and the Court of Appeal in the Urgenda case.13 RDS has not disputed these threshold values.

  3. The Netherlands Supreme Court also took over these facts relating to temperature goals and the related concentration levels of 450 or 430 ppm in its judgment. On the basis thereof and taking account of the fact that in 2019 the concentration level was already over 400 ppm, the Netherlands Supreme Court concluded that the total worldwide remaining scope for emitting CO2 (indicated with the carbon budget) is very limited.14

  4. I will come back to this limited carbon budget in relation to the claims against RDS on day 3. For now, it is relevant to note that a safe atmosphere in relation to climate change has been translated on a global level to maximum threshold values in the atmosphere and these are the same for everyone in the world.

  5. Contrary to what RDS presumes, in relation to the CO2 problem there is no situation in which it should be reviewed per individual claimant whether the threshold value will or will not be exceeded. This case therefore cannot in any way be compared with the nitrogen case against the State of the Netherlands cited by RDS.

  6. In this general interest action relating to the global CO2 problem there are therefore no relevant personal circumstances which should be weighed up in order to come to an opinion on the wrongfulness of RDS' conduct. Particularly not as in this general interest action the claim is not for the awarding of damages, but a preventative order.

  7. With regard to an action for an injunction or order based on wrongful act, the Netherlands Supreme Court determined that this only requires that it is demonstrated that there is a concrete interest in the injunction or order, in such sense that there is a concrete and real threat that the disputed actions will take place. The concrete threat of the disputed conduct is sufficient to request an injunction or order.15

  8. In this case the threat of harm to humans and the environment stems from the RDS concern policy. It is this policy and its implementation and the matters connected therewith, which this case is challenging. In order to obtain the requested order it is not necessary to present facts regarding whom, where and when precisely damage will occur as a result of that policy. Individual circumstances are therefore not relevant in this respect.

  9. Deputy Procurator General Langemeijer and Advocate General Wissink stated in this respect in their opinion with the Urgenda case (quote):

    [Th]at the granting of an order or injunction pursuant to Article 3:296 DCC in connection with Article 6:162 DCC requires no demonstrable or imminent harm, nor any connection with an unlawful act that has already been committed. It does, however, require an imminent impairment of interests as a result of the feared unlawful act.16

  10. It ensues from the Urgenda case that sufficient threat emanates from the general danger which is connected with dangerous climate change to be able to claim preventative measures by means of a general interest action. Or as this District Court considered in the Urgenda case:

    It is established that climate change is occurring in part due to Dutch greenhouse gas emissions. It is also established that in the Netherlands even now the negative consequences thereof are being experienced, such as excessive precipitation, and that therefore adaptation measures are already being taken now to make the Netherlands "climate-proof". It is furthermore established that if the global emissions, in part caused by the Netherlands, do not drop significantly, dangerous climate change will probably occur. [In the opinion of the

    District Court, the possibility of damage for the parties whose interests Urgenda is representing, among whom the current and future generation of Dutch citizens, is so great and concrete] that the State, in view of the duty of care incumbent upon it, must make an adequate contribution, greater than the current one, to prevent dangerous climate change.17 (emphasis added by counsel)

  11. The general consequences of dangerous climate change suffice with regard to seeking to bring a preventative general interest action. Contrary to what RDS suggests, individual facts and circumstances do not play a role in the assessment of the issue of wrongfulness in this matter.

Action can be taken to protect domestic, foreign and future interests​

  1. The fact that an excessively high concentration of CO2 in the atmosphere is a risk for everything and everyone in the world and also entails a risk for future generations, does not mean that there is no collective public interest, as RDS asserts. This means that by definition there is a collective public interest.

  2. It would also be strange, as Langemeijer and Wissink believe in their opinion in the Urgenda case, if a collective human rights violation were not covered by the European Convention on Human Rights while numerous smaller-scale cases – each and every one – would fall under the material scope thereof.18

  3. It is therefore not surprising that the District Court, in its decision in the Urgenda case, decided that Urgenda can act on behalf of Dutch interests and foreign interests and the interests of future generations. I quote this District Court:

    In principle, Urgenda's claims against the State are, indeed, considered the types of claims deemed admissible by the Dutch legislator and which it wanted to facilitate under Article 3:350a of the Dutch Civil Code[.] As Urgenda, pursuant to its articles of association, is representing the interests of a "sustainable society", it is acting in interests which by their nature exceeds national borders. Urgenda can therefore present the fact that the Dutch emissions also have consequences for persons beyond the Dutch national borders as part of the basis for its claims, which are aimed against such emissions [..] The term "sustainable society" furthermore has an inter-generational dimension [..] When Urgenda seeks to protect the rights of (not only the current, but also) future generations as to availability of natural resources and a safe and healthy living climate, it is thus equally seeking to protect the interests of a sustainable society.19

  4. After these considerations, which indicate that combating the worldwide climate danger is most definitely a collective public interest, the District Court then comes to the conclusion (quote):

    that the claims of Urgenda in so far as it is acting on its own behalf, are fully admissible.20

  5. To cite the concluding words of Langemeijer and Wissink in this respect in their opinion with the Urgenda case:

    The District Court held that Urgenda had standing to the extent it was acting on its own behalf, including to the extent it was representing the interests of persons outside of Dutch territory and future generations.21

  6. These legal considerations of the District Court were maintained in the appeal and in the cassation proceedings. Although the State filed an appeal before the Court of Appeal against the determination by the District Court that Urgenda can seek to protect foreign interests and the interests of future generations, the Court of Appeal did not agree with that appeal ground. The Court of Appeal considered the following in this respect:

    The State has no interest in this appeal ground, as Urgenda's claim can also be awarded in so far as Urgenda seeks to protect the interests of the current generation of Dutch citizens [..] It is, after all, unreservedly likely that the present generation of Dutch citizens, particularly but not exclusively the younger generation, will during their lives be faced with the negative consequences of climate change if global emissions of greenhouse gases are not adequately reduced. The Court of Appeal therefore need not go into the questions put forth by the State in this appeal ground.22

  7. The District Court accepted the similarity of the collective interests worldwide and also for future generations. The Court of Appeal and the Netherlands Supreme Court did not dispute that conclusion and left it for what it was. The fact that the 7 claimant NGOs, like Urgenda, have brought this case against the worldwide climate danger, most definitely serves the collective public interest.

