Historic moment in European private law: Urgenda Decision UPHELD by Dutch Court of Appeal and provided with stronger legal ammunition

Introduction
Today, another historic decision is rendered in the Dutch Urgenda case, this time by the national Court of Appeal in The Hague. For the first time ever, Articles 2 and 8 of the European Convention on Human Rights (ECHR) are interpreted to cover positive obligations related to climate change. These lead to state liability under Dutch tort law.

The Court of Appeal hereby upholds the world famous Urgenda decision of the District Court of 2015, whereby the Dutch State was said to commit a tort for having too little ambitious climate change policy and was ordered to reduce at least 25% of greenhouse gasses in 2020, compared to the levels of 1990. This order and all factual allegations are upheld. Importantly, and contrary to the expectations of many, the Court of Appeal’s judgment is phrased in legally stronger terms than the District Court’s decision of three years ago: Whereas the 2015 decision leaned on a private law duty of care, in today’s decision private law functions as a mere vehicle to grant direct effect to articles 2 and 8 ECHR.

In anticipation of an international interested public, an unofficial English translation of today’s decision is made available. I studied it in its original and official language, Dutch. In this blogpost I go through the judgment, showing the increased legal strength compared to the 2015 first instance judgment, whilst emphasising the (European) private law elements of this almost Utopian example of judicial law-making.

Tense atmosphere before we could enter the court room
This early morning, I travelled to The Hague to hear the Court read out loud its decision. Apart from the lawyers in the case and directors of the environmental NGO Urgenda (portmanteau for ‘urgent agenda’), there were many journalists, as well as people supporting Urgenda’s lawsuit. The atmosphere was tense, people were nervous and prepared for the Appelate Court to overturn the 2015 decision. Yet the contrary happened.

The decision; facts and dispute        
In its decision, the Court of Appeal begins by depicting the dispute and facts (§3 judgment[1]). Since the Urgenda case is a private law case, the Court takes facts undisputed by the parties for granted. The Court therefore accepts as facts that since the Industrial Revolution, the world has warmed up with 1,1°C due to anthropogenic greenhouse gas emissions, mostly CO2 (§3.5); and that there is global agreement about the need to act to reduce such emissions (§3.6). The dispute concentrates on the question, whether it was tortious for the State to set its policy goal to reduce greenhouse gasses with only  20% in 2020, compared to the levels of 1990 (§3.7-8). Urgenda and the District Court answered 20% amounted to the violation of a private legal duty of care, but the Dutch State disagrees.

The District Court in 2015 gave an order to the State to reduce with at least 25% by the end of 2020, but denied Urgenda’s request for higher percentages. Urgenda did not appeal this denial, the Court of Appeal notes, which as a matter of procedural law means that the Appelate Court cannot order any number above 25% (§3.9).

Climate change at the international and European scene  
The Court of Appeal continues to sketch international endeavours to tackle climate change, beginning with the 1972 Stockholm Declaration, followed by the establishment of the scientific body Intergovernmental Panel on Climate Change (IPCC) in 1988 (§4), and culminating in the 1992 United Nations Framework Convention on Climate Change (UNFCCC, or “UNF Triple C”), which was ratified by the “greatest part of the global community”(§5).

The UNFCCC established, among other things, a conference of the parties (COP) which comes together yearly. The Court furthermore enlists the outcomes of 10 of those COPs, taking note of the fact that they acknowledge since 2007 that the developed countries, including the Netherlands, should reduce at least 25% of greenhouse gasses by 2020, compared to 1990 levels (§11). The Court also considers IPCC and UNEP reports dealing with, respectively reduction paths and the ‘emission gap’, the gap between desired reductions and what will be achieved by actual policy in place (§12-14).

Importantly, the Court also considers the Paris Agreement – an international treaty concluded under the heading of the UNFCCC in December 2015 (§15). Since the Urgenda decision of first instance was rendered in June 2015, the Paris Agreement played no role there. The Appeal’s Court considers the factual situation up until 28 May 2018 – the day the parties pleaded (§3).

EU law considered by the Court includes Article 191 of the Treaty on the Functioning of the EU (TFEU), the Emissions Trading Directive and the Effort Sharing Decision (§16-18).

Relevant circumstances in the Netherlands 
The Court furthermore looks into developments within the Netherlands. It observes that until 2011, the Netherlands targeted to reduce 30% by the year 2020 (§19). The government back then deemed this percentage necessary to “credibly” help to keep global warming below 2°C. Although the percentage of Dutch greenhouse gasses emissions has lowered during the past years, this is mostly due to the scientific finding that greenhouse gasses levels in the base year 1990 were higher than was thought before (§21).  The Netherlands has the highest per capita emissions of the EU (§26). Dutch reductions in emissions can be attributed mostly to the financial crisis (§26).

