Appeal in cassation

The State instituted an appeal in cassation in respect of the Court of Appeal's decision, asserting a large number of objections to that decision.

The deputy Procurator General and the Advocate General advised the Supreme Court to reject the State's appeal and thus to allow the Court of Appeal's decision to stand.

Opinion of the Supreme Court

The Supreme Court concludes that the State's appeal in cassation must be rejected. That means that the order which the District Court issued to the State and which was confirmed by the Court of Appeal, directing the State to reduce greenhouse gases by the end of 2020 by at least 25% compared to 1990, will stand as a final order.

The Supreme Court's opinion rests on the facts and assumptions which were established by the Court of Appeal and which were not disputed by the State or Urgenda in cassation. In cassation, the Supreme Court determines whether the Court of Appeal properly applied the law and whether, based on the facts that may be taken into consideration, the Court of Appeal's opinion is comprehensible and adequately substantiated.

The grounds for the Supreme Court's judgment are laid down below in sections 4–8 of the judgment. These grounds will be summarised below. This summary does not supersede the grounds for this judgment and does not fully reflect the Supreme Court's opinion.

Dangerous climate change

(see paras. 4.1–4.8, below)

Urgenda and the State both endorse the view of climate science that a genuine threat exists that the climate will undergo a dangerous change in the coming decades. There is a great deal of agreement on the presence of that threat in climate science and the international community. In that respect and briefly put, this comes down to the following.

The emission of greenhouse gases, including CO2, is leading to a higher concentration of those gases in the atmosphere. These greenhouse gases retain the heat radiated by the earth. Because over the last century and a half since the start of the industrial revolution, an ever-increasing volume of greenhouse gases is being emitted, the earth is becoming warmer and warmer. In that period, the earth has warmed by approximately 1.1°C, the largest part of which (0.7°C) has occurred in the last forty years. Climate science and the international community largely agree on the premise that the warming of the earth must be limited to no more than 2°C, and according to more recent insights to no more than 1.5°C. The warming of the earth beyond that temperature limit may have extremely dire consequences, such as extreme heat, extreme drought, extreme precipitation, a disruption of ecosystems that could jeopardise the food supply, among other things, and a rise in the sea level resulting from the melting of glaciers and the polar ice caps. That warming may also result in tipping points, as a result of which the climate on earth or in particular regions of earth changes abruptly and comprehensively. All of this will jeopardise the lives, welfare and living environment of many people all over the world, including in the Netherlands. Some of these consequences are already happening right now.

Protection of human rights based on the ECHR

(see paras. 5.2.1–5.5.3, below)

The European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR) requires the states which are parties to the convention to protect the rights and freedoms established in the convention for their inhabitants. Article 2 ECHR protects the right to life, and Article 8 ECHR protects the right to respect for private and family life. According to the case law of the European Court of Human Rights (ECtHR), a contracting state is obliged by these provisions to take suitable measures if a real and immediate risk to people's lives or welfare exists and the state is aware of that risk.

The obligation to take suitable measures also applies when it comes to environmental hazards that threaten large groups or the population as a whole, even if the hazards will only materialise over the long term. While Articles 2 and 8 ECHR are not permitted to result in an impossible or disproportionate burden being imposed on a state, those provisions do oblige the state to take measures that are actually suitable to avert the imminent hazard as much as reasonably possible. Pursuant to Article 13 ECHR, national law must offer an effective legal remedy against a violation or imminent violation of the rights that are safeguarded by the ECHR. This means that the national courts must be able to provide effective legal protection.

Global problem and national responsibility

(see paras. 5.6.1–5.8, below)

The risk of dangerous climate change is global in nature: greenhouse gases are emitted not just from Dutch territory, but around the world. The consequences of those emissions are also experienced around the world.

The Netherlands is a party to the United Nations Framework Convention on Climate Change (UNFCCC). The objective of that convention is to keep the concentration of greenhouse gases in the atmosphere to a level at which a disruption of the climate system through human action can be prevented. The UNFCCC is based on the premise that all member countries must take measures to prevent climate change, in accordance with their specific responsibilities and options.

Each country is thus responsible for its own share. That means that a country cannot escape its own share of the responsibility to take measures by arguing that compared to the rest of the world, its own emissions are relatively limited in scope and that a reduction of its own emissions would have very little impact on a global scale. The State is therefore obliged to reduce greenhouse gas emissions from its territory in proportion to its share of the responsibility. This obligation of the State to do ‘its part' is based on Articles 2 and 8 ECHR, because there is a grave risk that dangerous climate change will occur that will endanger the lives and welfare of many people in the Netherlands.

What, specifically, does the State's obligation to do ‘its part' entail?

(see paras. 6.1–7.3.6, below)

When giving substance to the positive obligations imposed on the State pursuant to Articles 2 and 8 ECHR, one must take into account broadly supported scientific insights and internationally accepted standards. Important in this respect are, among other things, the reports from the IPCC. The IPCC is a scientific body and intergovernmental organisation that was set up in the context of the United Nations to handle climatological studies and developments. The IPCC's 2007 report contained a scenario in which the warming of the earth could reasonably be expected to be limited to a maximum of 2°C. In order to achieve this target, the Annex I countries (these being the developed countries, including the Netherlands) would have to reduce their emissions in 2020 by 25–40%, and in 2050 by 80–95%, compared to 1990.

At the annual climate conferences held in the context of the UNFCCC since 2007, virtually every country has regularly pointed out the necessity of acting in accordance with the scenario of the IPCC and achieving a 25–40% reduction of greenhouse gas emissions in 2020. The scientifically supported necessity of reducing emissions by 30% in 2020 compared to 1990 has been expressed on multiple occasions by and in the EU.

Furthermore, since 2007, a broadly supported insight has arisen that, to be safe, the warming of the earth must remain limited to 1.5°C, rather than 2°C. The Paris Agreement of 2015 therefore expressly states that the states must strive to limit warming to 1.5°C. That will require an even greater emissions reduction than was previously assumed.

All in all, there is a great degree of consensus on the urgent necessity for the Annex I countries to reduce greenhouse gas emissions by at least 25–40% in 2020. The consensus on this target must be taken into consideration when interpreting and applying Articles 2 and 8 ECHR. The urgent necessity for a reduction of 25–40% in 2020 also applies to the Netherlands on an individual basis.

The policy of the State

(see paras. 7.4.1–7.5.3, below)

The State and Urgenda are both of the opinion that it is necessary to limit the concentration of greenhouse gases in the atmosphere in order to in order to achieve either the 2°C target or the 1.5°C target. Their views differ, however, with regard to the speed at which greenhouse gas emissions must be reduced.

Until 2011, the State's policy was aimed at achieving an emissions reduction in 2020 of 30% compared to 1990. According to the State, that was necessary to stay on a credible pathway to keep the 2°C target within reach.

After 2011, however, the State's reduction target for 2020 was lowered from a 30% reduction by the Netherlands to a 20% reduction in an EU context. After the reduction in 2020, the State intends to accelerate the reduction to 49% in 2030 and 95% in 2050. Those targets for 2030 and 2050 have since been laid down in the Dutch Climate Act. The State has not explained, however, that – and why – a reduction of just 20% in 2020 is considered responsible in an EU context, in contrast to the 25–40% reduction in 2020, which is internationally broadly supported and is considered necessary.

