甲A第９号証の１

ECLI:NL:RBDHA:2021:5339
Instantie

Rechtbank Den Haag

Datumuitspraak

26-05-2021

Datumpublicatie

26-05-2021

Zaaknummer

C/09/571932 / HA ZA 19-379 (engelseversie)

Rechtsgebieden

Civiel recht

Bijzonderekenmerken Bodemzaak
Eersteaanleg - meervoudig
Inhoudsindicatie

zieECLI nummer: ECLI:NL:RBDHA:2021:5337 (Nederlandseversie)
Klimaatzaak tegen Royal Dutch Shell
Ontvankelijkheid vorderingen. Toepasselijk recht. RDSisverplicht omviahet
concernbeleid van deShell-groep tezorgen voor CO2-reductievan deShellgroep, haar toeleveranciersen afnemers. Dat volgt uit devoor RDSgeldende
ongeschreven zorgvuldigheidsnorm, diederechtbank heeft ingevuld aan dehand
van defeiten, breed gedragen inzichten en internationaal aanvaardestandaarden.
Geenschending van dezeverplichting, wel een dreigendeschending. Bevel.

Vindplaatsen

Rechtspraak.nl

Uitspraakjudgment
THE HAGUE DI STRI CT COURT
Commerce Teamcase number / cause list number: C/09/571932 / HA ZA 19-379 (engelse versie)

Judgment of 26 May 2021

in the case of1

1. the association VERENI GI NGMI LI EUDEFENSI E, in Amsterdam, and THE OTHER PARTI ES I T
REPRESENTS,
2. the foundation STI CHTI NGGREENPEACE NEDERLAND in Amsterdam,
3. the foundation STI CHTI NGTER BEVORDERI NG FOSSI ELVRI J-BEWEGI NG in Amsterdam,
4. the association LANDELI JKE VERENI GI NGTOT BEHOUD VAN DE WADDENZEE in Harlingen,
5. the foundation STI CHTI NG BOTH ENDS in Amsterdam,
6. the youth organization JONGEREN MI LI EU ACTI EF in Amsterdam,
7. the foundation STI CHTI NGACTI ONAI D in Amsterdam,
claimants,
attorney-at-law mr. R.H.J. Cox of Maastricht

versusROYAL DUTCH SHELL PLC in The Hague,
defendant,
attorney-at-law mr. D. Horeman of Amsterdam.

Claimants are hereinafter jointly referred to as Milieudefensie et al. The claimants in the class action
are individually referred to as Milieudefensie, Greenpeace Nederland, Fossielvrij NL,
Waddenvereniging, Both Ends, Jongeren Milieu Actief and ActionAid. The 17,379 individual claimants
who have issued to Milieudefensie a document appointing it as their representative ad litem arereferred to as ‘the individual claimants’. The defendant is referred to as RDS.

1 The proceedings
1.1. The course of the proceedings is evidenced by the following:- the summons of 5 April 2019, with Exhibits 1 through to 269;
- the statement of defence of 13 November 2019, with Exhibits RK-1 through to RK-30 and
Exhibits RO-1 through to RO-250;- the document containing additional exhibits of Milieudefensie et al. of 2 September 2020, with
Exhibits 270 through to 331;
- the document containing exhibits of RDS of 2 September 2020, with Exhibits RK-31 through to
RK-34 and Exhibits RO-251 through to RO-260;- the document for a change of claim from Milieudefensie et al. of 21 October 2020;- the notice of objection against the document for a change of claim of 28 October 2020 from RDS;
- the document containing additional exhibits of Milieudefensie et al. of 29 October 2020, with
Exhibits 332 through to 336;
- the document containing exhibits of RDS of 30 October 2020, with Exhibits RK-35 and RK-36, andExhibits RO-261 through to RO-280;- the order of the cause list judge of 4 November 2020 on the objection against the change ofclaim, allowing the change of claim on the condition that Milieudefensie et al. provide a brief
explanation on part 1(a) of the change of claim before 6 November 2020;- the document containing an explanation of the change of the claim for relief 1A of Milieudefensie
et al. of 6 November 2020;- the reply to the explanation of the change of claim of Milieudefensie et al. from RDS, with Exhibit2

RO-281;- the order of the cause list judge of 9 December 2020, declaring the objection of RDS against thealternative positions of Milieudefensie et al. unfounded;- the document containing additional exhibits of 11 December 2020 of Milieudefensie et al., with
Exhibit 337;
- the additional document containing exhibits of 15 December 2020 of RDS, with Exhibits RO-282
through to RO-284;- the document containing additional exhibits of RDS of 16 December 2020, with Exhibit RK-37;- the notice of objection against Exhibit RK-37 of Milieudefensie et al. of 16 December 2020;- the reply to the notice of objection of RDS of 16 December 2020;- the records of the oral hearings of 1, 3, 15 and 16 December 2020.
- the document of response to Exhibit RK-37 of Milieudefensie et al. of 30 December 2020, with
Exhibits 338 and 339;
- the document commenting on the additional exhibits of RDS of 13 January 2021.
1.2. The records of the oral hearings were drawn up without the parties being present. The parties
were given the opportunity to inform the court of factual inaccuracies. In a letter dated 19
February 2021, Milieudefensie et al. made use of this opportunity. In a letter dated 22 February
2021, RDS also made use of this opportunity. These letters form part of the case file.
1.3. Finally, the judgment date was scheduled for today.

2 The facts
In the finding of fact, the court starts from the developments up until 13 January 2021, the day on
which the debate was closed . The facts are categorized as follows:
2.1 The claimants
2.2 RDS and the Shell group
2.3 Climate change and its consequences
2.4 Conventions, international agreements and policy intentions
2.5 Activities of RDS and the Shell group
2.6 Notice of liability of RDS from claimants
2.1. The claimants
2.1.1. Milieudefensie was founded on 6 January 1971 as the Raad voor Milieudefensie. Article 2paragraph 1 and 2 of its articles of association are as follows:“1. The object of the association is contributing to the solution and prevention of environmental
problems and the conservation of cultural heritage, as well as striving for a sustainable society, at
the global, national, regional and local level, in the broadest sense of the word, all of which in theinterest of the association members and in the interest of the quality of the environment, natureand the landscape, in the broadest sense, for current and future generations.”
2. The association endeavours to attain its objects by: critically monitoring all thosedevelopments in society which affect the environment, nature, the landscape, and sustainability,
influencing decision-making through using all appropriate and legitimate means, conducting
research or having research conducted, disseminating and issuing information in the broadest
sense, obtaining legal decisions, and performing all acts and actions the association deems
necessary for attaining its objects.”
2.1.2. Greenpeace Nederland was founded in 1979. It works together with Greenpeaceorganizations established elsewhere. Article 4 paragraph 1 and 2 of its articles of association3

are as follows:“1. The object of the foundation is promoting the conservation of nature.
2. Together with its supporters, staff and alliances the foundation endeavours to attain its objects
by:(…
)
b. protecting biodiversity in all its forms;c. combating climate change, and the pollution and abuse of the planet;(…
)
j. having and maintaining an office, and also performing all other actions connected to theforegoing in the broadest sense or which may be conducive to the foregoing.”
2.1.3. Fossielvrij NL was established on 22 March 2016. Article 3 paragraph 1 and 2 of its articles
of association are as follows:“3.1 The object of the foundation is as follows:
Promoting, protecting, supporting and accomplishing – at the local, regional and national level –social, environmental and economic justice and health for current and future generations byremoving the social legitimacy of coal, oil and gas companies (so-called “fossil companies”) andeffectuating the alternative use of investments and resources in order to expedite the transition
to a sustainable economy which is based on renewable energy.
3.2 The foundation endeavours to attain this object by taking on all possible tasks which could promote its
object. These include:(…
).
– Engaging in talks with staff and directors of organizations.
– Organizing, conducting and participating in creative actions and public campaigns.
– Showing what the foundation stands for and what it does by actively seeking out the public debate
and approaching the media.
(…
)– Developing other types of activity.”
2.1.4. The articles of association of the association Waddenvereniging, established in 1965, state
the following in Article 3 paragraph 1 and 2:“1. The association strives for the conservation, restoration and proper management of thelandscape and the environment and of the ecological and natural history values of the Waddenarea, including but not limited to the northern sea-clay area, the Wadden islands, the Wadden
Sea and the North Sea as irreplaceable and unique nature reserves. The association also aims topromote interest in these areas. The understanding that man forms part of the ecosystem is thefoundation of the association’s actions.
2. The association endeavours to attain its object through all appropriate means, including:– developing, effectuating and promoting activities for the protection of the ecological,
environmental and cultural-historical value of and in the Wadden area, and standing up against
activities that could harm the Wadden area;– lobby activities and conducting legal actions;(…
)”
2.1.5. Both Ends was founded in 1986. Article 2 paragraph 1 and 2 of its articles of association are
as follows:“1. The object of the foundation is:4

contributing to and promoting a responsible nature and environmental management across theglobe, and also all that is connected, indirectly or directly, to this or which may be conducive tothe foregoing, in the broadest sense of the word.
2. The foundation endeavours to attain its object, among other things, by:(…
)
b. actively strengthening and supporting organizations that integrate nature and environmental
management aspects into activities of development cooperation and vice versa;(…
)”
2.1.6. Jongeren Milieu Actief was founded in 1990. Article 3 paragraph 1 and 2 of its articles ofassociation are as follows:“1. The object of the association is: striving for a better environment by:a. a) creating a place for young people where they can be involved in sustainability in their ownway;b) actively working on the promotion of sustainability;c) offering alternatives to live in a way that is more environmentally-friendly;
2. The association endeavours to attain its object by:a. a) conducting campaigns and organizing activities, in the broadest sense, for and by young
people;b) using all legitimate means that are useful or necessary for its object.”
2.1.7. ActionAid was founded in 1997. Article 2 paragraph 1 and 2 of its articles of association are
as follows:“1. The object of the foundation is:Contributing to the fight against poverty and injustice all over the world. Africa is an area ofspecial focus.
Creating awareness and increasing the understanding among the public of the causes, effects
and reasons for poverty and injustice.
Inducing policymakers to effectuate change in order to guarantee the rights of vulnerable andpoor people.
(…
)”
2.1.8. The 17,379 individual claimants have issued to Milieudefensie a document appointing it as
their representative ad litem to claim on behalf of each of them that RDS reduces its
emissions in line with the objective of the Paris Agreement.1

2.2. RDS and the Shell group
2.2.1. RDS is a public limited company, a legal person under private law, established under thelaws of England and Wales. Its head office is established in The Hague.
2.2.2. Since the 2005 restructuring of the Shell group, RDS has been the top holding company of
the Shell group. The Shell group is further composed of intermediate parents, Operating
Companies and Service Companies. RDS is the direct or indirect shareholder of over 1,100
separate companies established all over the world. The Shell group develops activities
worldwide. The Shell group such as existed before the 2005 restructuring is hereinafter5referred to as ‘the then Shell group’.
2.2.3. The activities of RDS consists of holding shares in the intermediate parent companies,
meeting its obligations with respect to shareholders based on its listings in New York,
London and Amsterdam, and determining the group’s general corporate policy. The Operating
Companies conduct operational activities and are responsible for implementing the generalpolicy of the Shell group as determined by RDS. These Shell entities have assets and/or
infrastructure with which they produce and trade in oil, gas or other energy sources. They
also have permits for the exploitation, production or extraction of oil. The Service Companies
provide assistance and services to the other group companies for the performance of theiractivities.
2.3. Climate change and its consequences
2.3.1. Mankind has been using energy, primarily produced by burning fossil fuels (coals, oil andgas), on a massive scale since the beginning of the Industrial Revolution. Carbon dioxide isreleased in this process. The chemical compound of the elements carbon and oxygen isdesignated with the chemical formula CO2. Some of the released CO2 is emitted into theatmosphere, where it lingers for hundreds of years, or even longer. Some of it is absorbed by
the ecosystems of forests and oceans. This absorption option is steadily becoming smaller
due to deforestation and the warming of sea water.
2.3.2. CO2 is the primary greenhouse gas which, together with other greenhouse gases, traps theheat emitted by the earth in the atmosphere. This is known as the greenhouse effect, which
intensifies as more CO2 ends up in the atmosphere. This in turn increasingly warms theearth. The climate system has a delayed response to the greenhouse gas emissions: thewarming effect of greenhouse gases which are emitted today will only become apparent inthirty to forty years’ time. Other greenhouse gases are, inter alia, methane, nitrous oxideand fluorinated gases. The unit ‘parts per million’ (hereinafter: ppm) is used to express theconcentration of greenhouse gases in the atmosphere. There is a direct, linear link between
man-made greenhouse gas emissions, in part caused by the burning of fossil fuels, andglobal warming. The temperate of the earth has now increased
by about 1.1ºC relative to the average temperature at the beginning of the Industrial
Revolution. Over the past decades, global CO2 emissions have increased by 2% per year.
2.3.3. In climate science – the area of science that studies the climate and climate change – and in
the international community there has been consensus for quite some time that the averagetemperature on earth should not increase by more than 2ºC relative to the averagetemperature in the pre-industrial era. If the concentration of greenhouse gases in theatmosphere has stayed below 450 ppm by the year 2100, climate science believes there is agood chance that this target (hereinafter: the 2ºC target) will be reached. In the last coupleof years, further insight has shown that a safe temperature increase should not exceed
1.5ºC with a corresponding greenhouse gas concentration level of no more than 430 ppm by
the year 2100.
2.3.4. The current greenhouse gas concentration level is 401 ppm. The total global remaining
capacity for further greenhouse gas emissions is also known as the carbon budget. Global
CO2 emissions currently run at 40 Gt CO2 per year. Each year the global CO2 emissions stayat this level reduces the carbon budget by 40 Gt. If global CO2 emissions are higher, thecarbon budget will decrease by more than 40 Gt. A carbon budget of 580 Gt CO2 wasremained available from 2017 – a best estimate – for a 50% chance of a warming of 1.5ºC.2
Now, three years later, 120 Gt CO2 of the carbon budget has been used, which means that
460 Gt CO2 remains. At unchanged emission levels, the carbon budget will have been used
up within the foreseeable future.

6

2.3.5. The global effects of climate change are apparent from the reports of the Intergovernmental
Panel on Climate Change (hereinafter: IPCC), the United Nations climate panel (seehereinafter under 2.4.4.).
In AR4 (IPCC Fourth Assessment Report, 2007), the IPCC explained that dangerous,
irreversible climate change occurs if global warming exceeds 2ºC. The report states that inorder to have a more than 50% chance (‘more likely than not’) that the 2ºC is not exceeded,
the report explains that the concentration of greenhouse gases in the atmosphere has tostabilize at a level of about 450 ppm in 2100.
AR5 (IPCCFifth Assessment Report, 2013-2014) describes that there is ‘likely’ (> 66%)
chance for the rise in global temperature to remain below 2°C if the concentration ofgreenhouse gases in the atmosphere stabilizes at about 450 ppm in 2100. Stabilization atabout 500 ppm in 2100 yields a chance of more than 50% (‘more likely than not’) of reaching
the 2ºC target. Only a limited number of studies have looked into scenarios that lead to alimitation of global warming to 1.5ºC. Such scenarios are based on concentrations of under
430 ppm in 2100. In report AR5, the IPCC has categorized the key risks associated withanthropogenic climate change into five reasons for concern (RFC):- RFC 1: Unique and threatened systems are both ecological and cultural systems. The
global temperature rise will force certain human systems to make great adaptations or willcause ecosystems as we now know them, such as ice masses and coral reefs, to disappear.
- RFC 2: Extreme weather events will increase in both frequency and intensity. Drought,
extreme precipitation, heat and (tropical) storms and hurricanes are examples of extreme
weather events which are expected to increase and cause more forest fires (due todrought/heat) and floods (due to extreme precipitation and storms).
- RFC 3: Distribution of impacts: the consequences of climate change will be distributed
unevenly in the world. The risks are distributed unevenly and in all countries, regardless of
their development status, the impact of climate change will disproportionally affect thealready weaker and marginalized groups, which will be the first to feel the impact on theirfood and water security.
- RFC 4: Global aggregate impacts are the effects of climate change which outstrip just thedirect consequences and which are an accumulation of various indirect, mutually reinforcing
effects. For example, climate change causes a loss of biodiversity, which will not only impact
the ecology, but also the economy because people are dependent on biodiversity (fisheryand agriculture).
- RFC 5: Large-scale singular events, or tipping points, are abrupt and drastic changes inphysical, ecological or social systems which in most cases are irreversible and therefore have
major and permanent consequences.3
The following are the key risks associated with the RFCs:“i) Risk of death, injury, ill-health, or disrupted livelihoods in low-lying coastal zones and small
island developing states and other small islands, due to storm surges, coastal flooding, and sea
level rise. [RFC1-5]ii) Risk of severe ill-health and disrupted livelihoods for large urban populations due to inland
flooding in some regions. [RFC2 and 3]iii) Systemic risks due to extreme weather events leading to breakdown of infrastructure
networks and critical services such as electricity, water supply, and health and emergency
services. [RFC2-4]iv) Risk of mortality and morbidity during periods of extreme heat, particularly for vulnerable
urban populations and those working outdoors in urban or rural areas. [RFC2 and 3]v) Risk of food insecurity and the breakdown of food systems linked to warming, drought,
flooding, and precipitation variability and extremes, particularly for poorer populations in urban andrural settings. [RFC2-4]vi) Risk of loss of rural livelihoods and income due to insufficient access to drinking and irrigation

