Netherlands. William van der Feltz and Matthijs Timmer. Van der Feltz advocaten

Transcription

1 Netherlands William van der Feltz and Matthijs Timmer Legislation 1 Main environmental regulations What are the main statutes and regulations relating to the environment? A number of EU regulations are effective in the Netherlands legal system directly and automatically, in other words without implementation. Also, parts of European Directives (that normally require implementation) can, if they are sufficiently concrete and detailed, work directly and automatically. The Environmental and Zoning Permitting Act (EZPA) is the most comprehensive act on the environment. The EZPA forms the framework for the granting of permits for several environment-related activities (eg, building, deviating from a zoning plan, operating an industrial installation). The Activities Decree, based on the EZPA, includes general rules for industrial installations even if they do not require a permit. Operators of installations that do not require a permit are required to notify the relevant authorities of their activities. Relevant laws include: the Environmental Control Act (ECA); the Flora and Fauna Act; the Nature Conservation Act; the Act on Air Quality; thewater Act; and the Soil Protection Act. The legislator is currently working on an integrated Environment Act, which combines the EZPA with, among others, the laws mentioned above. Other relevant laws include: the Civil Code, concerning tort, unjustified enrichment, statute of limitations and sections vesting risk liability for certain categories of events that may cause damage to the environment; the Criminal Code, article 173(1)(b), concerning contamination that can endanger the public health or the life of persons; and the Economic Offences Act, providing criminal law penalties for violation of many administrative environmental law provisions. 2 Integrated pollution prevention and control Is there a system of integrated control of pollution? At the level of European law, the Industrial Emissions Directive (Directive 2010/75), implemented in the EZPA and the Activities Decree, provides a general set of standards for permits and enforcement requiring best available techniques to be used. No full integration has been reached yet, though the EZPA and Water Act are quite comprehensive in their fields. In 2018, the Environment Act should create a more integrated system. A large (and rapidly-growing) number of installations does not require a permit. Instead, the operator has to notify the authorities and abide by the rules from the Environmental Activities Decree and the Environmental Activities Regulation. 3 Soil pollution What are the main characteristics of the rules applicable to soil pollution? The most important regulation regarding soil pollution is the Soil Pollution Act (SPA). Soil pollution caused after 1 January 1987 must be notified upon its finding to the authorities and remedied. The operator and the owner of a site are under a duty of care to not cause contamination. If the authorities cannot establish who is responsible for a case of soil pollution, the authorities are obliged to decontaminate if the pollution is labelled serious. Soil pollution caused before 1987 has only to be remedied if it is serious, if the soil is going to be used in a more sensitive way or if the pollution threatens to spread. The authorities have a number of instruments to bring about remediation at the expense of private parties. First, the authorities have to establish whether the contamination qualifies as serious and if remediation is necessary. The person who buys contaminated land (reasonably knowing it was contaminated) is as liable as the person who caused the contamination. Allowing pollution to migrate into the soil of a neighbour amounts to a tort against said neighbour. The SPA contains a set of values for a large number of substances that are deemed pollutants if present over a certain concentration. Cases of soil pollution are classified along the intervention value (triggers remediation); reference value (under which pollution is not spoken of ) and middle value, often taken as the target value for remediation. The SPA is enforced by the authorities of the larger cities and of the provinces. Remediation requires a remediation plan accepted by these SPA authorities beforehand. 4 Regulation of waste What types of waste are regulated and how? Specific categories of waste covered by separate regulations are water (Water Act), processed animals (Animal Act), manure (Act on Manure) and other waste (ECA). For collecting and processing waste, ECA permits are required. The collection and the processing of waste are further governed by the National Waste Plan. On 12 July 2007, the European Regulation concerning the import and export of waste took effect (Regulation 1013/2006). A basic principle of the European policy is that waste materials have to be processed as much as possible in their land of origin and in the nearest processing plant. The regulation outlines various procedures for cross-border traffic of waste materials. The procedures that must