Conviction of the Shell Group in the Netherlands: the judge clarifies the civil liability of multinationals in climate matters

    After being served with a formal notice by the association Milieudefensie (Friends of the Earth) in 2018, the company “Royal Dutch Shell” was summoned by 6 NGOs and 17,379 Dutch citizens before the Hague’s District Court in the Netherlands. The plaintiffs denounced the insufficiency of the commitments of the Shell group in its policy of reducing greenhouse gas emissions. The decision rendered on May 26, 2021, by the Dutch court is unprecedented. The entire Shell group, including its foreign subsidiaries, has been ordered to reduce its direct and indirect greenhouse gas emissions (scopes 1, 2, and 3) by at least 45% in 2030 compared to 2019. 

This judgment is reminiscent of the Urgenda case law of the Dutch Supreme Court. Indeed, in 2015 and 2018, the Dutch judges had then condemned the Dutch state for climate inaction and ordered a new trajectory of greenhouse gas emission reductions of at least 25% by 2020.

    The May 2021 decision now paves the way for climate litigation in the private sector, here against multinational oil companies [1]. It is a reminder of the role of business in the decarbonization process. As highlighted by M. Hautereau-Boutonnet in her decision’s commentary, the judge recognizes the civil liability of Royal Dutch Shell “because it participates in climate change at a global level, and the resulting consequences at a local level for the victims represented (…). Therefore, the RDS company is condemned, not to repair the victims’ damages, but to prevent them” [2]. To base his decision, the judge : 

• considers that there is a risk of violation of the right to life and the right to respect for private and family life enshrined in the European Convention on Human Rights ;
• relies on the principle of duty of care, which is very similar to the French duty of vigilance. It is the “unwritten norm” which corresponds to a sort of evolving standard of care ;
• the Shell group has an obligation of result concerning scope 1 emissions. In addition, the judge insists on the importance of the means’ obligations in terms of prevention. Shell is recognized as being responsible for the emissions of its customers (scope 3) and suppliers.

This decision marks a turning point in the recognition of individual corporate responsibility for climate change [3]. It echoes the French litigation that has pitted a collective of associations and communities against the French oil giant Total since October 2018 [4]. It could be a source of inspiration for French judges and beyond. 

M. Hautereau-Boutonnet: “In the continuity of the Urgenda case, this judgment confirms the winning potential of the duty of care/ vigilance in climate litigation and the pivotal role of the evidence submitted to the judge to determine its scope and examine its disregard.” [5]