7

water and reduced agricultural productivity, particularly for farmers and pastoralists with minimal
capital in semi-arid regions. [RFC2 and 3]vii) Risk of loss of marine and coastal ecosystems, biodiversity, and the ecosystem goods,
functions, and services they provide for coastal livelihoods, especially for fishing communities inthe tropics and the Arctic. [RFC1, 2, and 4]viii) Risk of loss of terrestrial and inland water ecosystems, biodiversity, and the ecosystem
goods, functions, and services they provide for livelihoods. [RFC1, 3, and 4]”
2.3.5.1. The SR15 report (IPCC Special Report on the impacts of global warming of 1.5°C,
2018) describes that the risks identified by the IPCC have increased:“There are multiple lines of evidence that since AR5 the assessed levels of risk increased for fourof the five Reasons for Concern (RFCs) for global warming to 2°C(high confidence). The risk
transitions by degrees of global warming are now: from high to very high risk between 1.5°Cand
2°Cfor RFC1 (Unique and threatened systems) (high confidence); from moderate to high risk
between 1°Cand 1.5°Cfor RFC2 (Extreme weather events) (medium confidence); from moderate
to high risk between 1.5°Cand 2°Cfor RFC3 (Distribution of impacts) (high confidence); frommoderate to high risk between 1.5°Cand 2.5°Cfor RFC4 (Global aggregate impacts) (medium
confidence); and from moderate to high risk between 1°Cand 2.5°Cfor RFC5 (Large-scale
singular events) (medium confidence).” 4
2.3.5.2. In the SR15 report, the IPCC concludes that global warming will probably reach
1.5°C between 2030 and 2052 if the increase continues at the current level. Climate-relatedrisks for man and nature will be higher than now with global warming at 1.5°C, but lower at
2°C. The risks hinge on the extent and rate of global warming, geographic location,
development and vulnerability levels, and of choices in and implementation of adaptation andmitigation options. In order to limit global warming to 1.5°C, the report states that global
emissions will have to have been reduced to far below 35 Gt Co2-eq by 2030. The IPCC also
points out that half of the models used show that global emissions should be reduced to
between 25 Gt and 30 Gt Co2-eq in 2030. The report states that, as a result of thesefindings, limiting global warming to 1.5°Crequires a net reduction of 45% in global CO2
emissions in 2030 (bandwidth 40-60%) relative to 2010, and a net reduction of 100% in
2050 (bandwidth 2045-2055):“In model pathways with no or limited overshoot of 1.5°C, global net anthropogenic CO2
emissions decline by about 45% from 2010 levels by 2030 (40–60% interquartile range),reaching net zero around 2050 (2045–2055 interquartile range). For limiting global warming to
below 2°CCO2 emissions are projected to decline by about 25% by 2030 in most pathways (10–30% interquartile range) and reach net zero around 2070 (2065–2080 interquartile range). NonCO2 emissions in pathways that limit global warming to 1.5°Cshow deep reductions that are
similar to those in pathways limiting warming to 2°C. (high confidence).” 5
2.3.5.3. The SR15 report also states the following:“All pathways that limit global warming to 1.5°Cwith limited or no overshoot project the use ofcarbon dioxide removal (CDR) on the order of 100–1000 GtCO2 over the 21st century. CDRwould
be used to compensate for residual emissions and, in most cases, achieve net negativeemissions to return global warming to 1.5°Cfollowing a peak (high confidence). CDRdeployment
of several hundreds of GtCO2 is subject to multiple feasibility and sustainability constraints (highconfidence). Significant near-term emissions reductions and measures to lower energy and landdemand can limit CDRdeployment to a few hundred GtCO2 without reliance on bioenergy withcarbon capture and storage (BECCS) (high confidence).” 6
2.3.5.4. The SR15 report indicates with respect to the nationally determined contributions(NDCs) of the parties to the Paris Agreement that the NDCs are insufficient for limiting global
warming to 1.5°C and that the target is only feasible if global CO2 emissions start to fall well

8

before 2030:“Estimates of the global emissions outcome of current nationally stated mitigation ambitions as
submitted under the Paris Agreement would lead to global greenhouse gas emissions in 2030 of
52–58 GtCO2-eq yr−1 (medium confidence). Pathways reflecting these ambitions would not limit
global warming to 1.5°C, even if supplemented by very challenging increases in the scale andambition of emissions reductions after 2030 (high confidence). Avoiding overshoot and relianceon future large-scale deployment of carbon dioxide removal (CDR) can only be achieved if global
CO2 emissions start to decline well before 2030 (high confidence).” 7
Europe2.3.6. All parts of Europe will encounter the adverse effects of climate change. Individual citizens
and companies will run a substantial financial risk as a result of these impacts.8 As a result ofclimate change Europe is expected to face more frequent heat waves, which will last longer
and become more intense and result in more deaths.9 Human systems and ecosystems in
Europe are vulnerable to climate change, but vulnerabilities will differ per region. The
following applies to North-Western Europe:“Coastal flooding has impacted low-lying coastal areas in north-western Europe in the past andthe risks are expected to increase due to sea-level rise and an increased risk of storm surges.
North Sea countries are particularly vulnerable, especially Belgium, Denmark, Germany, theNetherlands, and the United Kingdom. Higher winter precipitation is projected to increase theintensity and frequency of winter and spring river flooding, although to date no increased trends
in flooding have been observed.” 10
The Netherlands
2.3.7. The Netherlands has relatively high per capita CO2 emissions compared to otherindustrialized countries. The impacts of global warming (globally about 0.8 degrees higher
than pre-industrial temperatures and 1.7 degrees in the Netherlands) are already noticeable
in the Netherlands.11 Heat waves, drought, floods, damage to ecosystems, threat to foodproduction and damage to health are expected to intensify in future if the global averagetemperature rises. According to the Royal Netherlands Meteorological Institute (KNMI)12, inthe future the Netherlands will have to take account of higher temperatures, a faster rising
sea level, wetter winters, heavier precipitation and chances of drier summers. The KNMI
states the following, inter alia:“In climate science it is accepted that a large degree of global warming will increase the risk of amajor abrupt transition in the climate system. However there is as of yet no firm quantitativebasis for the direction and magnitude of such a transition. Therefore, developing such transitions
into extreme scenarios is beyond the scope of KNMI’14. Nevertheless, some examples have been
provided below. Some climate models indicate a slow but complete shut down of the warm Gulf
Stream before 2100. This reduces the warming over Europe in all but one of these models, inwhich the Gulf Stream shuts down around 2050 and Europe even sees a temporary net cooling.
A few models indicate an abrupt decline in Arctic sea-ice cover during warming scenarios,
resulting in a strong temperature increase over the North Pole area. This may impact theformation of storms that affect Europe. Another effect featured in some climate models is a muchstronger drying of the soil in southern Europe. This ‘desertification’ of the Mediterranean will
favour easterly winds over the Netherlands, leading to very warm and dry summers. There are
two other relevant processes that are either not included or not well represented in current
climate models. The first is a collapse of the West Antarctic ice sheet. At present this ice sheet islosing mass by increased iceberg calving. Once a collapse has been initiated, for which no
indications exist at present, the mass loss might be much greater than accounted for in the
KNMI’14 sea-level rise scenarios. The second process is the possibility of remnants of tropicalhurricanes hitting Europe. Observations show that over the last two decades Atlantic hurricanes
form more often in the eastern Tropics compared to the Caribbean. A large proportion of thesehurricanes move directly to the north, and travel to Western Europe. The chances of Atlantic

9

hurricanes to form in the eastern Tropics will increase due to global warming, and therefore also
the probability of remnants of hurricanes hitting Western Europe. New experiments performed by
KNMI with a highly detailed climate model have confirmed this. It will result in an earlier and more
severe storm season in the Netherlands.” 13
2.3.8. According to the KNMI, a sea level rise of 2.5 to 3m this century cannot be ruled out. If
global warming does not exceed 2°C this century, it is possible that the sea level riseremains limited from 0.3 to at most 2.0m. However, if the global warming is greater (4°Cin
2100) the sea level rise may climb to 2.0m and 3.0m at most in 2100. After 2100, thisaccelerated sea level rise may increase to 5m and possibly 8m in 2200. After 2050, the sea
level rise is expected to accelerate even further. To counter this, various measures have tobe taken, including faster and increased sand nourishment along the coast, strengthening or
replacing storm surge barriers and other flood risk management works in a shorter term thancurrently envisioned, and moving and enlarging fresh water inlets.14 Up to 2030, the impactof an accelerated sea level rise will be limited and hardly noticeable in the Dutch Wadden
Sea. However, in the long term, up to the year 2100, the anticipated change will depend to agreat extent on the climate scenarios, varying from hardly any impact up to 2100 to a
noticeable impact in 2050. In most scenarios, none of the tidal basins in the Dutch Wadden
Sea will have drowned by 2100. In the more extreme scenario (DeConto & Pollard), which
predicts a total sea level rise of approximately 1.7m in 2100, the Wadden Sea will drown
before 2100.15
2.3.9. Climate change-related health problems in Dutch residents include heat stress, increasing
infectious diseases, deterioration of air quality, increase of UV exposure, and an increase ofwater-related and foodborne diseases. In the coming decades, the Netherlands will also face
many water-related climate impacts, such as flooding along the coast and rivers, excesswater, water shortage, deterioration of water quality, salinization, raised water levels anddrought. Periods of either drought and water shortage or problems due to excess water may
occur on an annual basis. These changes and uncertainties in water availability will have an
impact on agriculture and biodiversity, but also on, for example, the energy sector and the
manufacturing industry, for instance in the form of cooling water problems and poor
accessibility via rivers in case of drought and network problems due to drought, excess wateror other weather extremes).16
2.4. Conventions, international agreements and policy intentions
2.4.1. A UN conference on ‘Human environment’ was held in Stockholm in 1972. The conference
brought forth the Stockholm Declaration, in which the principles of international
environmental policy and environmental law were laid down. The United Nations Environment
Program (UNEP) was established as a result of the conference.
The UN Climate Convention
2.4.2. In 1992 the UN Climate Convention (a framework convention) was concluded. This
convention has since entered into force and ratified by the majority of the global community,
including the Netherlands. The convention seeks to protect the planet’s ecosystems andmankind and strives for sustainable development for the protection of current and future
generations. The preamble to the convention contains the following consideration, inter alia:“Determined to protect the climate system for present and future generations”. Article 2 ofthe convention reads as follows:“The ultimate objective of this Convention and any related legal instruments that the Conferenceof the Parties may adopt is to achieve, in accordance with the relevant provisions of theConvention, stabilization of greenhouse gas concentrations in the atmosphere at a level thatwould prevent dangerous anthropogenic interference with the climate system. Such a levelshould be achieved within a time frame sufficient to allow ecosystems to adapt naturally to10climate change, to ensure that food production is not threatened and to enable economic
development to proceed in a sustainable manner.”
2.4.3. Article 7 has established the Conference of the Parties (hereinafter: COP), which usuallyconvenes every year (the so-named climate change conferences). The COP is the highest
decision-making entity under the convention, although COP decisions are not legally binding.
Numerous COPs (climate change conferences) have since been held, including the COP 21 in2015 in Paris (the Paris Climate Conference), culminating in the Paris Agreement, the COP22
in 2016 in Marrakesh, in which the parties called for more ambition and a more intensive
cooperation to close the gap between the current emissions reduction targets and thetargets of the Paris Agreement and for further climate actions, and the COP25 in 2019 in
Madrid (see below under 2.4.8).
The IPCC
2.4.4. In 1988, the UNEP and the World Meteorological Organization (WMO), under the auspices of
the United Nations, established the Intergovernmental Panel on Climate Change (IPCC). The
IPCC focuses on gaining insight into all aspects of climate change through scientific research.
It does not carry out its own research, but rather studies and assesses the most recent
scientific and technical information that is made available worldwide. The IPCC is not just ascientific but also an intergovernmental organization. It has 195 members, including theNetherlands. Since its establishment, the IPCC has published five reports (Assessment
Reports), with associated specialist reports, on the state of affairs in climate science and on
climate developments. (See under 2.3.5.1 through to 2.3.5.4).
The UNEP
2.4.5. The UNEP has issued annual reports on the so-named emissions gap since 2010. The
emissions gap is the difference between the desired emissions level in a particular year andthe reduction targets to which the relevant countries committed. In UNEP’s annual report on
the year 2013, it was found for the third time in a row that the pledges had fallen short andgreenhouse gas emissions had seen a rise rather than a drop. In its 2017 report, the UNEP
noted that if the emissions gap is not bridged in 2030, it is highly unlikely that the 2°C target
will be reached. Even if the reduction targets underlying the Paris Agreement are
implemented in fully, 80% of the carbon budget remaining in the context of the 2°C target
will be used by 2030. If a 1.5°C target is taken as a basis, the associated carbon budget will
have been completely used up by then.
2.4.6. The 2019 UNEP Production Gap Report focuses on the so-called production gap. This gap isthe difference between the planned production of fossil fuels of countries and global
production levels in line with global warming limited to 1.5°Cor 2°C. The following conclusion
was drawn in this report, inter alia:“In aggregate, countries’ planned fossil fuel production by 2030 will lead to the emission of 39
billion tonnes (gigatonnes) of carbon dioxide (GtCO2). That is 13 GtCO2, or 53%, more thanwould be consistent with a 2°Cpathway, and 21 GtCO2 (120%) more than would be consistent
with a 1.5°Cpathway. This gap widens significantly by 2040.
(…
)
Oil and gas are also on track to exceed carbon budgets, as countries continue to invest in fossil
fuel infrastructure that “locks in” oil and gas use. The effects of this lock-in widen the production
gap over time, until countries are producing 43% (36 million barrels per day) more oil and 47%(1,800 billion cubic meters) more gas by 2040 than would be consistent with a 2°Cpathway.” 17
Below is a diagram of the production gap18:

11

The Paris Agreement
2.4.7. The Paris Agreement, which was signed on 22 April 2016, entered into effect on 4 November
2016, and covering the period from 2020, has a different system than the UN Climate
Convention. Each country is called to account regarding its individual responsibility (bottomup approach). In short, the following is laid down in the agreement, inter alia:- Global warming must be kept well below the 2ºC threshold relative to the pre-industrial
age, while striving for 1.5°C.
- The parties have to draw up national climate plans, namely nationally determined
contributions (NDCs), which must be ambitious and whose ambition level must increase witheach new plan.
- The parties observe with great concern that the current NDCs are insufficient for an
average temperature rise of no more than 2ºC relative to the pre-industrial age.
- The use of fossil fuels must be brought to an end quickly, as this is a major cause ofexcessive CO2 emissions.
The decision of the parties to adopt the Paris Agreement notes the following about non-state
stakeholders:“The Conference of the Parties(…
)
117. Welcomes the efforts of non-Party stakeholders to scale up their climate actions, andencourages the registration of those actions in the Non-State Actor Zone for Climate
Action platform;(…
)
133. Welcomes the efforts of all non-Party stakeholders to address and respond to climatechange, including those of civil society, the private sector, financial institutions, cities andother subnational authorities;
134. Invites the non-Party stakeholders referred to in paragraph 133 above to scale up
their efforts and support actions to reduce emissions and/or to build resilience and decrease
vulnerability to the adverse effects of climate change and demonstrate these efforts via the
Non-State Actor Zone for Climate Action platform referred to in paragraph 117 above;”
2.4.8. During the 25th Conference of the Parties in Madrid in 2019 (COP25) held under the UN
Climate Convention, the so-called Climate Ambition Alliance was established. In the Climate
Ambition Alliance, both state and non-state actors have signalled their intention to achieve
net-zero CO2 emissions by 2050, required to meet the climate goals of the Paris Agreement.
The press release on this alliance of state and non-state actors mentions, among other12

things, that countries cannot take on this task on their own, that non-state action is required
for meeting the goal of the Paris Agreement, and that this needs to be done with due
observance of the latest scientific findings. Under the auspices of the UN, the so-called Raceto Zero initiative was developed in order to achieve the necessary expansion of the group of
non-state actors in the Climate Ambition Alliance in the quickest way possible. The Race toZero initiative is an assembly of global networks that have developed emissions reduction
protocols and guidelines for non-state actors. Based on scientific findings, these protocols
and guidelines present, inter alia, what companies should do to reduce the greenhouse gas
emissions caused by their activities and products.
The International Energy Agency (IEA)
2.4.9. The International Energy Agency (IEA) is an intergovernmental organization that wasestablished in 1974 in order to support the coordination of a collective response to major
disruptions in the oil supply. The IEA has 30 member countries, including the Netherlands.
Although the oil supply forms a substantial focus area of the IEA, the agency has also
focused its attention on other sources of energy. In its Beyond 2 Degree-Scenario (B2DS),
the IEA assumes a reduction of 21 to 22 Gt CO2 in 2030. This represents a 35% drop relative
to the starting point of 33 Gt in 2014, which the IEA uses as a base year.19
2.4.10. The IEA has published its annual World Energy Outlook since 1977. It offers analyses andinsights into developments in the energy market and what these developments signify forenergy certainty, environmental protection and economic developments.
In its World Energy Outlook 2019, the IEA foresees that the demand for oil and natural gas
will rise until 2040 across all scenarios outlined in the outlook. The IEA distinguishes three
scenarios, namely the Current Policies Scenario, the Stated Policies Scenario and theSustainable Development Scenario (SDS). The IEA explains these scenarios as follows in theWorld Energy Outlook 2019:“ The Current Policies Scenario shows what happens if the world continues along its
present path, without any additional changes in policy. In this scenario, energy demandrises by 1.3% each year to 2040, with increasing demand for energy services unrestrained byfurther efforts to improve efficiency. While this is well below the remarkable 2.3% growth seen in
2018, it would result in a relentless upward march in energy-related emissions, as well as
growing strains on almost all aspects of energy security.
The Stated Policies Scenario, by contrast, incorporates today’s policy intentions andtargets. Previously known as the New Policies Scenario, it has been renamed to underline that it
considers only specific policy initiatives that have already been announced. The aim is to hold up a
mirror to the plans of today’s policy makers and illustrate their consequences, not to guess how
these policy preferences may change in the future.
In the Stated Policies Scenario, energy demand rises by 1% per year to 2040. Low-carbon
sources, led by solar photovoltaics (PV), supply more than half of this growth, and natural gas,
boosted by rising trade in liquefied natural gas (LNG), accounts for another third. Oil demand
flattens out in the 2030s, and coal use edges lower. Some parts of the energy sector, led byelectricity, undergo rapid transformations. Some countries, notably those with “net zero”
aspirations, go far in reshaping all aspects of their supply and consumption. However, themomentum behind clean energy technologies is not enough to offset the effects of an expanding
global economy and growing population. The rise in emissions slows but, with no peak before
2040, the world falls far short of shared sustainability goals.
The Sustainable Development Scenario maps out a way to meet sustainable energy
goals in full, requiring rapid and widespread changes across all parts of the energy
system. This scenario charts a path fully aligned with the Paris Agreement by holding the rise inglobal temperatures to “well below 2°C…and pursuing efforts to limit [it] to 1.5°C”, and meets
objectives related to universal energy access and cleaner air. The breadth of the world’s energy
needs means that there are no simple or single solutions. Sharp emission cuts are achieved13

across the board thanks to multiple fuels and technologies providing efficient and cost-effectiveenergy services for all.”
2.4.11. In the World Energy Outlook 2020, published in October 2020, the IEA introduces the ‘Net
Zero Emissions by 2050 (NZE2050) case’, which is a translation of a net zero scenario in
2050 for the energy sector. The IEA notes the following, inter alia:“Decisions over the next decade will play a critical role in determining the pathway to 2050. For
this reason, we examine what the NZE2050 would mean for the years through to 2030. Total
CO2 emissions would need to fall by around 45% from 2010 levels by 2030, meaning that energy
sector and industrial process CO2 emissions would need to be around 20.1 Gt, or 6.6 Gt lower
than in the SDS in 2030.” 20
The outlook contains the below graph, entitled ‘Energy and industrial process CO2 emissions
and reduction levers in WEO 2020 scenarios, 2015-2030’21:

