Climate cases against companies: grounds and defence
Companies are increasingly being sued over their own climate policy. In the Netherlands the basis is almost always tort under Article 6:162 of the Dutch Civil Code. Often the claim is brought as a collective action under Article 3:305a of the Dutch Civil Code. The unwritten standard of due care is given content partly by human rights and by the voluntary CSR instruments the company has itself endorsed. Alongside that, proceedings are running over misleading sustainability claims. The case law is in motion and has not yet settled.
The short answer
Courts accept that a company bears its own responsibility to contribute to countering dangerous climate change. That is not the same as an enforceable reduction percentage. The Court of Appeal of The Hague recognised the obligation but imposed no specific percentage. The legal risk now lies mainly in two things: in the substantiation of your own commitments, and in the accuracy of the way you communicate about them.
Which legal bases are used?
- Tort, Article 6:162 of the Dutch Civil Code. Breach of the unwritten standard of due care, given content by the best available climate science, human rights reasoning and international standards of conduct.
- Collective action, Article 3:305a of the Dutch Civil Code. Interest groups seek an injunction or a declaratory judgment. Admissibility is a separate battleground here.
- Unfair commercial practices, Article 6:193a ff of the Dutch Civil Code. Misleading sustainability claims addressed to consumers.
- Contract and financing terms. Commitments in supply contracts, covenants and credit documentation may be enforceable in their own right.
- Disclosure duties. Incorrect or incomplete sustainability information in reporting may itself provide a cause of action.
What the courts held in Milieudefensie v Shell
On 26 May 2021 the District Court of The Hague held that Shell had to reduce its CO2 emissions by 45 per cent by 2030. That covered scopes 1, 2 and 3 together, measured from 2019.
The Court of Appeal of The Hague set that ruling aside on 12 November 2024. It did confirm the core of it. Protection against dangerous climate change is a human right. Shell has a duty of care to contribute to limiting warming. That duty of care flows from the unwritten standard of due care, given content partly by Articles 2 and 8 of the European Convention on Human Rights and by internationally accepted standards of conduct.
Even so, the Court of Appeal imposed no reduction percentage. For scopes 1 and 2 it did not consider an imminent breach likely, in view of Shell’s commitments. For scope 3 it recognised the responsibility but dismissed the claim. A general figure of 45 per cent was, in its view, not sufficiently fine-grained for this company. Nor was it established that lower sales by Shell would lead to lower global emissions.
On investment in new oil and gas fields, the Court of Appeal observed that such investment may sit uneasily with the goals of the Paris Agreement. It did not decide the point, because no separate claim had been made on it.
Milieudefensie brought an appeal in cassation. The Supreme Court heard the case on 22 May 2026. No judgment has been given as yet.
Misleading claims: Fossielvrij v KLM
On 20 March 2024 the District Court of Amsterdam held (ECLI:NL:RBAMS:2024:1512) that KLM had misled consumers with sustainability claims. The findings concerned, among other things, the picture presented of CO2 offsetting and of the use of more sustainable fuels. The basis was the regime on unfair commercial practices in Article 6:193a ff of the Dutch Civil Code.
For companies, this route is the most tangible short-term risk. It requires no debate about reduction pathways, only about whether a specific claim is accurate and substantiated. You can read more on this in our article on greenwashing and sustainability claims.
The financial sector: Milieudefensie v ING
In 2025 Milieudefensie issued proceedings against ING over the emissions associated with its financing. On 9 September 2026 the District Court of Amsterdam declared Milieudefensie admissible in the collective action (ECLI:NL:RBAMS:2026:9098). That is a procedural decision, not a ruling on the substance. The substantive hearing will follow later; the case does show that the financial sector is also in scope.
What these cases have in common
Three patterns stand out. First, courts do not ask whether the company broke the law, but whether it acted as is proper in society. A permit or a compliance statement is therefore not a complete defence.
Second, the causation defence has so far proved effective. The fact that a company reduces its own sales does not automatically mean that global emissions fall. That argument contributed to the dismissal of the scope 3 claim on appeal.
Third, attention is shifting to what the company itself has said and promised. A company’s own commitments are the first piece of evidence in every set of proceedings.
The role of voluntary CSR instruments
Instruments such as the OECD Guidelines for Multinational Enterprises, the UN Guiding Principles on Business and Human Rights and the UN Global Compact are not binding. They nevertheless carry legal weight in climate cases, for three reasons.
- Giving content to the open norm. The unwritten standard of due care is by its nature indeterminate. Widely supported standards of conduct make concrete what is proper in society.
- Your own endorsement. If your company has publicly endorsed an instrument, the other side can hold you to it. Its non-committal character then falls away.
- The consistency test. A gap between policy on paper and conduct in practice is the most frequently used hook in writs of summons.
The converse holds as well. A well-documented, realistic and consistently implemented approach strengthens your defence. That fits within the wider framework of corporate social responsibility.
How do you order your position?
| Step | What you do |
|---|---|
| 1. Take stock of commitments | Collect all public targets, covenants, labels and contractual promises. Record who made them and when. |
| 2. Test the substantiation | Can every claim be supported by a method, a base year and verifiable data? |
| 3. Align policy and practice | Correct targets that are not achievable, rather than leaving them untouched. |
| 4. Control the communication | Have marketing material reviewed before it is published. Avoid absolute terms without explanation. |
| 5. Connect reporting and defence | Make sure your CSRD reporting and ESG reporting present the same picture as your external communications. |
| 6. Record the file | Document the considerations and decisions. In proceedings, what counts is what you knew and did at the time. |
Frequently asked questions
Can a court impose a reduction percentage on my company?
The Court of Appeal of The Hague did not do so in 2024. It did recognise a duty of care. The case is now before the Supreme Court, so the line may still change.
Does this apply only to large companies?
No. The standard of due care has no size threshold. Size and influence do weigh in the assessment of what can be required of you. The claim route via unfair commercial practices affects companies of every size.
Is it safer not to publish any climate targets?
Silence offers no protection. It does not remove the standard of due care, and disclosure may be mandatory in its own right under reporting rules. The better course is targets you can substantiate and meet.
Would you like your climate commitments and communications reviewed, or are you preparing for proceedings? Please contact Law & More in Eindhoven or Amsterdam. We advise in Dutch and in English.
