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ESG litigation in the Netherlands

ESG litigation in the Netherlands

Environmental, Social, and Governance (ESG) criteria are at the forefront of modern business strategies. They set the standard for company operations and investor expectations. ESG is not just about corporate citizenship; it’s a framework guiding how companies can operate responsibly in the areas of environmental stewardship, social contribution, and leadership integrity. However, in the Netherlands, ESG poses legal challenges as standards become intertwined with enforceable regulations. As a business, you’re under increasing pressure to adhere to ESG-related laws and guidelines, especially the pivotal Corporate Sustainability Reporting Directive (CSRD). This directive, a game-changer, is expanding reporting requirements, compelling you to provide unparalleled transparency. In this blog, we will discuss the latest developments about ESG litigation in the Netherlands, including relevant case law.

Understanding ESG Litigation in the Netherlands

To understand ESG litigation in the Netherlands, it’s essential to recognize that it covers a broad spectrum of issues, including climate change, human rights abuses, securities, and consumer issues. This form of litigation in Holland is gaining significance rapidly as companies are feeling the pinch to comply with ESG-related legislation. For instance, the Dutch Enterprise Chamber, a crucial legal entry point for ESG litigation, focuses on sustainability reporting and compliance with the Corporate Sustainability Reporting Directive (CSRD).

Understanding of ESG litigation in the Netherlands wouldn’t be complete without acknowledging the role of the Dutch legal framework. Laws like the WCA, WCAM, and WAMCA enable collective actions. They’ve given rise to notable cases such as Urgenda vs. Dutch State and Milieudefensie vs. Royal Dutch Shell, which have set strong precedents. These cases highlight an increasing trend: companies in the Netherlands are more frequently being held accountable for environmental and social harm.

Furthermore, the rise in ESG-related class actions under the WAMCA since 2020 indicates a growing trend in ESG disputes in the Netherlands. As a result, understanding ESG litigation in the Netherlands isn’t just about knowing the laws and regulations, but also understanding the evolving nature of these disputes.

Is Sustainable Travel Advertising Misleading Consumers?

The Dutch Authority for Consumers and Markets (ACM) made waves with its decision regarding the ‘Travel Sustainable’ campaign by a prominent travel platform. This step reinforces the duty of transparency and truth in environmental marketing. The removed campaign previously showcased sustainability scores, yet it lacked clarity and potentially misled about the sustainable nature of travel options.

Greenwashing and Market Miscommunication

Greenwashing and market miscommunication emerge as significant hurdles, posing threats to both company’s reputation and the integrity of environmental claims made in financial reporting.

Greenwashing, a deceptive practice where a company misrepresents its environmental impact or benefits, can significantly undermine your company’s credibility. For instance, if you exaggerate your firm’s sustainability efforts, you risk misleading consumers and eroding their trust. This could potentially expose your company to legal action and reputational damage.

Regulations on environmental claims, such as those in Europe and Australia, aim to prevent consumer deception and maintain integrity in market communications. These laws represent serious attempts to combat the risk of greenwashing. However, staying compliant requires your vigilance in ensuring transparency and accuracy in your ESG reporting.

Moreover, proposed reforms in financial information reporting are geared towards holding companies accountable for greenwashing. This suggests that the regulatory landscape is evolving, and your company must equip itself to adapt to these changes proactively

The Amsterdam District Court’s ruling on the sustainability claims by a Dutch airline sends a clear signal: green statements must be precise and verifiable. Misleading claims related to carbon credits and sustainable fuel use violate consumer trust and the Unfair Commercial Practices Directive. This case demonstrates the courts’ active role in curbing greenwashing.

Furthermore, Supermarket chain Albert Heijn is removing unclear and incorrect sustainability claims from its stores. This comes after the Authority Consumer and Market (ACM) called the company to account. The supermarket chain used the term ‘most sustainable supermarket’ in several stores, based on research into consumer perceptions and not on concrete sustainability efforts. This was not clear enough. The research was also outdated. Albert Heijn also used the claim ‘Together with our growers / our farmers we are working on a more sustainable future’. Albert Heijn referred to its website for more information, but this was not sufficient. Claims should be as factual and complete as possible so that consumers can immediately understand the sustainability benefit. After the ACM pointed this out to Albert Heijn, the company immediately agreed to remove the claims.

Strategic Risks of ESG Litigation in Holland

It’s crucial to understand the strategic risks associated with this rising trend, including increased scrutiny on corporate sustainability practices, potential reputational damage, and financial implications. The Dutch Enterprise Chamber plays a pivotal role in shaping these risks, particularly through sustainability reporting and compliance with the Corporate Sustainability Reporting Directive (CSRD).

Here are some concrete manifestations of these strategic risks:

  • Shareholder activism: Shareholders are increasingly leveraging their rights, demanding transparency and accountability in your company’s ESG practices.
  • Regulatory investigations: Non-compliance with the CSRD can attract regulatory attention, potentially leading to fines and operational disruptions.
  • Public backlash: Any perceived negligence in your company’s ESG commitments can lead to reputational damage that’s hard to recover from.

It’s not just about compliance; it’s about proactively managing these risks. This involves implementing robust ESG governance, engaging with stakeholders, and ensuring transparency in your sustainability reporting. Remember, the stakes are high, and the Dutch landscape is only growing more complex. You must stay ahead of the curve to protect your business.

Informal Dutch Dispute Resolution Mechanisms

While holding companies accountable for environmental harm is a stringent practice in the Netherlands, you’ll notice a more flexible approach when it comes to addressing ESG disputes. The Netherlands leverages informal dispute resolution mechanisms, such as the Advertising Code Committee, to handle ESG-related conflicts. These cost-efficient avenues offer an alternative to traditional court proceedings, allowing disputes to be resolved more amicably and efficiently.

