Milieudefensie v Royal Dutch Shell

Milieudefensie et al. v Royal Dutch Shell plc
Court	District Court of The Hague
Decided	26 May 2021 (2021-05-26)
ECLI	ECLI:NL:RBDHA:2021:5337
Transcript	ECLI:NL:RBDHA:2021:5339 (English)
Case history
Appealed to	The Hague Court of Appeal, ECLI:NL:GHDHA:2024:2099 (12 November 2024)
Subsequent actions	Cassation pending before the Supreme Court of the Netherlands, case 25/00497
Court membership
Judges sitting	Larisa Alwin, Irene Kroft and Michiel Harmsen

Milieudefensie et al. v Royal Dutch Shell plc is Dutch climate litigation concerning whether Dutch private law requires Shell to reduce carbon dioxide (CO₂) emissions associated with its business. The proceedings were brought against Royal Dutch Shell plc (RDS), then the parent company of the Shell group, by Milieudefensie (Friends of the Earth Netherlands), six other organisations and individual claimants.

On 26 May 2021, the District Court of The Hague ordered RDS to reduce the aggregate annual volume of Scope 1, 2 and 3 CO₂ emissions associated with the Shell group's business activities and sold energy products by at least net 45% by the end of 2030 compared with 2019. The court derived the obligation from the unwritten standard of care under Article 6:162 of the Dutch Civil Code, interpreted in light of the circumstances of the case, including climate science, human rights and international standards concerning corporate responsibility.

Shell appealed. On 12 November 2024, the Court of Appeal of The Hague ruled in Shell's favour, quashed the District Court judgment and dismissed the claims against Shell. The Court of Appeal nevertheless held that companies such as Shell have an obligation under the Dutch social standard of care to take measures against dangerous climate change. It concluded, however, that the material before it did not establish that Shell was legally required to reduce its emissions by 45%, or by another specific percentage, by 2030.

Milieudefensie and five other organisations appealed the 2024 judgment to the Supreme Court of the Netherlands. The cassation proceedings, case 25/00497, remained pending as of August 2026.

Background and claims

The proceedings commenced with a summons issued on 5 April 2019. The collective claimants were Milieudefensie, Stichting Greenpeace Nederland, Stichting ter bevordering van de Fossielvrij-beweging (Fossielvrij NL), Landelijke Vereniging tot Behoud van de Waddenzee (Waddenvereniging), Stichting Both ENDS, Jongeren Milieu Actief and Stichting ActionAid. In addition, 17,379 individuals authorised Milieudefensie to represent them in the proceedings.

Following amendment of the claims, the claimants principally sought an order requiring RDS to reduce or cause to be reduced the aggregate annual volume of Scope 1, 2 and 3 CO₂ emissions associated with the Shell group's business activities and sold energy products by at least net 45% by the end of 2030 compared with 2019. Alternative claims sought reductions of at least 35% and 25%.

The claims were based principally on the unwritten standard of care under Article 6:162 of Book 6 of the Dutch Civil Code. Milieudefensie et al. argued that the content of that standard should be determined in light of matters including climate science, the Paris Agreement, human-rights norms and international standards concerning business and human rights.

RDS disputed that Article 6:162 imposed the specific reduction obligation sought. It argued, among other things, that the energy transition required concerted action by society as a whole and that global reduction pathways could not directly determine the reduction legally required of an individual company.

The District Court denied the claims of ActionAid and the individual claimants on procedural grounds. It also held the other collective claims inadmissible insofar as they purported to represent the interests of the entire world population in preventing dangerous climate change. The remaining collective claims were considered on their merits.

District Court judgment

On 26 May 2021, the District Court held that RDS was subject to an obligation under the unwritten standard of care in Article 6:162 of the Dutch Civil Code to contribute to preventing dangerous climate change through the corporate policy it determined for the Shell group.

In determining the content of that standard, the court considered a range of circumstances, including the consequences of CO₂ emissions, knowledge of climate risks, internationally recognised climate objectives and reduction pathways, the emissions associated with the Shell group, RDS's influence over the group and its business relations, human rights and international standards concerning corporate responsibility.

The court did not hold that Articles 2 and 8 of the European Convention on Human Rights imposed direct obligations on RDS. It held that those provisions govern the relationship between states and individuals, but considered the rights and values embodied in them relevant when interpreting the private-law standard of care. It also took account of the United Nations Guiding Principles on Business and Human Rights.

The court ordered RDS to limit or cause to be limited the aggregate annual volume of CO₂ emissions associated with the Shell group's business operations and sold energy products so that Scope 1, 2 and 3 emissions in aggregate would be at least net 45% lower at the end of 2030 than in 2019.