The European Union (EU)
2.4.12. Article 191 of the Treaty on the Functioning of the European Union (TFEU) contains the EU’s
environmental goals. For the implementation of its environmental policy, the EU has worked
out a large number of directives, including the so-named 2013 ETS directive (Directive
2003/87/EC), which was subsequently amended. The Directive has established a scheme forgreenhouse gas emission allowance trading in the EU. Overall, the ETS system works asfollows. Companies in the EU that fall under the ETS system, which are energy-intensive
companies such as those in the energy sector, may only emit greenhouse gases in exchange
for surrendering emission allowances. The allowances can be purchased, sold or kept. The
system currently provides for an emissions reduction of 43% by 2030 relative to 2005.22 On
17 September 2020, the European Commission proposed a new EU reduction target of atleast 55% in all sectors by 2030 relative to 1990.23 The European Council discussed thisenhancement on 15 October 2020.
The Netherlands
2.4.13. In proceedings instituted by Urgenda, a foundation and citizens’ group that focuses ondeveloping plans and measures for the prevention of climate change, the Dutch State wasordered to reduce greenhouse gas emissions by at least 25% as of late 2020 relative to1990.24
2.4.14. On 28 June 2019, the Dutch cabinet presented its Climate Agreement. The Climate

14

Agreement encompasses a package of measures and agreement between companies, socialorganizations and government bodies for the joint reduction of greenhouse gas emissions in
the Netherlands by 49% in 2030 relative to 1990. The Climate Agreement is the result ofconsultations among some 150 parties, which gathered at five environment-themed roundtable meetings, namely Electricity, Industry, Built Environment, Agriculture and Mobility. The
implementation of the agreements will be run wherever possible by the participating parties,
including the central government.
2.4.15. On 1 September 2019, the Climate Act25 entered into force. This act provides a framework
for the development of policy geared towards a permanent and gradual reduction ofgreenhouse gas emissions in the Netherlands to a level that will be 95% lower in 2050 thanin 1990, with the purpose of curbing global warming and climate change. The aim is toachieve a 49% reduction in greenhouse gas emissions by 2030 and a full Co2-neutralelectricity production by 2050 in order to meet the target for 2050. According to the Climate
Act, the cabinet must draw up a Climate Plan. The first Climate Plan is based on the Climate
Agreement and covers the period between 2021 and 2030. The plan contains the broad
outlines with which the cabinet seeks to achieve the targets in the Climate Act as well as anumber of considerations, including on the latest scientific insights in the area of climatechange and on the economic impact of the policy.

2.5. Activities of RDS and the Shell group
2.5.1. As the top holding company, RDS establishes the general policy of the Shell group. For
instance, RDS draws up the investment guidelines in support of the energy transition as wellas the business principles for the Shell companies. RDS reports on the consolidated
performance of the Shell companies and maintains relationships with investors. In RDS’
Sustainability Report 2019, the RDS Board is designated in a ‘Climate Change Management
Organogram’ as having ‘oversight of climate change risk management’. The companies of the
Shell group are responsible for the implementation and execution of the general policy. They
must adhere to the applicable legislation and their contractual obligations. Each Shellcompany bears operational responsibility for the implementation of ‘climate change policies
and strategies’.
2.5.2. RDS has made executive remuneration dependent on reaching short-term targets. In the2019 Annual Report it was reported that the performance indicator ‘energy transition’ counts
towards 10% in the weighting. The other 90% is linked to other, mostly financial performanceindicators.
2.5.3. As the top holding company, RDS reports on the greenhouse gas emissions of the various
Shell companies, both on the basis of the relevant company’s operational control (100% of
the emissions of companies and joint ventures operated by one of the Shell companies) as
well as on the basis of the relevant company’s share capital (equity share of the emissions ofcompanies and joint ventures in which Shell participates).
2.5.4. RDS reports on greenhouse gas emissions on the basis of the World Resources InstituteGreenhouse Gas Protocol (GHG Protocol). The GHG Protocol categorizes greenhouse gas
emissions in Scope 1, 2 and 3:- Scope 1: direct emissions from sources that are owned or controlled in full or in part by theorganization;- Scope 2: indirect emissions from third-party sources from which the organization haspurchased or acquired electricity, steam, or heating for its operations;- Scope 3: all other indirect emissions resulting from activities of the organization, but

15

occurring from greenhouse gas sources owned or controlled by third parties, such as otherorganizations or consumers, including emissions from the use of third-party purchased crude
oil and gas.
2.5.5. RDS’ reporting method and Shell’s information on greenhouse gas emissions are available,inter alia, in their annual reports, Sustainability Reports, the Carbon Disclosure Project (CDP)– an international not-for-profit charity that runs the global disclosure system for investors,
companies, cities, states and regions – and on the website of the Shell group. In 2018, RDS
reported that 85% of the Shell group emissions were Scope 3 emissions.
2.5.6. In its 2019 submission to the CDP, RDS writes that its CEO has ultimate responsibility for thegeneral management of the Shell group. The CEO is the most senior individual who isultimately accountable for all management, except with respect to matters falling under theultimate responsibility of the RDS Board or which belong to the domain of the RDS
shareholders’ meeting. With respect to climate change, the following is stated in thesubmission to the CDP:“The CEO is the most senior individual with accountability for climate change. This includes thedelivery of Shell´ s strategy, e.g. through Shell´ s plans (…
) to set short-term targets for reducing
the Net Carbon Footprint of the energy products it sells (…
).”
2.5.7. The 2019 CDPsubmission explains that the climate policy, for which the RDS CEO bears
ultimate accountability, is adopted by the RDS Board, which has ‘oversight of climate-related
issues’. Among its ‘governance mechanisms into which climate-related issues are integrated’ are‘Setting performance objectives; Monitoring; implementation and performance of objectives;
Overseeing major capital expenditures, acquisitions and divestitures; Monitoring and overseeing
progress against goals and targets for addressing climate-related issues’. The RDS Board seeks
the advice of a so-called Board-level committee, namely the Corporate and Social
Responsibility Committee (CSRC). The role of the CSRCis as follows:“(…
) to review and advise the Board on Shell's strategy, policies and performance in the areas ofsafety, environment, ethics and reputation against the Shell General Business Principles, theShell Code of Conduct, and the HSSE & SPControl Framework. Conclusions/recommendations
made by the CSRCare reported directly to the Executive Committee and Board. The topics
discussed in depth included personal and process safety, road safety, the energy transition andclimate change, Shell’s Net Carbon Footprint ambition, the Company’s environmental and societal
licence to operate, and its ethics programme.”
2.5.8. The 2019 submission to the CDP also states the following:“Climate change and risks resulting from GHGemissions have been identified as a significant risk
factor for Shell and are managed in accordance with other significant risks through the Board andExecutive Committee. Shell's processes for identifying, assessing, and managing climate-related
issues are integrated into our overall multi-disciplinary company-wide risk identification,assessment and management process. Shell frequently monitors and assesses climate-relatedrisks looking at different time horizons; short (up to 3 years), medium (three years up to around10 years) and long term (beyond around 10 years). Shell has a climate change risk management
structure in place which is supported by standards, policies and controls.
(...)
Finally, we assess our portfolio decisions, including divestments and investments, against
potential impacts from the transition to lower-carbon energy. These include higher regulatory
costs linked to carbon emissions and lower demand for oil and gas. The portfolio changes we aremaking reduce the risk of having assets that are uneconomic to operate, or oil and gas reserves
that are uneconomic to produce because of changes in demand or CO2 regulations.”
2.5.9. In 1988, the then Shell group published an internal report on climate change, which had
been drawn up in 1986, entitled ‘The Greenhouse Effect’. In it, and in the information film,

16‘Climate of concern’, the then Shell group warned about the dangers of climate change. In abrochure with the title ‘Climate Change, what does Shell think and do about it’ from March
1998, the following is stated about the role of the then Shell group in changing energy
markets:“They must play their part in the necessary precautionary measures to limit greenhouse gas
emissions.
Shell companies expect to do the following:(…
)
Reduce emissions of greenhouse gases in their own operations as well as helping their customers
to do the same.”
In 1998, a new branch, known as the Shell International Renewables, was created in thethen Shell group, whose focus was on new forms of energy, including solar energy, theplanting of forests, and energy from biomass.
2.5.10. From 2006/2007 onward, the Shell group invested in tar sand in Canada in order to extract
tar sand oil. The Shell company in question, Shell Canada, sold some parts of this investment
in 2017. From late 2017/January 2018, the Shell group started to focus on the extraction ofoil and gas from shale, which requires a drilling technique known as fracking. It is anintensive process that costs extra energy and consequently may culminate in a higher CO2
emission per unit of energy generated as compared to the conventional extraction of
petroleum and natural gas. Moreover, the extraction of shale gas and shale oil, it turns out,
releases the highly potent greenhouse gas methane into the atmosphere.
2.5.11. In December 2017, RDS presented its ‘Net Carbon Footprint Ambition’ (NCF ambition) for
the Shell group. The NCF ambition is a long-term ambition with which the Shell group seeks
to reduce the CO2 intensity of the energy products sold by the group by 2050. It is anintensity-based standard which focuses on the Shell group’s relative contribution to theemissions reduction in the total energy system. The NCF ambition pertains to a reduction of
the CO2 intensity of Scope 1, 2 and 3 emissions. The NCF ambition is generally adjusted very
five years. In 2019, RDS also started to use targets, in addition to ambitions, for the shortterm for the Shell group, such as a specific NCF target. The short-term targets will beestablished every year for a period of three to five years. RDS annually reports on the NCF
ambition in its Sustainability Report. The website of the Shell group also states the following
about the NCF ambition:“Our ambition depends on society making progress to meet the Paris Agreement. If societychanges its energy demands more quickly, we intend to aid that acceleration. If it changes more
slowly, we will not be able to move as quickly as we would like. Both energy demand and energy
supply must evolve together. This is because no business can survive unless it sells things thatpeople need and buy.” 26
2.5.12. In 2018, RDS published the Sky Report containing the ‘Sky’ scenario (hereinafter: Sky) for
the development of future energy systems. RDS uses this scenario, inter alia, to support andtest its business decisions. Sky assumes that society will reach net zero emissions by 2070,
which means that the target of the Paris Agreement of keeping the global averagetemperature rise well below 2°C will have been met. Sky assumes a swift growth ofrenewable energy sources, such as wind and solar, and of low-emission fuels, such as
biofuels, in addition to a persisting demand for oil and gas in the long term. Sky also foresees
a substantial increase of a method for capturing and re-using CO2, known as Carbon
Capture Utilization and Storage (CCUS), to further limit CO2 emissions in the atmosphere.
Sky assumes that even in a climate-neutral energy system, with net zero CO2 emissions in
2070, fossil fuels – if combined with CCUS – still constitute 22% of the total energy supply, of
which oil and gas form 16%. In 2050, this could be 45%, of which oil and gas form 33%. The
report also states the following:17

“From 2018 to around 2030, there is clear recognition that the potential for dramatic short-termchange in the energy system is limited, given the installed base of capital across the economy
and available technologies, even as aggressive new policies are introduced.”
2.5.13. In 2018, RDS published the Energy Transformation Report 2018, which was intended toanswer questions of shareholders, governments and not-for-profit organizations about thesignificance of the energy transition for the Shell group. The report states, among otherthings, that in all scenarios used by RDS, including the Sky scenario, the demand for oil andnatural gas will be higher in 2030 than in 2018 and:“To meet that demand, we expect to make continued investments in finding and producing oil andgas.”
The report also states that the Shell group also invests in other energy sources, such ashydrogen, biofuels and wind, and that the Shell group wants to lower the CO2 intensity of its
products.
The report states the following regarding the risk of so-called ‘stranded assets’:“LOWRISK OFSTRANDED ASSETS
Every year, we test our portfolio under different scenarios, including prolonged low oil prices. In
addition, we rank the break-even prices of our assets in the Upstream 27 and Integrated Gas
businesses to assess their resilience against low oil and gas prices. These assessments indicatethat the risk of stranded assets in the current portfolio is low.
At December 31, 2017, we estimate that around 80% of our current proved oil and gas reserves,
will be produced by 2030 and only around 20% after that time. Production that is already on
stream will continue as long as we cover our marginal costs.
We also estimate that around 76% of our proved plus probable oil and gas reserves, known as
2P, will be produced by 2030, and only 24% after that time.”
2.5.14. The disclaimer at the end of the Energy Transformation Report 2018 states the following:“Additionally, it is important to note that Shell’s existing portfolio has been decades indevelopment. While we believe our portfolio is resilient under a wide range of outlooks, including
the IEA’s 450 scenario (World Energy Outlook 2016), it includes assets across a spectrum ofenergy intensities including some with above-average intensity. While we seek to enhance ouroperations’ average energy intensity through both the development of new projects anddivestments, we have no immediate plans to move to a net-zero emissions portfolio over ourinvestment horizon of 10-20 years. Although, we have no immediate plans to move to a net-zeroemissions portfolio, in November of 2017, we announced our ambition to reduce the Net Carbon
Footprint of the energy products we sell in accordance with society’s implementation of the Paris
Agreement’s goal of holding global average temperature to well below 2°Cabove pre industrial
levels. Accordingly, assuming society aligns itself with the Paris Agreement’s goals, we aim to
reduce our Net Carbon Footprint, which includes not only our direct and indirect carbon emissions,associated with producing the energy products which we sell, but also our customers’ emissions
from their use of the energy products that we sell, by 20% in 2035 and by 50% in 2050.”
2.5.15. In October 2018, the CEO of RDS said the following in a speech:“Shell’s core business is, and will be for the foreseeable future, very much in oil and gas, andparticularly in natural gas […
] people think we have gone soft on the future of oil and gas. If they
did think that, they would be wrong.”
2.5.16. On 12 September 2019, Shell Nederland, part of the Shell group, and several otherorganizations, signed the Climate Agreement.
2.5.17. In response to the more far-reaching ambition of the European Commission to become
climate neutral by 2050 (‘the Green Deal’), RDS issued a sketch in 2020 entitled ‘A climate-18

Neutral EU by 2050’, in which it notes that the EU ambitions require an acceleration of theenergy transition that goes beyond the Sky scenario. RDS emphasizes that in order tofacilitate the energy transition, the EU must create a policy framework with clear and binding
legislative targets. RDS also explains in the sketch that carbon pricing must be expanded
across the economy.
2.5.18. RDS included the adjusted ambitions for the Shell group in its ‘Responsible Investment
Annual Briefing’ of April 2020 (hereinafter: ‘RI Annual Briefing van 2020’), aimed at its
investors. In the briefing, RDS states that the Shell group strives for a reduction of CO2
emissions to net zero in 2050, or sooner from the manufacture of all its products, or all of
Scope 1 and 2 emissions. With regard to Scope 3 emissions, RDS wants to reduce the CO2
intensity of the Shell group’s energy products per sold unit of energy (the NCF) by 30% in
2035 (was: 20%) and by 65% in 2050 (was: 50%). RDS also wants to help customers of the
Shell group reduce their use of Shell energy products, the Scope 3 emissions, to net zero in
2050 or sooner. Finally, RDS has formulated short-term targets for the next two to three
years.
2.5.19. In its RI Annual Briefing of 2020 (hereinafter: ‘the RI Annual Briefing 2020’), RDS shows in a
diagram how it believes its ambitions for the Shell group, both in the short and long term,
scenarios:
relate to the so-called ‘earlier action’ IPCC 1.5℃

2.5.20. The RI Annual Briefing 2020 contains the following warning (‘Definitions and cautionary
note’), inter alia:“Additionally, it is important to note that as of April 16, 2020, Shell’s operating plans and budgets
do not reflect Shell’s net-zero emissions ambition. Shell’s aim is that, in the future, its operatingplans and budgets will change to reflect this movement towards its new net-zero emissions
ambition. However, these plans and budgets need to be in step with the movement towards a
net-zero emissions economy within society and among Shell’s customers. Also, in thispresentation we may refer to “Shell’s Net Carbon Footprint”, which includes Shell’s carbon
emissions from the production of our energy products, our suppliers’ carbon emissions in
supplying energy for that production and our customers’ carbon emissions associated with theiruse of the energy products we sell. Shell only controls its own emissions but, to support societyin achieving the Paris Agreement goals, we aim to help and influence such suppliers andconsumers to likewise lower their emissions.”
2.5.21. At the presentation of the third-quarter figures, on 29 October 2020, RDS gave a brief

19

explanation of the Shell group’s strategic direction during the presentation of the third
quarter figures. Its strategic direction is as follows:“Shell will reshape its portfolio of assets and products to meet the cleaner energy needs of its
customers in the coming decades. The key elements of Shell’s strategic direction include:▪ Ambition to be a net-zero emissions energy business by 2050 or sooner, in step with society
and its customers.
▪ Grow its leading marketing business, further develop the integrated power business andcommercialise hydrogen and biofuels to support customers’ efforts to achieve net-zero emissions.
▪ Transform the Refining portfolio from the current fourteen sites into six high-value energy andchemicals parks, integrated with Chemicals. Growth in Chemicals will pivot to more performancechemicals and recycled feedstocks.
▪ Extend leadership in liquefied natural gas (LNG) to enable decarbonisation of key markets andsectors.
▪ Focus on value over volume by simplifying Upstream to nine significant core positions,generating more than 80% of Upstream cash flow from operations.
▪ Enhanced value delivery through Trading and Optimisation.”
2.5.22. The website of the Shell group also states the following:“We have the responsibility and commitment to respect human rights with a strong focus on how
we interact with communities, security, labour rights and supply chain conditions.”(…
)
We are committed to respecting human rights. Our human rights policy is informed by the UN
Guiding Principles on Business and Human Rights and applies to all our employees andcontractors.”
2.5.23. In an open letter to the shareholders dated 16 May 2014, RDS wrote the following:“We are writing this letter in response to enquiries from shareholders regarding the “carbon
bubble” or “stranded assets” issue […
] there is a high degree of confidence that global warming
will exceed 2°Cby the end of the 21st century […
] because of the long-lived nature of theinfrastructure and many assets in the energy system, any transformation will inevitably takedecades […
] Shell does not believe that any of its proven reserves will become “stranded” as aresult of current or reasonably foreseeable future legislation concerning carbon.”
2.5.24. Since 2016, the Dutch NGO Follow This, shareholder in RDS, has submitted various
resolutions with the request to exchange the investments of the Shell group in oil and gas
for sustainable energy. The RDS Board has consistently recommended its shareholders tovote against these resolutions for being contrary to the company’s interests. The RDS Board
stated the following, among other things:“tying the Company’s hands to a renewables only mandate would be strategically andcommercially unwise.”
The majority of shareholders has voted against these resolutions.
2.6. Notice of liability of RDS from claimants
2.6.1. In a letter dated 4 April 2018, Milieudefensie held RDS liable for its current policy as well as
claimed conformity with the climate targets under the Paris Agreement. RDS responded in a
letter dated 28 May 2018 stating that the claims of Milieudefensie were unfounded, that the
courts were not the appropriate forum for questions about the energy transition, and thatthe approach of Milieudefensie was not constructive.
2.6.2. In a letter dated 12 February 2019, Milieudefensie et al. gave RDS another opportunity to20

comply with what had been claimed earlier, which RDS rejected in a letter dated 26 March
2019.