There is a broad consensus within climate science and the international community that the longer reduction measures to achieve the envisaged final target are postponed, the more comprehensive and more expensive they will become. Postponement also creates a greater risk of an abrupt climate change occurring as the result of a tipping point being reached. In light of that generally endorsed insight, it was up to the State to explain that the proposed acceleration of the reduction after 2020 would be feasible and sufficiently effective to meet the targets for 2030 and 2050, and thus to keep the 2°C target and the 1.5°C target within reach. The State did not do this, however.

The Court of Appeal was thus entitled to rule that the State must comply with the target, considered necessary by the international community, of a reduction by at least 25% in 2020.

The courts and the political domain

(see paras. 8.1–8.3.5, below)

The State has asserted that it is not for the courts to undertake the political considerations necessary for a decision on the reduction of greenhouse gas emissions.

In the Dutch system of government, the decision-making on greenhouse gas emissions belongs to the government and parliament. They have a large degree of discretion to make the political considerations that are necessary in this regard. It is up to the courts to decide whether, in taking their decisions, the government and parliament have remained within the limits of the law by which they are bound. Those limits ensue from the ECHR, among other things. The Dutch Constitution requires the Dutch courts to apply the provisions of this convention, and they must do so in accordance with the ECtHR's interpretation of these provisions. This mandate to the courts to offer legal protection, even against the government, is an essential component of a democratic state under the rule of law.

The Court of Appeal's judgment is consistent with the foregoing, as the Court of Appeal held that the State's policy regarding greenhouse gas reduction is obviously not meeting the requirements pursuant to Articles 2 and 8 ECHR to take suitable measures to protect the residents of the Netherlands from dangerous climate change. Furthermore, the order which the Court of Appeal issued to the State was limited to the lower limit (25%) of the internationally endorsed, minimum necessary reduction of 25–40% in 2020.

The order that was issued leaves it up to the State to determine which specific measures it will take to comply with that order. If legislative measures are required to achieve such compliance, it is up to the State to determine which specific legislation is desirable and necessary.

Conclusion

In short, the essence of the Supreme Court's judgment is that the order which the District Court issued to the State and which was confirmed by the Court of Appeal, directing the State to reduce greenhouse gases by the end of 2020 by at least 25% compared to 1990, will be allowed to stand. Pursuant to Articles 2 and 8 ECHR, the Court of Appeal can and may conclude that the State is obliged to achieve that reduction, due to the risk of dangerous climate change that could have a severe impact on the lives and welfare of the residents of the Netherlands.

Table of contents

1. 1. Course of the proceedings

2. 2. Assumptions and facts (2.1–2.3.2)

   1. (a) Facts (2.1)

   2. (b) Urgenda's claim and the State's defence (2.2.1–2.2.3)

   3. (c) Opinion of the District Court (2.3.1)

   4. (d) Opinion of the Court of Appeal (2.3.2)

3. 3. The State's complaints in cassation; the manner of addressing those complaints (3.1–3.6)

4. 4. Assumptions regarding the danger and consequences of climate change (4.1–4.8)

5. 5. Do Articles 2 and 8 ECHR oblige the State to take measures? (5.1–5.10)

   1. (a) The meaning of Articles 1, 2 and 8 ECHR; positive treaty obligations (5.2.1–5.3.4)

   2. (b) Interpretation standards for the ECHR; ‘common ground’ (5.4.1–5.4.3)

   3. (c) Article 13 ECHR (5.5.1–5.5.3)

   4. (d) Do Articles 2 and 8 ECHR apply to the global problem of the danger of climate change? (5.6.1–5.6.4)

   5. (e) Joint responsibility of the states and partial responsibility of individual states (5.7.1–5.8)

   6. (f) Can this obligation pursuant to Articles 2 and 8 ECHR also be relied upon in a case involving a claim pursuant to Article 3:305a DCC? (5.9.1–5.9.3)

   7. (g) Assessment of the complaints in cassation (5.10)

6. 6. Assumptions in answering the question of what specific obligation on the part of the State results from the foregoing (6.1–6.6)

7. 7. The 25–40% target for Annex I countries (7.1–7.6.2)

   1. (a) The degree of international consensus regarding the 25–40% target (7.2.1–7.2.11)

   2. (b) The 25–40% target for the Netherlands individually (7.3.1–7.3.6)

   3. (c) The State's policy regarding measures to counter climate change (7.4.1–7.4.6)

   4. (d) Must the State adhere to the 25–40% target? (7.5.1–7.5.3)

   5. (e) Assessment of the complaints in cassation (7.6.1–7.6.2)

8. 8. Permissibility of the order issued; political domain (8.1–8.4)

   1. (a) Order to legislate (8.2.1–8.2.7)

   2. (b) Political domain (8.3.1–8.3.5)

   3. (c) Assessment of the complaints in cassation (8.4)

9. 9. Decision

10. Appendix: list of abbreviations used

(a) Facts

2.1 In this case, according to para. 2 of the Court of Appeal's judgment, the facts established by the District Court's in paras. 2.1–2.78 of its judgment,Footnote ¹ as well as the facts established by the Court of Appeal in paras. 3.1–3.26 and 44 of its judgment can be taken as a starting point.Footnote ² The parties do not dispute these facts in cassation. The Supreme Court will therefore base its judgment on those facts (Article 419(3) DCCP). The most relevant of these are the following.

(b) Urgenda's claim and the State's defence

2.2.1 Urgenda (‘Urgent Agenda’) is engaged in developing plans and measures to prevent climate change. Urgenda's legal form is that of a foundation under Dutch law (stichting). Its object according to its Articles is to stimulate and accelerate transition processes towards a more sustainable society, starting in the Netherlands.

Urgenda's view is that the State is doing too little to prevent dangerous climate change. In these proceedings, to the extent relevant in cassation, it is requesting an order instructing the State to limit the volume of greenhouse gas emissions in the Netherlands such that this volume would be reduced by 40% at the end of the year 2020, or at least by a minimum of 25%, compared to the volume in the year 1990. It institutes its claim pursuant to Article 3:305a DCC, which enables interest organisations to bring class action suits. It is pursuing its claim, to the extent relevant in cassation, on behalf of the interests of the current residents of the Netherlands (the inhabitants of the Netherlands) who are being threatened with dangerous climate change.

2.2.2 Urgenda has, briefly put, asserted the following grounds for its claims. The greenhouse gas emissions from the Netherlands are contributing to a dangerous change in the climate. The Netherlands' share of worldwide emissions is excessive, speaking both absolutely and relatively (per capita of the population). This means that Dutch emissions, for which the State as a sovereign power has systemic responsibility, are unlawful, since they violate the due care which is part of the State's duty of care to those whose interests Urgenda represents (Article 6:162(2) DCC), as well as Articles 2 and 8 ECHR. Under both national and international law, the State is obliged, in order to prevent dangerous climate change, to ensure the reduction of the Dutch emissions level. This duty of care entails that, in 2020, the Netherlands must achieve a reduction in greenhouse gas emissions of 25–40% compared to emissions in 1990, in accordance with the target referred to in AR4 (see para. 2.1(11), above). A reduction of this magnitude is necessary in order to maintain the prospect of achieving the 2°C target. This is also the most cost-effective option.

2.2.3 The defences asserted by the State include the following. The requirements of neither Article 3:296 DCC (court order) nor Article 6:162 DCC (unlawful act) have been met. There is no basis in either national or international law for a duty that legally requires the State to take measures in order to achieve the reduction target as sought. The target laid down in AR4 is not a legally binding standard. Articles 2 and 8 ECHR do not imply an obligation for State to take mitigating or other measures to counter climate change. Granting the reduction order being sought would also essentially come down to an impermissible order to create legislation and would contravene the political freedom accruing to the government and parliament and, thus, the system of separation of powers.

