Here is a Google Translate version of the very important Dutch Supreme Court decision that courts can compel national governments to slash greenhouse gas pollution because of the threat it poses to human life and welfare.
Date of decision 20-12-2019
Case number 19/00135
Topics: Climate case Urgenda. Human rights. European Convention on Human Rights. UN Climate Convention. Order to State to take measures against climate change. Danger of climate change. Protection scope art. 2 and 8 ECHR; positive obligations. Effective legal protection art. 13 ECHR. State partial responsibility. Art. 3: 305a BW and art. 34 ECHR. Objective of a 25-40% reduction in greenhouse gas emissions and the necessity thereof. International support for this. Binding the Netherlands to this objective. Responsible policy and the substantiation thereof. Is there an inadmissible order for legislation? Political domain.
SUPREME COURT OF THE NETHERLANDS
Date December 20, 2019
In the case of
THE STATE OF THE NETHERLANDS (MINISTRY OF ECONOMIC AFFAIRS AND CLIMATE),
based in The Hague,
EISER to cassation,
hereinafter: the State,
lawyers: K. Teuben, MW Scheltema and JWH van Wijk, LL.M.
Based in Amsterdam,
DEFENDANT in cassation,
lawyer: FE Vermeulen, LL.M.
Summary of the ruling
This case concerns the question whether the Dutch State is obliged to reduce the emission of greenhouse gases from Dutch soil by at least 25% by the end of 2020 compared to 1990, and whether the court can order the State to do so.
Urgenda claim and court and tribunal judgments
Urgenda has asked the court to order the State to limit the emission of greenhouse gases in such a way that by the end of 2020 it will be reduced by 40% compared to 1990, and in any case by at least 25%.
The court granted Urgenda’s claim in 2015 in the sense that an order was issued to the State to reduce emissions by at least 25% by the end of 2020 compared to 1990.
On appeal, the court of justice ratified the court’s judgment in 2018.
The State appealed in cassation to the Hoge Raad against the decision of the court of appeal. The State has raised a large number of objections to the court’s decision.
The deputy Attorney General and the Attorney General have advised the Supreme Court to dismiss the appeal of the State and thus to uphold the ruling of the court.
Judgment of the Supreme Court
The Supreme Court comes to the conclusion that the cassation appeal by the State must be rejected. This means that the order issued by the court and ratified by the court to the State to reduce greenhouse gas emissions by at least 25% by the end of 2020 compared to 1990 will be permanently upheld.
The Supreme Court’s judgment is based on facts and principles that the court of appeal has established and that have not been challenged by the State and Urgenda in cassation. In cassation, the Supreme Court judges whether the court has correctly applied the law and whether the judgment of the court, based on the data it could take into account, is understandable and sufficiently substantiated.
The reasons for the Supreme Court’s judgment are set out below in Chapters 4-8 of the judgment. This statement of reasons is summarized below. This summary does not replace the statement of reasons for this judgment and does not fully reflect the Supreme Court’s judgment.
Dangerous climate change (see below in 4.1-4.8)
Urgenda and the State both endorse the climate scientific understanding that there is a real threat of dangerous climate change in the coming decades. There is a great deal of agreement on this threat in climate science and the international community. In short, this involves the following.
The emission of greenhouse gases, including CO2, leads to an increasing concentration of those gases in the atmosphere. These greenhouse gases retain the heat emitted by the earth. Because the last century and a half (since the beginning of the industrial revolution) more and more greenhouse gases are being emitted, the earth is constantly warming up. The warming up in that period is approximately 1.1 oC, the majority of which (0.7 oC) has occurred in the last forty years. In climate science and within the international community, there is a high degree of agreement on the principle that global warming must be limited to a maximum of 2 oC and, according to the latest insights, to a maximum of 1.5 oC. Greater global warming can have very damaging consequences, such as extreme heat, extreme drought, extreme precipitation, disruption of ecosystems that, among other things, endanger food supply, and rise in sea levels as ice from glaciers and polar ice caps melt. This warming can also lead to climate changes, whereby the climate on earth or areas on earth changes abruptly and radically (so-called ‘tipping points’). All this threatens the lives, well-being and living environment of many, worldwide and also in the Netherlands. Some of these consequences are already happening.
Protection of human rights under the ECHR (see below in 5.2.1-5.5.3)
The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) requires states that are members of the Convention to ensure for their residents the rights and freedoms enshrined in the Convention. Art. 2 ECHR protects the right to life, and art. 8 ECHR the right to respect for private, family and family life. According to the case law of the European Court of Human Rights (ECHR), a treaty state is obliged under these provisions to take appropriate measures if there is a real and immediate risk to the life or well-being of persons and the is aware of this.
The obligation to take appropriate measures also applies when it comes to environmental hazards that threaten large groups or the population as a whole, and also when the hazards can only be realized in the longer term. The art. 2 and 8 ECHR must not lead to imposing an impossible or disproportionate burden on a state. But those provisions do require that measures are actually taken to avert the impending danger as far as is reasonably possible. According to art. 13 To provide an effective remedy for an ECHR against a violation or imminent violation of the rights guaranteed by the ECHR. This means that the national court must be able to provide effective legal protection.
Global problem and national responsibility
(see below in 5.6.1-5.8)
The risk of dangerous climate change has a global character: greenhouse gas emissions do not only occur from Dutch territory, but worldwide. The consequences of this are also being experienced worldwide.
The Netherlands is a party to the United Nations Climate Convention (UN Climate Convention). The aim of that treaty is to keep the concentration of greenhouse gases in the atmosphere at a level at which a disturbance of the climate system caused by human action is prevented. The treaty is based on the principle that all member countries must take measures to prevent climate change, in accordance with everyone’s specific responsibilities and possibilities.
Every country is therefore responsible for its share. Therefore, the argument that own emissions on a global scale are relatively small and that reducing their own emissions on a global scale has only a small effect cannot relieve a country of its partial responsibility to take measures. The State is therefore obliged, in accordance with its share, to reduce greenhouse gas emissions from its territory. This obligation for the State to do ‘its own’ is based on art. 2 and 8, because there is a serious risk that a dangerous climate change will occur that threatens the lives and well-being of many in the Netherlands.
What does the obligation for the State to do ‘its own’ mean in concrete terms?
(see below in 6.1-7.3.6)
When fulfilling the positive obligations that the State requires on the basis of art. 2 and 8, there is a need for broadly based insights into science and internationally accepted standards. Among other things, the reports of the IPCC are important in this context. The IPCC is a scientific and intergovernmental organization established in the context of the United Nations in the field of climate science and climate development. In its 2007 report, the IPCC has included a scenario in which global warming is expected to be limited to a maximum of 2 oC. To achieve this objective, the so-called Annex I countries (ie the developed countries, including the Netherlands) must have reduced their emissions by 25-40% in 2020 compared to 1990, and in 2050 by 80-95%.
At the annual climate conferences held under the UN Climate Convention, almost all countries have been regularly informed since 2007 of the need to follow the IPCC scenario and to achieve a 20% reduction in greenhouse gas emissions by 2020. -40%. It has been stated several times by and in the EU that on scientific grounds a reduction of emissions by 30% compared to 1990 is necessary in 2020.
Moreover, in the years after 2007 there has also been a widespread understanding that safe global warming should not be limited to a maximum of 2 oC, but to a maximum of 1.5 oC. The 2015 Paris Agreement therefore explicitly states that the states aim to limit global warming to 1.5 oC. This therefore necessitates an even greater reduction in emissions than previously assumed.
All in all, there is therefore a great deal of consensus about the urgent need for a reduction of at least 25-40% of greenhouse gas emissions by 2020 from the Annex I countries. With the consensus on this objective, the interpretation and application of art. 2 and 8 of the ECHR. The urgent need for a 25-40% reduction in 2020 also applies to the Netherlands individually.
The policy of the State
(see below in 7.4.1-7.5.3)
Both the State and Urgenda are of the opinion that it is necessary to limit the concentration of greenhouse gases in the atmosphere in order to achieve the 2 oC objective or the 1.5 oC objective. But they disagree about the pace at which greenhouse gas emissions must be reduced.
The State’s policy until 2011 was aimed at achieving a 30% reduction in emissions in 2020 compared to 1990. According to the State, this was necessary to remain on a credible path to keep the 2 oC target within reach. to hold.
After 2011, however, the State lowered its 2020 reduction target from a 30% reduction by the Netherlands to a 20% reduction in the EU context. The State intends to accelerate the reduction after 2020 at an accelerated rate to 49% in 2030 and 95% in 2050. Those targets for 2030 and 2050 have since been laid down in the Climate Act. However, the State has not explained that and why a reduction of only 20% in 2020 can be considered justified within the EU context, contrary to the internationally accepted and necessary reduction in 2020 of 25-40%.
There is a broad consensus in climate science and within the international community that as reduction measures are taken later, they must become more drastic and costly to achieve the intended end goal. There is also a greater risk of abrupt climate change because a tipping point is reached. In the light of that generally endorsed insight, it was up to the State to explain that the intended acceleration of the reduction after 2020 will be practically feasible and sufficiently effective to achieve the 2030 and 2050 targets, and thus the 2 oC- and keeping the 1.5 oC goal within reach. However, the State did not do that.
The Court of Appeal has therefore been able to judge that the State must in any case adhere to the internationally deemed objective of a minimum 25% reduction by 2020.
Judicial and political domain
(see below in 8.1-8.3.5)
The State has argued that it is not the task of the judge to make political assessments that are necessary for the decision-making on greenhouse gas reduction.
In the Dutch state system, decision-making on the reduction of greenhouse gas emissions belongs to the government and parliament. They have a great deal of freedom to make the necessary political decisions. It is up to the judge to judge whether the government and parliament have kept their decisions within the limits of the law to which they are bound. These limits stem, among other things, from the ECHR. The Constitution requires the Dutch court to apply the provisions of this treaty. The court must do this in accordance with the interpretation thereof by the ECtHR. This task for the judge to offer legal protection, also against the government, is an essential part of the democratic constitutional state.
The judgment of the court is in accordance with the above. After all, the Court of Appeal has ruled that the policy of the State with regard to the reduction of greenhouse gas emissions clearly lags behind that set out in art. 2 and 8 of the ECHR, to take appropriate measures to protect the residents of the Netherlands against dangerous climate change. Furthermore, the Court of Appeal limited the order given to the State to the lower limit (25%) of the internationally agreed, minimum necessary reduction target for 2020 of 25-40%.
The order given leaves it up to the State to determine with which concrete measures it will comply with that order. If legislative measures are required for this, it is up to the State to assess which specific legislation is desirable and necessary.
In summary, the Supreme Court’s judgment boils down to the fact that the order issued by the court and the court of appeal to the Dutch State to reduce greenhouse gas emissions by at least 25% by the end of 2020 compared to 1990 will be maintained. On the basis of art. 2 and 8 ECHR can and may judge that the State is obliged to achieve that reduction, because of the risk of a dangerous climate change that can also seriously affect the residents of the Netherlands in their right to life and well-being.
Table of contents
1. Process progress
2. Principles and facts (2.1-2.3.2)
(a) Facts (2.1)
(b) Claim of Urgenda and defense of the State (2.2.1-2.2.3)
(c) Judgment of the court (2.3.1)
(d) Judgment of the court (2.3.2)
3. The cassation complaints of the State; method of handling those complaints (3.1-3.6)
4. Principles for the danger and consequences of climate change (4.1-4.8)
5. Require the art. 2 and 8 ECHR the State to take measures? (5.1-5.10)
(a) Meaning of the art. 1, 2 and 8 ECHR; positive treaty obligations (5.2.1-5.3.4)
(b) ECHR explanation criteria; ‘common ground’ (5.4.1-5.4.3)
(c) Art. 13 ECHR (5.5.1-5.5.3)
(d) Are the art. 2 and 8 of the ECHR apply to the global problem of climate change danger? (5.6.1-5.6.4)
(e) Joint responsibility of states and partial responsibility of individual states (5.7.1-5.8)
(f) Can this obligation be based on art. 2 and 8 ECHR can also be invoked in a claim based on art. 3: 305a BW? (5.9.1-5.9.3)
(g) Assessment of cassation complaints (5.10)
6. Starting points for answering the question as to which concrete obligation the foregoing leads to the State (6.1-6.6)
7. The 25-40% target for Annex I countries (7.1-7.6.2)
(a) The degree of international consensus on the 25-40% target (7.2.1-7.2.11)
(b) The 25-40% target for the Netherlands individually (7.3.1-7.3.6)
(c) State policy on measures against climate change (7.4.1-7.4.6)
(d) Should the State adhere to the 25-40% target? (7.5.1-7.5.3)
(e) Assessment of cassation complaints (7.6.1-7.6.2)
8. Permissibility of the given order; political domain (8.1-8.4)
(a) Order for legislation (8.2.1-8.2.7)
(b) Political domain (8.3.1-8.3.5)
(c) Assessment of cassation complaints (8.4)
Appendix: list of abbreviations used
1 Process progress
For the course of the proceedings in factual instances, the Supreme Court refers to:
a. the judgment in case C / 09/456689 / HA ZA 13-1396 of the court of The Hague of 24 June 2015, ECLI: NL: RBDHA: 2015: 7145;
b. the judgment in case 200.178.245 / 01 of the Court of The Hague of 9 October 2018, ECLI: NL: GHDHA: 2018: 2591.
The State has appealed in cassation against the Court’s judgment. Urgenda has submitted a statement of defense for rejection.
The case was explained orally and in writing for the State by its lawyers and orally also by Mr. EHP Brans, lawyer in The Hague. For Urgenda, the case was explained orally by her lawyer and also by JM van den Berg, lawyer in Amsterdam. The lawyers of the State have replicated, the lawyers of Urgenda have duplicated.
The State has objected to the size of the rejoinder from Urgenda. In this case, the Supreme Court sees no reason to set aside the rejoinder. The rejoinder memorandum does not contain any elements that are new to the party debate and to a large extent concerns the repetition and elaboration of what Urgenda has submitted in cassation earlier in its defense. Prior to the oral and written explanation, Urgenda dealt extensively with the cassation complaints in that statement of defense, to which the rules of the cassation procedure in a claim case did not oblige her. The written explanation and the advocacy note of the State partly form a comprehensive response to that defense. In view of all this, sufficient justice has been given to the right to be heard and the size of the rejoinder does not disturb the balance of the debate in cassation.
The conclusion of the deputy Attorney General FF Langemeijer and the Advocate General MH Wissink is to dismiss the appeal in cassation.
The lawyers of the State have responded to this conclusion in writing.
2 Principles and facts
According to rov. 2 of the judgment of the Court of Appeal, are based on the facts that the court has established in court. 2.1-2.78 of its judgment, 1 as well as of the facts that the court of appeal has established in court. 3.1-3.26 and rov. 44 of his judgment. 2 None of the parties challenged those facts in cassation. The Supreme Court is therefore also based on those facts (article 419, paragraph 3, CCP). The most important of these are the following.
Climate change and its consequences
(1) Since the beginning of the industrial revolution, mankind has been using energy on a large scale, mainly from burning fossil fuels (coal, oil and gas). This releases carbon dioxide. This compound of the elements carbon and oxygen is indicated by the chemical formula CO2. The released CO2 is partly emitted into the atmosphere, where it remains present for hundreds of years or longer, and partly absorbed by the ecosystems of forests and oceans. This absorption possibility is becoming less and less due to deforestation and the seawater becoming warmer.
(2) CO2 is the most important greenhouse gas and, together with other greenhouse gases, retains the heat emitted by the earth in the atmosphere. This is called the greenhouse effect. The greenhouse effect becomes stronger as more CO2 enters the atmosphere. This causes the earth to heat up further and further. The climate system responds with delay to greenhouse gas emissions: greenhouse gases that are emitted today have their full warming effect only in thirty to forty years. Other greenhouse gases include methane, nitrous oxide and fluorinated gases.