3 The dispute
3.1. Milieudefensie et al. claim, following a change of claim, (in essence) for the court:
1. to rule:- a) that the aggregate annual volume of CO2 emissions into the atmosphere (Scope 1, 2 and 3)
due to the business operations and sold energy products of RDS and the companies and legal
entities it commonly includes in its consolidated annual accounts and with which it jointly forms theShell group constitutes an unlawful act towards Milieudefensie et al. and (i) that RDS must reduce
this emissions volume, both directly and via the companies and legal entities it commonly includes
in its consolidated annual accounts and with which it jointly forms the Shell group, and (ii) that thisreduction obligation must be achieved relative to the emissions level of the Shell group in the year
2019 and in accordance with the global temperature target of Article 2 paragraph 1 under a of theParis Agreement and in accordance with the related best available (UN) climate science.
- b) that RDS acts unlawfully towards Milieudefensie et al. if RDS, both directly and via thecompanies and legal entities it commonly includes in its consolidated annual accounts and withwhich it jointly forms the Shell group:- principally: fails to reduce or cause to be reduced by at least 45% or net 45% relative to 2019
levels, no later than at year-end 2030, the aggregate annual volume of all CO2 emissions into theatmosphere (Scope 1, 2 and 3) due to the business operations and sold energy products of the
Shell group;- in the alternative: fails to reduce or cause to be reduced by at least 35% or net 35% relative to2019 levels, no later than at year-end 2030, the aggregate annual volume of all CO2 emissions
into the atmosphere (Scope 1, 2 and 3) due to the business operations and sold energy productsof the Shell group;- further in the alternative: fails to reduce or cause to be reduced by at least 25% or net 25%
relative to 2019 levels, no later than at year-end 2030, the aggregate annual volume of all CO2
emissions into the atmosphere (Scope 1, 2 and 3) due to the business operations and sold energy
products of the Shell group;
2. to order RDS, both directly and via the companies and legal entities it commonly includes in its
consolidated annual accounts and with which it jointly forms the Shell group, to limit or cause to belimited the aggregate annual volume of all CO2 emissions into the atmosphere (Scope 1, 2 and 3)
due to the business operations and sold energy products of the Shell group to such an extent that
this volume at year-end 2030:- principally: will have reduced by at least 45% or net 45% relative to 2019 levels;- in the alternative: will have reduced by at least 35% or net 35% relative to 2019 levels;- further in the alternative: will have reduced by at least 25% or net 25% relative to 2019 levels;
all of this while ordering RDS to pay the costs of the proceedings.
3.2. Milieudefensie et al. have based their claims on the following:
RDS has an obligation, ensuing from the unwritten standard of care pursuant to Book 6 Section
162 Dutch Civil Code28 to contribute to the prevention of dangerous climate change through thecorporate policy it determines for the Shell group. For the interpretation of the unwritten standardof care, use can be made of the so-called Kelderluik criteria29, human rights, specifically the right tolife and the right to respect for private and family life, as well as soft law endorsed by RDS, such as
the UN Guiding Principles on Business and Human Rights, the UN Global Compact and the OECD
Guidelines for Multinational Enterprises. RDS has the obligation to ensure that the CO2 emissions

21

attributable to the Shell group (Scope 1 through to 3) will have been reduced at end 2030, relative
to 2019 levels, principally by 45% in absolute terms, or net 45% (using the IPCC SR15 report andthe IEA’s Net Zero emissions by 2050 scenario as a basis), in the alternative by 35% (using the
IEA’s Below 2 Degree Scenario as a basis), and further in the alternative by 25% (using the IEA’s
Sustainable Development Scenario as a basis), through the corporate policy of the Shell group.
RDS violates this obligation or is at risk of violating this obligation with a hazardous and disastrous
corporate policy for the Shell group, which in no way is consistent with the global climate target toprevent a dangerous climate change for the protection of mankind, the human environment andnature.
3.3. RDS has put forward a reasoned defence and files a motion for inadmissibility, or to dismiss theclaims.
3.4. The parties’ assertions are discussed in more detail below, where relevant.

4 The assessment
4.1. I ntroduction
4.1.1. The claims of Milieudefensie et al. are directed against RDS, established in the Netherlands,
as the parent company of the Shell group. This case revolves around the question whether
or not RDS has the obligation to reduce at end 2030 and relative to 2019 levels across all
emission Scopes (1 through to 3) the CO2 emissions of the Shell group’s entire energy
portfolio through the corporate policy of the Shell group.
4.1.2. RDS endorses the need to tackle climate change by achieving the goals of the Paris
Agreement and reducing global CO2 emissions. According to RDS, the energy transition
required for achieving these goals demands a concerted effort of society as whole. RDS
opposes the allowance of the claims: RDS asserts that there is no legal basis for doing so.
RDS also argues that the solution should not be provided by a court, but by the legislator
and politics.
4.1.3. The court does not follow RDS’ argument that the claims of Milieudefensie et al. requiredecisions which go beyond the lawmaking function of the court. The court must decide on theclaims of Milieudefensie et al.30 Assessing whether or not RDS has the alleged legal obligationand deciding on the claims based thereon is pre-eminently a task of the court. In thefollowing assessment, the court interprets the unwritten standard of care from the applicableBook 6 Section 162 Dutch Civil Code on the basis of the relevant facts and circumstances, thebest available science on dangerous climate change and how to manage it, and thewidespread international consensus that human rights offer protection against the impactsof dangerous climate change and that companies must respect human rights.
4.1.4. The assessment culminates in the conclusion that RDS is obliged to reduce the CO2
emissions of the Shell group’s activities by net 45% at end 2030 relative to 2019 through theShell group’s corporate policy. This reduction obligation relates to the Shell group’s entire
energy portfolio and to the aggregate volume of all emissions (Scope 1 through to 3). It is up
to RDS to design the reduction obligation, taking account of its current obligations and otherrelevant circumstances. The reduction obligation is an obligation of result for the activities of
the Shell group, with respect to which RDS may be expected to ensure that the CO2
emissions of the Shell group are reduced to this level. This is a significant best-efforts
obligation with respect to the business relations of the Shell group, including the end-users,
in which context RDS may be expected to take the necessary steps to remove or prevent theserious risks ensuing from the CO2 emissions generated by the business relations, and to22

use its influence to limit any lasting consequences as much as possible. This obligations is
also designated hereinafter as ‘RDS’ reduction obligation’.
4.1.5. The court explains below how it has arrived at this opinion. The following themes are dealt
with in the following order: under 4.2 the admissibility, under 4.3 the applicable law, under
4.4 RDS’ reduction obligation, under 4.5 the policy, the policy intentions and the ambitions of
RDS and the allowability of the claims, and under 4.6, the conclusion and costs of theproceedings.
4.2. Admissibility
1. Admissibility of class actions
4.2.1. Access to the Dutch courts is governed by Dutch law. The class actions of Milieudefensie etal. are governed by Book 3 Section 305a Dutch Civil Code, pursuant to which a foundation or
association with full legal capacity may institute legal proceedings for the protection of similarinterests of other persons. From the applicable transitional law31 it follows that theadmissibility of the class actions of Milieudefensie et al. must be tested on the basis of Book
3 Section 305a Dutch Civil Code (former), which applied up until 1 January 2020.
4.2.2. The class actions of Milieudefensie et al. are public interest actions. Such actions seek toprotect public interests, which cannot be individualized because they accrue to a much larger
group of persons, which is undefined and unspecified.32 The common interest of preventing
dangerous climate change by reducing CO2 emissions can be protected in a class action. The
dispute on the admissibility of class actions revolves around the question whether or notthey comply with the requirement ‘similar interest’ in the sense of Book 3 Section 305a Dutch
Civil Code. This requirement entails that the interests in question must be suitable forbundling so as to safeguard an efficient and effective legal protection of the stakeholders.
4.2.3. The court is of the opinion that the interests of current and future generations of the world’s
population, as served principally with the class actions, is not suitable for bundling. Although
the entire world population is served by curbing dangerous climate change, there are huge
differences in the time and manner in which the global population at various locations will beaffected by global warming caused by CO2 emissions. Therefore, this principal interest does
not meet the requirement of ‘similar interest’ under Book 3 Section 305a Dutch Civil Code.
4.2.4. However, the interests of current and future generations of Dutch residents and (withrespect to the Waddenvereniging) of the inhabitants of the Wadden Sea area, a part ofwhich is located in the Netherlands, as served in the alternative with the class actions, aresuitable for bundling, even though in the Netherlands and in the Wadden region there aredifferences in time, extent and intensity to which the inhabitants will be affected by climatechange caused by CO2 emissions. However, these differences are much smaller and of adifferent nature than the mutual differences when it concerns the entire global populationand do not stand in the way of bundling in a class action. The collective claims are therefore
declared not allowable insofar as they serve the interest of the world’s population, except for
the interest of Dutch residents and the inhabitants of the Wadden region.
4.2.5. The interest served with the class action must align with the objects stated in the articles ofassociation and must also actually be promoted. Milieudefensie, Greenpeace Nederland,
Fossielvrij NL, Waddenvereniging, Both Ends and Jongeren Milieu Actief meet thisrequirement. ActionAid does not meet this requirement, as it does not promote the interestsof Dutch residents sufficiently for its collective claim to be allowable. ActionAid’s object isbroadly formulated in its articles of association, which pertains to the world with a special
focus on Africa. ActionAid mainly operates in developing countries. Its operations in the
Netherlands are geared towards developing countries, not Dutch residents. Its collective

23

claim must therefore be declared not allowable.
4.2.6. The other admissibility requirements under Book 3 Section 305a Dutch Civil Code arerightfully not in dispute. Therefore, the collective claims of Milieudefensie, Greenpeace
Nederland, Fossielvrij NL, Waddenvereniging, Both Ends and Jongeren Milieu Actief areallowable.
2. Locus standi of individual claimants
4.2.7. A claimant must have an independent, direct interest in the instituted legal proceedings.33
This is complemented with the option from the above-discussed Book 3 Section 305a Dutch
Civil Code to institute proceedings for the protection of similar interests of others. The
legislative history of Book 3 Section 305a Dutch Civil Code states that if a public interest
action is instituted, “citizens, individually, are generally not entitled to institute proceedings due
to a lack of interest”.34In other words, besides a class action there is only room for the claimsof individual claimants if they have a sufficiently concrete individual interest. That is not thecase here: the interest of the claims of individual claimants is the same as the common
interest which the class actions seek to protect. Their interests are already served by theclass actions and they do not have an interest in a separate claim in addition to the classactions. The claims of the individual claimants must therefore be declared not allowable.
All further uses of Milieudefensie et al. refer to Milieudefensie, Greenpeace Nederland,
Fossielvrij NL, Waddenvereniging, Both Ends and Jongeren Milieu Actief jointly.
4.3. Applicable law
4.3.1. Milieudefensie et al. principally make a choice of law within the meaning of Article 7 Rome
II35, which according to Milieudefensie et al. leads to the applicability of Dutch law. Insofar as
the choice of law of Article 7 Rome II does not lead to the applicability of Dutch law,
Milieudefensie et al. claim in the alternative that the applicable law must be determinedbased on the general rule of Article 4 paragraph 1 Rome II. According to Milieudefensie et al.,this general rule also leads to the applicability of Dutch law.
4.3.2. Article 7 Rome II determines that the law applicable to a non-contractual obligation arisingout of environmental damage or damage sustained by persons or property as a result ofsuch damage shall be the law determined pursuant to the general rule of Article 4 paragraph1 Rome II, unless the person seeking compensation for damage chooses to base his or her
claim on the law of the country in which the event giving rise to the damage occurred. The
parties were right to take as a starting point that climate change, whether dangerous orotherwise, due to CO2 emissions constitutes environmental damage in the sense of Article 7
Rome II. They are divided on the question what should be seen as an ‘event giving rise to
the damage’ in the sense of this provision. Milieudefensie et al. allege that this is thecorporate policy as determined for the Shell group by RDS in the Netherlands, whereby her
choice of law leads to the applicability of Dutch law. RDS asserts that the event giving rise to
the damage are the actual CO2 emissions, whereby the choice of law of Milieudefensie et al.
leads to the applicability of a myriad of legal systems.
4.3.3. The choice as laid down in Article 7 Rome II is justified with a reference to Article 1919 TFEU
(Article 174 TEC), which prescribes a high level of protection.36 Both Milieudefensie et al. and
RDS refer to the handbook by Von Hein. The complete entry for event giving rise to thedamage in the sense of Article 7 Rome II reads as follows:“Where events giving rise to environmental damage occur in several states, it is not possible toinvoke the escape clause (Article 4(3 )) in order to concentrate the applicable law with regard to asingle act. Thus, the plaintiff may opt for different laws as far as acts by multiple tortfeasors
acting in various states are concerned. If, however, an act in country A causes an incident in24

country B which then leads to an environmental damage in country C, it may be submitted that
only the final incident should be characterized as the decisive 'event' within the meaning of Article
7. One has to concede that extending the victim's right to choose the law, of each place of act
would considerably undermine legal predictability. On the other hand, such generous approach
would fit the favor naturae underlying Article 7. Since the tortfeasor may be sued in country A
under Article 7 no. 2 Brussels Ibis, extending the victim's option will also facilitate proceedings.”
37

4.3.4. The Court of Justice of the European Union (CJEU) has made no declaration on the ‘event
giving rise to the damage’ in the sense of Article 7 Rome II. The court sees insufficient basis
in the interpretation of this provision to seek a link with the CJEU rulings as cited by theparties on other principles of liability, some of which are subject in Rome II to specific choiceof-law rules (intellectual property rights, unlawful competition, and product liability andprospectus liability).38 Nor does the court see a basis to seek a link with the case law cited by
RDS, in which it was determined that a purely internal decision cannot be designated as an
injurious event.39
The published corporate policy that RDS draws up for the Shell group, which was also
discussed with the shareholders, and to which the claims of Milieudefensie et al. pertain,
cannot be equated with this. The court also sees insufficient grounds to seek a link with thecases cited by RDS, in which parent companies were called to account for non-intervention in
subsidiaries.40 A parallel with the law applicable to a participant in an unlawfully committed
act perpetrated in concert (product liability) does not hold water due to the below-mentioned
characteristics of the responsibility as regards environmental damage and imminentenvironmental damage, as raised in this case.
4.3.5. An important characteristic of the environmental damage and imminent environmental
damage in the Netherlands and the Wadden region, as raised in this case, is that every
emission of CO2 and other greenhouse gases, anywhere in the world and caused inwhatever manner, contributes to this damage and its increase. It is not in dispute that theCO2 emissions for which Milieudefensie et al. hold RDS liable occur all over the world andcontribute to climate change in the Netherlands and the Wadden region (see also below
under 4.4 (2)). These CO2 emissions only cause environmental damage and imminentenvironmental damage in conjunction with other emissions of CO2 and other greenhousegases for Dutch residents and the inhabitants of the Wadden region. Not only are CO2
emitters held personally responsible for environmental damage in legal proceedings
conducted all over the world, but also other parties that could influence CO2 emissions. The
underlying thought is that every contribution towards a reduction of CO2 emissions may beof importance. The court is of the opinion that these distinctive aspects of responsibility forenvironmental damage and imminent environmental damage must be included in the answer
to the question what in this case should be understood as ‘event giving rise to the damage’in the sense of Article 7 Rome II.
4.3.6. Milieudefensie et al. hold RDS liable in its capacity as policy-setting entity of the Shell group(see below under 4.4. (1.)). RDS does contest that its corporate policy for the Shell group isof may be of influence on the Shell group’s CO2 emissions. However, RDS pleads for a
restricted interpretation of the concept ‘event giving rise to the damage’ in the application of
Article 7 Rome II. In its view, its corporate policy is a preparatory act that falls outside thescope of this article because in the opinion of RDS, the mere adoption of a policy does notcause damage.
The court holds that this approach is too narrow, not in line with the characteristics of
responsibility for environmental damage and imminent environmental damage nor with theconcept of protection underlying the choice of law in Article 7 Rome II. Although Article 7
Rome II refers to an ‘event giving rise to the damage’, i.e. singular, it leaves room forsituations in which multiple events giving rise to the damage in multiple countries can be25