(c) Judgment of the District Court

2.3.1 The District Court ordered the State to limit the combined volume of Dutch annual greenhouse gas emissions, or cause them to be limited, so that this will have been reduced by at least 25% at the end of 2020 compared to the level of the year 1990. The District Court's findings on this point included the following.

The legal obligation of the State towards Urgenda cannot be derived from Article 21 of the Dutch Constitution, the ‘no harm' principle, the UNFCCC with associated protocols, Article 191 TFEU, or the ETS Directive and Effort Sharing Decision based on Article 191 TFEU. (paras. 4.36–4.44 and 4.52)

Urgenda cannot be considered a direct or indirect victim as meant in Article 34 ECHR. Therefore, Urgenda cannot directly rely on Articles 2 and 8 ECHR. (para. 4.45)

The State may act unlawfully by violating its duty of care to prevent dangerous climate change. (paras. 4.52–4.53) The criteria laid down in the Kelderluik judgmentFootnote ⁶ are relevant to interpreting that duty of care, as are the provisions, principles and rules previously referred to by the District Court. (paras. 4.54–4.63)

Given the severity of the impact from climate change and the significant chance that – unless mitigating measures are taken – dangerous climate change will occur, the State has a duty of care to take mitigating measures. This duty is not diminished by the fact that the Dutch contribution to the present global greenhouse gas emissions is currently quite minor. Given that at least the 450 ppm scenario is required to prevent hazardous climate change, the Netherlands should take measures to ensure that this scenario can be achieved. (paras. 4.64–4.83)

Postponing the mitigation as advocated by the State – a less stringent reduction between now and 2030 and a sharp reduction starting in 2030 – will in fact significantly contribute to the risk of dangerous climate change and therefore cannot be deemed a sufficient and acceptable alternative to the scientifically proven and acknowledged higher reduction path of 25–40% in 2020. (para. 4.85)

The State did not argue that a reduction order of 25–40% would result in an undue burden for the Netherlands. On the contrary: the State also argues that a higher reduction target is one of the possibilities. If the reduction is less than 25–40%, the State is failing to fulfil its duty of care and is therefore acting unlawfully. Imposing an obligation of higher than 25% is not allowable due to the State's discretionary power. (para. 4.86)

The reduction order sought by Urgenda does not constitute an order to the State to take certain legislative or policy-making measures. If the claim is allowed, the State will retain full discretion, which is pre-eminently vested in it, to determine how to comply with that order. (para. 4.101)

In a general sense, the aspects that relate to the trias politica do not preclude allowing the order being sought. The restraint which the court should exercise does not result in a further limitation than that ensuing from the State's aforementioned discretionary power. (para. 4.102)

(d) Judgment of the Court of Appeal

2.3.2 The Court of Appeal confirmed the District Court's judgment. In so doing, the Court of Appeal held as follows.

(a) The meaning of Articles 1, 2 and 8 ECHR; positive treaty obligations

5.2.1 Article 1 ECHR provides that the contracting parties must secure to everyone within their jurisdiction the rights and freedoms defined in Section I of the ECHR. In other words, ECHR protection is afforded to the persons who fall within the states' jurisdiction. In the Netherlands this regards, primarily and to the extent relevant in this case, the residents of the Netherlands.

5.2.2 Article 2 ECHR protects the right to life. According to established ECtHR case law, this provision also encompasses a contracting state's positive obligation to take appropriate steps to safeguard the lives of those within its jurisdiction.Footnote ⁷ According to that case law, this obligation applies, inter alia, if the situation in question entails hazardous industrial activities, regardless of whether these are conducted by the government itself or by others, and also in situations involving natural disasters. The ECtHR has on multiple occasions found that Article 2 ECHR was violated with regard to a state's acts or omissions in relation to a natural or environmental disaster.Footnote ⁸ It is obliged to take appropriate steps if there is a real and immediate risk to persons and the state in question is aware of that risk. In this context, the term ‘real and immediate risk' must be understood to refer to a risk that is both genuine and imminent. The term ‘immediate' does not refer to imminence in the sense that the risk must materialise within a short period of time, but rather that the risk in question is directly threatening the persons involved. The protection of Article 2 ECHR also regards risks that may only materialise in the longer term.Footnote ⁹

5.2.3 Article 8 ECHR protects the right to respect for private and family life. This provision also relates to environmental issues. The ECHR may not entail a right to protection of the living environment, but according to established ECtHR case law, protection may be derived from Article 8 ECHR in cases in which the materialisation of environmental hazards may have direct consequences for a person's private lives and are sufficiently serious, even if that person's health is not in jeopardy. According to that case law, when it comes to environmental issues, Article 8 ECHR encompasses the positive obligation to take reasonable and appropriate measures to protect individuals against possible serious damage to their environment. The ECtHR has found that Article 8 ECHR was violated in various cases involving environmental harm.Footnote ¹⁰ The obligation to take measures exists if there is a risk that serious environmental contamination 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 need not exist in the short term.Footnote ¹¹

5.2.4 According to the ECtHR, when it comes to activities that are hazardous to the environment, the positive obligation implied by Article 8 ECHR largely overlaps with the obligation implied by Article 2 ECHR. The case law regarding the former obligation therefore applies to the latter obligation.Footnote ¹² In the case of environmentally hazardous activities, the state is expected to take the same measures pursuant to Article 8 ECHR that it would have to take pursuant to Article 2 ECHR.Footnote ¹³ Therefore, the obligations pursuant to Articles 2 and 8 ECHR will be referred to collectively below.

5.3.1 The protection afforded by Articles 2 and 8 ECHR is not limited to specific persons, but to society or the population as a whole.Footnote ¹⁴ The latter is for instance the case with environmental hazards.Footnote ¹⁵ In the case of environmental hazards that endanger an entire region, Articles 2 and 8 ECHR offer protection to the residents of that region.

5.3.2 The obligation to take appropriate steps pursuant to Articles 2 and 8 ECHR also encompasses the duty of the state to take preventive measures to counter the danger, even if the materialisation of that danger is uncertain.Footnote ¹⁶ This is consistent with the precautionary principle.Footnote ¹⁷ If it is clear that the real and immediate risk referred to above in paras. 5.2.2 and 5.2.3 exists, states are obliged to take appropriates steps without having a margin of appreciation. The states do have discretion in choosing the steps to be taken, although these must actually be reasonable and suitable.Footnote ¹⁸

The obligation pursuant to Articles 2 and 8 ECHR to take appropriate steps to counter an imminent threat may encompass both mitigation measures (measures to prevent the threat from materialising) or adaptation measures (measures to lessen or soften the impact of that materialisation). According to ECtHR case law, which measures are suitable in a given case depends on the circumstances of that case.Footnote ¹⁹

5.3.3 The court may determine whether the measures taken by a state are reasonable and suitable. The policy a state implements when taking measures must be consistent and the state must take measures in good time. A state must take due diligence into account in its policy.Footnote ²⁰ The court can determine whether the policy implemented satisfies these requirements. In many instances found in ECtHR case law, a state's policy has been found to be inadequate, or a state has failed to provide sufficient substantiation that its policy is not inadequate.Footnote ²¹ In its judgment in Jugheli et al./Georgia Footnote ²², for example, the ECtHR held as follows:

5.3.4 Articles 2 and 8 ECHR must not result in an impossible or under the given circumstances disproportionate burden being imposed on a state.Footnote ²³ If a state has taken reasonable and suitable measures, the mere fact that those measures were unable to deter the hazard does not mean that the state failed to meet the obligation that had been imposed on it. The obligations ensuing from Articles 2 and 8 ECHR regard measures to be taken by a state, not the achievement, or guarantee of the achievement, of the envisaged result.Footnote ²⁴

(b) Interpretation standards for the ECHR; ‘common ground’

5.4.1 According to established ECtHR case law, the provisions of the ECHR must be interpreted and applied so as to make its safeguards practical and effective. According to the ECtHR, this ‘effectiveness principle' ensues from “the object and purpose of the Convention as an instrument for the protection of individual human beings”.Footnote ²⁵ This also regards the application of Article 31(1) of the Vienna Convention on the Law of Treaties,Footnote ²⁶ which stipulates that a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in the light of its object and purpose.