(3) The ‘parts per million’ unit (hereinafter: ppm) is used to indicate the concentration of greenhouse gases in the atmosphere. The designation ‘ppm CO2 equivalent’ is used to indicate the concentration of all greenhouse gases together, whereby the concentration of greenhouse gases other than CO2 has been converted into CO2 based on the warming effect.
(4) There is a direct, linear relationship between man-made greenhouse gas emissions, caused in part by the burning of fossil fuels, and global warming. The earth is already heated by around 1.1 ºC compared to the average temperature at the start of the industrial revolution. The Court of Appeal assumed that the concentration of greenhouse gases in the atmosphere at the time of its judgment was approximately 401 ppm. In the last decades, worldwide CO2 emissions have increased by 2% annually.
(5) Global warming can be prevented or reduced by reducing the emission of greenhouse gases into the atmosphere. This is called mitigation. In addition, measures can be taken to cope with the effects of climate change, such as raising the dyke for low-lying areas. Taking such measures is called adaptation.
(6) In climate science – that is, climate science and climate change science – and within the international community, there has been a long-standing consensus that the average temperature on earth should not increase by more than 2 ºC compared to the average temperature in the pre-industrial era. If the concentration of greenhouse gases in the atmosphere does not exceed 450 ppm in the year 2100, there is a reasonable chance according to climate science that this objective (hereinafter: the two-degree objective) will be achieved. In recent years, insight has emerged that a safe temperature rise may not exceed 1.5 ºC, with an associated concentration level of greenhouse gases of at most 430 ppm in the year 2100.
(7) There is little room left around the world for greenhouse gas emissions when the current greenhouse gas concentration level (401 ppm) is compared with a maximum concentration level of 430 or 450 ppm in the year 2100. The total remaining space worldwide to still emit greenhouse gases bumping is referred to as the carbon budget. The chance of limiting global warming to a temperature rise of a maximum of 1.5 ºC, is now extremely small.
(8) If the earth warms up by substantially more than 2 ºC compared to the average temperature in the pre-industrial era, this causes, among other things, flooding due to sea level rise, heat stress due to more intensive and longer heat periods, increase of respiratory diseases due to deteriorated air quality , periods of drought (with severe forest fires), increasing spread of infectious diseases, serious flooding due to excessive rainfall and disruption of food production and drinking water supply. Ecosystems, flora and fauna are also affected and loss of biodiversity occurs. Inadequate climate policy will lead to hundreds of thousands of victims in Western Europe in the second half of this century alone.
(9) As global warming progresses, not only do the consequences increase in seriousness. Accumulation of CO2 in the atmosphere can cause the climate change process to reach a tipping point that can lead to abrupt climate change, such that neither man nor nature can properly adjust to it. The risk of such tipping points increases at a steepening rate with a temperature rise between 1 ° C and 2 ° C.
The IPCC reports
(10) In 1988, the United Nations Environment Program (UNEP) and the World Meteorological Organization (WMO) established the Intergovernmental Panel on Climate Change (IPCC) under the auspices of the United Nations. The IPCC focuses on gaining insight into all aspects of climate change through scientific research. It does not conduct research itself, but studies and evaluates, among other things, the most recent scientific and technical information that is available worldwide. The IPCC is not only a scientific but also an intergovernmental organization. 195 countries are members of this, including the Netherlands. Since its establishment, the IPCC has issued five reports (Assessment Reports) with accompanying sub-reports on the state of climate science and on climate developments. In this case, the fourth report from 2007 and the fifth report from 2013-2014 are particularly important.
(11) The Fourth Assessment Report of the IPCC (hereinafter: AR4) from 2007 describes that with a temperature rise of 2 ºC above the level of the pre-industrial era, there is a risk of dangerous, irreversible climate change. After analyzing various reduction scenarios, it is stated in this report that, in order to achieve the maximum 450 ppm scenario in the year 2100, greenhouse gas emissions from the countries listed in Annex I to the UN Climate Convention (including the Netherlands), in the year 2020 must be 25% to 40% lower than in the year 1990.
(12) The Fifth Assessment Report of the IPCC was published in 2013-2014 (hereinafter: AR5). This report found, among other things, that the earth is warming as a result of the increase in the concentration of CO2 in the atmosphere since the beginning of the industrial revolution and that this is caused by human activities, in particular by burning oil, gas and coal and through deforestation. In AR5, the IPCC concluded that if the concentration of greenhouse gases in the atmosphere stabilized at around 450 ppm in 2100, the probability that the global temperature rise would remain below 2 ºC is “likely”, ie more than 66% . In 87% of the scenarios that have been processed in AR5 to achieve this objective, assumptions have been included with regard to so-called negative emissions, ie: withdrawal of CO2 from the atmosphere.
The UN Climate Convention and climate conferences
(13) The UN Climate Convention was established in 1992. 3 The aim of this treaty is to achieve stabilization of the concentrations of greenhouse gases in the atmosphere at a level at which dangerous anthropogenic (man-made) disruption of the climate system is prevented. The parties to the UN Climate Convention are distinguished in Annex I countries and other countries. The Annex I countries are the developed countries, including the Netherlands. According to art. 4 paragraph 2 of the Convention, Annex I countries must take the international lead in combating climate change and its adverse consequences. They have committed themselves to reducing greenhouse gas emissions. They must report periodically on the measures they have taken. The aim is to return to the 1990 emission level.
(14) Art. 7 The UN Climate Convention provides for the Conference of the Parties (hereinafter: COP). The COP is the highest decision-making body within the UN Climate Convention. The decisions of the COP are generally not legally binding. The COP meets annually at climate conferences.
(15) At the climate conference in Kyoto in 1997 (COP-3), the Kyoto Protocol was agreed between a number of Annex I countries, including the Netherlands. In this protocol, reduction targets have been set for the 2008 – 2012 period. According to this protocol, the then member states of the EU were subject to a reduction target of 8% compared to 1990.
(16) The Bali Action Plan was established at the climate conference in Bali in 2007 (COP-13). This recognizes the need for drastic emission reductions, with reference to the AR4 report mentioned above under (11). This reference refers, among other things, to the part of AR4 which states that in order to achieve the target of a maximum concentration of 450 ppm by 2100, the Annex I countries must have their greenhouse gas emissions by 25-40% by 2020 compared to 1990.
(17) The Copenhagen climate conference in 2009 (COP-15) failed to reach an agreement on the follow-up or extension of the Kyoto Protocol.
(18) At the subsequent climate conference in Cancún in 2010 (COP-16), the parties involved in the Cancún Agreements acknowledged as a long-term objective that the temperature of the earth should not rise by more than 2 ºC relative to the average temperature in the pre-industrial era, with a possible tightening to a maximum of 1.5 ºC. They referred in the preamble to the urgency of major emission reduction.
(19) The Parties to the Kyoto Protocol stated in Cancún that the Annex I countries should continue to take the lead in combating climate change and that, in view of AR4, this requires that they as a group reduce their greenhouse gas emissions by 2020 with 25-40% compared to the reference year 1990 (“would require Annex I Parties as a group to reduce emissions in a range or 25-40 per cent below 1990 levels by 2020”). The parties to the Kyoto Protocol have insisted that the Annex I countries increase their level of ambition compared to the commitments they have already made, in view of the bandwidth of 25-40% stated in AR4. In the so-called ‘Cancún pledges’, the EU countries as a group expressed their willingness to reduce 20% by 2020 compared to 1990, with the offer of a 30% reduction on the condition that other countries would set similar reduction targets.
(20) At the 2012 Doha Climate Change Conference (COP-18), all Annex I countries were called upon to raise their reduction targets to at least 25-40% in 2020. An amendment to the Kyoto Protocol was adopted. In it, the EU committed itself to a 20% reduction in 2020 compared to 1990, with the offer to reduce emissions by 30% if other countries accepted similar reduction targets. This condition is not met. The Doha Amendment has not entered into force.
The Paris Agreement
(21) The Paris Agreement in 2015 (COP-21) concluded the Paris Agreement. 4 In this treaty each contracting state is addressed on its own responsibility. The treaty stipulates that global warming must be well below the limit of 2 ºC (“well below 2 ºC”) compared to the average temperature in the pre-industrial era, with the aim of achieving a temperature increase of at most 1 , 5 ºC. Parties must draw up national climate plans, which must be ambitious and whose level of ambition must increase with every new plan.
The UNEP reports for 2013 and 2017
(22) Since 2010, the UNEP mentioned above under (10) has been reporting annually on differences between the desired emission level and the reduction targets promised by the contracting states: the so-called ’emissions gap’. For the third time in a row, UNEP’s 2013 annual report noted that the commitments made by the contracting states were inadequate and that greenhouse gas emissions were rising instead of falling. Furthermore, UNEP notes that the emission targets of the joint Annex I countries fall short of achieving the reduction of 25-40% in 2020, which is mentioned in the AR4 mentioned above under (11). UNEP draws the conclusion that it is becoming less and less likely that the emissions will be low enough in 2020 to achieve the two-degree objective at the lowest possible cost. Although the same temperature targets may ultimately be achieved with later reduction actions, they will be more difficult, more expensive and more risky, according to UNEP.
(23) The 2017 annual report of UNEP states that an increased reduction before 2020 (“enhanced pre-2020 mitigation action”) is more urgent than ever in the light of the Paris Agreement. UNEP notes that if the observed emissions gap has not been made up by 2030, it is extremely unlikely that the two-degree target can still be achieved. That is why, according to UNEP, more ambitious reduction targets for 2020 are needed.
European climate policy
(24) Art. 191 TFEU contains the EU’s environmental objectives. The EU has adopted directives to implement its environmental policy. This includes the so-called ETS directive. ETS stands for ‘Emissions Trading System’. This system means that companies in the ETS sector may only emit greenhouse gases if they surrender allowances for this. These allowances can be bought, sold or saved. The total amount of greenhouse gases that ETS companies are allowed to emit will decrease by 1.74% annually in the period 2013 – 2020, until a reduction of 21% is achieved in 2020 compared to 2005.
(25) The Council of the EU has determined that the EU should achieve a reduction in greenhouse gas emissions of at least 20% in 2020, 40% in 2030 and 80-95% in 2050, measured in each case compared to 1990. Within the EU, based on the so-called Effort Sharing Decision 5 , the 20% reduction target for the non-ETS sector in 2020 means that the Netherlands will achieve a 16% reduction in emissions compared to emissions in 2005.
(26) According to the expectations existing at the time of the Court’s judgment, the EU as a whole in 2020 would actually achieve an emission reduction of 26-27% compared to 1990.
Dutch climate policy and the results thereof
(27) Between 2007 and 2011, based on the ‘Clean and Efficient’ program from 2007, the Netherlands assumed a reduction target of 30% in 2020 compared to 1990. By letter of 12 October 2009, the then Minister of Housing, Spatial Planning and the Environment (VROM) informed the House of Representatives about the negotiating effort of the Netherlands in the context of the climate conference in Copenhagen in 2009 (COP-15). This letter stated, among other things:
“The total of emission reductions that developed countries have offered so far remains insufficient to achieve the 25-40% reduction by 2020, which is needed to stay on a credible path to keep the 2-degree target within reach.”
(28) After 2011, the Dutch reduction target was adjusted to a reduction in the EU context of 20% in 2020, ie for the Netherlands (a) a reduction of 16% in the non-ETS sector and of 21% in the ETS sector, in each case compared to 2005, and (b) a reduction of at least 40% in 2030 and of 80-95% in 2050, each time compared to 1990.
(29) In the 2017 coalition agreement, the government announced that it wants to achieve an emission reduction of at least 49% in 2030 compared to 1990. According to the coalition agreement, the EU reduction target of 40% in 2030 is not sufficient to achieve the two-degree target, let alone the ambition of 1.5 ºC, as laid down in the Paris Agreement.
(30) Dutch CO2 emissions per capita are relatively high compared to other industrialized countries. Regarding emissions, at the time of the Court’s judgment, the Netherlands was in 34th place out of 208 countries. Of the 33 countries with higher emissions, only 9 have higher emissions per capita, including no EU Member State. Of the total Dutch greenhouse gas emissions, 85% consists of CO2. CO2 emissions in the Netherlands have hardly decreased since 1990 and have even increased in recent years (until the Court’s judgment). In the period 2008-2012, the Netherlands achieved an emission reduction in CO2 equivalent of 6.4%. This reduction is due to greenhouse gases other than CO2. During the same period, an emission reduction of 11.8% was achieved in the fifteen largest EU member states and a reduction of 19.2% in the EU as a whole. Moreover, 30-50% of the reduction between 2008 and 2012 in the Netherlands was related to the economic crisis. Without this crisis, emissions during this period would have been considerably higher (and the reduction fewer).
(31) At the time of the Court’s judgment, it was expected that the Netherlands would achieve a reduction of 23% in 2020 and, taking into account an uncertainty margin, 19-27%. The court mentions a considerably lower expectation in its judgment. The difference is largely due to a new calculation method (which is more in line with that of the IPCC, but) which means that the theoretical reduction percentage is reached earlier, although the situation is essentially more serious. The difference is explained by the fact that the calculated emissions in the 1990 base year have been adjusted upwards afterwards.
(b) Claim of Urgenda and defense of the State
Urgenda (‘Urgente Agenda’) is concerned with the development of plans and measures to prevent climate change. Urgenda has the legal form of a foundation. According to its statutes, its aim is to stimulate and accelerate transition processes towards a more sustainable society, starting in the Netherlands.
Urgenda believes that the State is doing too little to prevent dangerous climate change. In this case, she requests an order from the State, insofar as it is important in cassation, that the volume of greenhouse gas emissions in the Netherlands be limited to 40%, or at least 25%, by the end of the year 2020. , will be reduced in relation to the volume in 1990. It sets the claim on the basis of art. 3: 305a of the Dutch Civil Code , which provision makes collective action by interest groups possible. As far as relevant in cassation, it defends the interests of the current residents of the Netherlands (the residents of the Netherlands) who are threatened by dangerous climate change.
In short, Urgenda has based the following on her claim. Greenhouse gas emissions from the Netherlands contribute to a dangerous climate change. The share of Dutch emissions in the global emission level is excessive in both absolute and relative terms (per capita). This means that Dutch emissions, for which the State is ‘systemically responsible’ as the sovereign power, are unlawful, namely in contradiction with the care that befits societies towards those for whom the interests of Urgenda stand up (Article 6: 162 (2)). BW), and also in violation of art. 2 and 8 ECHR. Under national and international law, the State is obliged, in order to prevent dangerous climate change, to reduce the Dutch emission level. This duty of care means that in the Netherlands by 2020 a reduction of greenhouse gas emissions must be achieved by 25% to 40% compared to 1990 emissions, in accordance with the objective stated in AR4 (see 2.1 in (11) for this) ). A reduction of this magnitude is necessary to maintain the prospect of achieving the two-degree objective. It is also the most cost-effective.
The State has conducted the following defenses, among others. The requirements of art. 3: 296 BW (court order) and art. 6: 162 BW (tort). After all, there is no legal obligation of the State to derive from national or international law to take measures to achieve the required reduction target. The objective stated in AR4 does not contain a binding standard. From the art. 2 and 8 ECHR follows no obligation for the State to take (mitigation) measures against climate change. Moreover, the allocation of the demanded reduction order amounts to an inadmissible order to legislate and violates the political freedom of the government and parliament and therefore the system of separation of powers.
(c) Judgment of the court
The court ordered the State to limit or to have the combined volume of annual Dutch greenhouse gas emissions reduced by at least 25% by the end of the year 2020 compared to the level of 1990 To this end, the Court considered, among other things, the following.