identified, as is characteristic of environmental damage and imminent environmental damage.
When applying Article 7 Rome II, RDS’ adoption of the corporate policy of the Shell group
therefore constitutes an independent cause of the damage, which may contribute toenvironmental damage and imminent environmental damage with respect to Dutch residents
and the inhabitants of the Wadden region.
4.3.7. Superfluously, the court considers that the conditional choice of law of Milieudefensie et al. is
in line with the concept of protection underlying Article 7 Rome II, and that the general rule of
Article 4 paragraph 1 Rome II, upheld in Article 7 Rome II, insofar as the class actions seek toprotect the interests of the Dutch residents, also leads to the applicability of Dutch law.
4.4. RDS’ reduction obligation
4.4.1. RDS’ reduction obligation ensues from the unwritten standard of care laid down in Book 6
Section 162 Dutch Civil Code, which means that acting in conflict with what is generally
accepted according to unwritten law is unlawful. From this standard of care ensues thatwhen determining the Shell group’s corporate policy, RDS must observe the due care
exercised in society. The interpretation of the unwritten standard of care calls for anassessment of all circumstances of the case in question.
4.4.2. In its interpretation of the unwritten standard of care, the court has included: (1.) the policysetting position of RDS in the Shell group, (2.) the Shell group’s CO2 emissions, (3.) the
consequences of the CO2 emissions for the Netherlands and the Wadden region, (4.) theright to life and the right to respect for private and family life of Dutch residents and the
inhabitants of the Wadden region, (5.) the UN Guiding Principles, (6.) RDS’ check andinfluence of the CO2 emissions of the Shell group and its business relations, (7.) what isneeded to prevent dangerous climate change, (8.) possible reduction pathways, (9.) the twin
challenge of curbing dangerous climate change and meeting the growing global populationenergy demand, (10.) the ETS system and other ‘cap and trade’ emission systems that apply
elsewhere in the world, permits and current obligations of the Shell group, (11.) the
effectiveness of the reduction obligation, (12.) the responsibility of states and society, (13.)
the onerousness for RDS and the Shell group to meet the reduction obligation, and (14.) the
proportionality of RDS’ reduction obligation. In 4.5, the court weighs the policy, policy
intentions and ambitions of RDS for the Shell group against RDS’ reduction obligation. Finally,
4.6 contains the conclusion on RDS’ reduction obligation and the court’s assessment of whichclaims of Milieudefensie et al. can be allowed.
4.4.3. All further uses by the court of ‘the unwritten standard of care’ refer to – for the sake ofbrevity – what may be expected of RDS under this standard with respect to Dutch residents
and the inhabitants of the Wadden region, whose interests Milieudefensie et al. seeks toprotect in the class actions.
(1.) the policy-setting position of RDS in the Shell group
4.4.4. From the facts as presented under 2.5.1 through to 2.5.7 it follows that RDS determines thegeneral policy of the Shell group. The companies in the Shell group are responsible for the
implementation and execution of the policy, and must comply with applicable legislation andtheir contractual obligations. The implementation responsibility of the Shell companies does
not alter the fact that RDS determines the general policy of the Shell group.
(2.) the Shell group’s CO2 emissions
4.4.5. The parties debate about the Shell group’s position in the hierarchy and about thepercentage of the global CO2 emission that can be ascribed to the Shell group. In both
approaches, the Shell group is a major player on the worldwide market of fossil fuels. If all
Scopes (1 through to 3) are included, the Shell group is responsible for significant CO2
emissions all over the world. The total CO2 emissions of the Shell group (Scope 1 through to263) exceeds the CO2 emissions of many states, including the Netherlands. It is not in disputethat these global CO2 emissions of the Shell group (Scope 1 through to 3) contribute to
global warming and climate change in the Netherlands and the Wadden region.
(3.) the consequences of CO2 emissions for the Netherlands and the Wadden region
4.4.6. The temperature rise in the Netherlands (approximately 1.7 degrees above the preindustrial temperature) has so far developed about twice as fast as the global average(approximately 0.8 degrees above the pre-industrial temperature) (see under 2.3.7.). The
climate change caused by CO2 emissions will have serious and irreversible consequences for
the Netherlands and the Wadden region (see 2.3.7 through to 2.3.9). The risks for Dutch
residents and the inhabitants of the Wadden region are apparent from various sources. The
IPCC reports are not specifically focused on the Netherlands. The fact that these reports do
not mention certain risks for Dutch residents and the inhabitants of the Wadden region, as
put forward by RDS, does not mean that these risks do not exist. The risks associated withclimate change for Dutch residents and the inhabitants of the Wadden region concern healthrisks and deaths due to climate change-induced hot spells as well as health problems and anincreased mortality risk due to increasing infectious diseases, deterioration of air quality,
increase of UV exposure, and an increase of water-related and foodborne diseases. They
also concern water-related health risks, which the Netherlands and the Wadden region will
face, including flooding along the coast and rivers, excess water, water shortage,
deterioration of water quality, salinization, raised water levels and drought. Although theconsequences of climate change and the associated risks for the inhabitants of the Wadden
region may turn out differently from the risks for Dutch and other residents because theeffect of accelerated sea level rise will be limited and hardly noticeable in the Wadden region
up to 2030 (see 2.3.8), climate change will equally have serious and irreversible
consequences for the inhabitants of the Wadden region; in the more extreme scenarios thisarea will drown completely in the long term.
4.4.7. RDS points out that the nature and severity of the dangers of climate change are not static
but dynamic and that they will be influenced by the measures against dangerous climatechange. These observations by RDS, which in themselves are accurate, do not refute theaforementioned serious and irreversible consequences of climate change in the Netherlands
and the Wadden region. These observations of RDS show that there is some uncertainty
about the precise manner in which dangerous climate change will manifest in the
Netherlands and Wadden region. This uncertainty is inherent in prognoses and futurescenarios but has no bearing on the prediction that climate change due to CO2 emissions willlead to serious and irreversible consequences for Dutch residents and the inhabitants of the
Wadden region.
4.4.8. RDS believes that in the outline of the consequences of climate change made by
Milieudefensie et al. pay too little attention is paid to adaptation strategies, such as air
conditioning, which may contribute to reducing risks associated with hot spells, and to waterand coastal management to counter the sea level rise caused by global warming. These
adaptation strategies reveal that measures can be taken to combat the consequences ofclimate change, which may in result reduce the risks. However, these strategies do not alter
the fact that climate change due to CO2 emissions has serious and irreversible
consequences, with potentially very serious and irreversible risks for Dutch residents and the
inhabitants of the Wadden region.
(4.) the right to life and the right to respect for private and family life of Dutch residents and the
inhabitants of the Wadden region
4.4.9. Milieudefensie et al invoke the right to life and the right to respect for private and family lifeof Dutch residents and the inhabitants of the Wadden region. These rights enshrined in
Articles 2 and 8 of the European Convention for the Protection of Human Rights and27

Fundamental Freedoms (ECHR) and Articles 6 and 17 of the International Covenant on Civil
and Political Rights (ICCPR) (hereinafter jointly also referred to as: ‘the human rights’) apply
in relationships between states and citizens. Milieudefensie et al. cannot directly invoke
these human rights with respect to RDS. Due to the fundamental interest of human rights
and the value for society as a whole they embody, the human rights may play a role in therelationship between Milieudefensie et al. and RDS. Therefore, the court will factor in thehuman rights and the values they embody in its interpretation of the unwritten standard ofcare.
4.4.10. From the Urgenda ruling it can be deduced that Articles 2 and 8 ECHR offer protection
against the consequences of dangerous climate change due to Co2 emissions induced global
warming.41 The UN Human Rights Committee, which decides on violations of the ICCPR,
determined the same as regards Articles 6 and 17 ICCPR.42 In a case on the right to life asenshrined in Article 6 ICCPR, the UN Human Rights Committee considered as follows:“Furthermore, the Committee recalls that environmental degradation, climate change andunsustainable development constitute some of the most pressing and serious threats to theability of present and future generations to enjoy the right to life.” 43
In 2019, the UN Special Rapporteur on Human Rights concluded the following:“There is now global agreement that human rights norms apply to the full spectrum ofenvironmental issues, including climate change.” 44
RDS’ argument that the human rights invoked by Milieudefensie et al. offer no protection
against dangerous climate change therefore does not hold.
The serious and irreversible consequences of dangerous climate change in the Netherlands
and the Wadden region, as discussed under (4.4. (3)), pose a threat to the human rights ofDutch residents and the inhabitants of the Wadden region.
(5.) the UN Guiding Principles (UNGP)
4.4.11. In its interpretation of the unwritten standard of care, the court follows the UN Guiding
Principles (UNGP)45. The UNGP constitute an authoritative and internationally endorsed ‘softlaw’ instrument, which set out the responsibilities of states and businesses in relation tohuman rights. The UNGPreflect current insights. They do not create any new right nor
establish legally binding obligations.46 The UNGPare in line with the content of other, widely
accepted soft law instruments, such as the UN Global Compact (UNGC) ‘principles’ and theOECD Guidelines for Multinational Enterprises (the OECD guidelines). Since 201, theEuropean Commission has expected European businesses to meet their responsibilities torespect human rights, as formulated in the UNGP.47 For this reason, the UNGP are suitable asa guideline in the interpretation of the unwritten standard of care. Due to the universallyendorsed content of the UNGP, it is irrelevant whether or not RDS has committed itself to theUNGP, although RDS states on its website to support the UNGP (see 2.5.22)
4.4.12. The UNGP distinguishes between the responsibility of states and that of businesses. The
responsibility of states, as formulated in the UNGP, is more far-reaching than that ofbusinesses: states must protect against human rights abuse within their territory and/or
jurisdiction by third parties, including business enterprises. This requires taking appropriate
steps to prevent, investigate, punish and redress such abuse through effective policies,
legislation, regulations and adjudication.48 RDS points out the following passage from thecommentary to Principle 8:
There is no inevitable tension between States’ human rights obligations and the laws and policies
they put in place that shape business practices. However, at times, States have to make difficultbalancing decisions to reconcile different societal needs. To achieve the appropriate balance,
States need to take a broad approach to managing the business and human rights agenda, aimed
at ensuring both vertical and horizontal domestic policy coherence.”
RDS argues that states therefore have to, and are able to, balance different societal

28interests, which it argues is not true for businesses. RDS also points out other differences
between states and businesses.
4.4.13. The differences between states and businesses RDS emphasizes are expressed in the
UNGP in the different responsibilities for states and businesses, between which no inevitabletension needs to exist – as follows from the quotation given by RDS. The responsibility ofbusiness enterprises to respect human rights, as formulated in the UNGP, is a global
standard of expected conduct for all business enterprises wherever they operate. It exists
independently of States’ abilities and/or willingness to fulfil their own human rights
obligations, and does not diminish those obligations. And it exists over and above compliancewith national laws and regulations protecting human rights.49 Therefore, it is not enough forcompanies to monitor developments and follow the measures states take; they have an
individual responsibility.
4.4.14. It can be deduced from the UNGP and other soft law instruments that it is universallyendorsed that companies must respect human rights. This includes the human rights
enshrined in the ICCPR as well as other ‘internationally recognized human rights’50, including
the ECHR. For example, the OECD Guidelines for Multinational Enterprises (the OECD
guidelines) state the following51:“Enterprises should, within the framework of laws, regulations and administrative practices in the
countries in which they operate, and in consideration of relevant international agreements,
principles, objectives, and standards, take due account of the need to protect the environment,
public health and safety, and generally to conduct their activities in a manner contributing to thewider goal of sustainable development. In particular, enterprises should:(…
)
Consistent with the scientific and technical understanding of the risks, where there are threats ofserious damage to the environment, taking also into account human health and safety, not use
the lack of full scientific certainty as a reason for postponing cost-effective measures to preventor minimise such damage;”
4.4.15. Business enterprises should respect human rights. This means that they should avoid
infringing on the human rights of others and should address adverse human rights impacts
with which they are involved.52 Tackling the adverse human rights impacts means thatmeasures must be taken to prevent, limit and, where necessary, address these impacts. It isa global standard of expected conduct for all businesses wherever they operate. As has
been stated above, this responsibility of businesses exists independently of states’ abilities
and/or willingness to fulfil their own human rights obligations, and does not diminish thoseobligations.53 It is not an optional responsibility for companies.54 It applies everywhere,
regardless of the local legal context, 55 and is not passive:“Respecting human rights is not a passive responsibility: it requires action on the part ofbusinesses.” 56
4.4.16. The responsibility of business enterprises to respect human rights applies to all enterprises
regardless of their size, sector, operational context, ownership and structure. Nevertheless,the scale and complexity of the means through which enterprises meet that responsibility
may vary according to these factors and with the severity of the enterprise’s adverse humanrights impacts.57 The means through which a business enterprise meets its responsibility torespect human rights will be proportional to, among other factors, its size. Severity of
impacts will be judged by their scale, scope and irremediable character. The means throughwhich a business enterprise meets its responsibility to respect human rights may also varydepending on whether, and the extent to which, it conducts business through a corporategroup or individually.58 The court is of the opinion that much may be expected of RDS. RDS
heads the Shell group, which consists of about 1,100 companies, and operates in 160

29

countries all over the world. It has a policy-setting position in the Shell group (see 4.4 (1.)),
which is a major player on the worldwide market of fossil fuels and is responsible forsignificant CO2 emissions, which exceed the emissions of many states and which contributes
towards global warming and a dangerous climate change in the Netherlands and in the
Wadden region (see 4.4 (2.)) with serious and irreversible consequences and risks for thehuman rights of Dutch residents and the inhabitants of the Wadden region (see 4.4 (3.) and(4.)).
4.4.17. The UNGP are based on the rationale that companies may contribute to the adverse
human rights impacts through their activities as well as through their business relationships
with other parties. The duty to respect human rights requires that companies:
a. avoid causing or contributing to adverse human rights impacts through their own
activities, and address such impacts when they occur;b. seek to prevent or mitigate adverse human rights impacts that are directly linked to theiroperations, products or services by their business relationships, even if they have notcontributed to those impacts.59“Activities” are understood to include both actions and omissions. “Business relationships”
are understood to include relationships with business partners, entities in its value chain,
and any other non-state or state entity directly linked to its business operations, products orservices.60 The responsibility to respect human rights encompasses the company’s entire
value chain. Value chain is understood to mean:“the activities that convert input into output by adding value. It includes entities with which it
has a direct or indirect business relationship and which either (a) supply products or services that
contribute to the enterprise’s own products or services, or (b) receive products and services fromthe enterprise.”61
4.4.18. RDS’ value chain includes the closely affiliated companies of the Shell group, on which it hasa policy-setting influence (see below under 1). These also include the business relations fromwhich the Shell group purchases raw materials, electricity and heat. Finally, the end-users of
the products produced and traded by the Shell group are at the end of RDS’ value chain. RDS’
responsibility therefore also extends to the CO2 emissions of these end-users (Scope 3).
This is in line with the analysis of the various protocols and guidelines for climate change fornon-state actors, drawn up by the University of Oxford in 2020 (hereinafter: the Oxford
report).62 This analysis shows the points on which there is broad consensus and regarding
which there are differences of opinion. Under ‘Scope’, which pertains to both ‘whichgreenhouse gasses are included’ and ‘what activities are covered’63 the list of ‘points of greater
consensus or certainty’ states the following: “in general, targets should aim to cover all gasses
and all activities and scopes, as data allows” and under “points of less consensus or open
questions”: “How to prioritize different activities across scopes (e.g. focus on total emissions,areas of direct control, etc.)”64
The Oxford report also states the following about the activities for which companies are
responsible:“For companies, a few targets do not include scope 3 emissions, though the majority do.
However, within this relative consensus that all activities should be considered, there aredifferent areas of emphasis. Some recommend focusing on those activities across all scopes thatare most material to total emissions (SBTI, ACT). Others prioritize those emissions which aremost directly controllable by the entity (RAMCC) or follow guidance which only partly includes
some scopes (Natural Capital Partners). Data limitations around, especially, scope 3 emissions,creates further uncertainties about coverage.”65
RDS correctly notes that the Oxford report does not mention a legal obligation for energy
companies to reduce Scope 3 emissions in absolute and uniform steps. More generally, theOxford report also states:“Given the heterogeneity of actors setting net zero targets, no single approach or standard for net