In the case of exclusively Dutch interests, the NGOs can be admitted to the proceedings​

  1. Even if the collective public interest which the NGOs are seeking to protect could face geographic limitation to the Netherlands (for which there is no legal basis), this naturally does not stand in the way of the admissibility of the NGOs. They are explicitly acting on behalf of the Dutch environmental interests and citizens in this case. This too falls within the objects clause laid down in the articles of association of the seven claimant NGOs.

  2. In all cases it explicitly also serves the interests of the two development aid NGOs who are acting as claimants, i.e. Both ENDS and ActionAid. After all, if the interests of Dutch citizens lead to RDS having to reduce its global CO2 emissions, then this is also in the interests of the poorest citizens in the developing countries. The limitation of emissions by RDS will bring about a reduced contribution to global warming and this will benefit everyone on the planet.

The universality appears from the standards and breach of the standards on which the claim is based​

  1. It is perfectly understandable why the above-cited legal considerations of the District Court in the Urgenda case with regard to the broad representation of the interests of current and future generations, deserves to be followed in this case against RDS as well.

  2. The District Court rightly pointed out that this broad representation of the interests of Dutch, foreign and future generations is inherent in a sustainable society and also recurs in so many words in the legal standards which have been invoked to protect the living environment. The District Court stated the following in this respect (quote):

    This interest of a sustainable society is mentioned in so many words in the legal standard which Urgenda is invoking for the protection against activities which (in its view) are not "sustainable" and threaten to lead to serious dangers for ecosystems and human societies. Reference is made in part to Article 2 of the UN Climate Convention. Urgenda's invoking of Articles 2 and 8 of the European Convention on Human Rights is in line with the objects clause laid down in its articles of association. These provisions too seek to protect the interests it is representing.

  3. The protection of ecosystems and human societies worldwide is, as the District Court rightly cites, inherent in the standard laid down in Article 2 of the UN Climate Convention to prevent dangerous climate change. In this respect I also refer to the summons and the opening arguments, where this was explained in further detail.23

  4. The standards invoked by Milieudefensie et al. as laid down in the UN Climate Convention, the Paris Agreement, the European Convention on Human Rights, the other human rights conventions and the UN Guiding Principles on Business and Human Rights, are universal and all have as their objective to protect the universal collective public interest. The matter concerns standards and interests which are universally supported and all of which point in the same direction, i.e. that dangerous climate change must be prevented.

  5. Acting on behalf of this universal interest to combat dangerous climate change does not entail a conflict of interests with other significant societal interests, such as energy poverty and poverty in general. Preventing dangerous climate change is in fact a concrete prerequisite for being able to continue protecting these and other societal interests.

  6. That is why the two NGOs which are engaged in development aid and fighting poverty in the world, Both ENDS and ActionAid, are appearing in this case for the collective interest of an adequate climate approach. Without an adequate climate approach the development aid of the past decades is threatened to be nullified by climate change. Without a climate approach, hundreds of millions of people will not have any prospect of ever escaping their poverty. Contrary to what RDS suggests there is therefore no conflict of interests within the 'constituency' of the various NGOs. There is great synergy in preventing dangerous climate change and other important global issues such as combating poverty. I will come back to this in greater detail on day 2 of these multi-day oral arguments.

Similar interests and contrary interests​

  1. The subject-matter of this broad societal weighing up of the interests only need be discussed later in these proceedings because this weighing up of interests, contrary to what RDS argues, does not play a role in the assessment of the admissibility issue.

  2. According to Article 3:305a(1) of the Dutch Civil Code, the admissibility issue concerns the question whether a legal claim has been presented which seeks to protect similar interests of other persons. A central criterion is thus the legal issue which arises with the legal claim. As soon as answering this legal issue can serve to protect similar interests of others, the aforementioned conditions of Article 3:305a(1) will have been satisfied. There is therefore no place for a societal weighing up of interests in relation to the issue of admissibility.

  3. There can be no doubt that the legal issue which has been presented in this case which – just like the Urgenda case - is primarily based on the UN Climate Convention, the Paris Agreement and Articles 2 and 8 of the European Convention on Human Rights, also affects the similar interests of other persons.

  4. This was established by the District Court, the Court of Appeal and the Netherlands Supreme Court in the Urgenda case. None of the courts believed it was a problem that climate change does not threaten a specific group of potential victims to be determined a priori, but may potentially threaten the entire world's population. This is connected with the above-discussed public interest scope of both the climate conventions and the European Convention on Human Rights. It is also connected with the nature of environmental matters in general.24

  5. The Netherlands Supreme Court held in the Urgenda case in that respect (quote):

    [..] the interests of those residents are sufficiently similar and therefore lend themselves to being pooled, so as to promote efficient and effective legal protection for their benefit. Especially in cases involving environmental interests, such as the present case, legal protection through the pooling of interests is highly efficient and effective. This is also in line with Article 9(3) in conjunction with Article 2(5) of the Aarhus Convention, which guarantees interest groups access to justice in order to challenge violations of environmental law, and in line with Article 13 ECHR [..]25

  6. The similarity of the interests at issue in the proceedings was also clarified by Deputy Procurator General Langemeijer and Advocate General Wissink in their opinion in the Urgenda case. They rejected the State's position that when it comes to preventative action against climate change there are not similar interests. According to the State, Articles 2 and 8 of the European Convention on Human Rights only offer protection against specific individualisable rights of persons and do not have the protection of society as a whole as their purpose. Langemeijer and Wissink refute this defence of the State (quote):

    The case law of the EctHR regarding positive obligations from Articles 2 and 8 ECHR offers no support for the position argued by the State that the ECHR 'only protects individual rights'. On the contrary: the ECtHR has ruled that Article 2 ECHR offers 'general protection to society' in certain cases, and has also assigned a general scope of protection to Article 8 ECHR where the ECtHR deemed this necessary for the sake of the effectiveness of the rights involved.26

The Netherlands Supreme Court followed their opinion.

  1. Just as in the Urgenda case, this preventative action can be directed against RDS in order to protect the interests which the claimant NGOs are representing in this case. Precisely with regard to environmental matters such as this one, legal protection by means of such a bundling of interests is particularly efficient and effective.