From art. 21 Constitution, the ‘no harm’ principle of international law, the UN Climate Convention with associated protocols and art. 191 TFEU with the ETS directive based on it and Effort Sharing Decision, a legal obligation of the State towards Urgenda cannot be derived. (rov. 4.36-4.44 and 4.52)
Urgenda cannot be classified as a direct or indirect victim within the meaning of art. 34 ECHR. Urgenda therefore has no direct appeal to art. 2 and 8 ECHR. (cf. 4.45)
The State can act unlawfully because it breaches its duty of care to prevent dangerous climate change. (rov. 4.52-4.53) The criteria of the Kelderluik judgment 6 and the provisions, principles and regulations mentioned earlier by the court are important for the fulfillment of this duty of care. (rov. 4.54-4.63)
Due to the seriousness of the effects of climate change and the high probability that dangerous climate change will occur without mitigating measures, the State has a duty of care to take mitigation measures. The fact that the Netherlands currently only contributes a small part to the current global greenhouse gas emissions does not alter this. Now that the 450 ppm scenario is at least necessary to prevent dangerous climate change, the Netherlands must take measures to ensure that this scenario can be achieved. (rov. 4.64-4.83)
Postponing mitigation as advocated by the State – less stringent reduction between now and 2030 and strong reduction from 2030 – contributes to a greater extent to the risk of dangerous climate change, and can therefore not be seen as a sufficient and acceptable alternative to the scientifically anchored and recognized higher reduction route of 25-40% in 2020 that fits in with the aforementioned scenario. (4.85)
The State has not stated that a reduction order of 25-40% leads to a disproportionate burden for the Netherlands. On the contrary: the State also argues that an increase in the reduction target is possible. In the event of a reduction below the level of 25-40%, the State falls short in the care it is seeking and therefore acts unlawfully. An obligation to a percentage higher than 25% encroaches on the policy freedom that the State has. (rov. 4.86)
The reduction order demanded by Urgenda does not serve as an order for the State to take certain measures of legislation or policy. In the event that the claim is granted, the State retains full freedom, par excellence, to determine how it complies with that order. (cf. 4,101)
The aspects related to the trias politica do not, in general, constitute an obstacle to the assignment of the advanced order. The restraint that the court applies does not lead to a further restriction than that resulting from the aforementioned policy freedom of the State. (cf. 4,102)
(d) Judgment of the court
The court of appeal has confirmed the court’s judgment. To this end, the court has considered the following, among other things.
For access to the Dutch court, Dutch law is decisive, in the case of Urgenda in these proceedings among other things art. 3: 305a of the Dutch Civil Code, which provides for collective action by interest groups. Now that individuals who fall under the jurisdiction of the State can rely on art that works directly in the Netherlands. 2 and 8 ECHR, Urgenda can also do this on the basis of art. 3: 305a of the Dutch Civil Code. (rov. 36)
It is not in dispute that Urgenda is admissible in its claim insofar as it acts on behalf of the current generation of Dutch people against the emission of greenhouse gases on Dutch territory. It is quite likely that the Dutch people who are currently living, especially but not exclusively the young among them, will face the adverse effects of climate change during their lifetime if global greenhouse gas emissions are not adequately reduced. (rov. 37) Their interests lend themselves to bundling as required for being able to make a claim on the basis of art. 3: 305a BW. (rov. 38)
Art. 2 and 8 ECHR
The State rests on the basis of art. 2 ECHR the positive obligation to protect the lives of citizens within its jurisdiction, while art. 8 ECHR creates the obligation to protect the right to home and private life. This obligation applies to all activities, public and non-public, that can jeopardize the rights protected in this way, and certainly applies to industrial activities that by their nature are dangerous. When the government knows that there is a real and immediately imminent danger, the State must take preventive measures to prevent the damage as much as possible. (rov. 39-43)
Real threat of dangerous climate change
From the established facts and circumstances it follows that there is a real threat of dangerous climate change, so that there is a serious risk that the current generation of residents of the Netherlands will be confronted with a loss of life or a disruption of family life. From the art. 2 and 8 ECHR follows an obligation for the State to offer protection against this real threat. (rov. 44-45)
Is the State acting unlawfully by not reducing by at least 25% by the end of 2020?
The ultimate goal is clear and is not in dispute between the parties. Global greenhouse gas emissions must be halted by 2100. The parties also do not differ on the necessary intermediate position of 80-95% reduction compared to 1990 in 2050, and Urgenda endorses the reduction target of 49% set by the government compared to 1990 in 2030. The dispute between parties focuses on the the question whether the State can be expected to achieve a reduction of at least 25% by the end of 2020 compared to 1990. (rov. 46)
A very significant effort will have to be made between now and 2030 to reach 49% in 2030; much more substantial than the limited effort that the Netherlands has made to date. It is also clear that for the reduction of total emissions over this period it is desirable to start the reduction effort as early as possible. Postponing reduction leads to greater risks for the climate. After all, postponement leads to the emission of greenhouse gases in the meantime, which remain in the atmosphere for a very long time and further contribute to global warming. An even distribution of the reduction effort over the period up to 2030 would mean that the State would aim for a considerably higher reduction in 2020 than 20%. This even distribution forms the basis of the State for the reduction target of 49% in 2030, which is derived linearly from the target of 95% reduction in 2050. If the same line is extended to now, this will result in a reduction target of 28% in 2020 , as the State has confirmed in response to questions from the court. (rov. 47)
The IPCC concluded in AR4 that a concentration level of up to 450 ppm in 2100 is permissible to keep the two-degree target within reach. After analyzing various reduction scenarios, the IPCC has come to the conclusion that to achieve this concentration level, the total greenhouse gas emissions from Annex I countries (to which the Netherlands belongs) should be 25% to 40% lower in 2020 than in 1990. Also in AR5, the IPCC assumes that to achieve the two-degree objective, a concentration level of 450 ppm in 2100 must not be exceeded. (rov. 48)
The possibility of removing CO₂ from the atmosphere in the future with certain techniques – from which AR5 assumes – is very uncertain. Climate scenarios based on such technologies therefore have a low level of reality at the current state of affairs. With this, AR5 may paint a picture that is too rosy and it cannot be assumed, with the State, that the multiple mitigation pathways that the IPCC mentions in AR5 can in practice also lead to the attainment of the two-degree objective. Moreover, it is likely that AR5 did not include any reduction percentages for 2020 because the IPCC’s attention in 2014 focused on targets for 2030. The AR5 report therefore gives no reason to assume that the reduction scenario in AR4 is outdated, and that a reduction of less than 25-40% in 2020 would suffice to achieve the two-degree objective. When assessing whether the State has complied with its duty of care, the Court of Appeal will take as its starting point that an emission reduction of 25-40% in 2020 is necessary to achieve the two-degree objective. (rov. 49)
The 450 ppm scenario and the established need to reduce CO₂ emissions by 25-40% in 2020 are by no means an exaggerated pessimistic starting point when determining the state’s duty of care. It is not certain that the two-degree objective will be achieved with this scenario. Moreover, it has now been recognized in climate science that a safe rise in temperature is more than 1.5 ºC than 2 ºC. (rov. 50)
The IPCC report stating that a 25-40% reduction by the end of 2020 is needed to achieve the two-degree objective (AR4) dates back to 2007. Since then, almost all COPs (in Bali, Cancún, Durban, Doha and Warsaw) to this 25-40% standard, and the Annex I countries have been called upon to align their reduction targets with that. Although this does not establish a legal standard with direct effect, it does confirm that a reduction of 25-40% of CO₂ emissions by 2020 is a minimum necessary to prevent dangerous climate change. (rov. 51)
The Netherlands assumed an own reduction target of 30% in 2020 until 2011. A letter from the Minister of Housing, Spatial Planning and the Environment dated 12 October 2009 shows that the State itself was convinced that a scenario in which less than 25-40% would be reduced by 2020 , for keeping the two-degree objective within reach was not credible. The Dutch reduction target for 2020 was then adjusted downwards. A climate-scientific substantiation has not been provided for this, while it has been established that postponing reductions in the meantime leads to continuing CO₂ emissions, which in turn contributes to further global warming. More specifically, the State has not given reasons why a reduction of only 20% by 2020 (at EU level) should now be considered credible, for example by sketching a scenario showing how – together with the efforts of other countries – with the currently planned deferred reductions can still be achieved with the two-degree objective. The EU also felt that a 30% reduction by 2020 was necessary to prevent dangerous climate change. (rov. 52)
Defending the State
The State argues that if the Netherlands takes a measure that reduces greenhouse gas emissions that fall under the ETS system, a ‘waterbed effect’ will occur. These measures create room in that system for other EU countries to emit more greenhouse gases. Therefore, according to the State, national measures to reduce greenhouse gas emissions within the framework of the ETS system are meaningless. This argument does not hold. Just like the Netherlands, other EU member states have their own responsibility for limiting CO uitstoot emissions as much as possible. It cannot be assumed in advance that the other member states will take less far-reaching measures than the Netherlands. On the contrary, compared to Member States such as Germany, the United Kingdom, Denmark, Sweden and France, the Dutch reduction effort is far behind. (ra. 55 and 56)
In addition, the State pointed to the risk of ‘carbon leakage’, including the State understands the risk that companies relocate their production to other countries where less stringent greenhouse gas reduction obligations apply. However, the State has not substantiated that this risk will actually occur if the Netherlands should step up its efforts to limit greenhouse gas emissions before the end of 2020. (rov. 57)
The State has also argued that adaptation and mitigation are complementary strategies to limit the risks of climate change and that Urgenda does not pay enough attention to the adaptation measures that the State is taking or intends to take. This argument also fails. It is true that adaptation can mitigate the effects of climate change, but it has not been proven or made plausible that the potentially disastrous consequences of excessive global warming can be prevented by this. So although it is certainly up to the State to take adaptation measures, this cannot detract from its obligation to reduce CO2 emissions faster than it intends. (rov. 59)
The State further argued that the emission reduction percentage of 25-40% in 2020 is intended for the Annex I countries as a whole, and therefore cannot be taken as the starting point for the emission reduction that an individual Annex I country such as the Netherlands should achieve. However, the State has not substantiated why a lower emission reduction percentage should apply to the Netherlands than to the Annex I countries as a whole. This is not obvious, assuming a distribution in proportion to GDP per capita, which was taken as a starting point in the EU Effort Sharing Decision for the distribution of the EU’s emission reduction commitment among the Member States. It may be assumed that per capita GDP in the Netherlands is among the highest of the Annex I countries, and in any case it is above the average of those countries. This is also apparent from Annex II of the Effort Sharing Decision, which mentions a reduction percentage for the Netherlands (16% compared to 2005) that is among the highest reduction percentages for EU member states. It can therefore be assumed that what applies to the Annex I countries as a whole should at least also apply to the Netherlands. (rov. 60)
The State has also argued that the Dutch greenhouse gas emissions in an absolute sense, compared to global emissions, are extremely small in size, that the State cannot solve the problem alone and that the world community must cooperate. However, these arguments are not of such a nature as to justify the absence of more effective action. It is true that the Court also recognizes that it is a problem on a global scale and that the State cannot solve this problem on its own, but that does not relieve the State of its obligation to take measures from its territory to the extent that it can, together with the efforts of other states to protect against the dangers of severe climate change. (rov. 61 and 62)
The fact that there is no absolute scientific certainty about the effectiveness of the ordered reduction scenario does not mean that the State is entitled to refrain from taking measures, given the precautionary principle to be observed. The far-reaching plausibility of that effectiveness is sufficient. (rov. 63)
To issue an order, it is sufficient that there is a real threat of danger against which measures must be taken. It is certain that this is the case. In addition, if the opinion of the State were followed, an effective remedy against a global problem such as the present would be lacking. After all, each addressed State could argue that it does not have to take measures as long as other states do not. Such a consequence cannot be accepted, all the more so since it is also not possible for Urgenda to sue all eligible states before the Dutch courts. (rov. 64)
Regarding the appeal to the lack of the required relativity within the meaning of art. 6: 163 of the Dutch Civil Code, the Court of Appeal first of all points out that these proceedings concern an injunction and not an action for damages. The violated standards (art. 2 and 8 of the ECHR) do indeed serve to protect (the followers of) Urgenda. (rov. 65)
The State argues that there should be no problem with the system of separation of powers, because it is not the court, but the democratically legitimized government, that is the appropriate authority to make the policy choices associated with the measures to be taken. This point of view is rejected in the present case, because there is a violation of human rights by the State which necessitates measures, while the reduction order gives the State sufficient scope to fill in how it implements this order. (rov. 67)
The court has correctly considered that Urgenda’s claim is not aimed at enacting legislation (whether in a formal or material sense) and that the State retains complete freedom to determine the manner in which it will execute the demanded order . The order also does not in any way prescribe the content of this legislation. Already for this reason there is no question of an ‘order for legislation’. In addition, the State has not provided sufficient reasons why the execution of the imposed order is only possible through the introduction of formal or material legislation. (rov. 68)
Conclusion of the court
It follows from the above that the State has so far done too little to prevent dangerous climate change and is doing too little to make up for this backlog, at least in the short term (until the end of 2020). Objectives for 2030 and beyond cannot eliminate the risk of a dangerous situation requiring action now being taken. In addition to the risks, the social costs are also important in this regard. As the reduction policy is subsequently adopted, the carbon budget decreases more rapidly and considerably more far-reaching measures must be taken at that later time, as the State acknowledges, in order to ultimately reach the desired level of 95% reduction in 2050. (rov. 71)
The State cannot hide behind the 20% reduction target in 2020 at EU level. In the first place, the EU also believes that a greater reduction in 2020 is necessary from a climate scientific point of view. In addition, the EU as a whole is expected to achieve a reduction of 26-27% in 2020; much higher than the agreed 20%. In addition, the Netherlands as an Annex I country has in the past endorsed the seriousness of the climate situation and, based on climate-scientific arguments in particular, assumed for years a reduction of 25% to 40% by 2020 with a specific policy objective 30% by that time. After 2011, this policy goal has been reduced to 20% by 2020 in the EU context, without scientific justification and despite the increasing awareness of the serious effects of greenhouse gas emissions on global warming. (ground 72)
On the basis of this, the Court of Appeal is of the opinion that the State is based on art. 2 and 8 ECHR based duty of care violates by not wanting to reduce at least 25% by the end of 2020. A reduction of 25% must be regarded as a minimum, whereby recent insights into an even more far-reaching reduction in connection with the 1.5 ° C-degree objective have not been taken into account. There is a real chance that the reduction in 2020 will be (substantially) lower than 25%. Such an uncertainty margin is not acceptable. Now that there are further clear indications that the current measures will not be sufficient to prevent dangerous climate change (that is, regardless of whether the current policy will actually be implemented), the precautionary principle requires that measures be taken that do be safe, or at least be as safe as possible. Such a margin of uncertainty also precludes the very great dangers which a rise in temperature by 2 ° C or 1.5 ° C, let alone a higher rise, entail, which dangers the State has not combated. (rov. 73)
3 The cassation complaints of the State; method of handling those complaints
The cassation of the State consists of nine parts, each of which contains several cassation complaints. The complaints, summarized, address the following.
Parts 1 and 2 are directed against the interpretation that the Court of Appeal has given to art. 2 and 8 ECHR. According to the State, protection can not be derived from these provisions in this case for various reasons, or at least the Court of Appeal has failed to determine that this is indeed the case . According to section 1, the Court of Appeal also disregarded the discretion that the ECtHR leaves to the national states in connection with these provisions.
Section 3 argues that the rights of art. 2 and 8 ECHR do not lend themselves to bundling as is required for being able to submit a claim on the basis of art. 3: 305a BW. The Court of Appeal should therefore have declared Urgenda inadmissible in its claim insofar as it is based on art. 2 and 8 ECHR. According to the section, those provisions only guarantee individual rights and do not protect society as a whole.
