Public Interest Litigation Before Domestic Courts in The Netherlands on the Basis of International Law: Article 3:305a Dutch Civil Code

In recent years, the domestic courts in The Hague (Netherlands) have produced a series of judgments on matters of global concern, adjudicated on the basis of international law. All of these judgments have immediately been heralded as “a new classic” or “the most important court decision […] in the world so far” by scholars and practitioners of international law. This raises the question: Why does one domestic court produce so many of these landmark rulings on fundamental issues of international law? Is it because The Hague takes its nickname ‘legal capital of the world’ (too) seriously? Or is it because the domestic courts in The Hague have been inspired by that other court in their city –  the International Court of Justice?

I believe it has more to do with a particular provision in the Dutch Civil Code: Article 305a of Book 3. Article 3:305a Civil Code allows anyone to establish a foundation, mandated to protect a public interest, and then to institute legal proceedings, aimed at protecting that public interest, against the State of the Netherlands, or against private persons, such as a multinational based in the Netherlands. The State of the Netherlands does not enjoy any kind of immunity against such claims, unlike many other States in this world. I believe this most curious provision – 3:305a Civil Code – explains why the Dutch court is constantly issuing ground-breaking decisions on matters of general interest, unique to the world. In this post, I give an overview of these cases, discuss changes that have recently been made to Article 3:305a Civil Code, and conclude with some remarks about the future of public interest litigation on the basis of international law in the Netherlands.

The global community of international lawyers may see the Netherlands as pioneer in public interest litigation on the basis of international law – see for example this Model Statute for Proceedings Challenging Government Failure to Act on Climate Change, recently issued by the Climate Change Justice and Human Rights Task Force of the International Bar Association, which mentions the Urgenda case 58 times in 92 pages. However, it appears that the people of the Netherlands are much less enthusiastic.

Mothers of Srebrenica

In the Mothers of Srebrenica case, the Netherlands was held responsible, as troop-contributing State, for the failure of a United Nations peacekeeping mission (see here and here for an analysis). The UN Peackeepers’ failure to protect Bosnian Muslims from the Bosnian Serbs in the 1990s was regarded as a breach of Article 2 (right to life) of the European Convention on Human Rights (ECHR). The Foundation for Mothers of Srebrenica initiated these proceedings against the Netherlands and the UN. Only the latter enjoyed immunity. The foundation aims to look after the interests of (approximately 6,000) relatives of victims of the fall of Srebrenica. This is a relatively small group, which can be clearly identified.

SyRi

In the SyRI case (ruling only available in Dutch), an automated algorithmic system designed by the Netherlands Government to detect and analyse welfare fraud was held to be in breach of Article 8 ECHR (right to private life). The SyRi case was instituted by the Dutch Lawyers Committee on Human Rights (NJCM), a collective interest organization within the meaning of 3:305a Civil Code, claiming to represent those persons interested in the protection of their fundamental human rights. It is difficult to find someone who is not interested in such protection. But the NJCM did not consult the entire population of the Netherlands, before initiating the proceedings against the Government regarding its use of SyRi.

Urgenda

The best-known example of public interest litigation on the basis of international law is the Urgenda case (see here and here for an analysis). Briefly put, the Supreme Court of the Netherlands held that the Netherlands Government must ensure that, by the end of this year (2020), greenhouse gas emission levels from the Netherlands are at least a quarter below 1990 levels, otherwise the rights to life and wellbeing, as guaranteed in Articles 2 and 8 ECHR respectively, of the people in the Netherlands are breached. Urgenda is a foundation, established under 3:305a Civil Code, to defend the interests of the current and future residents of the Netherlands, who are threatened by dangerous climate change. The Supreme Court allowed Urgenda to represent these interests and seek legal protection for the benefit of all currently living residents of the Netherlands (see especially para. 5.9.2 of the Supreme Court ruling). But Urgenda is not accountable to those whose interests it claims to defend. In fact, many residents of the Netherlands disagree with Urgenda, and do not feel that the foundation is accurately representing them, or their interests.