30

zero targets would be appropriate or effective. However, the large amount of active work on thissubject creates a significant opportunity for greater alignment around common principles tounderlay the diversity of approaches we see.” 66
However, it does follow from the Oxford report that, although there are nuances, it isinternationally endorsed that companies bear responsibilities for Scope 3 emissions. The
court has included this widely endorsed starting point in its interpretation of the unwritten
standard of care. The court notes that the level of responsibility is related to the extent towhich companies have control and influence over the emissions. RDS’ control and influence
over the Scope 3 emissions of the Shell group is discussed in more detail in 4.4 (6.).
4.4.19. In its interpretation of the unwritten standard of care, the court has also included theinternationally propagated and endorsed need for companies to genuinely take responsibility
for Scope 3 emissions. This need is more keenly felt where these emissions form the majorityof a company’s CO2 emissions, as is the case for companies that produce and sell fossil fuels.
In case of the Shell group, approximately 85% of its emissions are Scope 3 emissions (see2.5.5.).
4.4.20. Companies may be expected to identify and assess any actual or potential adverse humanrights impacts with which they may be involved either through their own activities or as aresult of their business relationships.67 Regardless of the extent of its control and influenceon these emissions, RDS may be expected to identify and assess the adverse effects of its
Scope 1 through to 3 emissions. RDS has done so (see 2.5.4). It knows that the exploration,
production, refinery, marketing, and the purchase and sale of oil and gas by the Shell groupas well as the use of products of the Shell group generates significant CO2 emissions
worldwide, which undoubtedly contributes to climate change in the Netherlands and the
Wadden region (see 4.4 (2.)). RDS has for a long time known of the dangerous
consequences of CO2 emissions and the risks of climate change to Dutch residents and the
inhabitants of the Wadden region. RDS also knows the amount of CO2 emissions of the Shellgroup; it has reported on the volume of CO2 emissions (see 2.5.3). Finally, from thequotation from the CDP2019, given in 2.5.8, follows that RDS regularly monitors andassesses the climate-related risks of its business activities and those of its business
relations, namely for the short term (a period of up to three years), the mid-term (a period of
between three to ten years) and the long term (a period of more than ten years ahead).
4.4.21. Companies subsequently should take ‘appropriate action’ on the basis of their findings andassessments. Appropriate action will vary according to:i. whether the business enterprise causes or contributes to an adverse impact, or whether
it is involved solely because the impact is directly linked to its operations, products orservices by a business relationship;
ii. the extent of its leverage in addressing the adverse impact.68
The commentary to this principle states the following:“Where a business enterprise causes or may cause an adverse human rights impact, it shouldtake the necessary steps to cease or prevent the impact. Where a business enterprisecontributes or may contribute to an adverse human rights impact, it should take the necessary
steps to cease or prevent its contribution and use its leverage to mitigate any remaining impact
to the greatest extent possible. Leverage is considered to exist where the enterprise has theability to effect change in the wrongful practices of an entity that causes a harm.
Where a business enterprise has not contributed to an adverse human rights impact, but that
impact is nevertheless directly linked to its operations, products or services by its business
relationship with another entity, the situation is more complex. Among the factors that will enter
into the determination of the appropriate action in such situations are the enterprise’s leverageover the entity concerned, how crucial the relationship is to the enterprise, the severity of the31

abuse, and whether terminating the relationship with the entity itself would have adverse humanrights consequences.
(…
)
If the business enterprise has leverage to prevent or mitigate the adverse impact, it should
exercise it. And if it lacks leverage there may be ways for the enterprise to increase it. Leverage
may be increased by, for example, offering capacity-building or other incentives to the related
entity, or collaborating with other actors.” 69
RDS’ responsibility is defined by the influence and control it can exercise over the Scope 1
through to 3 emissions of the Shell group (4.4 (6.)), and what is needed to prevent
dangerous climate change (4.4 (7.)). – for which Milieudefensie et al. follow the goal of theParis Agreement – and the possible reduction pathways (4.4 (8.)).
(6.) the control and influence of RDS on the CO2 emissions of the Shell group and its business
relations4.4.22. The court distinguishes between the CO2 emissions of (1) the Shell group (RDS and theother Shell companies) and (2) the business relations of the Shell group, including the endusers.
4.4.23. Due to the policy-setting influence RDS has over the companies in the Shell group, it bears
the same responsibility for these business relations as for its own activities. The far-reaching
control and influence of RDS over the Shell group means that RDS’ RDS’ reduction obligationmust be an obligation of result for emissions connected to own activities of the Shell group.
This concerns RDS’ Scope 1 emissions and the part of RDS’ Scope 2 emissions which can be
ascribed to the Shell companies. From the perspective of the Shell group as a whole, thisconstitutes the Scope 1 emissions of the Shell group.
4.4.24. As regards the business relations of the Shell group, including the end-users, RDS may be
expected to take the necessary steps to remove or prevent the serious risks ensuing fromthe CO2 emissions generated by them, and to use its influence to limit any lasting
consequences as much as possible (see under 4.4.20). This is a significant best-efforts
obligation, which is not removed or reduced by the individual responsibility of the business
relations, including the end-users, for their own CO2 emissions.
4.4.25. It is not in dispute that through its purchase policy the Shell group exercises control andinfluence over its suppliers’ emissions. These are the Scope 2 emissions of the Shell group asa whole. This means that through the corporate policy of the Shell group RDS is able toexercise control and influence over these emissions. The subject that is most disputed
between the parties is the control and influence RDS exerts over the Scope 3 emissions of
the Shell group, which are released by the end-users. RDS does not contest that it can exertthat control and influence through its energy package, and the composition thereof,
produced and sold by the Shell group. This is not altered by the circumstance, emphasized by
RDS, that the Shell group has contractual obligations as well as obligations ensuing fromlong-term concessions, which may limit its freedom of choice as regards the Shell group’s
energy package. This limitation means that RDS is not fully free to determine the Shellgroup’s energy package; in determining the energy package of the Shell group, RDS will haveto take the current obligations into account. This limitation does not alter the fact that
ultimately RDS determines the energy package of the Shell group – and consequently, therange of energy products. With due observance of its current obligations, RDS is free todecide not to make new investments in explorations and fossil fuels, and to change theenergy package offered by the Shell group, such as the reduction pathways require, which
are discussed below (in 4.4 (8.)). Through the energy package offered by the Shell group,
RDS controls and influences the Scope 3 emissions of the end-users of the products
produced and sold by the Shell group. What RDS also puts forward regarding its control andinfluence on the Scope 3 emissions concerns the effectiveness of its reduction obligation,

32

which is discussed below (in 4.4 (11.)).
(7.) what is needed to prevent dangerous climate change
4.4.26. In formulating RDS’ alleged reduction obligation Milieudefensie et al. link up with the goalsof the Paris Agreement. The agreement is non-binding on the signatories and is non-binding
for RDS. However, the signatories have sought out the help of non-state stakeholders (see2.4.7). Whether or not RDS or the Shell group can be designated as the ‘non-Party
stakeholders’ referred to in COP 25 can remain undiscussed. The signatories haveemphasized that the reduction of CO2 emissions and global warming cannot be achieved bystates alone. Other parties must also contribute. Since 2012 there has been broadinternational consensus about the need for non-state action, because states cannot tackle
the climate issue on their own. The current situation requires others to contribute to reducing
CO2 emissions: the IPCC has found that the member states’ national reduction pledges for2030 added together are far from sufficient for reaching the goals of the Paris Agreement(see 2.3.5.4).
4.4.27. The goals of the Paris Agreement are derived from the IPCC reports. The IPCC reports on
the relevant scientific insights about the consequences of a temperature increase, theconcentrations of greenhouse gases that give rise to that increase, and the reduction
pathways that lead to a limitation of global warming to a particular temperature. Therefore,
the goals of the Paris Agreement represent the best available scientific findings in climate
science, which is supported by widespread international consensus. The non-binding goals of
the Paris Agreement represent a universally endorsed and accepted standard that protects
the common interest of preventing dangerous climate change. The court follows thisreasoning in its interpretation of the unwritten standard of care. The court assumes that it isgenerally accepted that global warming must be kept well below 2ºC in 2100, and that atemperature rise of under 1.5ºC should be strived for. The court also assumes that thisrequires a limitation of the global concentration of greenhouse gases of up to 450 ppm in2100 and that a maximum greenhouse gas concentration of 430 ppm must be pursued. The
court notes that in doing so it does not formulate a legally binding standard for theprevention of dangerous climate change in the Netherlands and the Wadden region. The
court includes this broad consensus about what is needed to prevent dangerous climatechange – viz. achieving the goals of the Paris Agreement – in its answer to the question
whether or not RDS is obliged to reduce the Shell group’s CO2 emissions via its corporate
policy.
4.4.28. The court establishes that tackling dangerous climate change needs immediate attention.
Given the current concentration of greenhouse gases in the atmosphere (401 ppm in 2018),
the remaining carbon budget is limited. This applies to both 430 ppm as a limit for a global
warming of up to 1.5ºCand 450 ppm for a global warming of up to 2ºC. The longer it takes
to achieve the required emissions reductions, the higher the level of emitted greenhousegases, and consequently, the sooner the remaining carbon budget runs out. At unchanged
emission levels, the carbon budget will have been used up within twelve years. As has been
described by the IEA in its World Energy Outlook 2020 (see 2.4.11), the next ten years willbe crucially important for preventing dangerous climate change. This also follows from theconclusion of the UNEP (of 2019) (see 2.4.6). The sooner reductions are started, the moretime is available before the remaining carbon budget runs out. The imperativeness for the
Netherlands to reduce CO2 emissions is even greater, because so far the temperature rise in
the Netherlands has developed about twice as fast as the global average, with serious andirreversible consequences and risks for the human rights of Dutch residents and the
inhabitants of the Wadden region (see 4.4 (3.) and (4.)).
(8.) possible reduction pathways
4.4.29. The IPCC also identifies scientific insights into possible strategies to address dangerous

33

climate change and its consequences. The SR15 report shows that only reduction pathways
aiming for a net 45% reduction of CO2 emissions in 2030, relative to 2010 levels, yield a 50%
chance of limiting global warming to 1.5°Cand an 85% chance of limiting global warming to
2°C. Since there still is a 15% chance that the earth will rise by over 2°C, these reduction
pathways offer the best possible chance to prevent the most serious consequences ofdangerous climate change. From this the court deduces that reduction pathways aiming for a
net 45% reduction of CO2 emissions in 2030, relative to 2010 levels, offer the best possible
chance worldwide to prevent the most serious consequences of dangerous climate change.
The EU and the Dutch State are taking similar reduction pathways in their more stringent
climate goals for the next ten years. RDS rightfully points out that the IPCC does notprescribes a particular reduction pathway and that the scenarios reported by the IPCC are
potential pathways, which have many variables and alternatives. RDS is also right in its viewthat not one single pathway is the measure of all things on a global scale, and it is rightwhen pointing out that the IPCC does not comment on the question whether and how its
scenarios can be translated into contributions of various actors and sectors, let alone
contributions of individual parties. That being said, there is a widely endorsed consensus
that in order to limit global warming to 1.5°C, reduction pathways that reduce CO2 emissions
by net 45% in 2030, relative to 2010 levels, and by net 100% in 2050, should be chosen. The
court includes this broad consensus in its interpretation of the unwritten standard of care.
Again, the court does not formulate a legally binding standard for – in this case – a reduction
pathway to be chosen.
4.4.30. It is generally accepted that the reduction pathways discussed above contain net goals,
which leave room for the compensation of CO2 emissions. This follows from the SR15 report(see 2.3.5.2 and 2.3.5.3) and the circumstance that the EU70 and the Dutch State leave room
for the compensation of CO2 emissions in their most recent plans. For instance, theexplanatory memorandum to the Dutch Climate Act states the following:“The definition used for the emission of greenhouse gases also implies the involvement ofnegative emissions. This concerns processes that extract greenhouse gases from theatmosphere, such as a combination of capturing biomass and storing CO2 (Carbon Capture andStorage – CCS). The monitoring mechanism ordinance contains the method with which thesenegative emissions may be subtracted from the greenhouse gas emissions.” 71
The IPCC warns against the risks that may be associated with reduction pathways that are
based on large-scale negative emissions (see 2.3.5.3, last sentence). However, the IPCC
does not mention the feasibility of such reduction pathways. It must therefore be assumed
that – although scenarios that assume large-scale negative emissions could perhaps bequestioned – it is generally accepted that there must be room for scenarios with negativeemissions. This means that the reduction pathway as argued for by Milieudefensie et al. – asderived from the SBTi report – in which the net zero reduction by 2050 is reached through anabsolute reduction of 45% in 2030, without the option of compensation of CO2 emissions,
goes beyond the above-described broad consensus. Therefore, this reduction pathway asargued for by Milieudefensie et al. is not taken into consideration.
4.4.31. The following, not-disputed circumstances to which RDS refers are incorporated in theconsensus about possible reduction pathways which the court has included in its opinion:- the permanent role of fossil fuels, also acknowledged by the IPCC and IEA, in order tomeet worldwide demand for energy during and after the energy transition and beyond;- fossil fuels cannot be dispensed with, at least at the present state of technologicalprogress;- CO2 emissions come from a wide variety of sources;- the worldwide reduction of CO2 emissions requires complex, global changes in society andthe economy;- there is no worldwide uniform approach, with a standard goal and uniform time path for
reducing CO2 emissions;34

- the worldwide reduction of CO2 emissions requires activities across various jurisdictions,which are subject to different legislative and regulatory frameworks and long-term
strategies;- various fossil fuels, such as coal, oil and gas, have different effects on CO2 emissions andthereby on the climate;- the energy transition is beset by uncertainties;- the precise course of the energy transition that is required to reduce CO2 emissions
cannot be predicted in detail and also depends on partly unknown factors;- the course of the energy transition will be influenced by future technological developments
in various areas and sectors, whose physical and economic feasibility is not always clear
beforehand;- it is not clear beforehand how demand and supply on the energy market will develop;- the circumstance that the energy market is not a static system;- the key role for states in achieving the goals of the Paris Agreement through government
policy;- states will have to make difficult choices to achieve the climate goals;- the goals of the Paris Agreement require a worldwide change in consumption patterns.
These circumstances reveal that the energy transition is a complex, multi-faceted andinherently uncertain issue, for which other parties – states and consumers – also bear
responsibility.
4.4.32. The aforementioned reduction pathways are global and do not proclaim anything about
what can be expected from RDS. The claims of Milieudefensie et al. assume that what applies
to RDS also applies to the entire world. The court has assessed this aspect and has
concluded that in its formulation of the Shell group’s corporate policy, RDS should take as a
guideline that the Shell group’s CO2 emissions (Scope 1, 2 and 3) in 2030 must be net 45%
lower relative to 2019 levels. In legal ground 4.4.33 through to 4.4.38, the court has
explained how it arrived at this opinion.
4.4.33. The court notes that Milieudefensie et al. do not argue for leaving the energy transition to
the market or for holding RDS alone responsible for achieving the CO2 reduction of Dutch
society. The parties agree that dangerous climate change is a worldwide problem, which RDS
cannot solve on its own. There is broad consensus on this too, which is formulated as follows
in the passage from Oxford report, as cited by RDS:
“There is broad consensus that achieving net zero for any actor will almost always depend tovarying degrees on the actions of other actors. These interlinkages are operationalized in different
ways. Net zero is a collective goal, and so cooperation between different actors is essential.” 72
The court includes this broad consensus in its interpretation of the unwritten standard ofcare. The mutual dependencies and the need for cooperation are expressed in the obligation
with respect to the business relations of the Shell group: that is a significant individual bestefforts obligation, which requires cooperation with other parties.
4.4.34. Milieudefensie et al. would like RDS to do its part and ensure that the CO2 emissions
attributable to the Shell group are reduced. This is in line with the broad international
consensus that each company must independently work towards the goal of net zero
emissions by 2050. This follows from the Oxford report, which states the following on thismatter:“There is general consensus on the need for global net zero CO2 by 2050, with many targets
explicitly referring to the objectives of the Paris Agreement and the IPCC’s Special Report on 1.5
SCto set their timelines.”73
There is also broad consensus that the scope and timing per company may vary according totheir capacity and responsibility. The Oxford report describes this as follows:“There is broad agreement that all actors should pursue net zero, but also that various factors

35

may lead various actors to adopt targets differentiated by timing and scope. One, there is wide
consensus that capacity should be a key factor in determining the scope and timing ofcommitments, with those with higher capacity (e.g. developed jurisdictions, larger companies)
taking more aggressive and expansive targets. Two, several respondents submitted that
historical responsibility and past behavior should also be a relevant consideration (Carbone 4,
UCS, RAMCC, UNSW, RMI, UCS). Such divisions, however, are not always clear cut. For example,
many global companies have worldwide operations and supply chains (ACT). Three, respondents
also noted that larger emitters should be required to meet more stringent standards than smaller
entities (ICC). Four respondents noted that not all actors have the same control over theiremissions (Fashion Charter).” 74
4.4.35. The concrete implementation of this responsibility for companies is still unclear:“Despite this broad consensus, few targets explicitly operationalize equity by providing
differentiated guidance on net zero targets to different actors. In one case, a global network ofactors calculated their aggregate carbon budget and then allocated individual targets according tolevel of development and expected future growth in population (C40). In another case, the global
carbon budget is divided into sectoral allocation which are then apportioned to individualcompanies based on their emissions footprint (SBTi). Others have suggested that cumulativeemissions form the basis of equity considerations (Vale). How to effectively operationalize equity
considerations remains an open question for the climate action community.” 75
4.4.36. So there is no well-defined and concrete specification for the method according to which
the timing of the various companies must be applied in working towards the goal of net zero
emissions in 2050. The consensus referred to in legal ground 4.4.33 and 4.4.34, however,provides sufficient starting points for the specification of the unwritten standard of care on
this issue. In light of the broad international consensus that each company must
independently work towards achieving net zero emissions by 2050, RDS may be expected to
do its part.
4.4.37. In answering the question what can be expected of RDS, the court considers that an
important characteristic of the imminent environmental damage in the Netherlands and the
Wadden region at issue here is that every emission of CO2 and other greenhouse gases,
anywhere in the world and caused in whatever manner, contributes to this damage and its
increase. It is an established fact that – apart from its own limited CO2 emissions – RDS does
not actually causes the Scope 1 through to 3 emissions of the Shell group by itself. However,this circumstance and the not-disputed circumstance that RDS is not the only party
responsible for tackling dangerous climate change in the Netherlands and the Wadden region
does not absolve RDS of its individual partial responsibility to contribute to the fight against
dangerous climate change according to its ability.76 As has been considered above (in legal
ground 4.4.16), much may be expected of RDS in this regard, considering it is the policysetting head of the Shell group, a major player on the fossil fuel market and responsible forsignificant CO2 emissions, which incidentally exceed the emissions of many states and which
contributes to global warming and climate change in the Netherlands and the Wadden
region, with serious and irreversible consequences and risks for the human rights of Dutch
residents and the inhabitants of the Wadden region. On RDS rests an obligation of results as
regards the Scope 1 emissions of the Shell group as well as a significant best-efforts
obligation as regards the business relations of the Shell group, including the end-users,
whereby RDS may be expected to take the necessary steps to remove or prevent the serious
risks ensuing from the CO2 emissions generated by them, and to use its influence to limit any
lasting consequences as much as possible (see under 4.4.24).
4.4.38. In the foregoing, the court has considered that in its interpretation of the unwritten
standard of care (see legal ground 4.4.29) it has included the consensus that in order to limit
global warming to 1.5°C, reduction pathways that reduce CO2 emissions by net 45% in36