Indirect versus direct effect of ECHR
After having sketched all the above, the Court turns to its legal analysis. Its legal reasoning departs significantly from what the Court of First Instance held. That is, in the Dutch civil code, Article 6:162 distinguishes between three types of tortious acts: 1) violations of someone else’s right/entitlement; 2) an act or omission breaching a duty imposed by law; and 3) an act or omission in violation of what according to unwritten law is deemed fit in societal interrelations. Where in 2015, the District Court chose for option 3, the Court of Appeal now goes for option 2.

In 2015, the State was said to commit a tortious act in the third sense. “What is deemed fit in societal interrelations” includes a private law duty of care not to be hazardously negligent. The District Court used international climate change law and provisions from the ECHR, and EU law to give shape to this duty of care, the origin of which thus lies in private law. Provisions from international and EU law were applied indirectly. In Dutch private law vocabulary this indirect application is called a ‘reflex effect’ (in private law, EU and international law is reflected, like a ray of sun in the mirror) – in international legal scholarship this is known as ‘consistent interpretation’. It was a complex construction that was often misunderstood to form a constitutional duty of care, quod non.

Judicial dialogue        
Contrastingly, the Court of Appeal now applies Articles 2 and 8 ECHR directly, i.e. the rights to life and private life/ family life. It explicitly disagrees with the District Court, which held that Urgenda could not rely on these human rights, since Urgenda is not a human being but rather an environmental non-governmental organisation. Urgenda would not have standing before the European Court of Human Rights (ECtHR) on the basis of Article 34 ECHR as interpreted by the ECtHR. Yet, and here the Hague Court engages in a judicial dialogue with the ECtHR in Strasbourg: this does not say anything about access to justice for Urgenda in the Netherlands (§35). Such would also be impossible, since this is for the Dutch judiciary to determine, the Court of Appeal adds.

Article 3:305a of the Dutch Civil Code stipulates that NGO’s may litigate on behalf of others, who in the case of Urgenda can invoke Articles 2 and 8 of the ECHR (§36). The Court leaves unanswered the question, whether Urgenda represents more than only currently living Dutch citizens, as the latter group suffices to support Urgenda’s claim (§37).

Ground breaking: Articles 2 and 8 ECHR imply a State duty of care regarding climate change
The Court then considers the applicability of Articles 2 and 8 of the ECHR to issues of climate change. It reasons that, given the real threat of dangerous climate change and given the consensus that global warming should not exceed 2°C, preferably not even 1.5°C, Articles 2 and 8 ECHR comprise a duty for the State to protect against this real danger (§45). To my knowledge, the ECHR and climate change have not been related before. This dictum therefore may be considered to be ground breaking.

The Court then proceeds to consider whether this duty of the State is breached by the policy goal of 20% emissions (§46). In this context, it notes that reduction paths including negative emissions[2] are so hypothetical that they cannot serve as a justification for little action now (§49). Since the IPCC’s recommendation for 25%-40% reduction was reiterated over and over again during the COPs (§51), and since the Dutch State did deem 30% possible earlier (§52), the District Court was correct to order the Dutch State to reduce at least 25%, judges the Court (§53).

No excuses    
In the last paragraphs of the judgement, the Court of Appeal dismisses all the State’s arguments (§54). There is no realistic risk for a ‘waterbed effect’[3] within the EU Emissions Trading Scheme (§55-56), furthermore the State failed to substantiate the risk of ‘carbon leakage’ (i.e. the risk that polluting industries would move to other countries than the Netherlands), and to the extent that the State wanted to rely on a diminishing level playing field for industry, the Court says not to understand why such would be contrary to any rule of law (§57). Mitigation rather than adaptation is the way to go (§59).

The Court is neither convinced of the State’s argument that the goal of 25% applies to developed nations as a whole rather than to the Dutch State (§60). Furthermore, the State’s contention that the Netherlands contributes little to global emissions and that there is not sufficient causality between Dutch emissions and global climate change fails (§61-64). If such a reasoning would be followed, an effective remedy against a global problem like this would be lacking, says the Court, since every State could argue to have no obligations until other nations start acting. This consequence cannot be accepted, if only since Urgenda is unable to bring all States in the world before the Dutch Courts (§64).

This morning, when the Judge read out loud the latter sentence, a wave of laughter went through the audience.