5.4.2 According to ECtHR case law, an interpretation of the ECHR must also take into account the relevant rules of international law referred to in Article 31(3)(c) of the Vienna Convention on the Law of Treaties. For example, in its judgment in Nada/Switzerland, the ECtHR held as follows:Footnote ²⁷

Furthermore, in accordance with Article 31(3), opening words and paragraph (b), of the Vienna Convention on the Law of Treaties, an interpretation of treaty provisions must take the Member States' application practice into account.

The ECtHR's holding in the Demir and Baykara/Turkey Footnote ²⁸ judgment was consistent with the foregoing:

“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 specialised international instruments and from the practice of contracting States may constitute 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, is spoken of the common-ground method of interpreting the ECHR, in accordance with the last section of the findings cited above.

5.4.3 According to ECtHR case law, an interpretation and application of the ECHR must also take scientific insights and generally accepted standards into account.Footnote ²⁹

(c) Article 13 ECHR

5.5.1 Article 13 ECHR is also relevant to the interpretation of Articles 2 and 8 ECHR; Article 13 provides that if the rights and freedoms under the ECHR are violated, there exists the right to an effective remedy before a national authority. According to ECtHR case law, this provision guarantees the existence of a remedy at national level to compel the observance of these rights and freedoms. In cases involving an arguable complaint regarding the violation of those rights and freedoms, national law must therefore offer a remedy that leads to obtaining appropriate relief. The scope of this obligation depends on the nature of the violation. The remedy must be both practically and legally effective.Footnote ³⁰

5.5.2 A remedy is considered effective as meant in Article 13 ECHR if it will prevent or end the violation or if the remedy offers adequate redress for a violation that has already occurred. In the case of more serious violations, the available remedies must provide for both: the prevention or end of the violation as well as redress.Footnote ³¹ National states are thus required to provide remedies that can effectively prevent more serious violations.

5.5.3 The remedy must ensure that a national court determines whether the rights and freedoms ensuing from the ECHR have been violated and that this court does so in accordance with the rules of the ECHR and the interpretation of those rules by the ECtHR.Footnote ³² In short: the remedy must offer effective legal protection from possible violations of the rights and freedoms ensuing from the ECHR.

(d) Do Articles 2 and 8 ECHR apply to the global problem of the danger of climate change?

5.6.1 Pursuant to Articles 93 and 94 of the Dutch Constitution, Dutch courts must apply every provision of the ECHR that is binding on all persons. Because the ECHR also subjects the Netherlands to the jurisdiction of the ECtHR (Article 32 ECHR), Dutch courts must interpret those provisions as the ECtHR has, or interpret them premised on the same interpretation standards used by the ECtHR.Footnote ³³ This means that the findings above in paras. 5.2.1–5.5.3 must also be used as a premise by the Dutch courts.

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

5.6.3 As the State has asserted, the ECtHR has not yet issued any judgments regarding climate change or decided any cases that bear the hallmarks that are particular to issues of climate change. Those hallmarks are, briefly put, the dangers presented by a globally occurring activity – the emission of greenhouse gases all over the world, and not just from Dutch territory – whose consequences will have a worldwide impact, including in the Netherlands. The question is whether the global nature of the emissions and the consequences thereof entail that no protection can be derived from Articles 2 and 8 ECHR, such that those provisions impose no obligation on the State in this case.

5.6.4 The Supreme Court considers the answer to this question to be sufficiently clear. It will therefore give the answer to this question itself and will not submit it to the ECtHR for an advisory opinion, as is possible but not compulsory under Protocol no. 16 to the ECHR, which entered into effect on 1 June 2019. In addition, both parties have asked the Supreme Court to hand down its judgment before the end of 2019, in view of the time to which the District Court's order, upheld by the Court of Appeal, relates, which is the end of 2020.

(e) Joint responsibility of the states and partial responsibility of individual states

5.7.1 The answer to the question referred to in 5.6.3 above is in the opinion of the Supreme Court, that, under Articles 2 and 8 ECHR, the Netherlands is obliged to do ‘its part’ in order to prevent dangerous climate change, even if it is a global problem. This is based on the following grounds.

5.7.2 The UNFCCC is based on the idea that climate change is a global problem that needs to be solved globally. Where emissions of greenhouse gases take place from the territories of all countries and all countries are affected, measures will have to be taken by all countries. Therefore, all countries will have to do the necessary. The preamble to this convention states, among other things, the following in this context:

5.7.3 The objective of the UNFCCC is to stabilise greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous human induced interference with the climate system (Article 2). Article 3 contains various principles to achieve this objective. For instance, Article 3(1) provides that the parties “should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities”. Article 3(3) provides that the parties “should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects”. And Article 4 provides, put succinctly, that all parties will take measures and develop policy in this area. It follows from these provisions that each state has an obligation to take the necessary measures in accordance with its specific responsibilities and possibilities.

5.7.4 At the annual climate change conferences held on the basis of the UNFCCC since 1992, the provisions mentioned above in 5.7.3 have been further developed in various COP decisions. In each case these are based first and foremost on an acknowledgement of the above understanding: all countries will have to do the necessary. Articles 3 et seq. of the 2015 Paris Agreement reiterates this in so many words.

5.7.5 This understanding corresponds to what is commonly referred to as the ‘no harm principle’, a generally accepted principle of international law which entails that countries must not cause each other harm. This is also referred to in the preamble to the UNFCCC (in the section cited in 5.7.2 above). Countries can be called to account for the duty arising from this principle. Applied to greenhouse gas emissions, this means that they can be called upon to make their contribution to reducing greenhouse gas emissions. This approach justifies partial responsibility: each country is responsible for its part and can therefore be called to account in that respect.

5.7.6 This partial responsibility is in line with what is adopted in national and international practice in the event of unlawful acts that give rise to only part of the cause of the damage. Partial responsibility is in line with, inter alia, the Draft Articles on Responsibility of States for Internationally Wrongful Acts, as proposed by the UN International Law Commission and adopted by the UN General Assembly. This is apparent, for example, in the explanatory notes to Article 47(1) thereof, in which the following is remarked:Footnote ³⁴

Many countries have corresponding rules in their liability law system.Footnote ³⁵

It is true that Article 3(1) UNFCCC referred to in 5.6.3 above entails that the distribution of the measures to be taken against climate change must not be based solely on the basis of responsibility for past emissions by a country, and that consideration must also be given to the possibilities for countries to reduce their emissions. But that does not detract from the fact that the underlying principle of these widely accepted rules is always that, in short, ‘partial fault’ also justifies partial responsibility.