2030, relative to 2010 levels, and by net 100% in 2050, should be chosen. With its claims,
Milieudefensie et al. does not follow the 2010 levels, but rather take 2019 as the base year,
when the summons in these proceedings was issued. RDS’ argument that 2019 or anotherbase year is not appropriate and wrongfully suggests a static situation ignores that a baseyear is required in order to set a reduction target. Milieudefensie et al. are right to state thatthe base year 2019 benefits RDS, because the CO2 emissions of the Shell group – which are
not disputed – were higher in 2019 than in 2010. RDS shows in a sample calculation that a
45% reduction obligation based on the higher CO2 emissions in 2019 in absolute terms (i.e.,
the number of Gt to be reduced) leads to a greater reduction obligation and also to higher
permitted emissions. However, in order to arrive at 45% of the 2010 CO2 emissions in thecurrent situation, in which the CO2 emissions of the Shell group have increased since 2010, amuch greater reduction of CO2 emissions must be achieved than calculated by RDS. A
reduction target with 2019 as the base year, although less far-reaching, sufficiently
corresponds with the widely endorsed consensus that limiting global warming to 1.5°C
requires a net reduction of 45% in global CO2 emissions in 2030 relative to 2010, and a net
reduction of 100% in 2050.
4.4.39. Therefore, in formulating the corporate policy of the Shell group, RDS should take as a
guideline that the Shell group’s CO2 emissions (Scope 1, 2 and 3) in 2030 must be net 45%
lower relative to 2019 levels. Net refers to the sum of the reduction of CO2 emissions of the
Shell group’s entire energy portfolio (Scope 1, 2 and 3). As has been considered above, RDS
rightfully takes the standpoint that ‘the right reduction pathway’ cannot be determined foreveryone – all states and companies – all over the world. The guideline referred to above
gives RDS leeway to develop its particular reduction pathway and to differentiate as it sees
fit, as long as it achieves a net 45% reduction in CO2 emissions of the Shell group (Scope 1
through to 3) relative to 2019. This is an obligation of results as regards the Shell group’s
activities. With respect to the business relations of the Shell group, including the end-users,
this constitutes a significant best-efforts obligation, in which context RDS may be expected totake the necessary steps to remove or prevent the serious risks ensuing from the CO2
emissions generated by them, and to use its influence to limit any lasting consequences asmuch as possible. A consequence of this significant obligation may be that RDS will forgo newinvestments in the extraction of fossil fuels and/or will limit its production of fossil resources.
(9.) the twin challenge
4.4.40. The parties agree that the world faces a twin challenge: dangerous climate change mustbe curbed by reducing CO2 emissions while meeting the global energy demand of the rapidly
growing world population. However, the importance of access to reliable and affordable
energy, as pointed out by RDS, and the Shell group’s role in it, have no bearing on RDS’
reduction obligation. That interest must always be served within the context of climate
targets. The court explains this as follows.
4.4.41. The UN Sustainable Development Goals (UNSDG)77 have the object, inter alia, to ensure
access to affordable, reliable, sustainable and modern energy for all. The court includes the
UNSDG in its interpretation of the unwritten standard of care, as this UN Resolution
represents a widely endorsed international consensus. The COP in which the UNSDG wereadopted states under 31 and 32:“31. We acknowledge that the United Nations Framework Convention on Climate Change is theprimary international, intergovernmental forum for negotiating the global response to climatechange. We are determined to address decisively the threat posed by climate change andenvironmental degradation. The global nature of climate change calls for the widest possible
international cooperation aimed at accelerating the reduction of global greenhouse gas emissions
and addressing adaptation to the adverse impacts of climate change. We note with grave concern
the significant gap between the aggregate effect of parties’ mitigation pledges in terms of global
annual emissions of greenhouse gases by 2020 and aggregate emission pathways consistent37

with having a likely chance of holding the increase in global average temperature below 2 degrees
Celsius, or 1.5 degrees Celsius above pre-industrial levels.
32. Looking ahead to the twenty-first session of the Conference of the Parties in Paris, weunderscore the commitment of all States to work for an ambitious and universal climateagreement. We reaffirm that the protocol, another legal instrument or agreed outcome with legal
force under the Convention applicable to all parties shall address in a balanced manner, inter alia,
mitigation, adaptation, finance, technology development and transfer and capacity-building; andtransparency of action and support.”
4.4.42. From this it follows that there is a connection between the UNSDG and the climate goals of
the Paris Agreement and other agreements made for the implementation of the UN Climate
Convention. It is not the intention for SDG7 (“Ensure access to affordable, reliable, sustainable
and modern energy for all”), as cited by RDS, to detract from the Paris Agreement or tointerfere with these goals. This also follows from SDG13 (“Take urgent action to combat
climate change and its impacts”) and the preamble under 8 of the Paris Agreement, whichemphasizes the intrinsic connection between the tackling of dangerous climate and fair
access to sustainable development and the eradication of poverty. The UNSDG sustainability
goals can therefore not be a reason for RDS to not meet its reduction obligation.
4.4.43. Finally, the obligations of states to provide energy supply, as laid down in the Agreement
on an International Energy Program and the European Energy Charter Treaty and theassociated protocol, are separate from the obligation of states and companies, such as theShell group, to align the composition of their energy supply with the CO2 reduction requiredfor countering global warming.
(10.) the ETS system and other ‘cap and trade’ emission systems that apply elsewhere in theworld, permits and current obligations of the Shell group
4.4.44. RDS invokes the indemnifying effect of the European Emissions Trading Scheme (ETS) andother, similar ‘cap and trade’ emission trading systems that apply elsewhere in the world.
Article 17 Rome II stipulates that in assessing the conduct of the person claimed to be liable,account shall be taken, as a matter of fact and in so far as is appropriate, of the rules ofsafety and conduct which were in force at the place and time of the event giving rise to theliability. The court applies this rule, which also extends to permits, in assessing RDS’ legal
obligation ensuing from the unwritten standard of care in Book 6 Section 162 Dutch Civil
Code. This means that the court considers the rights of the Shell group under the ETS systemand other ‘cap and trade’ emission systems that apply elsewhere in the world.
4.4.45. Activities of the Shell group in the EU are covered by the ETS system (see 2.4.12.). It is asystem which, inter alia, regulates the CO2 emissions of a wide variety of industries basedon the “cap and trade” principle.78 The objective of the ETS system is to reduce the member
states’ anthropogenic emissions of greenhouse gases, fulfilling the commitments ensuingfrom the Kyoto Protocol.79 Companies in the EU that fall under the ETS system may only emit
greenhouse gases in exchange for surrendering emission allowances. These emission
allowances regard Scope 1 emissions and may be purchased, sold or kept. The emission
allowances are divided over the companies in the member states. If a company emits less
CO2 than allocated, it may sell the corresponding emission allowances. Companies that areabout to exceed their CO2 quota may purchase additional emission allowances. By creating
CO2 scarcity through the ETS system, the EU aims to reduce in absolute terms the total
emissions in its member states. The EU views the ETS system as the cornerstone of its
climate policy and as an important tool to cost-effectively limit CO2 emissions. The mostrecent emissions reduction targets in the ETS system are still not sufficient to achieve thegoals agreed under the Paris Agreement. The system currently provides for an emissions
reduction of 43% by 2030 relative to 2005.80 There is discussion about a new EU reduction

38

target of at least 55% by 2030 relative to 1990 (see 2.4.12).
4.4.46. Given the emissions reduction targets of the ETS system, RDS can rest assured that theinterests to be taken into account, which are also at issue in these proceedings, were fully
and correctly weighed by the issuing body/bodies when the emission allowances were
issued. It concerns the reduction target strived for with the ETS system. To that extent, theETS system has an indemnifying effect.81 The indemnifying effect of the ETS system meansthat – insofar as it concerns the reduction target of the ETS system – RDS does not have anadditional obligation with respect to Scope 1 and 2 emissions in the EU that fall under thesystem. Those are Scope 1 emissions of the Shell group in the EU and the Scope 3 emissions
in the EU of the end-users of the products produced and sold by the Shell group, which arecovered by the ETS system – as Scope 1 emissions of the consumers. However, the ETS
system only affects a part of the CO2 emissions for which RDS is responsible. Furthermore,
the ETS system only applies in the EU, while global Scope 3 emissions influence thedangerous climate change in the Netherlands and the Wadden region (see 4.4 (2.)). Finally,
the reduction target of the ETS system is not identical to RDS’ reduction obligation. Insofar as
RDS’ reduction obligation extends beyond the reduction target of the ETS system, RDS will
have to fulfil its individual obligation. RDS cannot rely on the indemnifying effect of the ETS
system insofar as this system entails a less far-reaching reduction target than a net
reduction of the CO2 emissions (Scope 1 through to 3), relative to 2019, for the Shell group.
4.4.47. So the ETS systems only covers a small part of the Shell group’s emissions. Only for theseemissions, RDS does not have to adjust its policy due to the indemnifying effect of the ETS
system. The ETS system therefore does not stand in the way of allowing the claims. RDS’argument that the ETS system will be interfered with if the claims are allowed also does nothold. What applies to the ETS system also applies to other existing and planned ‘cap andtrade’ emission schemes elsewhere in the world. Up to the level of the reduction target
these schemes aim to achieve, they have an indemnifying effect insofar as the interests tobe taken into account, which are also at issue in these proceedings, were fully and correctly
weighed by the issuing body/bodies when the emission allowances were issued. Just like for
the ETS system, RDS has no additional obligations for emissions already regulated underthese systems. The indemnifying effect of these systems applies up to the reduction
percentage they aim to achieve. If it is lower than the obligation of RDS, RDS has to do more.
If states set stricter reduction obligations – by any means – RDS naturally also has to comply
with these obligations.
4.4.48. RDS also identifies other permits and the current obligations of the Shell group, such as theobligations ensuing from long-term concessions for oil and gas extraction. It is not apparent
that CO2 emissions have played any role whatsoever in these permits and concessions.
These permits and the current obligations – which do not have an indemnifying effect andtherefore do not subtract from RDS’ reduction obligation – are therefore a given which RDS
has to take into account in meeting its reduction obligation.
(11.) the effectiveness of the reduction obligation
4.4.49. RDS argues that the reduction obligation will have no effect, or even be counterproductive,
because the place of the Shell group will be taken by competitors. Even if this were true, itwill not benefit RDS. Due to the compelling interests which are served with the reduction
obligation, this argument cannot justify assuming beforehand there is no need for RDS to notmeet this obligation. It is also important here that each reduction of greenhouse gas
emissions has a positive effect on countering dangerous climate change. After all, eachreduction means that there is more room in the carbon budget. The court acknowledges thatRDS cannot solve this global problem on its own. However, this does not absolve RDS of its
individual partial responsibility to do its part regarding the emissions of the Shell group,
which it can control and influence.82

39

4.4.50. The question also is whether this argument of RDS is actually valid. What this argument
assumes is perfect substitution, whereby the place of the Shell group will be taken over oneon-one by other parties. However, it remains to be seen whether this circumstance willtranspire. This cannot necessarily be deduced from the examples given by RDS or from theMulder report submitted by RDS (as Exhibit RK-35). The examples date from before the Paris
Agreement. Therefore, it cannot automatically be assumes that it will be the same, now or in
the future. The Mulder report also seems to be a snapshot. The Mulder report also only
seems to start from a ‘business as usual’ scenario and not from other scenarios, in which
other oil and gas companies also limit their investments in oil and gas, voluntarily, underpressure, or due to retreating investors, or as sustainable methods of energy generation
become available worldwide, in the aim to meet the targets of the Paris Agreement. Other
companies also have to respect human rights. Finally, the Mulder report does not takeaccount of the causal relationship between production limitation and emission reduction. The
Production Gap Report (see 2.4.6.) states that research shows that there is a causal
relationship between production limitation and emission reduction:“..studies using elasticities from the economics literature have shown that for oil, each barrel left
undeveloped in one region will lead to 0.2 to 0.6 barrels not consumed globally over the longer
term.” 83(12.) the responsibility of states and society
4.4.51. The responsibility of states and society for the energy transition has been discussed
above. It is an important point of discussion for RDS. It emphasizes that states determine
the playing field and the rules for private parties. According to RDS, private parties cannot
take any steps until states determine the frameworks. RDS also argues that government
policy is needed to bring about the required change of the energy market. RDS also claims
that the energy transition must be achieved by society as a whole, not by just one private
party. RDS asserts that including the Scope 3 emissions has the effect that the problem forsociety as a whole is passed on to energy companies, and that Milieudefensie et al. do not
sufficient account of the inevitable sectoral differentiation, due to, among other things, by theavailability of technological solutions. RDS points out the following passage in the Oxford
report:“Another key question is how sub- and non-state actors' net zero targets relate to national policy
frameworks (Alliances for Climate Action). For many cities, states, and regions, achievement of
net zero may be highly contingent on national policies (RAMCC). The private sector is also often
dependent on national frameworks (CDP, Fashion Charter). For this reason, some actors
emphasize that actors setting net zero targets should also align or advocate for national policy
frameworks that will allow them to successfully meet their targets. (RMI, UCS, Fashion Charter,
SEI).” 84
4.4.52. From the passage in the Oxford report, cited by RDS, it follows that public-private
partnership and the division of responsibility among the various actors are points ofattention. There is general consensus on this. This issue, the not-disputed responsibility ofother parties and the uncertainty whether states and society as a whole will manage toachieve the goals of the Paris Agreement, do not absolve RDS of its individual responsibility
regarding the significant emissions over which it has control and influence. There is alsobroad international consensus that each company must independently work towards thegoal of net zero emissions by 2050 (see legal ground 4.4.34). Due to the compelling interests
which are served with the reduction obligation, RDS must do its part with respect to theemissions over it has control and influence. It is an individual responsibility that falls on RDS,of which much may be expected (see legal ground 4.4.16). Therefore, RDS must do morethan monitoring developments in society and complying with the regulations in the countries
where the Shell group operates. There is broad international consensus that it is imperative
for non-state actors to contribute to emissions reduction (see legal ground 4.4.26) and forcompanies to have an individual responsibility to achieve the reduction targets (see legal

40

ground 4.4.13). RDS’ responsibility differs as regards (a) the Shell group (obligation of
results) and (b) the business relations of the Shell group (significant best-efforts obligation)(see 4.4. (5.) and (6.)). This subdivision shows that RDS is not the only party that is held
responsible for curbing dangerous climate change in the Netherlands and the Wadden
region; the solution to this problem is not passed on to RDS alone. However, RDS does bear
an individual responsibility, which it can and must effectuate through its corporate policy for
the Shell group.
(13.) the onerousness of the reduction obligation on RDS
4.4.53. RDS argues that imposing a reduction obligation on it will lead to unfair competition and adisruption of the ‘level playing field’ on the oil and gas market. RDS has failed to specify thisargument. It also seems to ignore that it is necessary to reduce the worldwide oil and gas
extraction and to facilitate the curtailment of CO2 emissions that cause dangerous climatechange; other companies will also have to make a contribution. This defence therefore does
not hold. Although the court made enquiries about it, RDS has failed to further specify the
onerousness of the reduction obligation; it only argues that far-reaching consequences for
RDS and the Shell group, which by the way are not under debate, alone argue against
accepting the reduction obligation for RDS, as advocated by Milieudefensie et al. The court
assumes that the reduction obligation will have far-reaching consequences for RDS and theShell group. The reduction obligation requires a change of policy, which will require an
adjustment of the Shell group’s energy package (see legal ground 4.4.25). This could curb
the potential growth of the Shell group. However, the interest served with the reduction
obligation outweighs the Shell group’s commercial interests, which for their part are servedwith an uncurtailed preservation or even growth of these activities. Due to the serious
threats and risks to the human rights of Dutch residents and the inhabitants of the Wadden
region, private companies such as RDS may also be required to take drastic measures andmake financial sacrifices to limit CO2 emissions to prevent dangerous climate change. For
these reasons, RDS’ argument, namely that accepting the reduction obligation, as advocatedby Milieudefensie et al., is highly unusual and has no precedent, does not benefit RDS.
(14.) the proportionality of RDS’ reduction obligation
4.4.54. The court has included the proportionality of the reduction obligation in its interpretation of
the unwritten standard of care. Proportionality has been discussed before, in the context ofvarious sub-topics. The court considers that the CO2 emissions for which RDS can be held
responsible by their nature pose a very serious threat, with a high risk of damage to Dutch
residents and the inhabitants of the Wadden region and with serious human rights impacts.
This applies to both current and future generations. A characteristic feature of dangerous
climate change is that every emission of CO2 and other greenhouse gases, anywhere in theworld and caused in whatever manner, contributes to this development. In turn, eachreduction of greenhouse gas emissions positively contributes to countering dangerous
climate. After all, each reduction means that there is more room in the carbon budget. RDS isable to effectuate a reduction by changing its energy package. This all justifies a reduction
obligation concerning the policy formation by RDS for the entire, globally operating Shellgroup. The compelling common interest that is served by complying with the reduction
obligation outweighs the negative consequences RDS might face due to the reduction
obligation and also the commercial interests of the Shell group, which are served by an
uncurtailed preservation or even increase of CO2-generating activities. Due to the serious
threats and risks to the human rights of Dutch residents and the inhabitants of the Wadden
region, private companies such as RDS may also be required to take drastic measures andmake financial sacrifices to limit CO2 emissions to prevent dangerous climate change. RDS
has total freedom to comply with its reduction obligation as it sees fit, and to shape thecorporate policy of the Shell group at its own discretion. The court notes here that a ‘global’
reduction obligation, which affects the policy of the entire Shell group, gives RDS much more
freedom of action than a reduction obligation limited to a particular territory or a business