Parts 4-8 provide the following. The State is not legally bound by a reduction target of 25% in 2020. This reduction target is not a standard agreed or internationally accepted by the State. In an international and European context, the State is bound by a 20% reduction by 2020 by the EU as a whole. This percentage will be amply achieved by the EU (namely with a reduction of 26 to 27%).
Moreover, the reduction target of 25% in 2020 is not actually necessary to achieve the two-degree target. This necessity does not follow from the reports of the IPCC. The additional reduction ordered by the Netherlands in 2020 has no measurable effect on the global rise in temperature.
Bovendien is de reductiedoelstelling van 25% in 2020 ooit voorgesteld als doelstelling voor een groep rijke landen als geheel (de zogenaamde Annex I-landen waartoe Nederland behoort) en niet als een doelstelling voor een individueel land zoals Nederland. Nederland alleen kan het wereldwijde klimaatprobleem ook niet oplossen. Voorts is de reductiedoelstelling van 25% in 2020 achterhaald door AR5, net als het onderscheid tussen Annex I-landen en andere landen.
Het hof heeft een en ander miskend dan wel met een en ander niet naar behoren rekening gehouden. Bovendien heeft het hof miskend dat het aan de Staat is om te bepalen welk reductiepad hij volgt. Het hof is ten onrechte in de terzake aan de Staat toekomende beoordelingsruimte getreden.
Onderdeel 9 stelt tot slot twee kwesties aan de orde. In de eerste plaats klaagt het dat het door het hof bekrachtigde bevel van de rechtbank neerkomt op een bevel tot wetgeving, welk bevel de rechtspraak van de Hoge Raad niet toelaat. Hiernaast voert dit onderdeel aan dat het hof heeft miskend dat het niet de taak van de rechter is om de politieke afwegingen te maken die nodig zijn voor de besluitvorming over reductie van de uitstoot van broeikasgassen.
Het middel stelt met het vorenstaande verschillende kwesties aan de orde. Die kwesties worden hierna als volgt behandeld. Eerst worden, ter inleiding , het gevaar en de gevolgen van klimaatverandering , zoals door het hof vastgesteld, nader omschreven (zie 4.1-4.8). Daarna wordt de vraag beantwoord of de art. 2 en 8 EVRM de Staat verplichten om maatregelen tegen die dreiging te nemen, zoals het hof heeft geoordeeld (zie 5.1-5.8). Vervolgens komt aan de orde tot welke concrete verplichtingen van de Staat dat kan leiden (zie 6.1-6.6). Daarna wordt besproken of de Staat gebonden is aan de 25-40%-doelstelling die voorkomt in AR4, zoals het hof heeft geoordeeld (zie 7.1-7.5.3). Tot slot wordt ingegaan op de toelaatbaarheid van het door het hof bekrachtigde bevel van de rechtbank (zie 8.1-8.3.5).
4 Uitgangspunten wat betreft het gevaar en de gevolgen van klimaatverandering
Gelet op de door het hof vastgestelde, breed aanvaarde en aan de klimaatwetenschap ontleende inzichten, die tussen partijen niet in geschil zijn, komen de vaststaande feiten met betrekking tot het gevaar en de gevolgen van klimaatverandering, kort weergegeven, op het volgende neer.
De uitstoot van broeikasgassen, mede als gevolg van de verbranding van fossiele brandstoffen waarbij het broeikasgas CO2 vrijkomt, leidt tot een steeds hogere concentratie van die gassen in de atmosfeer. Als gevolg daarvan warmt de aarde op. Die opwarming heeft verschillende schadelijke gevolgen. Zij kan plaatselijk leiden tot extreme hitte, extreme droogte, extreme neerslag of ander extreem weer. Zij heeft voorts tot gevolg dat het ijs van gletsjers en het ijs in en nabij de poolgebieden smelt en dat de zeespiegel daardoor stijgt. Deze gevolgen doen zich voor een deel nu al voor. Ook kan die opwarming leiden tot klimaatomslagen, waarbij het klimaat op aarde of in gebieden op aarde abrupt en ingrijpend verandert (zogeheten ‘tipping points’). Dit alles leidt onder meer tot omvangrijke aantasting van ecosystemen, waardoor bijvoorbeeld de voedselvoorziening in gevaar komt, tot verlies aan grond- en leefgebied en ook tot schade aan de gezondheid en het verlies van mensenlevens.
In de klimaatwetenschap bestaat al geruime tijd een grote mate van consensus dat de opwarming van de aarde beperkt moet blijven tot maximaal 2 ºC en dat dit betekent dat de concentratie van broeikasgassen in de atmosfeer beperkt moet blijven tot maximaal 450 ppm. Inmiddels bestaat in de klimaatwetenschap het inzicht dat een veilige opwarming beperkt is tot maximaal 1,5 ºC en dat dit betekent dat de concentratie van broeikasgassen in de atmosfeer beperkt moet blijven tot maximaal 430 ppm. Boven deze concentraties bestaat in ernstige mate het gevaar dat de hiervoor in 4.2 genoemde gevolgen zich op grote schaal zullen gaan voordoen. Kortheidshalve zal de verwezenlijking van dit gevaar hierna, evenals in het arrest van het hof, worden aangeduid als een gevaarlijke klimaatverandering.
Bij onvoldoende vermindering van de uitstoot van broeikasgassen valt een gevaarlijke klimaatverandering op afzienbare termijn niet uit te sluiten. Blijkens het “Synthesis Report” AR5 van het IPCC uit 2014, dat hoort bij het hiervoor in 2.1 onder (12) genoemde rapport AR5, bestaat het gevaar dat de hiervoor in 4.2 genoemde ‘tipping points’ zich voordoen, reeds bij een opwarming tussen de 1 en 2 °C “at a steepening rate”.
Het vorenstaande wordt, zoals volgt uit de hiervoor in 2.1 onder (13) en verder vermelde feiten, internationaal onder ogen gezien. In 1992 is het VN-Klimaatverdrag tot stand gekomen, dat het terugbrengen van de uitstoot van broeikasgassen ten doel heeft. Sindsdien vinden jaarlijks klimaatconferenties op grond van dit verdrag plaats door het hoogste orgaan onder dat verdrag, de COP, waarin de aangesloten landen vertegenwoordigd zijn. Op die conferenties wordt telkens onderschreven dat vermindering van de uitstoot van broeikasgassen dringend noodzakelijk is en wordt telkens opgeroepen om tot die vermindering over te gaan. Op een aantal conferenties zijn ook concrete afspraken over die vermindering gemaakt. Het hiervoor in 4.3 genoemde inzicht dat de opwarming van de aarde beperkt moet blijven tot maximaal 2 ºC en dat de concentratie van broeikasgassen in de atmosfeer beperkt moet blijven tot maximaal 450 ppm om een gevaarlijke klimaatverandering te voorkomen, is onderschreven door het IPCC en de COP. Het inzicht dat een veilige opwarming beperkt is tot maximaal 1,5 ºC en dat dit betekent dat de concentratie van broeikasgassen in de atmosfeer beperkt moet blijven tot maximaal 430 ppm, is opgenomen in het op het VN-Klimaatverdrag berustende Akkoord van Parijs uit 2015, dat ondertekend is door meer dan 190 landen, waaronder Nederland.
De noodzaak van vermindering van de uitstoot van broeikasgassen wordt steeds dringender. Iedere uitstoot van broeikasgassen leidt tot een verhoging van de concentratie van broeikasgassen in de atmosfeer en draagt dus bij aan het bereiken van de als kritisch aangemerkte grenzen van 450 en 430 ppm. De begrensdheid van de resterende ruimte (het ‘carbon budget’, zie hiervoor in 2.1 onder (7)) betekent dat ieder uitstel van de vermindering van de uitstoot tot gevolg heeft dat de vermindering van uitstoot in de toekomst navenant omvangrijker zal moeten zijn om binnen het resterende carbon budget te blijven.
Het UNEP vermeldt in zijn jaarrapporten het verschil tussen de uitstoot op basis van de door de landen aan de VN opgegeven doelstelling van hun vermindering van uitstoot – waarbij ervan wordt uitgegaan dat die doelstellingen worden gehaald – en de wenselijke uitstoot (de hiervoor in 2.1 onder (22) genoemde ’emissions gap’). In het jaarrapport 2017 van het UNEP is vermeld dat in het licht van het Akkoord van Parijs de reductie van de uitstoot van broeikasgassen nu dringender is dan ooit. Het UNEP merkt op dat als de emissions gap niet is ingehaald tegen 2030, het uiterst onwaarschijnlijk is dat de doelstelling van een maximale opwarming met 2 ºC nog kan worden gerealiseerd.
Het hof heeft aan de hiervoor vermelde feiten in rov. 45 de alleszins begrijpelijke slotsom verbonden dat sprake is “van een reële dreiging van een gevaarlijke klimaatverandering, waardoor er een ernstig risico bestaat dat de huidige generatie ingezetenen zal worden geconfronteerd met verlies van leven en/of verstoring van het gezinsleven”. Het hof heeft voorts vastgesteld (in rov. 37) dat het “zonder meer aannemelijk [is] dat reeds de huidige generatie Nederlanders, met name doch niet uitsluitend de jongeren onder hen, tijdens hun leven te maken zullen krijgen met de nadelige gevolgen van klimaatverandering indien de wereldwijde uitstoot van broeikasgassen niet adequaat wordt teruggedrongen.”
Nederland is partij bij het VN-Klimaatverdrag en het Akkoord van Parijs en de Staat erkent de hiervoor vermelde feiten. De Staat bestrijdt de hiervoor in 4.7 genoemde conclusie van het hof niet en onderschrijft de dringende noodzaak van het nemen van maatregelen om de uitstoot van broeikasgassen te verminderen. De Staat bestrijdt evenmin dat hij gehouden is een bijdrage te leveren aan die vermindering van de uitstoot. De Staat bestrijdt echter wel dat de art. 2 en 8 EVRM hem verplichten tot het nemen van deze maatregelen, zoals het hof heeft geoordeeld, en dat hij op grond van die verdragsbepalingen gehouden is om ervoor te zorgen dat de uitstoot van broeikasgassen per eind 2020 is verminderd met 25% ten opzichte van 1990.
5 Verplichten de art. 2 en 8 EVRM de Staat tot het nemen van maatregelen?
Volgens de Staat volgt uit de art. 2 en 8 EVRM niet dat hij verplicht is om bescherming te bieden tegen de reële dreiging van een gevaarlijke klimaatverandering. De Staat betoogt dat dit gevaar niet voldoende specifiek is om onder de bescherming van de art. 1, 2 en 8 EVRM te vallen. Daartoe voert hij aan dat het gevaar van mondiale aard is, dat wil zeggen zowel een mondiale oorzaak als een mondiale omvang heeft, en bovendien het milieu betreft, dat volgens de Staat als zodanig niet wordt beschermd door het EVRM.
(a) Betekenis van de art. 1, 2 en 8 EVRM; positieve verdragsverplichtingen
Art. 1 EVRM bepaalt dat de verdragsluitende partijen van eenieder die ressorteert onder hun rechtsmacht, de rechten en vrijheden verzekeren die zijn vastgesteld in de Eerste Titel van het Verdrag. De bescherming van het EVRM betreft dus de personen die onder de rechtsmacht van de staten vallen. In het geval van Nederland gaat het daarbij in de eerste plaats, en voor zover in deze zaak van belang, om de ingezetenen van Nederland.
Art. 2 ECHR protects the right to life. According to settled case law of the ECtHR, this provision also includes the positive obligation of a contracting state to take appropriate measures to protect the lives of anyone under its jurisdiction (“take appropriate steps to safeguard the lives of those within its jurisdiction”) . 7 According to that case-law, this obligation applies, inter alia, in the case of dangerous industrial activities, whether carried out by the government itself or by others, and also with regard to natural disasters. The ECtHR has violated art. 2 ECHR adopted with regard to the acts or omissions of a state in the context of a natural or environmental disaster. 8 The obligation to take appropriate measures exists if there is a ‘real and immediate risk’ for people and the state concerned is aware of that danger. In this context, ‘real and immediate risk’ means a danger that is real and immediate. The term ‘immediate’ does not refer to the immediacy of the danger in the sense that there must be a short period of time until its realization, but in the sense that there must be a danger that directly threatens the persons involved. The protection of art. 2 ECHR also looks at dangers that can only be realized in the longer term. 9
Art. 8 ECHR protects the right to respect for private, family and family life. This provision also relates to environmental issues. Although the ECHR does not entail a right to the protection of the living environment in general, in cases where the realization of environmental hazards has a direct impact on private life and is sufficiently serious, protection can be derived from art. 8 ECHR, even without requiring that the health of the person concerned be threatened. According to that case law, art. 8 ECHR in environmental matters the positive obligation of a contracting state to take reasonable and appropriate measures to protect individuals against potentially serious damage to their environment. The ECtHR has violated art in various cases of environmental damage. 8 ECHR adopted. 10 The obligation to take measures exists if there is a risk of serious environmental pollution affecting the well-being of individuals (“may affect individuals well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely ”). That risk does not have to exist in the short term. 11
The positive obligation arising from art. 8 ECHR, according to the ECtHR, overlaps with regard to activities that are dangerous for the environment, largely with those arising from art. 2 ECHR. The case law on the former obligation therefore also applies to the latter obligation. 12 From a state to activities dangerous for the environment on the basis of art. 8 ECHR expects the same measures as those that it should take on the basis of art. 2 ECHR. 13 In the following, the obligations arising from art. 2 and 8 of the ECHR, can therefore also be displayed
The protection of art. 2 and 8 ECHR not only focuses on specific people, but also on society or population as a whole. 14 The latter is also the case when it comes to environmental hazards. 15 For environmental hazards that threaten an entire area, art. 2 and 8 ECHR protection to residents of that area.
The obligation to apply on the basis of art. 2 and 8 ECHR to take appropriate measures includes the obligation on states to take preventive measures against the hazard, even if it is not certain that the hazard will materialize. 16 This is consistent with the precautionary principle. 17 If it is clear that the ‘real and immediate risk’ referred to in 5.2.2 and 5.2.3 above exists, the states have an obligation to take appropriate measures, without being entitled to a margin of appreciation. States are free to choose the measures to be taken, although they must actually be reasonable and appropriate. 18
The obligation based on art. 2 and 8 ECHR to take appropriate measures against an imminent hazard can relate to both so-called mitigation measures (measures to prevent the realization of the hazard) and adaptation measures (measures to mitigate or mitigate the effects of that achievement). According to the case-law of the European Court of Human Rights, which measures are appropriate in the given case depend on the circumstances of that case. 19
The court can investigate whether the measures taken by a state are reasonable and appropriate. The policy that a state adopts when taking measures must be consistent and the state must take the measures on time. A state must take due diligence into account in its policy. 20 The court can check whether the policy pursued meets these requirements. The ECtHR case law has repeatedly ruled that a state’s policy has failed or that a state has insufficiently substantiated that this is not the case. 21 In the Jugheli and Others v Georgia judgment 22 , for example, the ECtHR considers:
“76. The Court reiterates that it is not its task to determine what exactly should have been done in the present situation to reduce the impact of the plant’s activities upon the applicants in a more efficient way. However, it is within the Court’s jurisdiction to assess whether the Government approached the problem with due diligence and gift consideration to all competing interests. In this respect the Court reiterates that the onus is on the State to justify, using detailed and rigorous data, a situation in which certain individuals bear a heavy burden on behalf of the rest of the community (see Fadeyeva, cited above, § 128) . Looking at the present case from this perspective, the Court notes that the Government did not present to the Court any relevant environmental studies or documents informative or their policy towards the plant and the air pollution emanating therefrom that had been affecting the applicants during the period concerned . ”
The art. 2 and 8 ECHR must not lead to imposing an impossible or disproportionate burden on states. 23 If a State has taken reasonable and appropriate measures, the mere fact that those measures have not been able to avert the danger does not mean that it has failed to fulfill its obligation. The obligations arising from art. 2 and 8 ECHR relate to the measures to be taken by a state, not to (guaranteeing) the achievement of the result to be achieved thereby. 24
(b) ECHR explanation criteria; common ground
The ECtHR has consistently held that the provisions of the ECHR must be interpreted and applied in such a way that the rights guaranteed therein are practical and effective. According to the ECtHR, this ‘effectiveness principle’ follows from ‘the object and purpose of the Convention as an instrument for the protection of individual human beings’. 25 This also relates to an application of art. 31 (1) of the Vienna Convention on the Law of Treaties, 26 which stipulates that a treaty must be interpreted in good faith in accordance with the ordinary meaning of its terms in their context and in the light of their object and purpose.