5.7.7 Partly in view of the serious consequences of dangerous climate change as referred to in 4.2 above, the defence that a state does not have to take responsibility because other countries do not comply with their partial responsibility, cannot be accepted. Nor can the assertion that a country's own share in global greenhouse gas emissions is very small and that reducing emissions from one's own territory makes little difference on a global scale, be accepted as a defence. Indeed, acceptance of these defences would mean that a country could easily evade its partial responsibility by pointing out other countries or its own small share. If, on the other hand, this defence is ruled out, each country can be effectively called to account for its share of emissions and the chance of all countries actually making their contribution will be greatest, in accordance with the principles laid down in the preamble to the UNFCCC cited above in 5.7.2.

5.7.8 Also important in this context is that, as has been considered in 4.6 above about the carbon budget, each reduction of greenhouse gas emissions has a positive effect on combating dangerous climate change, as every reduction means that more room remains in the carbon budget. The defence that a duty to reduce greenhouse gas emissions on the part of the individual states does not help because other countries will continue their emissions cannot be accepted for this reason either: no reduction is negligible.Footnote ³⁶

5.7.9 Climate change threatens human rights, as follows from what has been considered in 5.6.2 above. This is also recognised internationally outside the context of the Council of Europe.Footnote ³⁷ In order to ensure adequate protection from the threat to those rights resulting from climate change, it should be possible to invoke those rights against individual states, also with regard to the aforementioned partial responsibility. This is in line with the principle of effective interpretation, referred to in 5.4.1 above, that the ECtHR applies when interpreting the ECHR and also with the right to effective legal protection guaranteed by Article 13 ECHR, referred to 5.5.1–5.5.3 above.

5.8 In view of the considerations in 5.7.2–5.7.9 above, the Supreme Court finds that Articles 2 and 8 ECHR relating to the risk of climate change should be interpreted in such a way that these provisions oblige the contracting states to do ‘their part’ to counter that danger. In light both of the facts set out in 4.2–4.7 and of the individual responsibility of the contracting states, this constitutes an interpretation of the positive obligations laid down in those provisions that corresponds to its substance and purport as mentioned in 5.2.1–5.3.3 above. This interpretation is in accordance with the standards set out in 5.4.1–5.4.3 that the ECtHR applies when interpreting the ECHR and that the Supreme Court must also apply when interpreting the ECHR.

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

5.9.1 It follows from the above that, as the Court of Appeal has ruled, the State is obliged on the basis of Articles 2 and 8 ECHR to take appropriate measures against the threat of dangerous climate change, in accordance with its share as referred to in 5.8 above.

5.9.2 Urgenda, which in this case, on the basis of Article 3:305a DCC, represents the interests of the residents of the Netherlands with respect to whom the obligation referred to in 5.9.1 above applies, can invoke this obligation. After all, the interests of those residents are sufficiently similar and therefore lend themselves to being pooled, so as to promote efficient and effective legal protection for their benefit.Footnote ³⁸ Especially in cases involving environmental interests, such as the present case, legal protection through the pooling of interests is highly efficient and effective.Footnote ³⁹ This is also in line with Article 9(3) in conjunction with Article 2(5) of the Aarhus Convention,Footnote ⁴⁰ which guarantees interest groups access to justice in order to challenge violations of environmental law, and in line with Article 13 ECHR (see 5.5.1–5.5.3 above).

5.9.3 As the Court of Appeal rightly held in para. 35, the fact that Urgenda does not have a right to complain to the ECtHR on the basis of Article 34 ECHR, because it is not itself a potential victim of the threatened violation of Articles 2 and 8 ECHR, does not detract from Urgenda's right to institute proceedings. After all, this does not deprive Urgenda of the power to institute a claim under Dutch law in accordance with Article 3:305a DCC on behalf of residents who are in fact such victims.

(g) Assessment of the complaints in cassation

5.10 The complaints of grounds for cassation 1–3 fail on the basis of the above. The same applies to the complaints of grounds for cassation 4–8 insofar as these relate to the Court of Appeal's opinion that Articles 2 and 8 ECHR subject the State to the duty to take measures to counter dangerous climate change.

(a) The degree of international consensus regarding the 25–40% target

7.2.1 The 25–40% target is part of an IPCC scenario in AR4 from 2007 for a global reduction in greenhouse gas emissions.Footnote ⁴¹ This scenario provides for Annex I countries to reduce greenhouse gas emissions by 25% to 40% in 2020 and by 80% to 95% in 2050, both compared to 1990 emissions. The distribution of measures between Annex I countries and other countries in this scenario is based on the principles of Articles 3 and 4 UNFCCC. The scenario was written for the target of a maximum concentration of greenhouse gases in the atmosphere of 450 ppm by 2100. This is the concentration at which global warming is reasonably expected to be limited to a maximum of 2°C. AR4 was established on the assumption that this is probably the critical limit above which there is risk of dangerous climate change. The scenario offers a good chance of not exceeding the limit of warming of more than 2°C.

7.2.2 The Bali Action Plan, established at the Bali Climate Change Conference in 2007 (COP-13) endorses the need for far-reaching reductions in greenhouse gas emissions to prevent dangerous climate change. In this respect, reference was made to, among other things, the scenario referred to in 7.2.1. It bears noting here that at climate change conferences decisions are often made on the basis of consensus.

7.2.3 At the Cancún Climate Change Conference in 2010 (COP-16), the countries that are parties to the Kyoto Protocol passed a resolution, the preamble to which expresses, among other things, that, taking into account the findings in AR4, the Annex I countries as a group should reduce their greenhouse gas emissions by 25% to 40% by 2020 compared to 1990:

In the same resolution, the parties to the Kyoto Protocol urged Annex I countries to raise their level of ambition to meet the AR4 target individually or as a group:

At the Durban Climate Change Conference in 2011 (COP-17), these countries passed another resolution, the preamble to which explicitly states that the target for Annex I countries is to reduce their total emissions by at least 25% to 40% compared to 1990 levels:

The need for a reduction of this magnitude was also expressed at the Doha Climate Change Conference in 2012 (COP-18) in a resolution passed by the COP of countries party to the Kyoto Protocol. For the first time, the countries themselves stated in a resolution that, “in order to increase the ambition of its commitment”, the Annex I countries should strive to achieve at least a 25–40% reduction in greenhouse gas emissions by 2020 compared to 1990 levels.

The need for a reduction of this magnitude was also expressed at the climate change conferences in Warsaw, Lima and Paris in 2013, 2014 and 2015, respectively (COP-19, COP-20 and COP-21). At these conferences, this need has been endorsed again and again in resolutions, by reference either to the Doha Amendment or to resolutions passed at previous conferences. The preamble to the COP decision to adopt the Paris Agreement stresses the urgency of achieving this reduction.

Climate change conferences after 2015 no longer explicitly addressed or referred to the reduction target of 25–40% by 2020. At those conferences, however, the need for sufficient reductions in greenhouse gas emissions before and by 2020 has always been stressed.

7.2.4 As the Court of Appeal established in para. 49, the 25–40% target has not been superseded by the 2013–2014 AR5, contrary to what the State suggests. This report, too, is based on the target of a maximum concentration of greenhouse gases in the atmosphere of 450 ppm by 2100 as part of the objective that global warming not exceed 2°C. AR5 no longer discusses 2020. Indeed, this report focuses on later years, i.e. 2030 and in particular 2050 and 2100, and no longer contains targets for 2020. The 2014 and 2015 COP resolutions mentioned above in 7.2.3, which date from after AR5, still refer to the need for Annex I countries to reduce their greenhouse gas emissions by 25% to 40% by 2020 in accordance with AR4.