41

unit or units.
Conclusion on RDS’ reduction obligation
4.4.55. The court concludes that RDS is obliged to reduce the CO2 emissions of the Shell group’s
activities by net 45% at end 2030, relative to 2019, through the Shell group’s corporate
policy. This reduction obligation relates to the Shell group’s entire energy portfolio and to theaggregate volume of all emissions (Scope 1 through to 3). It is up to RDS to design the
reduction obligation, taking account of its current obligations. The reduction obligation is an
obligation of result for the activities of the Shell group. This is a significant best-efforts
obligation with respect to the business relations of the Shell group, including the end-users,
in which context RDS may be expected to take the necessary steps to remove or prevent theserious risks ensuing from the CO2 emissions generated by them, and to use its influence tolimit any lasting consequences as much as possible.
4.5. Policy, policy intentions and ambitions of RDS for the Shell group and allowability of theclaims
4.5.1. RDS argues that the Shell group has already taken concrete steps with respect to its role in
the energy transition. RDS points out, inter alia, the policy referred to in 2.5.18 through to2.5.20, and its policy intentions and ambitions. It is an established fact that the Shell groupcooperates with national governments and international and national organizations in thearea of dangerous climate change, that it subscribes to the climate goals of the Paris
Agreement, and that it has expressed support for the Green Deal (see under 2.5.17), theDutch Climate Agreement (see under 2.5.16) and the goals of the Dutch Climate Act.
Milieudefensie et al. argue that in spite of that the Shell group is headed towards higher
rather than lower CO2 emissions by 2030 in part due to its growth strategy for oil and gas
activities up to at least 2030, with a 30% increase in production and substantial investments
in new oil and gas fields.
4.5.2. It is also an established fact that RDS has set more stringent climate ambitions for the Shellgroup in 2019 and 2020 (see under 2.5.18). However, business plans in the Shell group still
have to be updated in accordance with these climate ambitions, and a further explanation of
its future portfolio and plans is forthcoming. In the court’s view, RDS’ policy, policy intentions
and ambitions for the Shell group largely amount to rather intangible, undefined and nonbinding plans for the long-term (2050). These plans (‘ambitions’ and ‘intentions’) arefurthermore not unconditional but – as can be read in the disclaimer and cautionary notes to
the Shell documents – dependent on the pace at which global society moves towards theclimate goals of the Paris Agreement (‘in step with society and its customers’). Emissions
reduction targets for 2030 are lacking completely; the NCF identifies the year 2035 as anintermediate step (see under 2.5.19). From this the court deduces that RDS retains the rightto let the Shell group undergo a less rapid energy transition if society were to move slower.
Moreover, RDS has insufficiently contested the standpoint of Milieudefensie et al. that RDS’planned investments in new explorations are not compatible with the reduction target to be
met. The Shell group’s policy, as determined by RDS, mainly shows that the Shell groupmonitors developments in society and lets states and other parties play a pioneering role. In
doing so, RDS disregards its individual responsibility, which requires RDS to actively
effectuate its reduction obligation through the Shell group’s corporate policy.
4.5.3. From legal ground 4.5.2 follows that the policy, policy intentions and ambitions of RDS for the
Shell group are incompatible with RDS’ reduction obligation. This implies an imminent violationof RDS’ reduction obligation. It means that the court must allow the claimed order forcompliance with this legal obligation. There is no room for weighing interests. Therefore, thecourt disregards RDS’ argument about the desirability/undesirability of claims such as thisone, and whether or not this invites everyone in global society to lodge claims against each42

other. RDS’ argument that it is not appropriate to impose a court order on one private party
fails on the basis of the considerations on RDS’ legal obligation, as discussed above.
4.5.4. RDS’ invocation of the lack of the required relativity of Book 6 Section 163 Dutch Civil Code is
not relevant to the order to be imposed. Incidentally, the standard RDS would violate if it
breaches its reduction obligation is for the protection of the interests of Dutch residents andthe inhabitants of the Wadden region, whose interests the class actions seek to protect. It
follows from the unwritten standard of care that RDS is obliged to respect these persons’human rights. This has been detailed in RDS’ reduction obligation. The standards to which
RDS refers have no direct effect with respect to RDS but may be included – as the court hasdone – in an assessment of the content and scope of RDS’ reduction obligation ensuing fromthe unwritten standard of care.
4.5.5. Now that the court has established that RDS may violate its reduction obligation, theclaimed order to comply with that obligation must be allowed. The claimed order may only berejected if Milieudefensie et al. had no interest, to be respected at law, in it. This could occur
when the order cannot contribute to preventing the alleged imminent infringement ofinterests. RDS’ argument that the order will not be effective and possibly be counterproductive fails on the basis of the considerations under (11). regarding the effectiveness of
the reduction obligation. Since it has been established that in every scenario climate change
as a result of CO2 emissions-induced global warming has negative consequences for the
Netherlands and the Wadden region, with serious human rights risks for Dutch residents andthe inhabitants of the Wadden region, Milieudefensie has an interest in allowing its claimed
order.
4.5.6. RDS’ argument that the order, following a change of claim, claimed by Milieudefensie et al. –pertaining to CO2 emissions ‘associated’ with ‘energy-carrying products’ instead of ‘fossil
fuels’ – cannot be allowed because it is unclear what this refers to, while the order sought by
Milieudefensie et al. is far-reaching, fails on the basis of the assessment mentioned above of
the content and scope of RDS’ reduction obligation. The court also included the onerousnessof the reduction obligation on RDS and the proportionality in the assessment (see 4.4 (13.)
and (14.)). The order is for RDS to meet its reduction obligation and is sufficiently in line withthe obligation.
4.5.7. The order will be declared provisionally enforceable. The required weighing of the parties’interests in light of the circumstances of the case works out to the advantage ofMilieudefensie et al. The interest of Milieudefensie et al. for the immediate compliance withthe order by RDS outweighs RDS’ possible interest in maintaining the status quo until a final
and conclusive decision has been made on the claims of Milieudefensie et al. This court ordertakes into account that the provisional enforceability of the order may have far-reachingconsequences for RDS, which may be difficult to undo at a later stage. These consequencesfor RDS do not stand in the way of declaring the court order provisionally enforceable andtherefore do not constitute grounds for deciding against it.
4.5.8. The above-established imminent violation of the reduction obligation – pertaining to thepolicy for end 2030, which RDS is yet to specify – does not imply that the Shell group’s CO2
emissions are currently unlawful. There is also no ground for that opinion. This is all the more
applicable because Milieudefensie et al. take 2019 as the base year while its arguments
relates to the policy for 2030. Therefore, the first part of claim 1(a) must be rejected.
4.5.9. The second part of claim 1(a), namely for a declaratory decision about RDS’ reduction
obligation, is also dismissed. Since the court deems the claimed reduction order allowable, it
is of the opinion that Milieudefensie et al. have insufficient interest in allowing thisdeclaratory decision. Since claim 1(a) is dismissed, there is no need for the court to discuss
RDS’ other objections against this claim.

43

4.5.10. Claim 1(b), pertaining to the future actions of RDS, must also be rejected. It is not an
established fact the RDS will act unlawfully in the future, as the claim describes. There are no
indications that RDS will not comply with the order and not meet its obligations. This is all themore applicable now that RDS is in the process of adapting its policy.
4.6. Conclusion and costs of the proceedings
4.6.1. The conclusion is that the claims of ActionAid and the individual claimants are denied forprocedural reasons and that the other collective claims are not allowable insofar as they
serve the interest of the entire world population in curbing dangerous climate change caused
by CO2 emissions. The order claimed under 2. is allowed in the cases of Milieudefensie et al.
The other claims are rejected.
4.6.2. In the cases of Milieudefensie et al. RDS is the more unsuccessful party. It will be ordered to
pay the costs of these proceedings in these cases. The court awards 5.5 points to theprocedural acts. In this exceptional case – exceptional due to the complexity and the majorsocial and financial interests – the court deems the maximum fixed amount of € 3,999 perpoint fitting. The lawyers’ fees to be reimbursed amount to € 21,994.50. The cost order also
consists of the costs of the summons (€ 99.01) and the court fee (€ 639).
4.6.3. ActionAid and the individual claimant are the unsuccessful parties in their cases and will beordered to pay the costs of the proceedings. The court awards 2 points to the proceduralacts in these cases, regarding which it deems the regular court-approved scale of costs (II, €563 per point) fitting due to the nature and complexity of the dispute about the locus standiof these parties. Milieudefensie, with a document from the individual claimants appointing it
as their representative ad litem, will be ordered to pay the costs of the proceedings of theindividual claimants. Since RDS has paid court fee in one instalment, the court fee will be set
at nil. ActionAid and Milieudefensie are each ordered to pay € 1,126 in costs of theproceedings.
4.6.4. The statutory interest on these cost orders, which is undisputed, is awarded. The costorders also cover the subsequent costs. Therefore, there is no need for a separate order forthe subsequent costs, which will be estimated according to the court-approved scale ofcosts.

5 The decision
The court:
5.1. denies the claims of ActionAid and the individual claimants for procedural reasons;
5.2. declares the other collective claims not-allowable insofar as they serve the interest of the entire
world population in curbing dangerous climate change caused by CO2 emissions;5.3. orders RDS, both directly and via the companies and legal entities it commonly includes in its
consolidated annual accounts and with which it jointly forms the Shell group, to limit or cause to belimited the aggregate annual volume of all CO2 emissions into the atmosphere (Scope 1, 2 and 3)
due to the business operations and sold energy-carrying products of the Shell group to such an
extent that this volume will have reduced by at least net 45% at end 2030, relative to 2019 levels;
5.4. orders RDS to pay the costs of the proceedings on the part of Milieudefensie et al., estimated up
to this judgment at € 22,732.51, plus statutory interest as of two weeks from the date of this44

judgment;
5.5. orders ActionAid to pay the costs of the proceedings on the part of RDS, estimated up to thisjudgment at € 1,126, plus statutory interest as of two weeks from the date of this judgment;
5.6. orders Milieudefensie et al. to pay the costs of the proceedings on the part of RDS, estimated up
to this judgment at € 1,126, plus statutory interest as of two weeks from the date of thisjudgment;
5.7. estimates the subsequent costs of Milieudefensie et al. and RDS at € 163 without service andincreased by € 85 in case of service.
5.8. declares the orders referred to in 5.3 through to 5.6 provisionally enforceable;
5.9. dismisses all other applications.
This judgment was delivered by mr. L. Alwin, mr. I.A.M. Kroft and mr. M.L. Harmsen andpronounced in open court on 26 May 2021.

1

The Paris Agreement, UNFCCC 2015 COP 21 Paris Agreement, EP145, which entered into force on 4

November 2016.
2

IPCCSR15 (2018), C.1.3, p. 14.

3

AR5 WGII H 19, p. 1079.

4

IPCC SR15 (2018), B.5.7, p. 12. For the meaning of the level of confidence, see footnote 3 IPCCSR

15 (2018): “Each finding is grounded in an evaluation of underlying evidence and agreement. A level ofconfidence is expressed using five qualifiers: very low, low, medium, high and very high, and typeset initalics, for example, medium confidence. The following terms have been used to indicate the assessed
likelihood of an outcome or a result: virtually certain 99–100% probability, very likely 90–100%, likely 66–
100%, about as likely as not 33–66%, unlikely 0–33%, very unlikely 0–10%, exceptionally unlikely 0–1%.
Additional terms (extremely likely 95–100%, more likely than not >50–100%, more unlikely than likely 0–<50%, extremely unlikely 0–5%) may also be used when appropriate. Assessed likelihood is typeset initalics, for example, very likely. This is consistent with AR5.”5

IPCCSR15 (2018), C.1, p. 14.

6

IPCCSR15 (2018), C.3, p. 19.

7

IPCCSR15 (2018), D.1, p. 20.

8

See the EU Green Paper ‘Adapting to climate change in Europe - options for EU action’ (2007), p.24.

9 See the 2012 report of E
uropean Environment Agency ‘Climate change, impacts and vulnerability inEurope 2012’.
10

p. 24-25 of the document referred to the in the previous footnote.

11 See the 2013 memorandum of the P
BL Netherlands Environmental Assessment Agency and the KNMI
memorandum ‘De achtergrond van het klimaatprobleem’ (‘The background of the climate problem’).
12

See ‘KNMI’14, Klimaatscenario’s voor Nederland’ (‘Climate scenarios for the Netherlands’) (May 2014).

13

KNMI’14, p. 28.

See the report published in 2018 by Deltares, an independent institute, established in the
Netherlands, for applied research in the field of water and subsurface, ‘Mogelijke gevolgen van versnelde
14zeespiegelstijging voor het Deltaprogramma. Een verkenning’ (‘Possible consequences of an accelerated
sea level rise for the Delta programme. An exploration’).
See the 2018 Deltares report ‘Ontwikkelingen van de Nederlandse Waddenzee bekkens tot 2100:
Nederlandse Waddenzee bekkens tot 2100: De invloed van versnelde zeespiegelstijging en van bodemdaling

1545

op de sedimentbalans – een synthese’ (‘The development of the tidal basins in the Dutch Wadden Sea
until 2100: the impact of accelerated sea-level rise and subsidence on their sediment budget – asynthesis’).
16

See the 2012 report of the Netherlands Court of Audit ‘Aanpassing aan klimaatverandering: strategie

en beleid’ (‘Adjusting to climate change: strategy and policy’).
17

UNEP Production Gap Report 2019, p. 4.

18

UNEP Production Gap Report 2019, p. 3.

19

See the IEA’s report Energy Technology Perspectives 2017.

20

World Energy Outlook 2020, p. 54.

21

World Energy Outlook 2020, figure 1.3., p 34.

22

Directive (EU) 2018/410.

23

https://ec.europa.eu/transparency/regdoc/rep/1/2020/EN/COM-2020-564-F1-EN-MAIN-PART-1-PDF.

24

Supreme Court 20 December 2019, ECLI:NL:HR:2019:2006.

25

Bulletin of Acts and Decrees 2019, 253.

26

https://www.shell.com/energy-and-innovation/the-energy-future/what-is-shells-net-carbon-

footprint-ambition/faq.html.
‘Upstream’: an oil company’s activities in connection with the exploration for oil and gas. These
activities are different from downstream activities, which pertain to transport, refinement and sale.
27

28

Civil Code.

29

Supreme Court 5 November 1965, ECLI:NL:HR:1965:AB7079 (Kelderluik).

30

See Section 23 Code of Civil Procedure.

31

Section 119a subsection 1 New Civil Code Transition Act.

32

Cf. HR27 June 1986, NJ 1987, 743 (De Nieuwe Meer).

33

Cf. Book 3 Section 296, 302 and 303 Dutch Civil Code.

34

See Parliamentary Papers II 1991/92, 22 486, no. 3, p. 21.

35

Regulation (EC) No 864/2007 of the European Parliament and the Council of 11 July 2007 on the law

applicable to non-contractual obligations.
36

Preamble Rome II, no. 25.

37

J. von Hein, ‘Article 7 Environmental Damage’, in: G-P. Calliess (eds.), Rome Regulations Commentary,

Alphen aan den Rijn: Kluwer Law International 2020, p. 662.
38

CJEU 22 January 2015, ECLI:EU:C:2015:28 (Pez Hejduk); CJEU27 September 2017,

ECLI:EU:C:2017:724 (Nintendo); CJEU 19 April 2012, ECLI:EU:C:2012:220 (Wintersteiger); CJEU16 July
2009, ECLI:EU:C:2009:475 (Zuid-Chemie); CJEU 28 January 2015: ECLI:EU:C:2015:37(Kolassa/Barclays Bank).
39

Supreme Court 21 September 2001, ECLI:NL:HR:2001:ZC3483 (BUS/Chemconserve).

40

CJEU 18 July 2013, ECLI:EU:C:2013:490 (ÖFAB/Koot).

41

Supreme Court 20 December 2019, ECLI:NL:HR:2019:2006, legal ground 5.6.2.

As regards Article 6 ICCPR: see the case referred to in note 43. See also: HRC, General Comment No.
36 (2018) on article 6 of the International Covenant on Civil and Political Rights, on the right to life, 30

42

October 2018, CCPR/C/GC/36, p. 14-15. As regards Article 17 ICCPR: see HRC20 September 2019,
CCPR/C/126/D/2751/2016 (Norma Potillo Cáceres – Paraguay), section 7.7.
43

HRC 23 September 2020, CCPR/C/127/D/2728/2016 (Ioane Teitiota - New Zealand), section 9.4.

Safe Climate: A Report of the Special Rapporteur on Human Rights and the Environment, 1 October
2019, A/74/161, Acknowledgements.
44

45“Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect,

Respect and Remedy’ Framework”.

46

46

General principles UNGP.

47

European Commission 2011, A renewed EU strategy 2011-14 for Corporate Social Responsibility,(op.cit. footnote 5).
48

Principle 1 UNGP, detailed further in the subsequent principles for states.

49

Commentary to Principle 11 UNGP.

50

Principle 12 UNGP.

51

Dutch translation, 2011.

52

Principle 11 UNGP.

53

Commentary to Principle 11 UNGP.

54

Cf. question 7 in the Interpretive Guide (“Is the responsibility to respect human rights optional forbusiness enterprises?” “No”).
55

Principle 23 UNGP.

56

Interpretive Guide question 18, p. 23.

57

Principle 14 UNGP.

58

Commentary to Principle 14 UNGP.

59

Principle 13 UNGP.

60

Commentary to Principle 13 UNGP.

61

Interpretive Guide UNGP, p. 8.

62Mapping of current practices around net zero targets.

63

Oxford report, p. 2.

64

Oxford report, table 1 (p. 1).

65

Oxford report, p. 2.

66

Oxford report, p. 1.

67

Principle 17 and 18 UNGP.

68

Principle 19 UNGP.

69

Commentary to Principle 19 UNGP.

70

See, for instance: https://ec.europa.eu/clima/sites/clima/files/eu-climate-action/docs/impact_en.pdf.

71

Parliamentary Papers II 2015-2016, 34 534, no. 3 (Explanatory Memorandum), p. 21.

72

Oxford report, p. 5.

73

Oxford report, p. 3.

74

Oxford report, p. 4.

75

Oxford report, p. 4.

76

Cf. Supreme Court 23 September 1988, ECLI:NL:HR:1988:AD5713 (Kalimijnen), legal ground 3.5.1.

77

Laid down in Resolution 70/1 adopted by the UN General Assembly on 25 September 2015.

78

See GP220, European Commission, EU ETS, 23 November 2016.

79

See the preamble to Directive 2003/87/ECunder 4.

80

Directive (EU) 2018/410.

81 C
f. Supreme Court 21 October 2005, ECLI:NL:HR:2005:AT8823 (Building permit Heemstede,
Ludlage/Van Paradijs), legal ground 3.5.1 and the jurisprudence referred to there.
82

Cf. Supreme Court 23 September 1988, ECLI:NL:HR:1988:AD5713 (Kalimijnen), legal ground 3.5.1,

third paragraph.
83

Production Gap report, p. 50.

84

Oxford report, p. 5.

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