According to the case law of the ECtHR, the interpretation of the ECHR must also take into account relevant rules of international law as referred to in art. 31 (3) (c) of the Vienna Convention on the Law of Treaties. For example, in the Nada / Switzerland judgment, the ECtHR considered: 27
“169. Moreover, the Court reiterates that the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. Account should be tasks, as indicated in Article 31 § 3 (c) of the 1969 Vienna Convention on the Law of Treaties, or “any relevant rules of international law applicable in the relations between the parties”, and in particular the rules concerning the international protection of human rights (…). ”
Furthermore, in accordance with art. 31 (3), opening lines and (b) of the Vienna Convention on the Law of Treaties, the interpretation of treaty provisions must take into account the application practice in the Member States.
In the Demir and Baykara / Turkey ruling 28 , the ECtHR considered in accordance with the above:
“85. The Court, in defining the meaning of terms and notions in the text of the Convention, can and must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs, and the practice of European States reflecting their common values. The consensus emerging from specialized international instruments and from the practice of contracting States may be a relevant consideration for the Court when it interprets the provisions of the Convention in specific cases.
86. In this context, it is not necessary for the respondent State to have ratified the entire collection of instruments that are applicable in respect of the precise subject matter of the case concerned. It will be sufficient for the Court that the relevant international instruments denote a continuous evolution in the norms and principles applied in international law or in the domestic law of the majority of member States of the Council of Europe and show, in a precise area, that there is common ground in modern societies (…). ”
In this context, in accordance with the conclusion of the considerations cited here, the common ground method is used in the interpretation of the ECHR.
According to the case law of the ECtHR, the interpretation and application of the ECHR must furthermore take into account scientific insights and generally accepted standards. 29
(c) Art. 13 ECHR
With the explanation of art. 2 and 8 ECHR is also art. 13 ECHR is important, which means that in the event of a violation of the rights and freedoms of the ECHR, there is a right to an effective remedy for an national authority. According to the case-law of the ECtHR, this provision guarantees at national level the existence of a means of enforcing those rights and freedoms. National law should therefore, in cases where there may be a violation of those rights and freedoms (in the case of an ‘arguable complaint’), provide a legal means to properly challenge them and to receive appropriate provision (‘appropriate relief’). The scope of this obligation depends on the nature of the breach. The substance must be both practically and legally effective. 30
There is an effective remedy in the sense of art. 13 ECHR if the violation can thereby be prevented or terminated or if the remedy offers adequate remedial action for a violation that has already taken place. In the case of more serious violations, the available legal remedies must provide for both, ie both to prevent or end the violation and to redress. 31 National states are therefore required to provide means by which more serious violations can be effectively prevented.
The remedy must provide that the question of whether there is a violation of the rights and freedoms of the ECHR will be examined and assessed by the national court in accordance with the rules of the ECHR and the interpretation that the ECHR has given them. 32 In short: effective legal protection must be provided against possible violations of the rights and freedoms of the ECHR.
(d) Are the art. 2 and 8 of the ECHR apply to the global problem of climate change danger?
Based on art. 93 and 94 Constitution, the Dutch court must apply the binding provisions of the ECHR to everyone. Because the Netherlands with the ECHR is also bound by the jurisdiction of the ECHR (art. 32 ECHR), the Dutch court must start from the interpretation that the ECHR has given to those provisions, or itself to interpret those provisions with application of the ECHR interpretation criteria. 33 The considerations set out above in 5.2.1-5.5.3 must therefore be the starting point for the Dutch court.
Based on the considerations in 5.2.1-5.3.4 above, no other conclusion is possible than that the State on the basis of art. 2 and 8 ECHR would be obliged to take measures against the real threat of dangerous climate change, if this were only a national problem. In view of the considerations set out above in 4.2-4.7, this is after all a ‘real and immediate risk’ as referred to above in 5.2.2 and there is a risk of serious damage to the lives and well-being of residents of the Netherlands. This applies, among other things, to the possibility of a sharp rise in sea level, as a result of which the Netherlands may become uninhabitable. The circumstance that this risk will only be realized in a few decades and does not concern specific (group of) persons but large parts of the population, does not mean that the art. 2 and 8 ECHR would not offer protection against this threat (see above in 5.3.1 and the conclusion of 5.2.2 and 5.2.3). This is in line with the precautionary principle (see above in 5.3.2). Therefore, the existence of a sufficiently real possibility of realizing this risk means that appropriate measures must be taken.
As the State has argued, the ECtHR has not yet made any statements concerning climate change or cases that have the special characteristics that are at stake in climate change. These characteristics are, in short, that it is about the dangers of a worldwide activity – the emission of greenhouse gases all over the world and therefore not just the emissions from Dutch territory -, the consequences of which are also being experienced worldwide, including in the Netherlands. The question is whether the global nature of emissions and their consequences means that no protection can be derived from art. 2 and 8 of the ECHR, so that these provisions do not impose any obligation on the State in this case.
The Supreme Court considers the answer to this question sufficiently clear. He will therefore provide the answer to this question himself and not submit it to the ECtHR for an advisory opinion, as is possible under Protocol No. 16 to the ECHR, which entered into force on 1 June 2019, but not obligated. In addition, both parties have requested the Supreme Court to give a ruling in 2019, with a view to the time at which the court’s order endorsed, the end of 2020.
(e) Joint responsibility of states and partial responsibility of individual states
In the Supreme Court’s opinion, the answer to the question referred to above in 5.6.3 is that the Netherlands, on the basis of art. 2 and 8 ECHR is obliged to do ‘his’ to prevent dangerous climate change, even if it concerns a global problem. There are the following reasons for this.
The UN Climate Convention is based on the idea that climate change is a global problem that must be solved globally. Where greenhouse gas emissions occur from the territory of all countries and all countries suffer damage, action will have to be taken by all countries. All countries will therefore have to do the necessary. The preamble to this treaty states among other things:
“Acknowledging that the global nature of climate change calls for the widest possible cooperation by all countries and their participation in an effective and appropriate international response, in accordance with their common but differentiated responsibilities and respective capabilities and their social and economic conditions, (…) .
Recalling also that States have (…) the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment or other States or areas beyond the limits of national jurisdiction. ”
The aim of the UN Climate Convention is to stabilize the concentrations of greenhouse gases in the atmosphere at a level at which a dangerous, man-made disruption of the climate system is prevented (Article 2). Art. 3 contains various ‘principles’ to achieve this goal. This is how art. 3 paragraph 1 in that the parties “must protect the climate system for present and future generations, on the basis of fairness and in accordance with their joint, but different, responsibilities and different possibilities”. Art. 3, paragraph 3 means that the parties “must take precautionary measures to anticipate, prevent or mitigate the causes of climate change, and to limit the adverse consequences thereof”. And art. 4 states, in short, that all parties will take measures in this regard and develop policy. It follows from these provisions that every state has an obligation to do the necessary in accordance with its specific responsibilities and possibilities.
At the annual climate conferences that have taken place on the basis of the UN Climate Convention since 1992, the aforementioned in 5.7.3 has been further elaborated in various COP decisions. These are in the first place based on an endorsement of the aforementioned insight: all countries must do the necessary. In art. 3 and following of the Paris Agreement of 2015, this has again been laid down in so many words.
This insight corresponds to the so-called ‘no harm’ principle, a generally accepted principle of international law that means that countries cannot harm each other. This is therefore referred to in the preamble to the UN Climate Convention (in the section cited in 5.7.2 above). Countries can be addressed individually on the duty arising from this principle. Applied to greenhouse gas emissions, this means that they can be called upon to provide their share in the reduction of greenhouse gas emissions. This approach justifies partial responsibility: every country is responsible for its part and can therefore be called to account for it.
Deze deelverantwoordelijkheid strookt met hetgeen internationaal en nationaal wordt aangenomen bij handelingen in strijd met het recht waardoor slechts een deel van de oorzaak van de schade in het leven wordt geroepen. Deelverantwoordelijkheid is onder meer in overeenstemming met de Draft Articles on Responsibility of States for Internationally Wrongful Acts, zoals voorgesteld door de International Law Commission van de VN en aangenomen door de General Assembly van de VN. Dit blijkt bijvoorbeeld uit de toelichting op art. 47 lid 1 daarvan, waarin wordt opgemerkt: 34
“6. According to paragraph 1 of article 47, where several States are responsible for the same internationally wrongful act, the responsibility of each State may be invoked in relation to that act. The general rule in international law is that of separate responsibility of a State for its own wrongful acts and paragraph 1 reflects this general rule. (…)
8. Article 47 only addresses the situation of a plurality of responsible States in relation to the same internationally wrongful act. The identification of such an act will depend on the particular primary obligation, and cannot be prescribed in the abstract. Of course, situations can also arise where several States by separate internationally wrongful conduct have contributed to causing the same damage. For example, several States might contribute to polluting a river by the separate discharge of pollutants. (…) In such cases, the responsibility of each participating State is determined individually, on the basis of its own conduct and by reference to its own international obligations.”
Veel landen kennen in hun aansprakelijkheidsrecht regels die hiermee overeenstemmen. 35
Weliswaar brengt het hiervoor in 5.7.3 genoemde art. 3 lid 1 VN-Klimaatverdrag mee dat de verdeling van de tegen klimaatverandering te nemen maatregelen niet louter plaatsvindt op basis van verantwoordelijkheid voor uitstoot door een land in het verleden, en dat ook moet worden gelet op de mogelijkheden die de landen hebben om hun uitstoot te verminderen. Maar dat doet niet eraan af dat het onderliggende principe van deze breed aanvaarde regels steeds is dat, kort gezegd, ‘deelveroorzaking’ ook deelverantwoordelijkheid rechtvaardigt.
Mede gelet op de hiervoor in 4.2 genoemde ernstige gevolgen die een gevaarlijke klimaatverandering heeft, kan bij deze deelverantwoordelijkheid niet het verweer worden aanvaard dat een staat geen verantwoordelijkheid behoeft te nemen omdat andere landen zich niet aan hun deelverantwoordelijkheid houden. Ook het verweer dat het eigen aandeel in de wereldwijde uitstoot van broeikasgassen maar zeer gering is en een vermindering van de uitstoot vanaf het eigen grondgebied weinig verschil op mondiale schaal maakt, kan niet worden aanvaard. Aanvaarding van deze verweren zou immers ertoe leiden dat een land zich eenvoudig aan zijn deelverantwoordelijkheid zou kunnen onttrekken door te wijzen op andere landen of op zijn geringe aandeel. Als daarentegen dit verweer is uitgesloten, kan ieder land effectief worden aangesproken op zijn aandeel in de uitstoot en is de kans het grootst dat alle landen ook daadwerkelijk hun bijdrage leveren, overeenkomstig de beginselen die zijn neergelegd in de hiervoor in 5.7.2 geciteerde preambule van het VN-Klimaatverdrag.
In dit verband is nog van belang dat, blijkens hetgeen hiervoor in 4.6 is overwogen over het carbon budget, iedere reductie van de uitstoot van broeikasgassen een positief effect heeft op het tegengaan van een gevaarlijke klimaatverandering. Iedere reductie betekent immers dat meer ruimte overblijft in het carbon budget. Het verweer dat een plicht van de individuele staten om de uitstoot van broeikasgassen te verminderen, niet helpt omdat andere landen toch doorgaan met hun uitstoot, gaat ook om deze reden niet op: geen enkele reductie is verwaarloosbaar. 36
Klimaatverandering bedreigt mensenrechten, zoals volgt uit hetgeen hiervoor in 5.6.2 is overwogen. Dit wordt ook buiten het verband van de Raad van Europa internationaal erkend. 37 Om een behoorlijke bescherming te garanderen tegen de bedreiging van die rechten als gevolg van klimaatverandering, moet de mogelijkheid bestaan om ook met betrekking tot de hiervoor genoemde deelverantwoordelijkheid een beroep op die rechten te kunnen doen jegens individuele staten. Dit strookt met het hiervoor in 5.4.1 genoemde effectiviteitsbeginsel dat het EHRM hanteert bij de uitleg van het EVRM, en met het hiervoor in 5.5.1-5.5.3 genoemde, door art. 13 EVRM gewaarborgde recht op effectieve rechtsbescherming.
Gelet op het hiervoor in 5.7.2-5.7.9 overwogene, dienen naar het oordeel van de Hoge Raad de art. 2 en 8 EVRM met betrekking tot het gevaar van klimaatverandering aldus te worden uitgelegd dat deze bepalingen de verdragsstaten verplichten om tegen dat gevaar ‘het hunne’ te doen. Dit vormt immers, zowel gelet op de hiervoor in 4.2-4.7 vermelde feiten, als gelet op de individuele verantwoordelijkheid van de verdragsstaten, een invulling van de in die bepalingen neergelegde positieve verplichtingen die overeenstemt met de hiervoor in 5.2.1-5.3.3 vermelde inhoud en strekking daarvan. Deze uitleg is in overeenstemming met de hiervoor in 5.4.1-5.4.3 vermelde maatstaven die het EHRM bij de uitleg van het EVRM hanteert en die ook de Hoge Raad bij die uitleg dient te hanteren.
(f) Kan deze verplichting op grond van de art. 2 en 8 EVRM ook worden ingeroepen bij een vordering op grond van art. 3:305a BW?
Uit het voorgaande volgt dat de Staat, zoals het hof heeft geoordeeld, op grond van de art. 2 en 8 EVRM verplicht is om, overeenkomstig zijn aandeel zoals hiervoor in 5.8 bedoeld, passende maatregelen te nemen tegen de dreiging van een gevaarlijke klimaatverandering.
Urgenda kan als belangenorganisatie die in dit geding op de voet van art. 3:305a BW opkomt voor de belangen van de ingezetenen van Nederland jegens wie de hiervoor in 5.9.1 bedoelde verplichting geldt, een beroep doen op deze verplichting. De hierbij aan de orde zijnde belangen van die ingezetenen zijn immers voldoende gelijksoortig en lenen zich dan ook voor bundeling, zodat een efficiënte en effectieve rechtsbescherming ten behoeve van hen wordt bevorderd. 38 Juist bij milieubelangen zoals de onderhavige is rechtsbescherming door een dergelijke bundeling van belangen bij uitstek efficiënt en effectief. 39 Dit is ook in overeenstemming met art. 9 lid 3 in verbinding met art. 2 lid 5 van het Verdrag van Aarhus, 40 dat belangenorganisaties toegang tot de rechter garandeert om op te komen tegen de schending van het milieurecht, en in overeenstemming met art. 13 EVRM (zie hiervoor in 5.5.1-5.5.3).
Zoals het hof terecht heeft geoordeeld in rov. 35, doet aan de procesbevoegdheid van Urgenda niet af dat Urgenda volgens art. 34 EVRM geen klachtrecht heeft bij het EHRM nu zij zelf geen potentieel slachtoffer is van de onderhavige dreigende inbreuk op de art. 2 en 8 EVRM. Dat ontneemt Urgenda immers niet de bevoegdheid om overeenkomstig het Nederlandse recht een vordering in te stellen op de voet van art. 3:305a BW ten behoeve van de ingezetenen die wel een dergelijk slachtoffer zijn.