The distinction made in UNFCCC between Annex I countries and other countries was dropped in AR5, because by that time countries other than Annex I countries had to be deemed developed countries as well. It emerges from the above, however, that, contrary to what the State argues, this does not mean that AR4's reduction scenario for 2020 has become outdated.

7.2.5 AR5 does contain new scenarios to achieve by 2050 and 2100 the reductions in greenhouse gas concentrations deemed necessary. These are largely based on the premise that there will not be a sufficient reduction in greenhouse gas emissions 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(12) above). It is certain, however, that at the moment there is no technology that allows this to take place on a sufficiently large scale. Therefore, as the Court of Appeal held in para. 49, these new scenarios cannot be taken as a starting point for policy at this time without taking irresponsible risks by doing so. Taking such risks would run counter to the precautionary principle that must be observed when applying Articles 2 and 8 ECHR and Article 3(3) UNFCCC (see 5.3.2 and 5.7.3 above). It does not appear, therefore, that these new scenarios have been taken as a starting point for subsequent decisions at climate change conferences.

The Court of Appeal's finding that the 25–40% target has not been superseded by AR5 is therefore understandable and serves as a starting point in cassation.

7.2.6 The EU also took as a starting point the need for the AR4 scenario mentioned above in 7.2.1. Several EU bodies – the Council, the Commission and the Parliament – expressed the scientifically supported necessity of reducing emissions by 30% in 2020 in comparison to 1990. At the Cancún Climate Change Conference in 2010, the EU offered to commit itself to reducing its emissions by this percentage by 2020 if, among other things, the other developed countries would commit themselves to comparable reductions. The following has been noted on behalf of the EU:Footnote ⁴²

In case this condition would not be met – which has proved to be the case – the EU has committed itself to a 20% reduction by 2020. However, by 2020 the EU is expected to achieve a reduction of 26–27% compared to 1990.

7.2.7 It follows from the above that there is a high degree of consensus in the international community on the need for in any case the Annex I countries to reduce greenhouse gas emissions by 25% to 40% by 2020, in order to reduce global warming to the maximum of 2°C deemed responsible at the time of AR4.

7.2.8 After 2007, when AR4 came into being, a high degree of consensus on the need for even greater reductions was reached in the climate science community and the international community. As mentioned in 4.3 above, it has been recognised for some years that global warming should not be limited to a maximum of 2°C to prevent dangerous climate change, but to a maximum of 1.5°C. Therefore, the 2015 Paris Agreement explicitly stipulates that the states will endeavour to limit warming to 1.5°C, “recognising that this would significantly reduce the risks and impacts of climate change” (Article 2(1), opening words and (a), of the Agreement). This necessitates a greater reduction in greenhouse gas emissions than is necessary for a target of no more than 2°C.

7.2.9 The UNEP's 2017 annual report, referring to the carbon budget and the emissions gap described in 4.6 above, therefore states that, in light of the Paris Agreement, the reduction of greenhouse gas emissions is more urgent than ever. The UNEP also remarks that if the emissions gap is not bridged by 2030, achieving the two-degree target is extremely unlikely. Even if the reduction targets underlying the Paris Agreement are fully achieved, 80% of the carbon budget corresponding with the two-degree target will be used up by 2030. Starting from a 1.5°C target, the carbon budget will even have been completely exhausted by then. That is why even more ambitious reduction targets are needed for the year 2020, according to the UNEP. The 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 of climate impacts”.Footnote ⁴³

7.2.10 With regard to the above, it must be taken into account that, as the Court of Appeal established in para. 63 without being disputed in cassation, the maximum targets of 1.5°C or 2°C and the related concentrations of a maximum of 430 or 450 ppm are based on estimates. It is therefore possible that dangerous climate change will occur even with less global warming and a lower concentration of greenhouse gases, for example because a tipping point is reached or because ice melts at a higher rate (see 4.4 above). The precautionary principle therefore means that more far-reaching measures should be taken to reduce greenhouse gas emissions, rather than less far-reaching measures.

7.2.11 From what has been considered above in 7.2.8–7.2.10, it follows once again that there is a high degree of international consensus on the urgent need for the Annex I countries to reduce greenhouse emissions by at least 25–40% by 2020 compared to 1990 levels, in order to achieve at least the two-degree target, which is the maximum target to be deemed responsible. This high degree of consensus can be regarded as common ground within the meaning of the ECtHR case law referred to 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

7.3.1 The State has argued that the 25–40% target only applies to the Annex I countries as a group and not to each of them individually. Therefore, according to the State, this objective allegedly does not apply to it individually. In addition, the State has argued that the EU as a whole is committed to a 20% reduction in greenhouse gas emissions by 2020 (see 7.2.6 above) and that it was agreed at EU level that the Netherlands would contribute to this by reducing its greenhouse gas emissions in 2020 by 21% for the ETS sector and by 16% for the non-ETS sector, both compared to 2005 levels. According to the State, it complies with all its obligations by making these contributions.

7.3.2 In and of itself, it is correct that the 25–40% target in AR4 was included for the Annex I countries as a group. However, as shown by the considerations in 5.7.3 and 5.7.4 above, the UNFCCC and the Paris Agreement are both based on the individual responsibility of states. Therefore, in principle, the target from AR4 also applies to the individual states within the group of Annex I countries. As will become clear in 7.4.1, the State itself interpreted this target in the same way. Both the UNFCCC and the Paris Agreement provide for states to cooperate and conclude an agreement whereby they jointly reduce their emissions and whereby one may do more than the other (Article 4(2)(a), last sentence, UNFCCC and Article 4(16) and 4(17) Paris agreement). The State has not argued, however, that such an agreement was concluded by it in relation to the 25–40% target of AR4.

7.3.3 The purport of the State's reference to the agreements at EU level as mentioned in 7.3.1 above is not that such an agreement was reached at EU level. The State refers to those agreements only because, in its view, they are only standards that oblige it to achieve a certain concrete reduction in greenhouse gas emissions. However, this argument fails to recognise that, as considered in 5.8 and 6.3–6.5 above, the State may also be obliged to make such a reduction on the basis of Articles 2 and 8 ECHR, in which regard the consensus mentioned above in 7.2.11 is important.

Incidentally, as far as the present case has shown, the said agreements at EU level are not intended to replace the obligations of the individual EU Member States under the UNFCCC. At the Cancún Climate Change Conference in 2020, the EU formulated its own reduction target as it is a party to the UNFCCC on its own. By virtue of the agreements made within the EU on the distribution of measures necessary to enable the EU to achieve this reduction target, the Netherlands is subject to the reduction obligations set out in 7.3.1 above. However, these agreements are without prejudice to the individual responsibility of the EU Member States by any other virtue. The Effort Sharing Decision therefore states in consideration 17 of the preamble that this decision does not preclude more stringent national objectives. This also follows from Article 193 TFEU.

In addition, the EU itself expressed the need for 30% reduction by 2020 and the EU as a whole is expected to achieve a 26–27% reduction by 2020 compared to 1990, which is above the minimum target of 25% of the AR4 scenario and significantly more than the 20% reduction undertaken by the EU at the Cancún Climate Change Conference in 2010.