Separation of powers: primacy of international law          
The last matter considered by the Court relates to the separation of powers, the trias politica or political questions doctrine (§67-69). Here the increased strength of the judgment becomes clear. It might have been questionable for a Court to order the State to adopt a policy goal on the basis of a private legal duty of care. Yet since the Appellate Court invokes human rights, designed to be invoked against a State party, the separation of powers is clearly defended rather than violated. The Court stresses its order is not an order to adopt legislation (which is forbidden for courts in Dutch private law) as the goal of 25% can be reached without adopting legislation. Furthermore, the Court notes it must apply directly applicable international law, since it is part of the Dutch legal order and moreover has primacy above national legislation.

Enforcability
Urgenda has announced it trusts the State will comply with the judgment, yet to go Court again to ask for a penalty if it becomes likely that the State will not reach its goal. Urgenda did not ask for it already because in Dutch civil procedures, judges decline such a penalty if they esteem the convicted party will comply with the decision. The government has indeed communicated it will comply, although in a somewhat halfhearted way, pointing to research indicating 25% is indeed possible within its current plans, but with an uncertainty margin that the Court of Appeal calls "unacceptable" in §73 of its judgement.


For those who master Dutch, I can recommend the Dutch private law analysis of the judgment on the Ucall Blog by my collegue Tim Bleeker.

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[1] Court of Appeal of The Hague Urgenda versus Dutch State 9 October 2018, ECLI:NL:GHDHA:2018:2591

[2] I.e. not yet invented techniques to remove greenhouse gasses from the atmosphere

[3] Meaning that if the Dutch emit less, others in the EU could emit more

Judges in Utopia in the news: MO Magazine

The Belgian mondial news MO Magazine dedicated a piece on air quality cases. In this context, Laura Burgers is interviewed and the Vidi Project Judges in Utopia is elaborately discussed, including Anna van Duin's research on Article 47 of the Charter of Fundamental Rights of the EU.

Anne Adé 'Een rechter heeft geen keuze, hij moet de bevolking beschermen tegen luchtvervuiling' MO Magazine 8 June 2018

Article 47 Charter and Civil Courts: the case of arbitration clauses in consumer contracts

On 20 April 2018 Anna van Duin presented a part of her research at the colloquium 'Citizen's Rights and EU Law', organised by the Cátedra Jean Monnet at the Universitat de Barcelona. Her working paper 'Article 47 EUCFR and Civil Courts: the case of arbitration clauses in consumer contracts (the Netherlands vs Spain)' is now available online: http://diposit.ub.edu/dspace/handle/2445/122626 Click here for the full programme and a video registration of the colloquium.

Explaining the global climate change litigation trend in De Groene Amsterdammer

The Netherlands' oldest opinion magazine De Groene Amsterdammer published a short essay by Laura Burgers in which she explains the global climate change litigation trend with the aid of a deliberative democracy model. 

See: Mijn motivatie is dat ik denk dat ik gelijk heb. 

The robot judge of e-Court: a blessing or a curse?

Report of a debate at the University of Amsterdam by Fien de Ruiter (student assistant)

On 22 March 2018, a public debate was organised at the University of Amsterdam on the so-called 'robot judge', in response to recent commotion about online arbitration in consumer cases in the Netherlands, offered by e-Court. E-court promises to provide an easier and cheaper alternative for adjudication before a State court. Most Dutch health insurance companies have included e-Court in their standard terms and conditions as a means for dispute settlement. For example, they bring their claims to e-Court in the event that customers do not pay their medical bills in time. Such claims are almost always allowed, since they mainly concern default cases. The health insurer then only needs to ask the State court for leave to enforce the arbitral award.

De Groene Amsterdammer recently published an article by Investico about e-Court, which questioned its modus operandi. For example, it is unclear whether individual defendants are even aware that arbitration is not mandatory for consumers. Another problem is the lack of transparency: it is unclear who the arbiters are and how they reach their verdicts. The arbiters are anonymous and the verdicts are not published. It is unclear whether the basis of the claim is duly checked and whether the guarantees that EU consumer law offers are properly applied. E-Court itself states that they will continue their successful initiative and that judiciary criticism stems from fear of competition.

Professors Ruth de Bock, Marco Loos and Evert Verhulp as well as investigative journalist Tim Staal discussed the pros and cons of the so-called 'robot judge'.

Whether you are a fan of alternative dispute resolution (ADR) or not, everyone agreed: the article in De Groene Amsterdammer was definitely a wake-up call for the judiciary. Typical e-Court defendants are people who are unable to pay their health insurance. It is therefore disproportionate to ask 482 euros in court fees for matters concerning less than 500 euros. For those with weak cases the risk of going to court is simply not favourable; the costs are too high. Someone in the audience even spoke about these costs as an unacceptable obstacle to the right of access to justice. In ADR parties know much faster where they stand without having to pay a lot of money.