(g) Beoordeling van cassatieklachten
Op het vorenstaande stuiten de klachten van de onderdelen 1-3 af. Dat geldt ook voor de klachten van onderdelen 4-8, voor zover die betrekking hebben op het oordeel van het hof dat de art. 2 en 8 EVRM voor de Staat de plicht meebrengen om maatregelen te nemen tegen een gevaarlijke klimaatverandering.
6. Uitgangspunten bij beantwoording van de vraag tot welke concrete verplichting het voorgaande voor de Staat leidt
De Staat is, zoals hiervoor is overwogen, op grond van de art. 2 en 8 EVRM jegens de ingezetenen van Nederland gehouden om, overeenkomstig zijn aandeel als hiervoor in 5.8 bedoeld, passende maatregelen te nemen om de uitstoot van broeikasgassen vanaf het Nederlandse grondgebied te beperken. Daarmee is echter nog niet de vraag beantwoord wat deze verplichting van de Staat concreet inhoudt.
Het antwoord op deze vraag behoort in beginsel tot het politieke domein, zowel internationaal als nationaal. Staten zullen onderling afspraken moeten maken over ieders aandeel in de beperking van de uitstoot van broeikasgassen en zij zullen de in dit verband noodzakelijke keuzes en afwegingen moeten maken. Dergelijke afspraken zijn ook gemaakt, in het VN-Klimaatverdrag, maar slechts in de vorm van de hiervoor in 5.7.3 genoemde algemene verplichtingen en beginselen als vermeld in de art. 3 en 4 daarvan. Die algemene verplichtingen en beginselen komen erop neer dat een billijke verdeling moet plaatsvinden, waarbij rekening wordt gehouden met de verantwoordelijkheid en staat van ontwikkeling van de individuele landen. De op de diverse klimaatconferenties gemaakte afspraken om de uitstoot te beperken, zijn – om voor de hand liggende (internationaal-)politieke redenen, die deels betrekking hebben op onderhandelingsstrategie – op zichzelf juridisch niet bindend.
In het Nederlandse staatsbestel behoort het maken van de hiervoor in 6.2 genoemde afspraken tot de bevoegdheid van de regering, daarbij gecontroleerd door het parlement. Nederland kan ook zonder (bindende) internationale afspraken besluiten tot vermindering van de uitstoot van broeikasgassen vanaf het Nederlandse grondgebied. Nederland is daartoe, zoals hiervoor in 5.9.1 is overwogen, ook verplicht. Hoewel de vaststelling van het aandeel dat Nederland moet leveren in de vermindering van de uitstoot van broeikasgassen, ook in dat kader in beginsel aan de regering en het parlement is, kan de rechter wel beoordelen of de Staat minder maatregelen neemt dan overeenkomt met hetgeen evident de ondergrens van zijn aandeel is in de maatregelen die wereldwijd tegen een gevaarlijke klimaatverandering moeten worden genomen. Het is bijvoorbeeld duidelijk, gelet op hetgeen hiervoor in 5.7.2-5.8 is overwogen, dat de Staat in elk geval niet helemaal niets kan doen en dat de rechter kan uitspreken dat de Staat in strijd handelt met zijn hiervoor in 5.9.1 genoemde verplichting indien hij niets doet.
Onder omstandigheden kan voorts sprake zijn van zodanig duidelijke opvattingen, afspraken en/of consensus in internationaal verband over de verdeling van maatregelen over landen, dat de rechter kan vaststellen wat in elk geval, naar zeer breed gedragen en mede in de klimaatwetenschap gefundeerde opvatting van staten en internationale organisaties, is aan te merken als de minimale ‘fair share’ van de Staat. Op grond van de hiervoor in 5.4.2 en 5.4.3 genoemde maatstaven (waaronder de ‘common ground-methode’), die de Nederlandse rechter gehouden is toe te passen bij de uitleg van het EVRM (zie hiervoor in 5.6.1), is de rechter dan verplicht tot die vaststelling over te gaan en daaraan gevolgen te verbinden bij zijn oordeel over de omvang van de positieve verplichtingen van de Staat. Uit de hiervoor in 5.4.2 genoemde rechtspraak van het EHRM volgt dat bij deze vaststelling onder omstandigheden ook betekenis kan toekomen aan afspraken en regels die op zichzelf niet bindend zijn. Dit gebeurt dan op de grond dat deze regels en afspraken de uitdrukking vormen van een zeer breed gedragen opvatting of inzicht en daarom van belang zijn voor de invulling en toepassing van de positieve verplichtingen van de Staat op grond van de art. 2 en 8 EVRM.
Het hiervoor in 5.5.1-5.5.3 genoemde recht op een effectieve rechtsbescherming van art. 13 EVRM brengt in een geval als dit mee dat de rechter moet nagaan of het mogelijk is om daadwerkelijk rechtsbescherming te verlenen, door te onderzoeken of voldoende objectieve gronden bestaan waaraan in het gegeven geval een concrete norm kan worden ontleend.
Voorts kan de rechter beoordelen of de Staat met betrekking tot de dreiging van een gevaarlijke klimaatverandering zijn hiervoor in 5.3.3 genoemde plicht op grond van de art. 2 en 8 EVRM nakomt om due diligence in acht te nemen en een geschikt en consistent beleid te voeren (‘good governance’). Ook uit deze plicht kan onder omstandigheden de verplichting tot het nemen van maatregelen met een bepaalde omvang of inhoud voortvloeien. Voorts brengt deze plicht mee dat de Staat onder omstandigheden behoorlijk moet motiveren dat zijn beleid aan de te stellen eisen voldoet, dat wil zeggen dat hij een beleid voert waarbij hij boven de ondergrens van zijn ‘fair share’ blijft.
Bij de vaststelling van hetgeen waartoe de Staat minimaal is gehouden, past de rechter terughoudendheid, zeker als daarbij regels of afspraken worden betrokken die op zichzelf niet bindend zijn. Alleen in duidelijke gevallen kan de rechter daarom op de hiervoor in 6.3-6.5 genoemde gronden oordelen dat voor de Staat een rechtsplicht tot het nemen van bepaalde maatregelen bestaat.
7 De 25-40%-doelstelling voor Annex I-landen
Inzet van deze procedure is eerst en vooral of de voor de Annex I-landen als doelstelling geformuleerde reductie van 25% tot 40% van de uitstoot van broeikasgassen in 2020 ten opzichte van 1990, die ontleend is aan AR4 (hierna: de 25-40%-doelstelling), een daarmee overeenstemmende verplichting oplevert voor de Staat. De Staat voert terecht aan dat deze doelstelling op zichzelf geen bindende regel of afspraak is. De vraag is dus of deze doelstelling de Staat desalniettemin bindt op een of meer van de hiervoor in 6.3-6.5 vermelde gronden.
The first question that needs to be answered in this context is (a) to what extent there is support within the international community for the 25-40% target . This question will be discussed below in 7.2.1-7.2.11. The next question is (b) whether this objective also applies to the Netherlands as an individual country. This question will be discussed below in 7.3.1-7.3.6. Thereafter (c), in 7.4.1-7.4.6, the policy pursued by the State to combat dangerous climate change is discussed. Finally (d) in 7.5.1-7.5.3 the question is answered whether it follows from all of this that the Netherlands is obliged to meet the 25-40% target, as the court and court have ruled.
All this is based on the facts established by the court.
(a) The degree of international consensus on the 25-40% target
The 25-40% target is part of a 2007 IPCC scenario in AR4 for a worldwide reduction in greenhouse gas emissions. 41 This scenario provides that the Annex I countries achieve a reduction in greenhouse gas emissions from 25% to 40% in 2020 and from 80% to 95% in 2050, both compared to emissions in 1990. The distribution of measures on Annex I countries and other countries in this scenario is based on the principles of art. 3 and 4 UN Climate Convention. The scenario is written for the objective of a maximum concentration of greenhouse gases in the atmosphere of 450 ppm in 2100. That is the concentration where global warming is expected to be limited to a maximum of 2 ºC. When AR4 was established, it was assumed that this is probably the critical limit above which there is a risk of dangerous climate change. The scenario offers a considerable chance of not exceeding the limit of a warming of more than 2 ºC.
The Bali Action Plan, which came into being at the climate conference in Bali in 2007 (COP-13), has endorsed that a far-reaching reduction in greenhouse gas emissions is necessary to prevent dangerous climate change. Reference was made, among other things, to the scenario referred to above in 7.2.1. It should be noted here that decisions are often taken at climate conferences on the basis of consensus.
At the climate conference in Cancún in 2010 (COP-16), the countries that are parties to the Kyoto Protocol made a decision whose preamble expresses, among other things, that, in view of the findings in AR4, the Annex I countries as a group to reduce their greenhouse gas emissions by 25% to 40% in 2020 compared to 1990:
“Also recognizing that the contribution of Working Group III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change, Climate Change 2007: Mitigation of Climate Change, indicates that achieving the lowest levels assessed by the Intergovernmental Panel on Climate Change to date and its corresponding potential damage limitation would require Annex I Parties as a group to reduce emissions in a range of 25–40 per cent below 1990 levels by 2020, through means that may be available to these Parties to reach their emission reduction targets, (…) ”
In the same decision, the parties to the Kyoto Protocol also insisted that the Annex I countries raise their level of ambition to achieve the AR4 target individually or as a group:
“4. Urges Annex I Parties to raise the level of ambition of the emission reductions to be achieved by thematically or jointly, with a view to reducing their aggregate level of emissions or greenhouse gases in accordance with the range indicated by Working Group III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change, Climate Change 2007: Mitigation of Climate Change, and taking into account the quantitative implications of the use of land use, land use change and forestry activities, emissions trading and project-based mechanism and the carry – about units from the first to the second commitment period; (…). ”
At the 2011 Durban climate conference (COP-17), these countries again took a decision, the preamble expressing so explicitly that Annex I countries have the objective of reducing their total emissions by at least 25% by 2020 up to 40% compared to 1990:
“Aiming to ensure that aggregate emissions of greenhouse gases by Parties included in Annex I are reduced by at least 25–40 per cent below 1990 levels by 2020, noting in this regard the relevance of the review referred to in Chapter V or decision 1 / CP.16 to be closed by 2015, (…) ”
Also at the climate conference in Doha in 2012 (COP-18), a decision by the COP of countries that are parties to the Kyoto Protocol explicitly stated the need for a reduction of this size. The countries included for the first time in a decision themselves that the Annex I countries ‘in order to increase the ambition of its commitment’ should strive to emit at least 25-40% less greenhouse gases by 2020 compared to 1990 emissions .
The need for a reduction of this size has also been expressed at the climate conferences in Warsaw, Lima and Paris in 2013, 2014 and 2015 (COP-19, COP-20 and COP-21). At these conferences, this necessity has been repeatedly endorsed in decisions, by reference to the Doha Amendment or to the decisions taken at previous conferences. The preamble to the COP decision to adopt the Paris Agreement emphasizes the urgency of achieving this reduction.
The climate conferences after 2015 have no longer explicitly addressed or referred to the reduction target for 2020 of 25-40%. At those conferences, however, the need for a sufficient reduction of greenhouse gas emissions has always been emphasized even before and in 2020.
Like the court in rov. 49, the 25-40% target, contrary to what the State argues, is not outdated by AR5 from 2013-2014. This report also assumes an objective of a maximum concentration of greenhouse gases in the atmosphere of 450 ppm in 2100 as part of the objective of global warming with a maximum of 2 ºC. AR5 no longer addresses 2020. This report focuses on later years, namely 2030 and in particular 2050 and 2100, and no longer contains any objectives for 2020. The 2014 COP decisions referred to in 7.2.3 above and 2015 dating from after AR5, reference is still made to the need for a reduction in greenhouse gas emissions from Annex I countries from 25% to 40% in 2020 in accordance with AR4.
In AR5, the distinction between Annex I countries and other countries included in the UN Climate Convention has been dropped, because now other countries than Annex I countries must be counted among the developed countries. However, it follows from the above that, contrary to what the State claims, this does not mean that the reduction scenario of AR4 for 2020 is outdated.
AR5 does, however, contain new scenarios to achieve the necessary reduction of the concentration of greenhouse gases in 2050 and 2100. These are to a large extent based on the premise that insufficient reductions in greenhouse gas emissions will occur, and that the concentration of greenhouse gases will therefore have to be reduced by taking measures to remove these gases from the atmosphere (see 2.1 below). (12)). However, it is certain that there are currently no techniques that can be used on a sufficiently large scale. At the moment, these new scenarios can, like the court in rov. 49 has not taken the policy as a starting point without taking irresponsible risks. Taking such risks would run counter to the precautionary principle that when applying Art. 2 and 8 ECHR and art. 3 paragraph 3 The UN Climate Convention must be taken into consideration (see 5.3.2 and 5.7.3). It does not therefore appear that these new scenarios were taken as the basis for subsequent decisions at climate conferences.
The finding of the court that the 25-40% target has not been overtaken by AR5 is therefore understandable and serves as a point of departure in cassation.
The EU has also assumed the need for the AR4 scenario mentioned above in 7.2.1 . Various EU bodies – the Council, the Commission and the Parliament – have argued that on scientific grounds 2020 requires a 30% reduction in emissions compared to 1990. At the climate conference in Cancún in 2010, the EU offered to commit itself to reducing EU emissions by this percentage in 2020 if other developed countries, among others, were to commit to a similar reduction. The following was noted on behalf of the EU: 42
“10. The EU and its 27 member states wished to reconfirm their commitment to a negotiating process aimed at achieving the strategic objective of limiting the increase in global average temperature to below 2 ° C above pre-industrial levels. Meeting that objective requires the level of global GHG emissions to peak by 2020 at the latest, to be reduced by at least 50 per cent compared to 1990 levels by 2050 and to continue to decline thereafter. To this end, and in accordance with the findings of the Intergovernmental Panel on Climate Change, developed countries as a group should reduce their GHG emissions to below 1990 levels through domestic and complementary international efforts by 25 to 40 per cent by 2020 and by 80 to 95 per cent by 2050, while developing countries as a group should achieve a substantial deviation below the currently predicted rate of growth in emissions, in the order of 15 to 30 per cent by 2020. The EU and its 27 member states are fully committed to continuing to negotiate with the other Parties, with a view to concluding as soon as possible within the United Nations framework a legally binding international agreement for the period commencing 1 January 2013. ”
In the event that this condition is not met – which has been shown to be the case – the EU has committed itself to a 20% reduction by 2020. However, the EU is expected to achieve a reduction of 26-27% in 2020 compared to 1990.
It follows from the foregoing that there is a high degree of consensus within the international community about the need, as stated in AR4, for a reduction in greenhouse gas emissions by (at least) the Annex I countries, from 25% to 40% in 2020, in order to keep global warming limited to – at the time of AR4 – a maximum of 2 ºC .
After 2007, when AR4 was established, a great deal of consensus emerged in climate science and in the international community about the need for even greater reductions. As stated in 4.3 above, it has been recognized for some years that global warming should not be limited to a maximum of 2 ºC to prevent dangerous climate change, but to a maximum of 1.5 ºC. The 2015 Paris Agreement therefore explicitly states that the states aim to limit global warming to 1.5 ºC, “recognizing that this would significantly reduce the risks and consequences of climate change” (Article 2 (1), opening words and under a of the Agreement). This necessitates a greater reduction in greenhouse gas emissions than is necessary for an objective of a maximum of 2 ºC.
