Friday, December 9, 2011

Special focus on tort law in the Netherlands, part 2 of 2

Tort law in the Netherlands. 
We have seen in another article on this blog that the Netherlands might be amongst the best places in the European Union to sue climate polluters. For this reason, we investigate in more detail the Dutch legal system in a view of climate litigation / climate damage compensation cases. We base this investigation mainly on two publications available in English. The second one is not very recent, but complements perfectly the first one:

“Civil Liability for Transfrontier Pollution - Dutch Environmental Tort Law in International Cases in the Light of Community Law” by Gerrit Betlem, Grahem & Trotman / Martinus Nijhoff, London/Dordrecht/Boston 1993, available at: Google Books

Forum and applicable law: We skip these sections they are outdated by later developments, namely the EU Regulation EC/44/2001 and the EU Regulation EC/864/2007 (“Rome II”). For these aspects – and many others not covered here – please see our 1st article on the Netherlands. See for the topic of Forum also Gerrit Betlem's article “Transnational Litigation against Multinational Corporations before Dutch Civil Courts” published in: M. Kamminga & S. Zia-Zarifi (eds.), Liability of Multinational Corporations under International Law (Kluwer Law International 2000), p. 283-305, available here: http://www.eulaw.soton.ac.uk/elpub/gb00.pdf, page 2 onwards.

Causation: Dutch law applies the Latin “conditio sine qua non” rule (462). According to this rule, a fact is a cause if the damage would not have occurred without the fact. However, the Dutch High Court “Hoge Raad” does not request that damage reducing measures of the victim would not have been taken without the damaging fact. In the Rhine water case MDPA referred to below, the contribution to the saltiness of the Rhine water made the tortfeasor proportionately liable although the victims might have decided to reduce the salt of their irrigation water anyway, even without this contribution (463/464).

Unlawfulness: It shall be recalled that A6:162 of the Dutch Civil Code provides:
  1. A person who commits an unlawful act towards another which can be imputed to him, must repair the damage which the other person suffers as a consequence thereof.
  2. Except where there is a ground of justification, the following acts are deemed to be unlawful: the violation of a right, an act or omission violating a statutory duty or a rule of unwritten law pertaining to proper social conduct.
  3. An unlawful act can be imputed to its author if it results from his fault or from a cause for which he is answerable according to law or common opinion.
As in the 1st article on the tort law in the Netherlands, the authors identify three reasons for unlawfulness: “breach of a statutory duty, infringement of a right and breach of duty to take due care” (350). Each of these three grounds fulfils separately the requirement of unlawfulness (350).

Breach of a statutory duty: A duty is “statutory” if it is contained in any written provision of private or public law, including even self-executing provisions of (international) treaties (350). The authors even claim with reference to a ruling of the Hoge Raad that the breach of foreign law can constitute a breach of a statutory duty as well, but this statement seems to be limited to cases where the foreign law is “the law applicable to the conflict” (354/355). According to Article 6:163 of the Dutch Civil Code, “There is no obligation to repair damage when the violated norm does not have as its purpose the protection from damage such as that suffered by the victim” (356). This article is the basis of the doctrine of relativity of unlawfulness which needs only to be applied to the case of breach of a statutory duty (357).

Infringement of a right: The authors argue that this case has no function independent from the other two cases (377-390) except in special cases (which are of no relevance to climate change litigation).

Breach of duty of care: The essence of the examination which has to be made under this item is the weighing of the interests between the victims and those who have caused the damage (391-401). The Hoge Raad, in a ground breaking ruling of 23 September 1988 in a case of three Dutch horticulturists against the French state owned potassium mining company “Mines Domaniales de Potasse d' Alsace” MDPA, polluting the Rhine water, stated the following: “3.3.2. In assessing part 1, the criterion should be that whether a party who discharges substances into a river fails to observe its duty of due care towards those using the river-water downstream depends on the nature, seriousness and duration of the damage caused to the latter and on the other circumstances of the case; among the factors to be considered here are, on the one hand, the nature and importance of the interests served by the discharges and, on the other, the interests served by the use of the water downstream and the extent to which this use is liable to be affected by the substances discharged. It should be born in mind that in weighing up the respective interests, special importance must be attributed to the interests of the user downstream in that such a user may in principle expect the river not to be polluted excessively by large discharges.” In this case, the Hoge Raad did not see an inconvenience in the fact that the only means to reduce the salt emission would be to close down the business as the case related only to compensation (396). Another aspect interesting in the perspective of climate damage litigation: the salt added by MDPA to the Rhine water was “relatively minor”, though not negligible (395) or, to be precise, never more than 17% (398). However, the case was simpler than climate damage compensation in as much as there was a simple linear relation between salt increase and damage (395).“ A second doctrine has been developed for the third case “breach of duty of care”, the doctrine of creation of danger (410 onwards). This doctrine is more severe for the alleged tortfeasor and it includes by itself elements of imputability (or accuseability) – becoming thus a kind of strict liability. The authors see room for this second doctrine mainly with regard to dangerous substances (442). As victims of climate change would even have better chances of success under this doctrine, we can refrain from presenting details of this doctrine here. To our knowledge, this second doctrine is not yet prevailing on the “weighing of interests” doctrine. Chances for success for climate change victims under Dutch law have thus rather to be assessed in accordance with the “weighing of interests” doctrine.