The court distinguished between emissions from the Shell group's own activities and emissions associated with its business relations. It characterised the reduction obligation as an obligation of result with respect to the activities of the Shell group, while describing the obligation concerning the group's business relations, including end users, as a significant best-efforts obligation.

The order was declared provisionally enforceable pending appeal.

Appeal

Shell appealed the judgment. The substantive hearings before the Court of Appeal took place on 2, 3, 4 and 12 April 2024. Stichting Milieu en Mens (M&M) had previously been admitted as a joined party on Shell's side.

On 12 November 2024, the Court of Appeal quashed the District Court judgment and dismissed the claims of Milieudefensie et al.

Social standard of care

The Court of Appeal held that protection from dangerous climate change is a fundamental interest and that human rights can have an indirect effect on private-law relationships by informing open standards such as the social standard of care under Article 6:162 of the Dutch Civil Code.

In determining that standard, the court considered, among other matters, Articles 2 and 8 of the European Convention on Human Rights, international climate agreements, the UN Guiding Principles on Business and Human Rights and the OECD Guidelines for Multinational Enterprises.

The court concluded that companies such as Shell, which contribute significantly to the climate problem and have the capacity to contribute to combating it, have an obligation to limit CO₂ emissions in order to counter dangerous climate change, even where that obligation is not expressly imposed by public-law regulation.

The Court of Appeal nevertheless held that the existence of such a general obligation did not establish that Shell was legally required to reduce its emissions by the particular percentages sought by Milieudefensie.

Scope 1 and 2 emissions

For Scope 1 and 2 emissions, the Court of Appeal considered whether there was a sufficiently established threat that Shell would fail to meet the reduction that Milieudefensie claimed was legally required. Shell had set a target of reducing its Scope 1 and 2 emissions under operational control by 50% by 2030 compared with 2016. The parties agreed that this was equivalent to a reduction of approximately 48% compared with 2019.

The court found that Shell had reduced its Scope 1 and 2 emissions by 31% compared with 2016 by the end of 2023 and had set out measures intended to achieve its 2030 target. It held that Milieudefensie had not sufficiently substantiated that Shell was likely to fail to achieve a reduction of at least 45% by 2030. The court therefore found that an impending violation of a legal obligation in relation to Scope 1 and 2 emissions had not been established.

Scope 3 emissions and reduction percentage

The Court of Appeal accepted that Shell may have obligations concerning Scope 3 emissions, which account for most of the emissions associated with the energy products it sells.

The court examined whether a specific reduction percentage applicable to Shell could be derived from climate science. It accepted that there was broad consensus on the need for large reductions in global CO₂ emissions to limit global warming, including global pathways involving reductions of approximately 45% by 2030 compared with 2010. It held, however, that such global averages could not automatically be applied to every country, sector or individual company.

The court also considered sector-specific pathways for oil and gas. It concluded that the available material did not demonstrate a sufficiently unequivocal, company-specific reduction standard that would justify ordering Shell to reduce its Scope 3 emissions by 45%, 35% or 25% by 2030.

The court therefore concluded that, although Shell may be required to make an appropriate contribution to combating dangerous climate change, the evidence before it did not provide a sufficient basis for imposing the specific reduction percentages sought by Milieudefensie.

Effectiveness of a Scope 3 order

The Court of Appeal separately considered Shell's argument that the requested Scope 3 order would not necessarily lead to lower global CO₂ emissions.

Because the District Court's order left Shell freedom to determine how to achieve its reported emissions reduction, Shell could in principle reduce part of its Scope 3 emissions by reducing the resale of oil and gas produced by third parties. The Court of Appeal held that it had not been established that reducing those trading activities would reduce the amount of fossil fuel ultimately supplied to end users, because other suppliers could take over the sales.

The court distinguished this issue from restrictions on fossil-fuel production, noting that limiting production could have a different effect on overall supply. It nevertheless held that the requested Scope 3 order, as formulated, could be satisfied in a manner that had not been shown to reduce global emissions. It regarded this as an additional reason why the Scope 3 claim could not succeed.

The result of the appeal was that the 2021 reduction order ceased to apply and the claims against Shell were dismissed.

Cassation

Milieudefensie, Greenpeace Nederland, Waddenvereniging, Fossielvrij NL, Both ENDS and Jongeren Milieu Actief appealed the Court of Appeal judgment to the Supreme Court of the Netherlands. The case was brought before the Supreme Court on 11 February 2025 and is registered as case 25/00497.

M&M, which had participated on Shell's side in the Court of Appeal, sought permission to join the cassation proceedings on the same side. On 10 October 2025, the Supreme Court allowed the joinder. The decision concerned the procedural issue of joinder and did not determine the merits of the climate claims.

On 7 November 2025, Shell filed its defence and a conditional cross-appeal in cassation.