With reference to the carbon budget and the emissions gap described above in the UNEP’s 2017 annual report , it is stated that, in the light of the Paris Agreement, the reduction of greenhouse gas emissions is more urgent than ever. UNEP notes that if the emissions gap is not caught up by 2030, it is extremely unlikely that the two-degree target can still be achieved. Even if the reduction targets that are the basis of the Paris Agreement are fully met, the carbon budget that is still available within the framework of the two-degree target will be used up to 80% by 2030. On the basis of a 1.5 ºC objective, the carbon budget is then completely used up. That is why, according to UNEP, more ambitious objectives are needed for the year 2020. UNEP concludes that “later-action scenarios may not be feasible in practice and, as a result, temperature targets could be missed” and that “later-action scenarios pose greater risks or climate impacts ”. 43
With regard to the foregoing, it must still be taken into account that , as the Court of Appeal has established in cassation undisputed in court. 63 , the objectives of a maximum of 1.5 ºC or 2 ºC and the associated concentrations of a maximum of 430 or 450 ppm are based on estimates. It is therefore possible that even with less global warming and a lower concentration of greenhouse gases, a dangerous climate change will already take place, for example because a ‘tipping point’ is reached or because the melting of ice takes place at a faster rate (see 4.4 in this regard) ). The precautionary principle therefore implies that more far-reaching measures must be taken to reduce greenhouse gas emissions than less far-reaching measures.
From what was considered above in 7.2.8-7.2.10 it follows once again that there is a great deal of international consensus on the urgent need for a reduction of at least 25-40% of greenhouse gas emissions in 2020 compared to 1990 by the Annex I countries, in order to at least be able to achieve the maximally justified two-degree objective. This large degree of consensus can be regarded as ‘common ground’ within the meaning of the case law of the ECtHR mentioned above in 5.4.2, which according to that case law must be taken into account when interpreting and applying the ECHR.
(b) The 25-40% target for the Netherlands individually
The State has argued that the 25-40% target only applies to the Annex I countries as a group and therefore not to each of those countries individually. According to the State, this objective would therefore not apply to him individually. In addition, the State has argued that the EU as a whole has committed itself to a 20% reduction in greenhouse gas emissions by 2020 (see above in 7.2.6) and that it has been agreed at EU level that the Netherlands will contribute to this through its emissions of to reduce greenhouse gases by 21% in 2020 for the ETS sector and by 16% for the non-ETS sector, both compared to 2005. According to the State, it fulfills all its obligations by making these contributions.
In itself it is correct that the 25-40% target is included in AR4 for the Annex I countries as a group. However, as is apparent from the considerations in 5.7.3 and 5.7.4 above, the UN Climate Convention and the Paris Agreement both assume individual responsibility of states. The objective of AR4 therefore also applies in principle to the individual states within the group of Annex I countries. It is clear from what is considered below in 7.4.1 that the State itself understood that objective. Both the UN Climate Convention and the Paris Agreement provide that states can work together and conclude an agreement whereby they jointly reduce their emissions, and where one can do more than the other (Article 4 (2) (a), last sentence, UN Climate Convention and Article 4 (16 and 17, Paris Agreement). However, the State has not argued that such an agreement has been concluded by it with regard to the 25-40% target of AR4.
The reference referred to in 7.3.1 by the State to the agreements in the EU context does not have the purpose that such an agreement has been concluded in the EU context. The State only refers to those agreements because, in its opinion, these are the only standards that require it to achieve a specific reduction in greenhouse gas emissions. However, that argument fails to appreciate that the State, as considered above in 5.8 and 6.3-6.5, also on the basis of art. 2 and 8 of the ECHR may be required to achieve such a reduction, whereby the consensus referred to in 7.2.11 is important.
Moreover, as far as it appears in this case, the aforementioned agreements at EU level do not have the purpose of replacing the obligations of the individual EU member states under the UN Climate Treaty. The EU set its own reduction target at the 2010 climate conference in Cancún because it is a party to the UN Climate Change Convention on its own behalf. Pursuant to the agreements made within the EU within that framework regarding the distribution of measures that are necessary to make the EU achieve this reduction target, the reduction obligations set out in 7.3.1 above apply to the Netherlands. However, these agreements do not affect the individual responsibility of the Union States for any other reason. The Effort Sharing Decision therefore states in the preamble to (17) that this decision does not preclude stricter national objectives. This also follows from art. 193 TFEU.
In addition, the EU itself has said it considers a 30% reduction in 2020 to be necessary and that the EU as a whole is expected to achieve a reduction of 26-27% in 2020 compared to 1990, more than the minimum target of 25% of the AR4 scenario and considerably more than the 20% reduction promised by the EU at the 2010 Cancún climate conference.
In addition, the court has in rov. 60 rightly held that it is also not obvious that the Netherlands as an Annex I country would have a lower reduction percentage than for the Annex I countries as a whole. Like the court in rov. 66, the Netherlands is one of the countries with very high greenhouse gas emissions per capita. With the aforementioned agreements at EU level, a reduction percentage has therefore been agreed for the Netherlands which is among the highest reduction percentages that apply to the EU member states (Annex II of the Effort Sharing Decision). It can be assumed that this high percentage corresponds to the possibilities and responsibilities of the Netherlands. Like the court in rov. 60, the State has not substantiated why a lower percentage should apply to him.
In section 8.2.3, the State complains that the Court of Appeal has ignored its statement that it is contributing to restrictions on global greenhouse gas emissions by making knowledge and financial resources available to developing countries, with which these countries can take mitigation and adaptation measures. However, he has not worked out this statement. Among other things, the State has not argued that this contribution achieves a reduction in greenhouse gas emissions, and that this must be taken into account when determining which objective applies to it and whether it achieves the objective applicable to it. 44 That complaint therefore fails.
In view of the above, the Court of Appeal has rightly ruled that the urgent need for a reduction of 25-40% in 2020 also applies to the Netherlands individually.
(c) The policy of the State with regard to measures against climate change
As considered in 4.8 above, the State endorses the need for a maximum concentration of greenhouse gases in the atmosphere of 430 or 450 ppm by 2100, whereby global warming is expected to be limited to a maximum of 1.5 ºC or 2 ºC. In connection with this, the State has also endorsed the objectives of the AR4 scenario. With regard to the objectives of that scenario of an 80% to 95% reduction in 2050 and of 450 ppm in 2100 (now 430 ppm in 2100), he still does so. For the year 2020, the State assumed until 2011 a reduction target of 30%. According to the letter of 12 October 2009 from the Minister of Housing, Spatial Planning and the Environment referred to in 2.1 under (27) above, the State, like the EU (see above in 7.2.6 and 7.3.3), was of the opinion that a 25% reduction to 40% in 2020 is needed to stay on a credible trajectory to keep the 2ºC target within reach.
After 2011, the State lowered its 2020 target down to the 20% reduction in the EU context referred to in 7.3.1 above. In this procedure, the State argues that achieving a reduction of 25% to 40% in 2020 (on closer inspection) is not necessary because an accelerated reduction of greenhouse gas emissions in the Netherlands after 2020 can achieve the same result. The State proposes to have this accelerated reduction take place after 2020 and to prefer this reduction path to the AR4 scenario. The question is, however, whether an accelerated reduction in greenhouse gas emissions in the Netherlands after 2020 can indeed achieve the same result. In this context, the following facts taken into account by the court are important.
Every emission of greenhouse gases leads to a decrease in the carbon budget still available (see also 4.6 for this). Any postponement of the reduction in emissions therefore means that the reduction of emissions in the future will have to be increasingly large in order to be able to make up for the postponement both in time and in size. This means that with each postponement of the reduction of emissions, the reduction measures to be taken at a later date must, in principle, become increasingly radical and costly to achieve the intended result, and will also be more risky. The UNEP has already warned about this in its 2013 annual report (see for this in 2.1 under (22)).
After AR4, insight has emerged that in order to prevent dangerous climate change, even greater reductions in greenhouse gas emissions are necessary in the short term, and that this need is becoming increasingly urgent, both before 2020 and in the subsequent period until 2030 ( also see above in 7.2.8-7.2.9). Also according to the Netherlands Environmental Assessment Agency (PBL) – which is an independent research institute that is part of the Ministry of Infrastructure and the Environment – a policy that goes well beyond the current policy of the countries concerned. According to the PBL (in a report from 2016), Dutch policy must also be tightened up in the short term to comply with the Paris Agreement.
The State acknowledges the aforementioned facts in 7.4.3 (judgment 71 of the Court’s judgment) and does not dispute the aforementioned facts in 7.4.4. He has also formulated a reduction target of 49% for 2030 and 95% for 2050 (these targets have been laid down in the Climate Act 45 after the Court’s judgment). The target of 49% for 2030 is derived linearly from the target of 95% for 2050. On request, the State informed the court that if this line is extended to 2020, that will result in a target for that year of 28% (rov. 47).
Given the considerations set out above in 7.4.3-7.4.5, there may be serious doubts as to whether the reduction envisaged by the State in the EU context of 20% in 2020 may also be the total reduction required by the State itself over the coming decades. still achievable. After all, the need for this reduction rather requires that the State strives for a reduction in greenhouse gas emissions by 2020 that is higher than 25% than a reduction that is lower. The State has not explained that and why, despite the above and taking into account the precautionary principle applicable in this context, a policy aimed at a 20% reduction in 2020 can still be considered justified. The State has not provided any insight into what measures it intends to take in the coming years, let alone why, despite the above, these measures would be both practically feasible and sufficient to contribute to a sufficient extent in accordance with the share of the Netherlands. preventing dangerous climate change. The State suffices with the statement that “certain possibilities exist” in this regard.
(d) Should the State adhere to the 25-40% target?
In view of the above, the Court of Appeal in rov. 52 can judge that the State has insufficiently substantiated that it would fit into a responsible policy to prevent dangerous climate change to strive for a reduction in greenhouse gas emissions by 2020 than at least 25%. There is therefore a reason to judge, in accordance with the considerations set out above in 6.3-6.5, that the State must in any case adhere to the target of a minimum 25% reduction by 2020. As mentioned, there is a great deal of consensus in the international community and climate science that at least that reduction by the Annex I countries, including the Netherlands, is urgently needed (see 7.2.11 and 7.3.6 for this). Adequate legal protection means that this consensus can be invoked in the realization of the positive obligations imposed on the State by virtue of art. 2 and 8 ECHR. The objective of achieving a reduction of at least 25% in 2020 is also in line with what the State itself considers necessary for other years (2030, 2050 and 2100) as an objective (see 7.4.1-7.4.5 for this). That objective can therefore also be achieved within the framework of the 2 and 8 of the ECHR a positive obligation on the State to take appropriate measures to prevent dangerous climate change is considered as an absolute minimum. Now that the State has not been able to substantiate its claim that it is justified to deviate from that objective (see above in 7.4.6), it must adhere to the 25% target. He must therefore pursue at least this reduction in 2020, as the Court of Appeal rightly ruled in court. 53.
The State has also argued, in section 8.2, that it is meeting its obligations under art. 2 and 8 ECHR satisfies by taking adaptation measures, whether or not in combination with already taken and intended mitigation measures, and that he therefore does not have to achieve the 25-40% target. However, the court has in rov. 59 it has been clearly understood that although it is true that the effects of climate change can be mitigated by the adoption of adaptation measures, it has not been demonstrated or made plausible that the potentially disastrous consequences of excessive global warming as a result of these measures can be adequately achieved. will be prevented. This finding implies that, even if the State takes adaptation measures into account, mitigation measures that reduce emissions by at least 25% in 2020 are urgently needed, also for the Netherlands. The said argument of the State is therefore not valid.
It is worth noting that in the opinion of the court of appeal in rov. 57 and 66 it is decided that the State has not sufficiently substantiated that the reduction of a minimum of 25% in 2020 is an impossible or disproportionate burden, as referred to in 5.3.4 above. In this context, the State only referred to the short time remaining until the end of 2020 and to the damage to the ‘level playing field’ in an international context of Dutch business. In connection with the first-mentioned argument, the Court of Appeal took into account that the court’s order to the State dates back to 2015, so has been valid since then, and that, moreover, the State has long been aware of the seriousness of the climate problem and policy initially carried out a reduction of 30% in 2020 (rov. 66). With regard to the second argument, the Court of Appeal has taken into account that other EU countries have a much stricter climate policy and that the State has not further explained this argument (ground of appeal 57). With this, the Court of Appeal has rejected the statement of the State that there would be an impossible or disproportionate burden in an understandable manner. Section 8.4, which criticizes the Court of Appeal for not investigating that statement, is therefore unfounded.
(e) Assessment of cassation complaints
The complaints referred to in 4,237-4,248 of the Opinion of the Deputy Attorney General and the Attorney General cannot lead to cassation for the reasons stated there.
Insofar as complaints from sections 4-8 with the above have not been dealt with, they cannot lead to cassation either. In view of art. 81 paragraph 1 RO, no further explanation given that the complaints do not require answering legal questions in the interests of legal unity or legal development.
8 Permissibility of the given order; political domain
In section 9, the State argues that the court’s order to reduce Dutch greenhouse gas emissions by at least 25% in 2020 compared to the level of 1990 is not permissible for two reasons. The first reason is that the order amounts to an order for legislation, which order is not permissible according to the case law of the Supreme Court. The second reason is, in short, that it is not the task of the judge to make the political considerations that are necessary for decision-making on reducing greenhouse gas emissions. Following this, the following is being considered.
(a) Order for legislation
If the government is obliged to do something, it can be sentenced to that end, just like everyone else, on the claim of the person entitled (Article 3: 296 of the Dutch Civil Code). This is a fundamental rule of the rule of law, anchored in our legal order. With regard to the rights and freedoms of the ECHR, this rule is consistent with the right to effective legal protection referred to in article 5.5.1-5.5.3. 13 ECHR. Partly in connection with this fundamental rule, the Constitution stipulates that the civil court has jurisdiction over all claims, so that it can always grant legal protection if there is no legal protection before another court. 46
From what has been considered above in 5.1-7.6.2, it follows that in this case the State has a legal obligation by virtue of the protection that it has pursuant to art. 2 and 8 ECHR must offer residents of the Netherlands protection of their right to life and their right to private, family and family life. He can therefore be sentenced to fulfill this duty by the court, unless there is a ground for an exception in accordance with art. 3: 296 BW. On the basis of that provision, an exception occurs if the law determines this or if it follows from the nature of the obligation or legal act. The case law of the Supreme Court with regard to an order for legislation concerns the application of this exception. 47
This case-law is based on two considerations. In the first place, this is the consideration that the judge should not engage in the political decision-making that is involved in the drafting of legislation. Secondly, that is the consideration that such an order must create a settlement that also applies to parties other than the parties to the proceedings. 48
The first consideration does not mean that the judge should not at all come into the field of political decision-making. In the aforementioned case-law, the previous case-law of the Supreme Court has therefore been repeated that the judge on the basis of art. 94 Constitution should leave legislation inapplicable if everyone enters into binding provisions of treaties. 49 In that case-law, it has also been decided that the court can issue a declaration of justice that amounts to the public body concerned acting unlawfully by not adopting legislation with a specific content. 50
The first consideration on which the case-law referred to above in 8.2.2 is based must therefore be understood as meaning that the judge should not interfere in political decision-making with regard to the expediency of legislation by issuing a legislative order. with a specific, specific content. In view of the constitutional relationships, it is solely up to the legislator concerned to determine whether legislation with a specific content comes into being. Therefore, the court cannot order the legislator to pass legislation with a specific content.
The second consideration on which the case-law referred to in 8.2.2 above is based, is that the civil court only makes a binding decision between the parties to the dispute (cf. article 236 of the Code of Civil Procedure). The court does not have the power to make a binding decision for everyone on what a statutory regulation should be. An order for legislation is therefore associated with the objection that third parties who are not involved in the proceedings and who are therefore not bound by the ruling would nevertheless be (indirectly) bound by that order because that legislation will also apply to them. This objection does not arise with an order not to apply statutory provisions, which only applies to a specific claimant, or with a declaration of entitlement. The same applies to a general order to take measures, whereby the freedom of the legislator to decide whether or not to legislate with a specific content is mentioned in the second paragraph of 8.2.4 above is respected. After all, the judge then does not determine the content of the legal regulation by his order; that remains reserved for the legislator concerned.