be followed depend on the kind of waste material, the sort of removal and the status of the country or countries involved in the actual cross-border traffic. The European Court of Justice (ECJ) is the leading authority on waste. The ECJ has refrained from defining waste ; instead it has provided two sets of criteria those relevant and irrelevant to whether or not a substance is waste. Among the irrelevant criteria is the fact that a substance can be used with a purpose in a manner not harmful to the environment and without prior processing. Relevant criteria include the prevailing opinion in society; the purpose of the European Directive on waste; the prevention of frustration of that Directive; the fact that the substance is a useless residue of a production process; the possibility of useful reuse; and the use of the substance in the production process. This list is not exhaustive. In its Texaco decision (Case C-1/03), the ECJ ruled that polluted soil can also be waste. 1

2 Waste has been defined on a national level in the ECA, article 1.1, as all substances, preparations or other products of which the possessor gets rid, plans to get rid or has to get rid. Thus the term to get rid becomes the most crucial part of the definition. Transborder transport of waste has been regulated strictly in the European Regulation on the transport of waste. 5 Regulation of air emissions What are the main features of the rules governing air emissions? At a general level, the European Directive on air quality (Directive 2008/50) sets maximum pollution levels. The Directive has been implemented in Title 5.2 of the ECA, and has resulted in the National Air Quality Cooperation Programme (mainly regarding fine dust and nitrous dioxide). The programme aims to reach the required clean air targets, while at the same time allowing certain new developments with a negative impact on air quality. At a concrete level, the ECA permit sets standards for maximum emissions and stench. However, in view of the potential harm to human health, certain activities that would be allowed under the ECA may still be deemed against good zoning policy and therefore unfeasible. The Netherlands has implemented the treaties that restrict the production of CFCs, and require states to take measures to avoid emission of CFCs from discarded equipment. 6 Climate change Are there any specific provisions relating to climate change? The Netherlands has ratified the Kyoto protocol (on 31 May 2002) and has introduced a system of tradable emission rights for CO2 and NOx to meet the targets (Title 12.3 ECA). The NOx system was abolished on 1 January 2014, due to lack of European support. According to the Kyoto protocol, by 2020 (previously 2012) the Netherlands must reduce the emission of greenhouse gases by 6 per cent compared with the emission levels of The Netherlands has achieved this goal. In order to maintain the Kyoto-levels of emission, the Netherlands cannot emit more than 200 metric tons of CO2 equivalents of greenhouse gases per year. The tradable emission rights system has proven successful. Mostly heavy industries have been subjected to CO2 and NOx emission allowances. The CO2 allowances are regulated by a cap and trade system issued in line with the method approved by the European Commission. Companies can buy allowances through an auction. The total amount of allowances cannot exceed the cap. Afterwards, companies that need to increase their emission allowance must buy allowances from those who pollute less. Each company was given an NOx allowance relating to its operations in accordance with the performance standard rate. This means that a company had exactly the amount of NOx required to meet the performance standard rate. A company that had a shortage of NOx could buy allowances from those with excess amounts. There is a register to manage allowances ownership and transfers, administered by the Dutch Emission Authority. This agency also supervises the emission trades. The Dutch tradable emission rights system operates as a branch of the EU Emission Trading System, through which different greenhouse gases are traded within the EU as a whole (and Iceland, Norway and Liechtenstein). The EU ETS aims to reduce the emission of greenhouse gases by 21 per cent by Protection of fresh water and seawater How are fresh water and seawater, and their associated land, protected? Seawater and most fresh water are subject to public ownership. Groundwater has no owner until the moment it is extracted. On 22 December 2009, the Water Act came into force, replacing eight previous laws. The Water Act concerns the control of surface water and ground water, mainly through a ban on discharging any substance into the surface water without a water permit. A water permit is also required for activities that influence the water flow (quantity). The relevant authorities are the district water boards, though the greater water bodies are governed by the State Water Board. Noteworthy is the 2014 decision from the judicial branch of the Council of State, holding a company liable for damages after contaminated firefighting water caused the pollution of ground water and surface water. The company had to compensate the district water board for the remediation costs and other damages. 