  2. The requested collective legal protection can also relate to the protection of society as a whole. This is partly connected with the legal standards which have been presented as the basis of the claims against RDS, because these seek to protect society. Langemeijer and Wissink therefore concluded (quote):

    the ECHR requires effective and active protection of the rights safeguarded by Articles 2 and 8 ECHR (see section 2.37 et seq.). If possible, that protection must be realised through [preventive] action (section 2.53 et seq.), and it extends to [society as a whole] in specific cases.27

  3. In relation to the danger of climate change it is thus possible to seek to protect similar interests of all of society. It is not relevant in this respect that others in society may find that their interests are contrary to those for which protection is being sought in these proceedings.

  4. That it is not relevant with regard to the admissibility issue whether and to what degree there are contrary interests, was also clearly worded by then Advocate General Huydecoper in his opinion in the case of Baas in eigen huis/Plazacasa.28 Huydecoper concluded (quote):

    [T]he 'similar interests' which Art. 3:305a(1) of the Dutch Civil Code refers to, may very well exist, even if they are contrary to the interests of very real groups of other interested parties – it may even be the case that this is the case for the majority of the interested parties. Collective legal action not only exists to add force to the interests of a (silent) majority, but is – especially – also available when it is not a large majority but a small majority or even a minority, which would like to address the fact that rights are being infringed in which the relevant parties have an interest.29

  5. The same line was followed in the Urgenda case, with an explicit reference to the legislative history.30 The foregoing has also been explained in detail in the summons.31 It is thus irrelevant whether the legal claim which has been brought may be contrary to the interests of others. It is evident that RDS does not deem the success of the legal claim of Milieudefensie et al. as being in the interests of the Shell group, but that is thus not relevant in this respect.

  6. The defence regarding contrary interests presented by RDS therefore forms no impediment to admissibility. The admissibility review is not the place to make a weighing up of interests. This weighing up of interests may play a role in the material question concerning the wrongfulness of RDS' conduct. In this context Milieudefensie et al. will come back to this on day 2 and 3 of the oral arguments.

  7. Not only does the weighing up of other interests not belong in the admissibility issue, the same also applies with regard to the question whether a court order can be expected to have an effect at the level of worldwide emissions. This question too is not part of the admissibility review, as RDS wrongly appears to suggest. This question will thus also only arise in the material discussion of wrongful act. It will be demonstrated at that point that the imposition of the order will have an effect on worldwide emissions.

Conclusion with regard to the admissibility of the NGOs​

  1. In this case there is a general interest action whereby the indivisible interest of a clean atmosphere and remaining protected from dangerous climate change are the key points. The foundations and associations are seeking to protect this public interest in this case, which protection falls within their articles of association and activities, and which thus to this extent constitutes their own interest.

  2. This case evidently also concerns a bundling of interests which are sufficiently similar and said conclusion has also already been drawn by our highest court.

  3. That the interests of RDS and others can be contrary to the interests which the NGOs are seeking to protect by this legal action is not relevant, in any event not in relation to the admissibility issue. There is thus nothing standing in the way of declaring the claim of the seven claimant NGOs to be admissible.

  4. This brings me to a further explanation of the admissibility of the claimant citizens.

The admissibility of the citizens​

  1. The above has made it clear that the action on behalf of the citizens is not by means of a group action. The 17,379 individual persons, on the other hand, are each only acting on behalf of their own interests, via the regular path of Art. 3:303 of the Dutch Civil Code.

  2. The individual persons are all Dutch citizens and all believe they have an individual interest in this case against RDS. Each one individually therefore granted an individual power of attorney to litigate to Vereniging Milieudefensie. Their claims are identical to those of the NGOs, albeit that the basis for their identical claims is the individual interest.

  3. Following the summons, RDS' law firm asked to inspect the contents and the establishing of the relevant powers of attorney. This inspection was provided on behalf of Milieudefensie et al. and RDS subsequently accepted the powers of attorney as verifiable, correct and valid. RDS therefore did not present a defence in the statement of defence with regard to this point. The validity of the powers of attorney to litigate obtained by Milieudefensie et al. has thus been established between the parties.

  4. By means of these powers of attorney to litigate, Vereniging Milieudefensie is therefore, in addition to its own interests, acting on behalf of the interests of the 17,379 individual persons who wish to protect their individual interests via Vereniging Milieudefensie. Two of these individual persons are present here today. They are Mrs Loudi Langelaan and Mr Jogchum Kooi. Loudi is 26 years old, a freelance journalist and lives in Amsterdam. Jogchum is 75 years old, retired, proud grandfather of three grandchildren and lives in Hilversum.

  5. The same applies for the two individual claimants present here as for the other 17,377 co-complainants acting in a private capacity. They see dangerous climate change and the conduct of RDS which underlies said climate change as a threat to their right to life and their right to a healthy and peaceful family life. None of them can escape the consequences of dangerous climate change in the Netherlands and beyond and they will have to simply suffer the consequences, unless they can take preventative action against these consequences. Unless dangerous climate change can be prevented, the individual claimants will all be exposed to more intensive weather extremes in the Netherlands such as downpours, storms, droughts and periods of hot temperatures, as well as the other consequences of dangerous climate change. Their children and/or grandchildren will equally and to a more serious degree be exposed to those consequences.

  6. The negative influence of dangerous climate change on the global food chain will affect the claimants, for example, as well as the global instability which will be the result of dangerous climate change. These direct and indirect consequences of dangerous climate change have already been explained in detail in the summons.

  7. Both individual claimants believe, just like the other over 17,000 claimants, that RDS does not have the right to drastically change their living environment and that of their children and grandchildren and make it unsafe. They believe that RDS has the legal obligation to them personally to contribute to the prevention of dangerous climate change. They also believe they have a sufficient personal interest in their claims against RDS. Before explaining this, I will first return to this District Court's decision in the Urgenda case.