It follows from the foregoing that the court alone is not permitted to order legislation with a specific specific content. Only then do the objections arise that arise from the considerations on which the case-law referred to above in 8.2.2 is based. The court can therefore issue a declaration that the absence of legislation is unlawful (see above in 8.2.4). He may also order the public body concerned to take measures to achieve a specific objective, as long as that order does not amount to an order to legislate with a specific specific content. In the judgment of the Supreme Court of 9 April 2010 (SGP) the impermissibility of a legislative order by the court is therefore limited to this case. 51
In the light of the foregoing, the court order validated by the Court of Appeal constitutes an application of the main rule of art. 3: 296 BW. After all, this order does not amount to an order to take specific legislative measures, but leaves the State free to choose the measures to be taken in order to achieve a 25% reduction in greenhouse gas emissions by 2020. This is no different because many of the possible measures to be taken will require legislation, as the State argues. After all, it is up to the State to determine what measures are being taken and what legislation is being put in place to achieve that reduction. The exception to art. 3: 296 of the Dutch Civil Code that was made in the case-law referred to above in 8.2.2, therefore does not occur in this case.
(b) Political domain
This means that the Supreme Court will deal with the more general argument of the State that it is not the task of the judge to make the political considerations that are necessary for decision-making on reducing greenhouse gas emissions.
As was considered in 6.3 above, the government and parliament are responsible for decision-making on the reduction of greenhouse gas emissions in the Dutch state system. They have a great deal of freedom to make the necessary political decisions. It is for the court to assess whether the government and parliament have exercised that freedom within the limits of the law to which they are bound.
The limits referred to in 8.3.2 above include those arising for the State from the ECHR. As has been considered above in 5.6.1, the Netherlands has committed itself to the ECHR and the Dutch court is based on art. 93 and 94 Constitution are required to apply its provisions in accordance with the interpretation thereof by the ECtHR. The protection of human rights that this offers is an essential part of the democratic constitutional state.
An exceptional situation arises in this case. After all, there is a threat of dangerous climate change and it is clear that measures are urgently needed, as the court and court have established and the State also recognizes (see above in 4.2-4.8). The State is obliged to do ‘his own’ in this regard (see 5.7.1-5.7.9). With regard to the residents of the Netherlands, for the interests of Urgenda who are involved in these proceedings, that duty follows from art. 2 and 8 ECHR, on the basis of which the State is obliged to protect the right to life and to the private, family and family life of its residents (see 5.1-5.6.4 and 5.8-5.9.2). That in this context a reduction of at least 25% in 2020 by Annex I countries, including the Netherlands, is necessary from the view generally adopted by the court and court, shared in climate science and in the international community (see 7.2.1 above) -7.3.6). The policy that the State has been pursuing since 2011 and intends to implement (see above in 7.4.2), whereby measures are postponed for a longer period of time, is, as the court has determined, obviously not in accordance with this, or at least the State has no insight be able to ensure that this is the case (see above in 7.4.6 and 7.5.1).
In this case, the Court of Appeal could also come to the conclusion that the State is in any case obliged to achieve a reduction of at least 25% by 2020.
(c) Assessment of cassation complaints
Part 9 therefore cannot lead to cassation.
The high Council:
– dismissed the appeal;
– orders the State to pay the costs of the cassation proceedings, estimated up to this decision on the part of Urgenda at € 882.34 in disbursements and € 2,200 for salary.
This judgment was given by the vice-president CA Streefkerk as chairman and the counselors G. Snijders, MV Polak, TH Tanja-van den Broek and HM Wattendorff, and publicly pronounced by the vice-president CA Streefkerk on December 20, 2019 .
List of abbreviations used
Administrative Law Division Council of State
Fourth Assessment Report from the IPCC (2007)
Fifth Assessment Report from the IPCC (2013 – 2014)
Gross domestic product
Conference of the Parties (to the UN Climate Convention)
European Court of Human Rights
European Court of Human Rights
Emissions Trading System
European Convention for the Protection of Human Rights and Fundamental Freedoms
Intergovernmental Panel on Climate Change
master of law
Planning Office for the Living Environment
parts per million
Law on the Judicial Organization.
Code of Civil Procedure
United Nations Environment Program
Public Health, Spatial Planning and the Environment
Treaty on the Functioning of the European Union
World Meteorological Organization
1Court of The Hague, 24 June 2015, ECLI: NL: RBDHA: 2015: 7145. In English translation ECLI: NL: RBDHA: 2015: 7196.
2Court of Justice The Hague October 9, 2018, ECLI: NL: GHDHA: 2018: 2591. In English translation ECLI: NL: GHDHA: 2018: 2610.
3United Nations Framework Convention on Climate Change, New York, May 9, 1992, Trb. 1992, 189, entered into force for the Netherlands on March 21, 1994 (Trb. 1994, 63).
4Paris Agreement, 12 December 2015, Trb . 2016, 94 (rectification in Trb . 2016, 127), entered into force for the Netherlands on 27 August 2017 (Trb. 2017, 141).
5Decision 406/2009 / EC of the European Parliament and of the Council of 23 April 2009 on Member States’ efforts to reduce their greenhouse gas emissions in order to meet the Community’s commitments to reduce greenhouse gases up to 2020.
6HR November 5, 1965, ECLI: NL: HR: 1965: AB7079.
7See, inter alia, ECHR 28 March 2000, no. 22492/93 (Kiliç / Turkey), rov. 62, and ECHR 17 July 2014, no. 47848/08 (Center for Legal Resources on behalf of Valentin Câmpeanu / Romania), rov. 130.
8Cf. ECHR, Guide on Article 2 of the European Convention on Human Rights (version 31 August 2019), Nos. 9, 10 and 31-37 and the ECHR rulings mentioned there.
9Cf. including the following judgments in which the ECtHR found that the requirements stated here were met: ECtHR 30 November 2004, no. 48939/99 (Öneryildiz / Turkey), rov. 98-101 (gas explosion on garbage dump; the risk that it might occur at any time has existed for years and has been known to the authorities for years), ECHR 20 March 2008, no. 15339/02 (Budayeva and others / Russia), rov. 147-158 (life-threatening mudflow; the authorities were aware of the danger of mudflows on the spot and were aware of the possibility that they could occur on the scale at some point if it actually occurred), and ECHR 28 February 2012, no. 17423 / 05 (Kolyadenko and others / Russia), rov. 165 and 174-180 (outflows from reservoirs made necessary by exceptionally abundant rain; the authorities knew that outflows could occur in exceptional heavy rains). In this sense, see also ABRvS November 18, 2015, ECLI: NL: RVS: 2015: 3578 (Gas extraction in Groningen), rov. 39.3.
10Cf. ECHR, Guide on Article 8 of the European Convention on Human Rights (version 31 August 2019), Nos. 119-127, 420-435 and 438-439 and the ECHR rulings mentioned there.
11Cf. ECtHR 10 November 2004, no. 46117/99 (Taşkin and Others / Turkey), rov. 107 and 111-114 (art. 8 ECHR also applies to the threat of environmental pollution that only occurs in the long term from 20 to 50 years), and ECHR 27 January 2009, no. 67021/01 (Tătar / Romania), rov. 89-97 (possible health risks in the longer term due to heavy metal emissions from gold mining).
12ECtHR 20 March 2008, no. 15339/02 (Budayeva ea / Russia), rov. 133.
13ECtHR 24 July 2014, no. 60908/11 (Brincat ea / Malta), rov. 102.
14See with regard to art. 2 ECHR among others ECHR 12 January 2012, no. 36146/05 (Gorovenky and Bugara / Ukraine), rov. 32, and ECHR 13 April 2017, no. 26562/07 (Tagayeva ea / Russia), rov. 482. With regard to art. 8 ECHR among others ECHR 26 July 2011, no. 9718/03 (Stoicescu / Romania), rov. 59.
15See ECtHR 10 January 2012, no. 30765/08 (Di Sarno and others / Italy), rov. 110, and ECHR 24 January 2019, No. 54414/13 (Cordella and Others / Italy), rov. 172.
16See, among other things, the statements cited above in 5.2.2 and 5.2.3.
17See with regard to art. 8 ECHR: ECHR 27 January 2009, no. 67021/01 (Tătar / Romania), rov. 120.
18See with regard to art. 2 ECHR, inter alia, ECHR 20 March 2008, no. 15339/02 (Budayeva ea / Russia), rov. 134, and ECHR 24 July 2014, no. 60908/11 (Brincat ea / Malta), rov. 101. With regard to art. 8 ECHR among others ECHR 9 June 2005, no. 55723/00 (Fadeyeva / Russia), rov. 96.
19See again the statements cited in 5.2.2 and 5.2.3 above.
20See, inter alia, ECHR 30 November 2004, no. 48939/99 (Öneryildiz / Turkey), rov. 128, ECHR 9 June 2005, No. 55723/00 (Fadeyeva / Russia), rov. 128, and ECHR 26 July 2011, no. 9718/03 (Stoicescu / Romania), rov. 59.
21See ECtHR 9 June 2005, No. 55723/00 (Fadeyeva / Russia), rov. 124-134, ECHR 20 March 2008, No. 15339/02 (Budayeva et al. / Russia), rov. 156-158, ECHR January 24, 2019, No. 54414/13 (Cordella and Others / Italy), rov. 161-174, ECHR 10 February 2011, no. 30499/03 (Dubetska and others / Ukraine), rov. 150-156, and ECHR July 13, 2017, No. 38342/05 (Jugheli et al. / Georgia), rov. 76-78.
22ECtHR 13 July 2017, no. 38342/05 (Jugheli et al. / Georgia).
23See ECtHR 20 March 2008, no. 15339/02 (Budayeva ea / Russia), rov. 135, and ECHR 24 July 2014, no. 60908/11 (Brincat and Others / Malta), rov. 101.
24See ECtHR 26 July 2011, no. 9718/03 (Stoicescu / Romania), rov. 59.
25See, inter alia, ECtHR 7 July 1989, no. 14038/88 (Soering / United Kingdom), rov. 87.
26Vienna Convention on the Law of Treaties of 23 May 1969, Trb. 1972, 51, and 1985, 79.
27ECtHR 12 September 2012, no. 10593/08 (Nada / Switzerland).
28ECtHR 12 November 2008, no. 34503/97 (Demir and Baykara / Turkey). For an example, see ECtHR 27 January 2009, no. 67021/01 (Tătar / Romania), rov. 120 (reference to the Rio Declaration).
29See, inter alia, ECtHR 17 October 1986, no. 9532/81 (Rees), rov. 47, ECtHR 30 November 2004, no. 48939/99 (Öneryildiz / Turkey), rov. 59, 71, 90 and 93 (meaning ‘dangerous activities’), and ECHR 20 May 2010, no. 61260/08 (Oluić / Croatia), rov. 29-31, 49, 60 and 62 (WHO noise standards).
30See, for example, ECHR 26 October 2000, no. 30210/96 (Kudla / Poland), rov. 157, ECHR 27 January 2015, no. 36925/10 (Neshkov ea / Bulgaria), rov. 180 and 181, and ECHR 31 October 2019, No. 21613/16 (Ulemek / Croatia), rov. 71.
31See, inter alia, ECtHR 15 January 2015, no. 62198/11 (Kuppinger / Germany), rov. 136 and 137, with regard to a violation of art. 8 ECHR, and ECHR 27 January 2015, no. 36925/10 (Neshkov ea / Bulgaria), rov. 181, and ECHR 31 October 2019, No. 21613/16 (Ulemek / Croatia), rov. 71, with regard to a violation of art. 3 ECHR.
32See ECtHR 27 January 2015, no. 36925/10 (Neshkov ea / Bulgaria), rov. 186 and 187, and ECHR October 31, 2019, No. 21613/16 (Ulemek / Croatia), rov. 71.
33Cf. HR December 16, 2016, ECLI: NL: HR: 2016: 2888, rov. 3.3.3, first paragraph.
34Yearbook of the International Law Commission 2001, Vol. II, Part Two, p. 125, right column.
35Cf. the overview at AM Honoré, Causation and Remoteness of Damage, International Encyclopedia of Comparative Law, Vol. XI, Torts Chapter 7, No. 112, and AJ Akkermans, WPNR 6043. Cf. also art. 3: 105 of Principles of European Tort Law. See for the Netherlands: HR September 23, 1988, ECLI: NL: HR: 1988: AD5713 (Kalimijnen), rov. 3.5.1, third paragraph.
36See in this sense also the ruling of the Supreme Court of the United States in the case of Massachusetts et al. V. Environmental Protection Agency et al., 2 April 2007, 549 US 497 (2007), p. 22-23.
37Cf. among other things the data mentioned in 2.79-2.80 of the Opinion of the Deputy Attorney General and the Attorney General.
38Cf. inter alia Parliamentary Papers II, 1991/92, 22 486, no. 3, p. 7 and 21-22, HR 27 June 1986, ECLI: NL: HR: 1986: AD3741 (de Nieuwe Meer), rov. 3.2, and HR April 9, 2010, ECLI: NL: HR: 2010: BK4549 (SGP), rov. 4.3.2.
39See HR 27 June 1986, ECLI: NL: HR: 1986: AD3741 (de Nieuwe Meer), rov. 3.2, and Parliamentary Papers II, 1991/92, 22 486, No. 3, p. 22-23.
40Convention on access to information, public participation in decision-making and access to justice in environmental matters, 25 June 1998, Trb. 1998, 289, entered into force for the Netherlands on March 29, 2005, Trb. 2005, 22.
41See box 13.7 of the Working Group III report that forms part of AR4.
42United Nations Framework Convention on Climate Change, Compilation of economy-wide emission reduction targets to be implemented by Parties included in Annex I to the Convention, 7 June 2011, FCCC / SB / 2011 / INF.1 / Rev.1, p. 4-5.
43UNEP Emission Gap Report 2013, executive summary, under 6. According to the glossary of the report, ‘later-action scenarios’ are scenarios in which the emissions in the period 2020 to 2030 are higher than in the corresponding least-cost scenarios.
44Cf. what is stated under 4,222 of the Opinion of the Deputy Attorney General and the Attorney General.
45Law of 2 July 2019, Stb. 2019, 253.
46Cf. HR 28 September 2018, ECLI: NL: HR: 2018: 1806, rov. 3.5.2, Parliamentary Papers II, 1979/80, 16 162, no. 3, p. 6 and 10, and Parliamentary Papers II, 1991/92, 22 495, No. 3, p. 83-84.
47HR 21 March 2003, ECLI: NL: HR: 2003: AE8462 (Waterpak), rov. 3.5, second paragraph.
48See HR 21 March 2003, ECLI: NL: HR: 2003: AE8462 (Waterpak), rov. 3.5, HR 1 October 2004, ECLI: NL: HR: 2004: AO8913 (Fauna protection / Fryslân), rov. 3.3.4 and 3.3.5, HR 9 April 2010, ECLI: NL: HR: 2010: BK4549 (SGP), rov. 4.6.2, and HR 7 March 2014, ECLI: NL: HR: 2014: 523 (State / Norma and others), rov. 4.6.2.
49See HR March 21, 2003, ECLI: NL: HR: 2003: AE8462 (Waterpak), rov. 3.5, third paragraph, and HR 1 October 2004, ECLI: NL: HR: 2004: AO8913 (Fauna Protection / Fryslân), rov. 3.3.4, third paragraph.
50See the judgments in HR 9 April 2010, ECLI: NL: HR: 2010: BK4549 (SGP), rov. 4.6.1-4.6.2, in which such a declaration of law was at issue, and HR 7 March 2014, ECLI: NL: HR: 2014: 523 (State / Norma and others), rov. 4.6.2.
51See HR April 9, 2010, ECLI: NL: HR: 2010: BK4549 (SGP), rov. 4.6.2.