Regulatory authorities in the Netherlands also play a crucial role in managing ESG actions. By conducting thorough investigations, they ensure corporate practices align with ESG standards. As a company, you can strategically manage your risks by engaging in these informal resolution methods. This proactive approach can significantly reduce potential liabilities and ensure you’re operating within the required ESG parameters.

Moreover, you’ll find it beneficial to set up a multidisciplinary team to safeguard climate policies and address ESG-related disputes effectively. By integrating various areas of expertise, you can better navigate the complex landscape of ESG legislation, ensuring compliance while promoting sustainable practices. This comprehensive approach underscores the Netherlands’ commitment to tackling ESG issues outside traditional courtroom settings.

What Are the New Frontiers of Climate Litigation?

Climate litigation has taken a bold turn with Friends of the Earth Netherlands (Milieudefensie) demanding significant CO2 reductions from a major Dutch bank and suing the Dutch State alongside Bonaire residents. These legal battles reflect the intense pressure institutions face to align with the Paris Agreement and protect communities from climate change impacts.

Klaas Knot, President of the Dutch National Bank (DNB), emphasized the urgency to address nature-related financial risks. Recognizing the economy’s reliance on nature, he calls for collective action in assessing and mitigating these risks to maintain financial stability.

Role of Corporate Sustainability Reporting Directive

Understanding the role of the Corporate Sustainability Reporting Directive (CSRD) is crucial, as it significantly impacts ESG litigation in the Netherlands by introducing expansive sustainability reporting standards. As a key European directive, the CSRD is leading to a major expansion in reporting requirements. This allows stakeholders, including the Financial Market Authority, to dispute and even request amendments in management reports based on CSRD guidelines.

CSRD’s influence extends to annual accounts proceedings, a crucial aspect of ESG litigation in the Netherlands. These focus on sustainability reporting and the compliance with CSRD. This directive not only shapes the ESG litigation landscape but also determines how companies adhere to sustainability reporting necessities.

To grasp the CSRD’s influence, consider these key points:

  • The CSRD is a pivotal directive affecting ESG litigation through new reporting standards.
  • Stakeholders can request changes in management reports based on CSRD’s guidelines.
  • The CSRD’s impact on reporting obligations determines how companies meet sustainability reporting requirements.

Analyzing the CSRD’s role is essential in understanding how ESG litigation is evolving in the Netherlands, and the potential challenges companies may face in compliance.

The Growth of Climate Litigation: What Does It Mean for the Future?

UNEP’s report indicates a surge in climate litigation. The Netherlands is no exception, with a substantial increase in cases seeking to hold entities accountable for climate-related actions or inactions. This trend signals the rising role of the judiciary in the climate crisis.

Shifting gears to examine the legal disputes surrounding carbon emissions in the Netherlands, it’s clear that companies are increasingly being held accountable for their contributions to climate change. As you navigate through the complex landscape of ESG litigation in the Netherlands, you’ll witness a significant rise in cases targeting carbon emissions.

The Dutch Enterprise Chamber has become a critical platform for such litigation, with an amplified focus on sustainability reporting and compliance with the Corporate Sustainability Reporting Directive (CSRD). Stakeholders are effectively using this legal avenue to dispute companies’ sustainability reporting standards, thereby challenging their carbon footprints.

The Dutch courts are handling a growing number of cases related to carbon emissions and their climate impact. This increasing pressure has resulted in a marked shift in corporate accountability. To paint a clearer picture, consider the following:

  • In a landmark case, the Court of Appeal of The Hague allowed the participation of the Milieu en Mens foundation in Milieudefensie’s proceedings against Shell. This inclusion is significant, indicating the courts’ openness to diverse perspectives in climate litigation.
  • Greenpeace’s legal action against the Dutch State for failing to reduce nitrogen emissions and the Amsterdam Court of Appeal’s stance on flight reductions at Schiphol Airport, are reshaping the legal environment concerning environmental protection and aviation sustainability.
  • The role of the CSRD in expanding reporting requirements, thereby providing a new platform for legal disputes.

These developments underscore the significance of carbon emissions litigation as a core aspect of ESG legal actions in the Netherlands.

Contact our Dutch Product Compliance Law Firm

For any legal inquiries or support in the Netherlands regarding ESG litigation in the Netherlands, please feel free to contact our adept team at MAAK Advocaten. Committed to excellence, our Dutch lawyers provide superior legal services tailored to your distinct needs. You can reach our law firm in the Netherlands through our website, by email, or phone.

Our approachable and skilled staff at MAAK Attorneys will be delighted to assist you, arranging a meeting with one of our specialized attorneys in the Netherlands. Whether you need a Dutch litigation attorney or a Dutch contract lawyer in Amsterdam, we are eager to guide you through the legal intricacies and secure the most favorable results for your situation.

Contact details

Martin Krüger | attorney-at-law (‘advocaat’)
+31 (0)20 – 210 31 38

The information on this legal blog serves purely for educational purposes and should not be taken as specific legal guidance. While we endeavor to maintain accurate and current information, we do not assert its absolute completeness or relevance to your particular situation. For advice tailored to your legal concerns, we urge you to engage with a licensed attorney. Please note that the blog’s content may change without notice, and we are not liable for any inaccuracies or missing information.

Martin Krüger

Martin Krüger

Our English-speaking Dutch attorney Martin Krüger leads MAAK Attorneys' Product Compliance & Regulation and the Dutch Product Liability Team. His team handles complex product safety and liability issues and, where necessary, assists clients with product withdrawals or recalls. Martin is also an experienced Dutch litigator in commercial disputes between companies and against market surveillance authorities. Visit Martin's profile via the website or via his LinkedIn Profile.