  8. In its case against the State, Urgenda at first instance also acted on behalf of a group of 886 individual claimants by means of a power of attorney obtained from each of them.32 The District Court opted at that time, because of the awarding of the claim to Urgenda, to not take the claims of the individual claimants into consideration and to dismiss these on practical grounds. The District Court considered on this point (quote):

    Even if it can be assumed that the individual claimants can indeed invoke Articles 2 and 8 of the European Convention on Human Rights, their claims will not (be able to) lead to another decision than that which Urgenda can claim for itself. In this situation these individual claimants do not, in the opinion of the Court, have sufficient (personal) interest in addition to that of Urgenda. Partly on practical grounds this brings the Court to dismiss the claim in so far as it was brought on their behalf. The issue of admissibility need not be answered.33

  9. The District Court thus left the admissibility issue in the Urgenda case unanswered and dismissed the claims on practical grounds. The individual claimants in this claim against RDS understand these considerations of the District Court and they understand very well that their interests can also be served by an order to be imposed on RDS by means of the general interest action of the 7 NGOs. The individual claimants too will be over the moon if by means of the general interest action of the 7 NGOs a stop can be put to the danger that RDS is creating for them and their future.

  10. Nevertheless, they believe that they have individual rights and interests which they must protect in court. After all, the matter concerns the violation of the inalienable and fundamental rights to which they are personally entitled to life and a peaceful family life.

  11. If on the basis of the consequences of dangerous climate change expected for the Netherlands it must be determined that said fundamental rights are at risk of being violated, the claimants acting in a private capacity have an interest in having this established with regard to them too and to be protected against this by means of awarding of the claim. The individual claimants not only have an interest in their claim in so far as the claim of the NGOs were to be dismissed, they still expressly have this interest if the NGOs' claim is awarded.

  12. I will come back to this continuing interest of the individual claimants to have their claims awarded in addition to the NGOs' claim in detail in a moment. I will now first clarify in further detail why the individual claimants have satisfied their duty to furnish facts and that they have presented sufficient concrete facts as the basis for their individual claims. This will show that they have a sufficient individual interest in the claims which have been brought and that their claims must be admitted.

  13. Milieudefensie et al. believes that it can be deduced from what was determined in the Urgenda case with regard to the climate consequences for the Netherlands and the considerations of the Court of Appeal and the Netherlands Supreme Court in this respect, that the individual claimants each individually and jointly ('shoulder to shoulder') must be able to stand up to the threatened impairment of their right to life and a peaceful family life. The fact that it cannot be specifically determined at this point in time for any of the individual claimants when they will be affected by which consequences of dangerous climate change does not detract from this, or should not detract from this. The demonstrable real threat of the impairment of their right to life and their right to a peaceful family life should be sufficient in the framework of a preventative action.

  14. The fact is that in the Netherlands and the rest of the world the climate and the living environment will become more unpredictable, more extreme, more dangerous and less productive. This in itself entails such a threat for every individual that a general public interest lawsuit should not be the only option to combat this. This would mean that in the event of lack of the option of bringing a general interest action via Article 3:305a of the Dutch Civil Code, there would be no judicial comparable option to combat the greatest possible damage to the human living environment. Milieudefensie et al. cannot imagine that this would be a reasonable or desirable outcome.

  15. The consequences which are foreseen for the Netherlands and the world in the event of dangerous climate change are so serious and all-encompassing that it must be assumed that consequently each person's individual life and individual family life is threatened. This should be enough to be able to present an individual preventative claim as is at issue in this case. Milieudefensie et al. believes it may draw that conclusion, looking at the various considerations in the Urgenda case. I will cite a few.

  16. Deputy Procurator General Langemeijer and Advocate General Wissink concluded (quote):

    Demonstrable damage or threat of damage is not required in assuming a violation of Articles 2 and 8 ECHR, nor required when pronouncing an order based on Article 3:296 DCC. The issue is whether there is a real risk of harm to the interests of individuals protected by Articles 2 and 8 ECHR (cf. section 2.57 above).34

  17. The Court of Appeal had earlier considered in that respect (quote):

    As is evident from the above, the Court believes that it is appropriate to speak of a real threat of dangerous climate change, resulting in the serious risk that the current generation of citizens will be confronted with loss of life and/or a disruption of family life. As has been considered above by the Court, it follows from Articles 2 and 8 ECHR that the State has a duty to protect against this real threat.35

  18. The Netherlands Supreme Court in turn considered in para. 5.6.2. of its judgment (quote):

    Pursuant to the findings above in paras. 5.2.1-5.3.4, no other conclusion can be drawn but that the State is required pursuant to Articles 2 and 8 ECHR to take measures to counter the genuine threat of dangerous climate change if this were merely a national problem. Given the findings above in paras. 4.2-4.7, after all, this constitutes a 'real and immediate risk' as referred to above in para. 5.2.2 and it entails the risk that the lives and welfare of Dutch residents could be seriously jeopardised. The same applies to, inter alia, the possible sharp rise in the sea level, which could render part of the Netherlands uninhabitable. The fact that this risk will only be able to materialise a few decades from now and that it will not impact specific persons or a specific group of persons but large parts of the population does not mean – contrary to the State's assertions – that Articles 2 and 8 ECHR offer no protection from this threat (see above in para. 5.3.1 and the conclusion of paras. 5.2.2 and 5.2.3). This is consistent with the precautionary principle (see para. 5.3.2, above). The mere existence of a sufficiently genuine possibility that this risk will materialise means that suitable measures must be taken.36

  19. Shortly thereafter the Netherlands Supreme Court refers to what is cited above and concludes (quote)

    Climate change threatens human rights, as follows from what has been considered in 5.6.2 above.37

  20. The Netherlands Supreme Court then immediately followed with the words (quote):

    This is also recognised internationally outside the context of the Council of Europe.37 In order to ensure adequate protection from the threat to those rights resulting from climate change, it should be possible to invoke those rights against individual states, also with regard to the aforementioned partial responsibility. This is in line with the principle of effective interpretation, referred to in 5.4.1 above, that the ECtHR applies when interpreting the ECHR and also with the right to effective legal protection guaranteed by Article 13 ECHR, referred to 5.5.1-5.5.3 above.38

  21. Milieudefensie reads these considerations of the Netherlands Supreme Court (and the preceding considerations of the Court of Appeal and of the opinions of the Procurator General) in such way that the consequences of dangerous climate change for the Netherlands pose a real threat that the interests of individuals which are protected by Articles 2 and 8 of the European Convention on Human Rights will be violated and that it must be possible for individuals to take action against that threat. This also applies because the right to effective legal protection laid down in Article 13 of the European Convention on Human Rights and the effectiveness principle applied by the European Court of Human Rights demand such (which may have consequential effect in a wrongful act suit by means of Article 6:162 of the Dutch Civil Code).