Shell oil company

Article 3:305a Civil Code is usually invoked to initiate proceedings against the State. But it can also be used to initiate proceedings against private persons. Friends of the Earth Netherlands (“Milieudefensie”) believes that Shell, a global group of energy and petrochemical companies with its headquarters in The Hague (Netherlands), is breaching its legal duty of care by causing climate damage across the globe, and that this constitutes a wrongful act vis-á-vis Milieudefensie and the public interest it represents. It thus initiated legal proceedings against Shell, before the Dutch court in The Hague. This competence to represent the public interest is, once again, based on Article 3:305a of the Dutch Civil Code (see paras. 113-121 of the summons, available in Dutch original and English translation). Milieudefensie has around 80,000 individual members and donors. That seems like a lot, but, like Urgenda, Milieudefensie basically claims to represent the interests of all individuals affected by climate change, i.e. all 7,713,468,000 individuals currently living in this world, plus the interests of all future generations (an infinitely large number). Needless to say, Milieudefensie did not consult all these individuals before initiating proceedings against Shell.

The Future of Public Interest Litigation on the Basis of Article 3:305a Civil Code

Since 1 January 2020, 3:305a Civil Code has been changed quite drastically (see here and here). Before 2020, basically any foundation could institute legal proceedings aimed at protecting a general interest, as long as the foundation was mandated to do so according to its own bylaws. Since 1 January 2020, a foundation must be “sufficiently representative” (para. 2 of 3:305a Civil Code). This means that it must be clear in advance that, from a quantitative point of view, the foundation represents a sufficiently large proportion of those affected. Individuals that are within the latter group, but do not want to have their interests protected by this foundation, have the opportunity to “opt out” of the collective action initiated by the foundation (see here for the procedure, and here for an English overview). This is important, because the foundation can claim financial compensation; and when the court decides on the collective action, such ruling is binding on all affected individuals that have not opted out in time.

This so-called “representativeness requirement”, and the procedure described above, does not seem suitable, and does not apply fully, if the court is persuaded that a legal action is instituted by a foundation with an idealistic purpose and with a very limited own financial interest in the claim, and if the foundation is not asking for financial compensation but merely for a declaratory judgment. This can be derived from paragraph 6 of Article 3:305a. The Netherlands Minister for Legal Protection, Sander Dekker, explained that paragraph 6 was meant to leave sufficient room for foundations, that play an important role in protecting collective interests through collective action, and do not seek financial compensation, to continue to do their job. As an example, he mentioned a foundation, representing the interests of all residents situated near a factory, established to initiate legal proceedings against this factory, urging it to stop discharging waste into the river. Another example the Minister referred to explicitly, was a foundation, established to improve the position of women in Dutch society, inter alia by engaging in public interest litigation in defence of women’s rights. Most claims listed above – Urgenda, SyRi – appear to fall also within this category.

Article 3:305a has come under ever closer scrutiny. In particular, it is suggested to make 3:305a Civil Code even more strict, especially in its application against non-profit organizations instituting legal action with an idealistic purpose, such as most of the foundations referred to above (NJCM, Urgenda, Milieudefensie). How exactly this procedure should be changed, or what kind of “representative requirement” would be appropriate, is not clear. If the category of people affected includes all of the world’s present and future generations, an “opt-out” option is not a likely solution. In any case, it would be unfortunate if non-profit foundations will no longer be able to engage, on behalf of the entire population – but without actually consulting them – in public interest litigation on the basis of norms of international law, and thereby persuade the courts to require of the Netherlands’ Government to drastically change its policies, e.g. to more vigorously combat climate change, to impose a more drastic ban on smoking in public, to add more robust privacy guarantees to its digital anti-fraud system, etc. Public interest litigation, on the basis of Article 3:305a Civil Code, plays an indispensable role, by breaking through the inertia (silence of legislature). The best way to avoid rulings like Urgenda, is for the legislature to take the tough decisions itself, instead of leaving those to the judges.