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07 January 2021 / news

Class actions on public interests: climate change and COVID-19

In December 2020, the The Hague summary judge denied Greenpeace’s claim that the Dutch government should impose stricter climate requirements on KLM as part of its COVID-19 state aid. It happens more often that a claim organisation takes the Dutch government’s actions and policies to civil court. Or even private companies’ actions and policies: in December 2020, the oral pleadings took place in the action by – among others – Friends of the Earth Netherlands (Milieudefensie) to force Shell to reduce its CO2-emissions to prevent (further) damage to the climate.

Class actions on public interests: climate change and COVID-19

These types of actions are not always registered in the central register for class actions. We will discuss the latest developments and cautiously look ahead. In its landmark ruling in the Urgenda case late 2019, the Dutch Supreme Court confirmed that a civil court may order the government to take certain actions, in this case to prevent climate change (please refer to our related news item). The Supreme Court confirmed that the State would breach its duty of care towards its citizens if it failed to (sufficiently) reduce its CO2-emissions.

Climate change and aviation

Greenpeace based its claim in proceedings against the State in part on the Urgenda judgment but failed. The summary judge found the emission of greenhouse gasses due to international aviation to be the responsibility of the International Civil Aviation Organization; the UN climate treaties do not cover these emissions, according to the judge. Greenpeace’s attempt to impose the reduction order from the Urgenda ruling on the State was to no avail, since that order only relates to greenhouse gas emissions in the Netherlands (and KLM does not operate domestic flights). As a result, in international aviation there is no legal basis in either the UN climate treaties or the Urgenda judgment for a specific obligation on the State to reduce its emissions.

Representation in class actions

Since 1 January 2020, the Act on Collective Damages in Class Actions (WAMCA) amended the possibilities for class actions in the Netherlands, among other things by introducing stricter standing requirements for claim organisations (please refer to our earlier news item on the WAMCA). Under the WAMCA, a claim organisation must ‘sufficiently represent its stakeholders and the size of the claim” (the ‘representation requirement’) and have, among other things, a supervisory board, sufficient funding, and a website (with relevant information about its organisation and the state of the action(s)).

For claims with an ideological purpose and a very limited financial interest the court is allowed to apply more lenient admissibility requirements: among other things a supervisory board, sufficient funds and a website with relevant information are not (strictly) necessary in that case (please refer to our latest update). The court may also apply these more lenient requirements because of the specific nature of the claim or the interest represented. Legislative history (and limited case law) is not crystal clear on whether or not the representation requirement is maintained under the more lenient regime.

The WAMCA also introduced the possibility for the court to appoint an exclusive representative in case multiple claim organisations bring actions relating to the ‘same event’. A claim organisation is required to disclose in a central register for class actions that it is initiating an action. If other claim organisations subsequently file class actions, the court will appoint an exclusive representative based on the assessment of, among other things, the number of stakeholders in the class andthe claim organisation’s track record and other previous or pending claims.

A few of 2020’s ‘ideological’ claims

Various class actions that were registered in 2020 have an ideological angle (again, please refer to our previous update). As noted, there is even more to tell that does not appear from the central register. In December 2020, the oral pleadings in the Shell climate case took place, in which among others Friends of the Earth Netherlands tries to force Shell to prevent (further) damage to the climate. The WAMCA does not apply to this case, which was initiated by the claimants in 2019. The (first) court ruling is currently being awaited.

Class actions in summary proceedings also fall outside the scope of the WAMCA rules on registration and the exclusive representative. A few examples: Stichting Vijfde Macht demanded that the State enforce a full lockdown (claim rejected). Stichting Viruswaarheid initiated three different actions in summary proceedings: in the first, it requested that the judge order the State to repeal the COVID-19 restrictions (and emergency decrees) (claim rejected), in the second it requested that certain parts of Amsterdam be excluded from the obligation to wear a face mask (claim rejected) and finally, it requested the State to cease the use of PCR testing and adjust its COVID-19 communications (claim rejected).

Will representation become a subject of debate?

As mentioned above, representation is one of the requirements for standing of claim organisations. Should this requirement also ensure a degree of democratic legitimacy if – as in the examples outlined above – claim organisations go to court to address public interests and/or demand government policy? It seems that this element did not play a (pivotal) role in these cases. According to the legislator, it must be clear upfront that, quantitively speaking, a claim organisation represents a sufficiently large share of the affected individuals (as is clear from responses to the parliamentary questions mid 2020). This could be a tough one for judges considering the topics and the interests at stake, especially when it concerns future generations that might be affected (for example in case of climate change). And how should this element play into the decision on the appointment of the exclusive representative?

By no means questions with easy answers, but we expect courts (and possibly the legislator) to provide more clarity on this in the near future.

Get in touch

These are important developments in the field of collective redress and climate litigation. Our firm has extensive experience with class actions, WCAM-settlements and other forms of collective redress. Our Energy team closely monitors sector-specific developments in this area. For more information please contact Mijke Sinninghe Damsté or Huib Schrama.



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