8 Protection of natural spaces and landscapes What are the main features of the rules protecting natural spaces and landscapes? A relatively large proportion of the Netherlands (water and wetlands more than land) has a special protected status under the European Birds and Habitat Directives (Directives 79/409 and 92/43). Together, these form the Natura 2000 areas. There are currently over 160 areas with a Natura 2000 status under the Nature Protection Act Under national law, 20 national parks and 20 national landscapes have also been appointed, receiving similar protection as Natura 2000 areas. Alongside wetlands and the greater bodies of water (lakes, North Sea, Wadden Sea, etc) these areas form the Ecological Main Structure. Activities that may harm the protected areas (either from within or outside the areas) are forbidden without a permit. Generally, a permit can only be obtained if either scientific proof is provided that the activity causes no harm or that no alternative solutions are available, it serves a pressing need and the damage to the nature is compensated in a timely and adequate fashion. Presently the government is developing a programme regarding NOx emissions, specifically from agricultural activities, because a large amount of Natura 2000 areas are exposed to an excessive amount of NOx and, as a result, no permits for new activities can be obtained. The administrative courts have annulled a number of state regulations aimed at the introduction of exemptions for categories of potentially harmful actions, thus confirming their opinion that the Habitats Directive requires exemptions to be handed out on a case by case basis only. 9 Protection of flora and fauna species What are the main features of the rules protecting flora and fauna species? In practice, the majority of plant and animal species (almost all indigenous species) are now protected. The protected species are listed in annexes to the Flora and Fauna Act. Exemptions to the prohibition to chase or kill animals used to be very sparsely granted. Presently, in a number of cases, the growing number of animals (eg, foxes and geese) makes reconsideration of the policy necessary. A direct effect of these regulations is that building and cutting activity, if permitted, cannot start in the spring when protected birds are hatching. Provinces can also designate important habitats as protected areas, such as badger burrows or forts inhabited by bats. As with respect to the Habitats Directive/Act on Nature Conservation 1998, the courts have blocked categorical approaches by the state to certain activities with potentially harmful effects on flora or fauna. 10 Noise, odours and vibrations What are the main features of the rules governing noise, odours and vibrations? Noise, odours and vibrations are all considered emissions and, as such, they are limited in permit conditions and ECA Decrees for certain types of facilities. The limits to odour emissions following a brief period of experimenting with objective standards are now set by employing panels of natural persons. The Noise Nuisance Act requires the authorities to create zones in zoning plans for noisy types of facilities. The permissible level of vibrations may (next to regulation under the EZPA) also be regulated in building permits. 11 Liability for damage to the environment Is there a general regime on liability for environmental damage? Causing damage to the environment may give rise to liability under civil, criminal and administrative law. Damage to the environment is not defined under any of these laws, and the definition of damage is not an issue presently. The Civil Code provides specifically for no-fault liability for the owner of unsuitable premises (including subsoil works) that create a 2 Getting the Deal Through Environment 2015

3 danger and in relation to hazardous substances. Criminal liability (including penal corrections under administrative law) and regular civil liability presuppose fault. Under the Economic Offences Act, however, a no-fault defence for damages caused to the environment by a company will, in practice, never succeed. Administrative liability is purely no fault and may lead to penalties and corrective orders, such as to take measures to undo or prevent (further) damage, and to revoke permits. The European Directive on liability for environmental damages (2004/35/EG) has been implemented in Chapter 17 ECA. 12 Environmental taxes Is there any type of environmental tax? There are several environmental taxes, levies and contributions. The Environmental Taxes Act creates taxes on tap water, waste, coal and energy. Slightly less prompted by environmentally considerations are the car tax and duties on gas, used to promote green initiatives, such as electric cars. The taxes on electricity and medium oil, gas oil and liquefied petroleum gas have approximately doubled since It should be noted though that energy taxes in Europe are somewhat harmonised through the Energy Taxes Directive. For