7.3.4 Moreover, the Court of Appeal rightly held in para. 60 that it would not be obvious for a lower reduction rate to apply to the Netherlands as an Annex I country than to the Annex I countries as a whole. As the Court of Appeal considered in para. 66, the Netherlands is one of the countries with very high per capita emissions of greenhouse gases. In the above agreements at EU level, the reduction percentage agreed upon for the Netherlands is, accordingly, one of the highest reduction percentages applicable to the EU Member States (Annex II to the Effort Sharing Decision). It can be assumed that this high percentage corresponds to the possibilities and responsibilities of the Netherlands. As the Court of Appeal established in para. 60, the State has not substantiated why a lower percentage should apply.

7.3.5 In ground for cassation 8.2.3, the State complains that the Court of Appeal ignored the State's argument that it was contributing to reducing global greenhouse gas emissions by providing knowledge and financial resources to developing countries, with which those countries could take mitigation and adaptation measures. However, it did not elaborate on this assertion. The State did, amongst other things, not put forward that this contribution realises a reduction of greenhouse gas emissions and that this should be taken into account when answering the question as to which target applies to the State and whether the State achieves the target applicable to it.Footnote ⁴⁴ This complaint therefore fails.

7.3.6 In view of the foregoing, the Court of Appeal rightly ruled that the urgent need for a 25–40% reduction by 2020 also applies to the Netherlands individually.

(c) The State's policy regarding measures to counter climate change

7.4.1 As considered in 4.8 above, the State acknowledges the need of the target of a maximum concentration of greenhouse gases in the atmosphere of 430 or 450 ppm by 2100, with global warming reasonably expected to be limited to no more than 1.5°C or 2°C. In this context, the State also endorsed the targets set out in the AR4 scenario. As regards that scenario's targets of 80% to 95% reduction by 2050 and of 450 ppm by 2100 (now 430 ppm by 2100), it still endorses them. For the year 2020, the State assumed a reduction target of 30% until 2011. According to the letter from the Minister of Housing, Spatial Planning and the Environment dated 12 October 2009 cited above in 2.1(27), the State, like the EU (see 7.2.6 and 7.3.3 above), was at the time of the opinion that a reduction of 25% to 40% by 2020 was necessary to stay on a credible track to keep the 2°C target within reach.

7.4.2 After 2011, the State adjusted its target for 2020 downwards to the 20% reduction at EU level as referred to in 7.3.1 above. In these proceedings, the State argues that, on closer inspection, achieving a 25% to 40% reduction by 2020 is not necessary, because the same result can be achieved by accelerating the reduction of greenhouse gas emissions in the Netherlands after 2020. The State argues that it intends to have this accelerated reduction take place after 2020 and that it prefers this reduction path over the AR4 scenario. The question, however, is whether an accelerated reduction of 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 of Appeal are relevant.

7.4.3 All greenhouse gas emissions lead to a reduction in the carbon budget still available (see also 4.6 above). Any postponement of the reduction of emissions therefore means that emissions in the future will have to be reduced on an increasingly large scale in order to make up for the postponement in terms of both of time and size. This means that, in principle, for each postponement of emissions reductions, the reduction measures to be taken at a later date will have to be increasingly far-reaching and costly in order to achieve the intended result, and it will also be riskier. The UNEP already warned about this in its 2013 annual report (see 2.1(22) above).

7.4.4 Following AR4, it became clear that in order to prevent dangerous climate change even greater reductions of greenhouse gas emissions are actually needed in the short term and that this need is becoming increasingly urgent, both before 2020 and in the subsequent period up to 2030 (see also 7.2.8–7.2.9 above). Also according to the Netherlands Environmental Assessment Agency (Planbureau voor de Leefomgeving) (the PBL) – which is an independent research institute that is part of the Ministry of Infrastructure and the Environment – a policy is needed, in view of the Paris Agreement, that goes far beyond the current policies of the countries in question. According to the PBL in a 2016 report, the Dutch policy should be tightened in the short time in order to align it with the Paris Agreement.

7.4.5 The State acknowledges the fact referred to in 7.4.3 above (para. 71 of the Court of Appeal's judgments) and does not contest the facts mentioned in 7.4.4 above. Moreover, it has meanwhile formulated a reduction target for 2030 of 49% and for 2050 of 95% (these targets have been laid down in the Dutch Climate Act after the date of the Court of Appeal's judgmentFootnote ⁴⁵). The target of 49% for 2030 was derived linearly from the target of 95% for 2050. On request, the State informed the Court of Appeal that if this line were extended to 2020 this would result in a target of 28% for that year (para. 47).

7.4.6 In view of the considerations in 7.4.3–7.4.5 above, there may be serious doubts as to whether, with the 20% reduction envisaged by the State at EU level by 2020, the overall reduction over the next few decades, which the State itself believes to be necessary in any case, is still feasible. After all, the need for this reduction requires the State to aim for a reduction in greenhouse gas emissions by more than 25% by 2020, rather 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 20% reduction by 2020 can still be considered responsible. The State has not provided any insight into which measures it intends to take in the coming years, let alone why these measures, in spite of the above, would be both practically feasible and sufficient to contribute to the prevention of dangerous climate change to a sufficient extent in line with the Netherlands' share. The State has confined itself to asserting that there “are certainly possibilities” in this context.

(d) Must the State adhere to the 25–40% target?

7.5.1 In view of the above, the Court of Appeal was allowed to rule in para. 52 that the State has insufficiently substantiated that it would be possible for a responsible policy to prevent dangerous climate change to include a greenhouse gas emissions reduction target of less than at least 25% by 2020. Therefore, in accordance with the foregoing considerations in 6.3–6.5, there is reason to come to the conclusion that the State should in any event adhere to the target of at least 25% reduction by 2020. As stated above, there is a large degree of consensus in the international community and climate science that at least this reduction by the Annex I countries, including the Netherlands, is urgently needed (see 7.2.11 and 7.3.6 above). Proper legal protection means that this consensus can be invoked when implementing the positive obligations incumbent on the State pursuant to Articles 2 and 8 ECHR. The target of achieving a reduction of at least 25% by 2020 is also in line with what the State itself considers necessary for other years (2030, 2050 and 2100 (see 7.4.1–7.4.5 above). In the context of the positive obligation on the State under Articles 2 and 8 ECHR to take appropriate measures to prevent dangerous climate change, this target can therefore be regarded as an absolute minimum. As the State has not been able to provide a proper substantiation of its claim that deviating from that target is nevertheless responsible (see 7.4.6 above), it must adhere to the target of 25%. It should therefore strive to achieve at least this reduction by 2020, as the Court of Appeal rightly held in para. 53.

7.5.2 The State has also argued, in ground for cassation 8.2, that it meets its obligations under Articles 2 and 8 ECHR by taking adaptation measures, whether or not in combination with mitigation measures already taken and proposed, and that it therefore does not have to meet the 25–40% target. In para. 59, however, the Court of Appeal established fully comprehensibly that although it is correct that the consequences of climate change can be mitigated by taking adaptation measures, it has not been demonstrated or made plausible that the potentially disastrous consequences of excessive global warming can be adequately prevented by such measures. This finding also implies that even if account is taken of the fact that the State is taking adaptation measures, mitigation measures that reduce emissions by at least 25% by 2020 are urgently needed, also for the Netherlands. The State's aforementioned argument therefore does not hold.