Although e-Court did not set a good example, Professor Verhulp pointed out that the possibility to pre-sort cases through digital procedures without having to go to court is something we should consider more seriously. For example, it would help parties estimate how strong their case is, before they determine whether or not to go to court. If it turns out that chances are that they will lose, it will help them not to incur unnecessary costs associated with legal proceedings. But when there is a good chance of winning the case, it may be a motivation to go to court. In addition, through such digital preliminary procedures, it will be easier to focus on what the dispute is actually based on. If you let both parties enter data and thus see at which points they disagree, a judge knows which questions to focus on. When such developments in the future are further improved into a true 'robot judge', it is important that such systems remain completely transparent and can always be challenged.

On the other hand, one must be aware that alternatives do not amount into "default factories". The core question of the debate about ADR, is if and how efficiency may be at the expense of procedural safeguards. Both in the audience as well as in the panel, people feared that the 'robot judge' will deprive the judiciary of its human touch. Professor de Bock strongly opposed the idea that there would be a market for dispute resolutions. The judiciary offers certain institutional safeguards that are of fundamental importance, such as the fact that all verdicts are published and therefore open for criticism. The value of certain procedures such as the assurance that both parties are heard and the oral hearing should not be underestimated. A judge in the audience pointed out the importance of parties explaining their stories, who will then try to find out what actually happened. Especially in cases concerning debt issues, it is not only important to force people to pay, but also to help them realise what went wrong.

Tim Staal pointed out that e-Court appears to automatically assume that you agree with the digital arbitration procedure. In total, only six people have opted for a State court. It is not obvious that of the large number of awards that e-Court has given out, everyone was well aware they agreed to arbitration. Many people do not realise that an arbiter is not the same as a government judge. The article in De Groene Amsterdammer also showed that people are often persuaded to opt for e-Court because they do not fully understand what it entails. Moreover, Professor de Bock pointed out that it is questionable whether under current Dutch law it is even permissible at all to have judgments awarded by an automatized system. Can a judgment be issued solely by a 'robot judge' if this means the total absence of human beings? And is the court's minimal test to grant permission still sufficient in view of EU consumer law?

It is time to submit these pressing questions to the Supreme Court, or even better, the European Court of Justice, before the robot judge is more than just a 'digital mailbox'. Professor Loos argued that many ADR mechanisms do meet the standards of European law. However, there is always room for improvement, perhaps in a system in which the governmental judiciary and alternative dispute resolutions can complement each other. Professor de Bock suggested that perhaps it could be made possible for arbiters to be able to turn to a government court in case of pressing questions about, for example, the application of EU law. (See in this respect: http://recent-ecl.blogspot.nl/2018/03/arbitration-and-effective-consumer.html)

E-Court turned out to be a blessing in disguise. It raised may questions about how we want the judiciary to modernise. Where one person considers it impermissible that efficiency prevails over the guarantees that our law offers, the other sees it as a great advantage for the judiciary that the 'robot judge' offers a more efficient alternative. Hopefully soon a court will be able to ask preliminary questions about how to cope with the clash between the efficiency of e-Court and the procedural safeguards the judiciary offers.

12 and 13 April 2018 - REJus training workshop for judges on effective remedies in Dutch consumer law

On 12 and 13 April 2018, a training workshop for Dutch judges will be organised in Amsterdam on the topic of 'EU fundamental rights and effective remedies in Dutch consumer law'.

The workshop is organised in the framework of the project Roadmap to European effective Justice (REJus), a transnational judicial training project coordinated by Prof. Fabrizio Cafaggi and Prof. Paola Iamicelli.

During the workshop a number of presentations will be given on topical issues in consumer law protection in civil courts. Furthermore, participating judges will get the opportunity to exchange experiences in the discussion of specific case patterns.

More information is available (in Dutch) on our website.

Opinion on climate change damage litigation in newspaper Trouw

Today, Laura Burgers published an opinion on litigation on climate change damages against corporations in the Dutch newspaper Trouw. Although litigation is unlikely to solve the problem of climate change, litigation against corporations may further the democratic debate. 

A possible action might concern the obligation of corporations to reduce greenhouse gasses emissions, such as promoted by the Principles on Climate Change Obligations for Entreprises. Yet actions for damages could be of importance as well. Litigation by activists stimulates society-wide deliberations, and the issue of damages is to be widely discussed: everybody is to some extent responsible for climate change and its ensuing damages, but which polluter pays for what exactly?

See: Met een rechtszaak krijg je het klimaat op de agenda