Imputability: Imputability means the extent that the supposed culprit is able to be accused. Article 6:162 (3) of the Dutch Civil Code says: “An unlawful act can be imputed to its author if it results from his fault or from a cause for which he is answerable according to law or common opinion.” Though formally being incumbent to the plaintiff, it is in practice up to the defendant to rebut the assumption of imputability once the unlawfulness has been stated (444).

The first of the three alternative conditions for imputability is fault. Fault is not given if the causation of harm was not foreseeable and preventable for “the ordinary/reasonable man” (445). An “organization cannot plead lack of fault for not knowing something it should and could have known if the information had been properly registered” (445).

Reasonable attributability: Article 6:98 of the Dutch Civil Code sets up a requirement which is in-between the item of causality and imputability: “Reparation can only be claimed for damage which is related to the event giving rise to the liability of the debtor in such a fashion that the damage, also taking into account its nature and that of the liability, can be imputed to the debtor as a result of this event.” This recently introduced requirement is not identical to foreseeability (464), but may include aspects of foreseeability (466). It serves rather as a tool for sidelining very remote or indirect damages (466/467).
Comment: We can assume that Dutch courts, if confronted with climate damage compensation claims, would have different views on whether the condition of “reasonable attributability” is fulfilled. Their views might also depend on the type of climate damage that is subject of the lawsuit. The least remote/indirect damage types are probably those caused by the melting of snow and ice linked to the temperature increase. Damages caused by flooding or draughts, both if triggered by the melting of high mountain snow and ice, and damages caused by the sea level rise might thus be good candidates for pioneering lawsuits under Dutch law (and, by the way, probably beyond).

Joint and common liability of multiple tortfeasors: Article 6:102 of the Dutch Civil Code makes multiple tortfeasors jointly and severally liable (471). “The plaintiff is entitled to claim compensation for his entire damage from any one of the defendants, regardless of the contribution of that defendant to the loss.” (472) The defendant hold liable “has a right of recourse against his co-tortfeasors” (472).

Burden of proof: Article 177 of the Dutch Code of Civil Procedure says: “Upon the party who invokes legal effects of the facts or rights furnished by it, rests the burden of proving those facts or rights, unless a different distribution of that burden of proof ensues from a specific rule or from the requirements of reasonableness.” The burden of proof is thus primarily on the plaintiff's side. However, a relaxation or even shift may take place. “In particular in danger creation situations, the burden of proof is relaxed or reversed.” (478) Furthermore courts have developed a practice of setting up factual assumptions based on first evidences (478).

Procedural goals: Under the Dutch law, plaintiffs can go for injunction or for compensation. For the injunction path, an additional weighing of interest, including societal interests such as employment, takes place (489 to 497). Thus it will be more difficult for climate change victims to obtain the stop of CO2 or other climate damaging gases than to obtain compensation. However, going for injunction has also advantages. There is no requirement for fault or damage – it is sufficient that a damage (or even just the potentially damaging action) is likely (512). If the court has denied injunction on grounds of societal interests, it may accord compensation (513). Thus the two paths are of interest to climate change victims.
See for this topic also Gerrit Betlem's article “Transnational Litigation against Multinational Corporations before Dutch Civil Courts” published in: M. Kamminga & S. Zia-Zarifi (eds.), Liability of Multinational Corporations under International Law (Kluwer Law International 2000), p. 283-305, available here: http://www.eulaw.soton.ac.uk/elpub/gb00.pdf, page 10 onwards.

Content of compensation: The Dutch law does only cover compensatory damage, but includes therein non-material damage (498 – Article 6:106 of the Dutch Civil Code).

Preclusion: Article 3:310 of the Dutch Civil Code provides that a right of action to compensate is prescribed as from 20 years (30 years for environmental damages) after the event that caused the damage took place. The right is also precluded as from 5 years after the victim being aware that s/he could sue a certain tortfeasor (508-510).

Class action and standing of NGOs: See for this topic Gerrit Betlem's article “Transnational Litigation against Multinational Corporations before Dutch Civil Courts” published in: M. Kamminga & S. Zia-Zarifi (eds.), Liability of Multinational Corporations under International Law (Kluwer Law International 2000), p. 283-305, available here: http://www.eulaw.soton.ac.uk/elpub/gb00.pdf, page 13 onwards.

Violation of foreign law as a basis of tort law: See for this topic Gerrit Betlem's article “Transnational Litigation against Multinational Corporations before Dutch Civil Courts” published in: M. Kamminga & S. Zia-Zarifi (eds.), Liability of Multinational Corporations under International Law (Kluwer Law International 2000), p. 283-305, available here: http://www.eulaw.soton.ac.uk/elpub/gb00.pdf, page 5 onwards.

The Dutch Civil Code is available here: http://www.dutchcivillaw.com

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