  22. In other words: if an individual on the basis of the threatened climate consequences for the Netherlands were to wish to protect his right to life and to a peaceful family life by means of a preventative legal action against the State, then it ensues from the foregoing in the opinion of Milieudefensie et al. that this individual's claim should not only be declared admissible but that said individual's claim should also be awarded. In the opinion of Milieudefensie et al. his legal claim may not be denied by the (mere) assertion that his interests can only be represented by a foundation or association which is acting in the public interest.

  23. The Netherlands Supreme Court also appears to have consciously made the choice to first determine that an individual may be entitled to a claim pursuant to Articles 2 and 8 of the European Convention of Human Rights, to then ask and answer the question whether Urgenda too can have a claim based on Articles 2 and 8 of the European Court of Human Rights. The Netherlands Supreme Court formulated this question as follows:

    (f) Can this obligation pursuant to Articles 2 and 8 ECHR also be relied upon in a case involving a claim pursuant to Article 3:305a DCC?39 (emphasis added by counsel)

  24. The question which the Netherlands Supreme Court asks or appears to ask here, is whether in addition to a claim of an individual on the basis of Article 3:303 of the Dutch Civil Code a foundation or association could [also] base the same claim on Articles 2 and 8 of the European Convention on Human Rights. The Netherlands Supreme Court then confirmed in the opinion of Milieudefensie et al. in the next two paragraphs that both options are open (quote):

    • 5.9.1 It ensues from the above that the State, as the Court of Appeal has held, on the basis of Arts. 2 and 8 of the European Convention on Human Rights is obliged to take [..] suitable measures against the threat of dangerous climate change.

    • 5.9.2 Urgenda, which in this case, on the basis of Article 3:305a DCC, represents the interests of [the residents of the Netherlands with respect to whom the obligation referred to in 5.9.1 above applies], can invoke this obligation."40 (emphasis added by counsel)

  25. Considered together, the Netherlands Supreme Court says that the State has an obligation to the citizens of the Netherlands pursuant to Arts. 2 and 8 of the European Convention on Human Rights to take suitable measures against the threat of dangerous climate change. Urgenda can also base a claim on that obligation of the State with regard to the citizens. This is how Milieudefensie et al. reads the various considerations of the Netherlands Supreme Court, when viewed in conjunction with each other.

  26. In the opinion of Milieudefensie et al. it can be deduced from all of this that the Netherlands Supreme Court's opinion encompasses that individual persons on the basis of the same facts as those which were asserted by Urgenda with regard to the public interest, can enforce their rights under the European Convention on Human Rights in relation to dangerous climate change.

  27. Milieudefensie et al. realises that Urgenda was no longer acting on behalf of the individual claimants in the appeal and the appeal in cassation so that the Court of Appeal and the Netherlands Supreme Court did not concretely decide on whether the claim of the individual claimants could be awarded. As the individual claimants were no longer a party to the dispute from the time of the appeal, there could not be a concrete awarding of any claim.

  28. Nevertheless, everything indicates that had they still been a part of the dispute, their claims would have been awarded. This also appears to be the only reasonable interpretation if account is taken of the considerations of the Netherlands Supreme Court that the right to effective legal protection laid down in Article 13 of the European Convention on Human Rights and the effectiveness principal applied by the European Court of Human Rights demand such.

  29. Another interpretation would have, in a general sense, the unacceptable consequence that the rights under the European Convention on Human Rights can only be protected in connection with climate change in those European countries which make a general interest action possible via a construction comparable to that of Article 3:305a of the Dutch Civil Code. In other European countries where this option of a general interest action does not exist or does not have the scope as we know it in the Netherlands, there could be no climate-related protection of rights under the European Convention of Human Rights.

  30. Citizens would not be able to seek protection for their rights under the European Convention on Human Rights in those countries, or in any event not on the basis of the general threats to their country or region in relation to dangerous climate change. They would then be forced to provide concrete insight into the specific way in which they will be individually threatened in the future by the consequences of climate change. However, this is an impossible task because this concrete insight cannot be established for the future. In those countries, due to lack of a general interest action vehicle, there cannot be protection against climate change. This is an interpretation which cannot be reconciled with the effective legal protection demanded by the European Convention on Human Rights and the effectiveness principle applied by the European Court of Human Rights.

  31. I believe I read the same sentiment in the conclusions in the Urgenda case (quote):

The fact that the dangers of climate change cannot be translated into specific risks for individual persons can be deemed a fact that is generally known. The court may indicate which threats are involved, as the Court of Appeal did at the third and fourth bullet points of para. 44. However, the State is asking the Court of Appeal to do the impossible by demanding a specification of the dangers caused by climate change to specific or specifically identifiable individuals or groups located within the jurisdiction of the State. Put differently: if the opinion as argued by the State were followed, Articles 2 and 8 ECHR would not offer any more protection against climate change than possibly obliging the State to take adaptation or other measures after the fact to combat the consequences of climate change.41

  1. According to Langemeijer and Wissink the duty to furnish facts relating to the consequences of dangerous climate change cannot go any further than the description of the public dangers which will be connected therewith for the future. Asking more than that is to ask for the impossible and thus the human rights protection must be provided on the basis of these general dangers of climate change, which the court can indicate itself. According to Langemeijer and Wissink, with a reference to para. 44, third and fourth bullet point of the judgment of the Court of Appeal, this is what the Court of Appeal did. The consequences described there by the Court of Appeal are the same consequences which Milieudefensie et al. have already described in the summons. I am quoting the relevant passages from the Court of Appeal judgment because these are also the circumstances in respect of which the individual claimants can and may seek protection without their being required to furnish more facts.