The Supreme Court held oral pleadings in the case on 22 May 2026. As of 22 August 2026, the Supreme Court continued to list case 25/00497 as pending, with the status partijdebat ("party submissions").

Legal commentary

District Court judgment

The 2021 judgment received substantial academic attention. Macchi and van Zeben described it as the first judicial imposition of a specific climate-mitigation obligation on a private company beyond reduction requirements imposed through existing regulation or governmental policy. They highlighted in particular the court's use of international business-and-human-rights standards when interpreting the Dutch-law duty of care.

Benoit Mayer agreed that the recognition of a corporate duty to mitigate climate change was significant, but criticised the method by which the District Court determined the specific level of mitigation required of Shell. He argued that the court's reasoning from global climate objectives and global reduction pathways to a company-specific requirement was affected by several inconsistencies and did not coherently establish why Shell's legal obligation should be a 45% reduction relative to 2019.

One issue identified by Mayer concerned the baseline year. Milieudefensie had previously referred to a 2010 baseline but amended its claim to use 2019, then the most recent year for which Shell had reported emissions data. Mayer argued that data availability did not itself explain why 2019 was the appropriate year for determining Shell's legal obligation and noted that applying the same percentage reduction to the later baseline allowed higher absolute emissions in 2030 than application of the percentage to 2010 would have allowed. Mayer also cautioned that the assumptions he criticised could not always be attributed specifically to the court rather than to the parties' submissions; his criticism concerned the coherence of the reasoning supporting the judgment as a whole.

Laura Burgers disputed Mayer's analysis. She argued that the District Court's reasoning had to be understood within the substantive and procedural framework of Dutch tort law and civil procedure. She defended the court's treatment of the reduction target and argued, among other things, that the choice of the 2019 baseline reflected the claim put before the court and the rule that a civil court cannot award more than a claimant has sought.

Lodewijk Smeehuijzen separately questioned the legitimacy and practical effectiveness of the District Court's order. He argued that judicial intervention might be defensible where regulation had failed, but that such intervention should actually advance the interests it sought to protect. He considered the effectiveness of the Shell order uncertain and argued that the energy transition requires differentiation, timing and coordination between actors that are difficult to achieve through a uniform reduction order in private litigation.

Court of Appeal judgment

Commentators have differed in their assessment of the broader significance of the 2024 appeal judgment.

André Nollkaemper argued that Milieudefensie's loss could largely be attributed to its litigation strategy, particularly its focus on the proposition that Shell would act unlawfully unless it reduced its CO₂ emissions by 45% by 2030 relative to 2019. He argued that this formulation limited the Court of Appeal's ability to rule on other possible obligations, including the legal significance of Shell's investments in new oil and gas fields and differently formulated obligations concerning Scope 3 emissions.

Johannsen, Kotzé and Macchi emphasised a different aspect of the judgment. They acknowledged that the Court of Appeal ruled in Shell's favour and set aside the 2021 order, but argued that it preserved important elements of the earlier reasoning on corporate climate obligations, including the relevance of human rights and international standards to the Dutch social standard of care. They consequently characterised the judgment, in several respects, as an "empty victory" for Shell because the court continued to recognise climate-related obligations of major companies despite rejecting the specific reduction claim.

Smeehuijzen interpreted the appeal as demonstrating the difficulty of translating a general social duty of care into a sufficiently concrete judicially enforceable reduction requirement. He argued that the Court of Appeal was able to identify a general obligation on Shell to counter dangerous climate change but was unable to give that obligation the specific content required to sustain the reduction order sought by Milieudefensie.

Hans De Wulf advanced a more fundamental private-law criticism. He disputed whether the general tort-law standard of care should itself be treated as creating an ex ante behavioural obligation enforceable by injunction, and criticised the treatment of questions concerning the division between judicial and political decision-making in climate policy.

A peer-reviewed comparative study by Isabela Keuschnigg, Clemens Kaupa, Joana Setzer and co-authors subsequently used the appeal judgment to examine the treatment of Scope 3 emissions across corporate climate litigation. The authors identified three recurring questions: whether companies have a general legal obligation concerning Scope 3 emissions, whether such an obligation can be translated into a specific reduction requirement and whether a court-ordered Scope 3 reduction would be effective in practice.

The legal effect of the Court of Appeal judgment remains subject to the pending cassation proceedings.

See also

• Climate change litigation
• Urgenda Foundation v State of the Netherlands
• Lliuya v RWE AG
• Smith v Fonterra Co-operative Group Ltd
• Greenpeace v. Eni

External links

• District Court judgment of 26 May 2021 (English version)
• Court of Appeal judgment of 12 November 2024 (English version)
• Supreme Court list of pending civil cases