7.5.3 It should also be noted that the Court of Appeal's judgment implies in paras. 57 and 66 that the State has not sufficiently substantiated that the reduction of at least 25% by 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 impairment of the level playing field of the Dutch business community in an international context. In connection with the first argument, the Court of Appeal took into account that the District Court's order to the State dates back to 2015, i.e. has been in force since then, and that the State has moreover been aware of the seriousness of the climate problem for some time and initially pursued a policy aimed at a 30% reduction by 2020 (para. 66). With respect to the second argument, the Court of Appeal took into account that other EU countries pursue much stricter climate policies and that the State has not explained this argument in more detail (para. 57). By doing so, the Court of Appeal has comprehensibly rejected the State's assertion that there would be an impossible or disproportionate burden. Ground for cassation 8.4, which accuses the Court of Appeal of not having investigated this assertion, is therefore unfounded.

(e) Assessment of complaints in cassation

7.6.1 The complaints referred to in 4.237–4.248 of the Opinion proffered by the deputy Procurator General and the Advocate General cannot lead to cassation for the reasons stated there.

7.6.2 Insofar as complaints from grounds for cassation 4–8 have not been dealt with in the foregoing, these cannot lead to cassation either. With regard to Article 81(1) DJOA, this does not require any further substantiation since the complaints do not require answers to legal questions in the interest of unity of law or legal development.

(a) Order to create legislation

8.2.1 If the government is obliged to do something, it may be ordered to do so by the courts, as anyone may be, at the request of the entitled party (Article 3:296 DCC). This is a fundamental rule of constitutional democracy, which has been enshrined in our legal order. As far as the rights and freedoms set out in the ECHR are concerned, this rule is consistent with the right to effective legal protection laid down in Article 13 ECHR referred to above in 5.5.1–5.5.3. Partly in connection with this fundamental rule, the Dutch Constitution stipulates that civil courts have jurisdiction over all claims, so that they can always grant legal protection if no legal protection is offered by another court.Footnote ⁴⁶

8.2.2 It follows from the considerations in 5.1.7–6.2 above that, in this case, the State has a legal duty by virtue of the protection it must provide to residents of the Netherlands on the basis of Articles 2 and 8 ECHR in order to protect their right to life and their right to private and family life. It may therefore be ordered to comply with this duty by the courts, unless there are grounds for an exception in accordance with Article 3:296 DCC. Under that provision, an exception arises if the law so provides or if it follows from the nature of the obligation or the legal act. The Supreme Court case law relating to orders to create legislation constitutes an application of this exception.Footnote ⁴⁷

8.2.3 This case law is based on two considerations. First of all, there is the consideration that the courts should not intervene in the political decision-making process involved in the creation of legislation. Secondly, there is the consideration that such an order should create an arrangement that also applies to parties other than the parties to the proceedings.Footnote ⁴⁸

8.2.4 The first consideration does not mean that courts cannot enter the field of political decision-making at all. In the case law referred to above, therefore, the earlier case law of the Supreme Court has been reiterated, which dictates that, on the basis of Article 94 of the Dutch Constitution, the courts must disapply legislation if any binding provisions of treaties entail such.Footnote ⁴⁹ It has also been decided in that case law that the courts may issue a declaratory decision to the effect that the public body in question is acting unlawfully by failing to enact legislation with a particular content.Footnote ⁵⁰

The first consideration on which the case law referred to in 8.2.2 is based must therefore be understood to mean that the courts should not interfere in the political decision-making process regarding the expediency of creating legislation with a specific, concretely defined content by issuing an order to create legislation. In view of the constitutional relationships, it is solely for the legislator concerned to determine for itself whether legislation with a particular content will be enacted. Therefore, the courts cannot order the legislator to create legislation with a particular content.

8.2.5 The second consideration on which the case law referred to in 8.2.2 above is based relates to the circumstance that the civil courts only pronounce binding decisions between the parties to the dispute (cf. Article 236 DCCP). The courts do not have the power to decide in a manner binding on everyone how a statutory provision should read. An order to create legislation is therefore subject to the objection that third parties, which are not involved in the proceedings and are therefore not bound by the judgment, would still be bound (indirectly) by that order by virtue of the fact that that legislation would also apply to them. This objection does not arise in the case of an order not to apply statutory provisions, which applies only to a particular claimant, or in the case of a declaratory decision. The same applies to a general order to take measures, while respecting the legislator's freedom, as referred to in the second paragraph of 8.2.4 above, to create or not to create legislation with a particular content. After all, the courts in that case do not determine the content of the statutory provision by issuing their order; this determination is still reserved to the legislator in question.

8.2.6 It follows from the above that the courts are only not permitted to issue an order to create legislation with a particular, specific content. After all, only then do the objections arise which are raised in the consideration on which the case law referred to in 8.2.2 above is based. Therefore, the courts are not prevented to issue a declaratory decision to the effect that the omission of legislation is unlawful (see 8.2.4 above). They may also order the public body in question to take measures in order to achieve a certain goal, as long as that order does not amount to an order to create legislation with a particular content. In the Supreme Court judgment of 9 April 2010 (SGP), the impermissibility of courts issuing an order to create legislation is for that reason limited to this case.Footnote ⁵¹

8.2.7 In light of the foregoing, the District Court's order, upheld by the Court of Appeal, constitutes an application of the main rule of Article 3:296 DCC. Indeed, 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 not altered by the fact that many of the possible measures to be taken will require legislation, as argued by the State. After all, it remains for the State to determine what measures will be taken and what legislation will be enacted to achieve that reduction. The exception to Article 3:296 DCC made in the case law referred to in 8.2.2 above therefore does not apply in this case.

(b) Political domain

8.3.1 This brings the Supreme Court to the assessment of the State's more general argument that it is not for the courts to make the political considerations necessary for a decision on the reduction of greenhouse gas emissions.

8.3.2 As considered in 6.3 above, in the Dutch constitutional system of decision-making on the reduction of greenhouse gas emissions is a power of the government and parliament. They have a large degree of discretion to make the political considerations that are necessary in this regard. It is up to the courts to decide whether, in availing themselves of this discretion, the government and parliament have remained within the limits of the law by which they are bound.

8.3.3 The limits referred to in 8.3.2 above include those for the State arising from the ECHR. As considered in 5.6.1 above, the Netherlands is bound by the ECHR and the Dutch courts are obliged under Articles 93 and 94 of the Dutch Constitution to apply its provisions in accordance with the interpretation of the ECtHR. The protection of human rights it provides is an essential component of a democratic state under the rule of law.

8.3.4 This case involves an exceptional situation. After all, there is the threat of dangerous climate change and it is clear that measures are urgently needed, as the District Court and Court of Appeal have established and the State acknowledges as well (see 4.2–4.8 above). The State is obliged to do ‘its part’ in this context (see 5.7.1–5.7.9 above). Towards the residents of the Netherlands, whose interests Urgenda is defending in this case, that duty follows from Articles 2 and 8 ECHR, on the basis of which the State is obliged to protect the right to life and the right to private and family life of its residents (see 5.1–5.6.4 and 5.8–5.9.2 above). The fact that Annex I countries, including the Netherlands, will need to reduce their emissions by at least 25% by 2020 follows from the view generally held in climate science and in the international community, which view has been established by the District Court and the Court of Appeal (see 7.2.1–7.3.6 above). The policy that the State pursues since 2011 and intends to pursue in the future (see 7.4.2 above), whereby measures are postponed for a prolonged period of time, is clearly not in accordance with this, as the Court of Appeal has established. At least the State has failed to make it clear that its policy is in fact in accordance with the above (see 7.4.6 and 7.5.1 above).

8.3.5 In this case, therefore, the Court of Appeal was allowed to rule that the State is in any case obliged to achieve the aforementioned reduction of at least 25% by 2020.

(c) Assessment of the complaints in cassation

8.4 Ground for cassation 9 therefore cannot lead to cassation either.