  2. The Court of Appeal describes the relevant consequences to which the conclusion refers as follows:

  • If the Earth warms by a temperature of substantially more than 2° C, this will cause more flooding due to rising sea levels, heat stress due to more intensive and longer periods of heat, increasing prevalence of respiratory diseases due to worsened air quality, droughts (accompanied by forest fires), increasing spread of infectious diseases and severe flooding as a result of heavy rainfall, disruption in the food production and potable water supply. Ecosystems, flora and fauna will also be affected, and biodiversity loss will occur. The State failed to challenge Urgenda's assertions (by stating reasons) regarding these issues nor did it contest Urgenda's assertion that an inadequate climate policy in the second half of this century will lead to hundreds of thousands of victims in Western Europe alone.

  • As global warming continues, not only the severity of its consequences will increase. The accumulation of CO2 in the atmosphere may cause the climate change process to reach a 'tipping point', which may result in abrupt climate change, for which neither mankind nor nature can properly prepare. The risk of reaching such 'tipping points' increases 'at a steepening rate' with a temperature rise of between 1 and 2 °C (AR5 p. 72).42

  1. Milieudefensie et al. has provided insight into these consequences of climate change and these consequences thus justify both the general interest action and the individual action of the over 17,000 individual claimants. Their claim can also be awarded. This is also the only interpretation which fits in with the decisions of the European Court of Human Rights which have been cited by Milieudefensie et al. in the summons and which show that in the event of a threatened breach of the right to a peaceful family life, a general threat and even a general threat in the much longer term, can be sufficient for the arising of a positive obligation to intervene. It need not be asserted or established in this respect who will be affected in what manner and at what time by the threatened breach.43

  2. As stated, the claims of the individual claimants can thus be awarded. Milieudefensie et al. would not object if the District Court were to opt for practical considerations to not award the claim of the 17,379 individual co-claimants but of the two attendant co-claimants. The District Court can easily determine for both of them that they are actual, existing natural persons and that they have given Vereniging Milieudefensie power of attorney to litigate to represent their personal interest in this case. This naturally also applies for the other 17,377 co-claimants, as RDS' attorneys themselves have also concluded. Nevertheless, this can be an easy and practical solution, should the District Court be looking for such. It should be clear that the other 17,377 co-claimants do not seek to state with this pragmatic offer that now, suddenly, they no longer have an interest in the proceedings.

  3. This brings me to the point why the individual claimants have an interest in having the claims awarded, even if the claims of the NGOs are awarded.

  4. This has to do with the above distinction between countries which do have the statutory option of a general interest action and countries which do not have this option. In those latter countries natural persons can only themselves take action against the violation of the fundamental rights to which they are entitled.

  5. If it is clarified in these proceedings that an individual acting in a private capacity on the basis of the general threat of dangerous climate change can take action against the related threatened breach of his rights under the European Convention on Human Rights, then in the opinion of Milieudefensie et al. this will have a great consequential effect on other jurisdictions.

  6. This possibility of a consequential effect is in the interests of the claimants because climate change is a global problem which must be tackled globally. The awarding of the claim of natural persons in the Netherlands, will have an exemplary working for courts in other countries. Just as in the Urgenda case at the time, this case against RDS has received international attention. The reasoning to be presented as the basis for awarding the claim will further clarify the relationship between dangerous climate change and human rights violations for many courts and lawyers throughout the world. It may be expected that consequently in various countries individual claimants, supported by NGOs including the claimant NGOs, will bring action to compel the large emitters based there to act in conformity with the temperature goals of the Paris Agreement.

  7. This is of great significance for the individual claimants because this increases the chance of preventing dangerous climate change. As previously said, foreign emissions lead to damage in the Netherlands and it is in the interests of the claimants that the requested judgment can contribute as much as possible to bringing about the reduction of the emissions abroad.

  8. The assertion that it is likely that a Dutch judgment will have a consequential effect abroad can also be substantiated. That important national judgments in relation to climate change can have an effect that goes far beyond national borders, appears simply from the judgment of the Netherlands Supreme Court in the Urgenda case and the preceding opinion of Langemeijer and Wissink. They and the Netherlands Supreme Court took account of a ground-breaking judgment of the US Supreme Court in the substantiation of the decision.44

  9. This concerns the judgment of the US Supreme Court in the case of EPA vs Massachusetts. This foreign judgment is cited by the opinion and by the Netherlands Supreme Court to clarify why the defence of the State, that an obligation of an individual state to reduce the emission of greenhouse gases will not help because other countries will nevertheless continue with their emissions, fails. This defence was also previously presented by the US federal Environmental Protection Agency (EPA) but the US Supreme Court made short shrift of this. According to the US Supreme Court, the reduction of the own national emissions will indeed help in combating climate change, even if the emissions increase in other countries. This is because according to the US Supreme Court, it is at the least the case that due to the restriction of the own national emissions, the global increase in emissions will be delayed. Following the reasoning of the US Supreme Court, this delay is of great importance because it consequently creates more time to solve the global climate problem. This reasoning was also followed by Langemeijer and Wissink and the Netherlands Supreme Court, following the US Supreme Court, which is why the similar defence of the State of the Netherlands was dismissed.45

  10. Courts can and want in a global issue such as climate change to learn from each other's approach. They study each other's judgments and take over each other's reasoning where relevant. This will be the case precisely for legal cases relating to a global problem like climate change. After all, wherever in the world there is litigation, the underlying climate scientific facts are the same. The standards to be applied are in essence the same worldwide, because they are anchored in the UN Climate Convention and the Paris Agreement.

  11. In addition to 'cross-pollination' between courts, there is also cross-pollination between claimant parties in climate lawsuits. They learn from each other's successes and failures, inspire each other to new cases and thus jointly help the national and international development of law.

  12. These different levels of interplay and cross-pollination between courts and claimants in climate cases worldwide, are also described in detail in a paper of the Australian chief judge The Hon. Justice Brian J. Preston, a paper to which former Advocate General Jaap Spier refers in his note to the Urgenda judgment of the Netherlands Supreme Court.

    In his paper `The Impact of the Paris Agreement on Climate Change

Litigation and Law`, he writes, inter alia (quote)46:

The ripple effect of climate change litigation occurs as potential litigants are inspired by climate change cases, whether successful or unsuccessful, leading to further cases being brought. For litigants, the success and failures of particular causes of action are closely examined to enhance and advance climate law. For courts, other jurisdictions may provide guidance on how novel arguments have been understood and adjudicated. While the global nature of climate change may increase the complexity of climate change litigation, it also "lend[s] itself to remarkably comparative approaches of courts in an inter-jurisdictional discourse.47

  1. Preston then shows how different climate judgments influence each other, including the Urgenda case of this District Court of 2015.48 For example, he describes how the Urgenda judgment of 2015 was in part due to an Australian judgment in which a mining company was denied a permit to be allowed to open and operate a new coal mine. The Urgenda judgment of this District Court was used in that Australian case, inter alia, to emphasise the importance of reducing emissions in Australia and to refuse the defence presented by the mining company that if no new coal mine were allowed to open in Australia, this gap would then automatically be filled elsewhere in the world by another mining company. On the basis of the Urgenda case those defences of the mining company were thus set aside.49

  2. Preston points out that in that same Australian case various US judgments were used in the opinion forming on specific climate-related issues. Those US judgments of lower courts were used, inter alia, to come to the opinion that not only scope 1 and scope 2 emissions are relevant in the assessment of permit granting for a coal mine, but that also the scope 3 emissions must be counted which arise as a result of the sale of the coal supplies which are obtained.50

  3. It is thus not only judgments of the highest national judicial instances which lead to cross-pollination, judgments of lower courts already have that international working. Preston also describes how this Australian judgment itself has been used in new climate cases in the United States and Canada.51 Speaking of cross-pollination.

  4. Preston also expects an exponential growth in this cross-pollination and interplay of climate cases in various jurisdictions, and also sees this confirmed in opinions of others to which he refers. According to him, this has to do with a growing number of international legal networks which are engaged with these legal climate issues, courts are becoming more specialised in relation to the subject of climate change and more and more climate-related cases are being brought in the world.52

  5. The Preston paper furthermore shows that there are several new climate cases in the world which have been inspired by and are grafted on the success and the approach of Urgenda in the Netherlands. Preston refers, inter alia, to cases in New Zealand, Germany, Belgium and Sweden.53 Nor has it escaped his attention that this case against RDS is to a great degree inspired by the decisions in the Urgenda case.54

  6. Preston finally concludes (quote):

As courts are increasingly asked to adjudicate climate change issues, the ripple effect of climate change litigation is likely to continue. Successful climate cases in one jurisdiction will inspire cases in other countries. Emerging climate change cases will continue to explore new avenues for action.55

  1. In this respect I would, finally, not wish to forget to refer to the speech which the chairman of the French Constitutional Council (Conseil Constitutionel) gave last year before the European Court of Human Rights. There too the effect of the Urgenda case beyond the Dutch borders is clarified, as is the importance of judicial intervention in tackling the climate crisis. A brief quote from the speech of Laurent Fabius, the President of the Constitutional Council:

President, I should like to add a fourth theme, that of the climate and, more broadly, the environment, which, as we are all aware, threatens the survival of humanity itself. Courts are receiving an increasing number of requests from citizens, associations, NGOs, companies and towns, seeking to ensure that the States comply with their obligations in terms of environmental protection. In the area of climate alone, litigation has developed significantly since the Urgenda ruling by the Dutch courts in 2015. The United Nations Environment Programme counted almost 900 climate cases in 2017, more than a hundred of which were in the European Union [..] As environmental threats worsen and certain politicians demonstrate a lack of ambition, we can all sense that human-rights litigation as applied to the environment will grow in importance, making the courts, even more than they are at present, major players in the construction of environmental justice.56

  1. In the opinion of Milieudefensie et al., on the basis of the above it is sufficiently plausible that a judgment against RDS in this case will have a consequential effect on other jurisdictions. There is a great chance that this will lead to new lawsuits abroad and that it will also be reviewed by foreign courts in the assessment of the same climate-related issues in their respective jurisdictions. For them the determination that in the Netherlands, in addition to the NGOs, the claims of the claimants acting in a personal capacity were awarded, could be a reason to come to the same conclusion. This determination will certainly be of importance in jurisdictions which do not have the vehicle of general interest actions. It increases the chance for claimants that large CO2 emitters can be held to account abroad as well and the emissions abroad will also be reduced more quickly. It will in any event increase the pressure on states and large companies to act in conformity with the temperature goals of the Paris Agreement.

  2. In this manner a judgment passed in the Netherlands can considerably increase the chance that dangerous climate change with its disastrous consequences can still be prevented. It need not be argued that this serves the interests of the private claimants. This additional option for accelerated emissions reductions in countries with and without the vehicle of general interest actions, is an interest which will only be served if the individual claimants can protect their individual interests next to the NGOs. Only then will the chance be increased in countries without the vehicle of a general interest action that human rights protection must be provided against the dangers of dangerous climate change.

  1. It appears from the foregoing that in view of the special facts and circumstances which are connected with the climate problem, on the basis of the same principles both a general interest action can be brought as well as an individual action. The breach and threatened breach of Articles 2 and 8 of the European Convention on Human Rights due to dangerous climate change affect both the individual interest and the public interest. It is also clear that the importance of the greatest possible certainty that dangerous climate change can be avoided, is served by the additional awarding of the claims of the individual claimants or to at least two of them. That is why the individual claimants also have their own interest in the requested order, even if said order has already been granted to the NGOs.

  2. Lastly, I would briefly like to explain why in the situation that the individual claims are awarded, it still remains relevant that the general interest action is granted and that the claimant NGOs have a right to this.

  3. The legislative history cites several arguments for the facilitation of the general interest action through statute. Arguments for a general arrangement for collective legal action were, inter alia, the circumstance that interest organisations can act in cases where per individual minor, but in their totality considerable interests are at stake, the circumstance that the threshold for access to the court is less high for an interest organisation and the preventative working which can emanate from a collective right of action.57

  4. These arguments for bringing the general interest action against RDS apply in full. It is because of the public interest that the NGOs believed that the proceedings against RDS are possible, in particular because the Vereniging Milieudefensie has made this possible financially and is willing to bring all kinds of expertise together in a team of national and international experts. For individual persons it is impossible to themselves take the initiative for such proceedings and to bring together the necessary finances and fields of expertise. For them the threshold in the access to the court in these kinds of complex global environmental cases is simply too high, in all aspects.

  5. The fact that in this case it was possible for individual claims of citizens to be brought against RDS, exists by the grace of the general interest action. This general interest action satisfies all conditions to be legally set in this respect and awarding of the claim brought in the public interest is and remains crucial so that in the future the public interest can remain protected in the same way.

Conclusion with regard to admissibility​

  1. On the basis of all of the above Milieudefensie et al. concludes that the claims of both the NGOs and the individual claimants are admissible.

Footnotes​

  1. Summons, paras. 117-121. ↩

  2. Summons, paras. 285-295. ↩

  3. Ibid ↩

  4. Ibid ↩

  5. Ibid ↩

  6. Statement of defence, para. 226 ↩

  7. Statement of defence, paras. 352 , 354 and 355. ↩

  8. Statement of defence, para. 354. ↩

  9. T&C 2017 Art. 3:305a under 6, p. 2343. ↩

  10. T&C 2017 Art. 3:305a under 6, p. 2343 with a reference to the Court of Appeal of The Hague 31 December 1986, NJ 1987/1011 whereby the State of the Netherlands was held liable for a similar problem in a collective action. ↩

  11. Opinion of Deputy Procurator General Langemeijer and Advocate General Wissink in the Urgenda case under 2.4. ↩

  12. T&C 2017 Art. 3:305a under 6, pp. 2343 and 2344. ↩

  13. Summons, pp. 15-19, 86, 103-106, 147, 153-158, 201-209. ↩

  14. Netherlands Supreme Court in the Urgenda case under 6 and 7. ↩

  15. See also Deputy Procurator General Langemeijer and Advocate General Wissink in their opinion in the Urgenda case under 2.8 and 2.9 with references. ↩

  16. See also Deputy Procurator General Langemeijer and Advocate General Wissink in their opinion in the Urgenda case under 2.10 ↩

  17. District Court in the Urgenda case under 4.89 ↩

  18. See also Deputy Procurator General Langemeijer and Advocate General Wissink in their opinion in the Urgenda case under 3.15 ↩

  19. District Court in the Urgenda case under 4.6 - 4.8. ↩

  20. District Court in the Urgenda case under 4.9. ↩

  21. Opinion of Deputy Procurator General Langemeijer and Advocate General Wissink in the Urgenda case under 2.6 ↩

  22. Court of Appeal in the Urgenda case under 37. ↩

  23. Summons, pp. 14, 77, 98-101, 125, 129-130. ↩

  24. See inter alia Netherlands Supreme Court 27/06/1986, NJ 1987, 743 (Nieuwe Meer case) ; ECLI:NL:HR:1986:AD3741 ↩

  25. Netherlands Supreme Court in the Urgenda case under 5.9.2. ↩

  26. Opinion of Deputy Procurator General Langemeijer and Advocate General Wissink in the Urgenda case under 3.33. ↩

  27. Opinion of Deputy Procurator General Langemeijer and Advocate General Wissink under 3.14; Langemeijer and Wissink wrote the underlined words in the quote in italic letters. ↩

  28. Opinion of Advocate General Huydecoper for Netherlands Supreme Court 26 February 2010, NJ 2011/473 ↩

  29. Opinion of Advocate General Huydecoper for the Netherlands Supreme Court 26 February 2010, NJ 2011/473, para. 17 ↩

  30. Court of Appeal in the Urgenda case under 38 and Opinion of Deputy Procurator General Langemeijer and Advocate General Wissink under 2.5 ↩

  31. Summons, para. 120 ↩

  32. District Court in the Urgenda case under 4.10 and 4.108. ↩

  33. District Court in the Urgenda case under 4.109 ↩

  34. Opinion of Deputy Procurator General Langemeijer and Advocate General Wissink under 3.11 ↩

  35. Court of Appeal in the Urgenda case under 45 ↩

  36. Netherlands Supreme Court in the Urgenda case under 5.6.2 ↩

  37. Netherlands Supreme Court in the Urgenda case under 5.7.9 ↩

  38. Netherlands Supreme Court in the Urgenda case under 5.7.9 ↩

  39. Netherlands Supreme Court in the Urgenda case, question (f) on page 26. ↩

  40. Netherlands Supreme Court in the Urgenda case under 5.9.1 and 5.9.2 ↩

  41. Opinion of Deputy Procurator General Langemeijer and Advocate General Wissink under 3.13 ↩

  42. Court of Appeal in the Urgenda case under 44, 3rd and 4th bullet point ↩

  43. See summons under 672-690 ↩

  44. Netherlands Supreme Court in the Urgenda case under 5.7.8 with reference to footnote 36. Idem Langemeijer and Wissink in their opinion with the Urgenda case under 2.13 with reference to footnote 91. ↩

  45. Ibid, see also summons, paras. 646 et seq. with reference to Exhibit 212 ↩

  46. The Impact of the Paris Agreement on Climate Change Litigation and law, by The Hon. Justice Brian J Preston FRSN SC, Chief Judge of the Land and Environment Court of New South Wales, see [http://www.lec.justice.nsw.gov.au/Documents/Speeches%20and%20Papers/PrestonCJ/Preston%20CJ%20-%20The%20Impact%20of%20the%20Paris%20Agreement%20on%20Climate%20Change%20Litigation%20and%20Law.pdf](link for the paper in question) ↩

  47. Ibid pp. 52 and 53 ↩

  48. Ibid pp. 53 et seq. in conjunction with pp. 21 et seq. ↩

  49. Ibid pp. 58 and 59 ↩

  50. Ibid p. 59 ↩

  51. Ibid p. 58 ↩

  52. Ibid p. 53 ↩

  53. Ibid pp. 13, 27, 53, 54 and 55 ↩

  54. Ibid p. 45 ↩

  55. Ibid p. 59 ↩

  56. European Court of Human Rights, Solemn Hearing of the European Court of Human Rights, Strasbourg , 25 January 2019, Speech by Mr Laurent Fabius, President of the French Constitutional Council, which can be found here. ↩

  57. Text and Comments with Article 3:305a Dutch Civil Code under 1 (general) with reference to Explanatory Memorandum, Parliamentary Documents II 1991/92, 2248, 3, p. 2. ↩