certain bigger consumer products (cars, fridges, washing machines), a discharge contribution has to be paid. The contribution entitles the consumer to have the industry take care of the removal (or recycling) of the product. For most (environmental) permits, levies have to be paid, of which the level varies per granting authority. The EZPA also provides the possibility for a Decree, under which harmful activities can only be undertaken after a financial deposit has been made, which can be used to repair any environmental damage caused by that activity. Such a decree has not been enacted at the time of writing. Hazardous activities and substances 13 Regulation of hazardous activities Are there specific rules governing hazardous activities? Certain activities of companies pose serious risks to the environment. External safety matters include production, storage and the use of dangerous materials; transport of dangerous material on roads, water and railways as well as pipelines; and the use of airports. The potential for grave accidents requires the creation of safety zones between high-risk activities and housing facilities and other sensitive objects. At the same time, the policy of the government is to use the limited living space as efficiently as possible. Spatial policy and policy of external safety have to be coordinated. The main source of regulation for hazardous substances and activities is the ECA. The ECA implements Directive 2012/18 (Seveso III). Specific ordinances issued under the ECA provide for regulation of the storage and sale of certain hazardous goods and the safety of installations that present grave risks, and the registration of risk situations. Much of the government s external risk policy has been laid down in the Decree for external safety of installations. The 1999 Decree for risk of serious accidents sets requirements for the operation of sites of certain types. Requirements include the presence of a policy to prevent accidents, the introduction of a safety control system, a safety report and an emergency plan. Nuclear plants and installations that use radioactive materials are governed by the Act on Nuclear Energy. The transport of hazardous substances (on the road, by train and in the air) is governed by a separate set of rules in the Act on transport of hazardous substances, which is based on the European ADR-Treaty. 14 Regulation of hazardous products and substances What are the main features of the rules governing hazardous products and substances? Under Dutch environmental law, hazardous substances and hazardous products are not distinguished. On 1 June 2007, the European regulation known as REACH (Registration, Evaluation and Authorisation of Chemicals, Regulation 1907/2006) took effect. REACH has been implemented in the ECA. The ECA distinguishes between substances and preparations (compositions of substances). Under the ECA, every operator who creates, imports, applies, modifies, uses or supplies a substance, preparation or genetically modified organism is under a duty of care to prevent any harm to the environment due to the substance, preparation or organism, so far as can reasonably be demanded from the operator. Decrees can be promulgated regarding substances, preparations or organisms that are suspected to be harmful, under which the use of these materials can be limited or be subjected to a system of permits. Micro-organisms (including genetically modified organisms) can be brought under the Act if the ability to do so is granted in a Decree. Food, stimulants and animal fodder are separately regulated in the Food and Drugs Act, the Act on Manure and the Animal Feed Regulation 2012, respectively. The admittance to the market, the marketing and handling of pesticides and herbicides is also governed by the Act on agents to protect crops and biocides, dating from Industrial accidents What are the regulatory requirements regarding the prevention of industrial accidents? The protection of workers against industrial accidents is provided in the Working Conditions Act 1998 and in the Labour Conditions Decree based on that Act. The Decree covers issues such as the requirement of a yearly labour conditions report, a labour safety report and a planned reaction to possible incidents. It sets standards for the workplace, for handling hazardous (including carcinogenic) substances and for bodily labour, physical conditions (light, sound, temperature, fresh air), personal protection, health tests, etc. Protection of those living and working in the neighbourhood of a plant against toxic emissions, explosions, etc, (external risks) is provided by zoning law, under which plants are classified in risk orders. Zones around riskier plants are designated, where no activity is permitted that involves a great number of people. The most important pieces of legislation in this field are the Decree and Regulation on External Safety of Installations. The detection and removal of asbestos has been strictly regulated in the Labour Conditions Act and decrees regarding asbestos removal and disposal. Environmental aspects in transactions and public procurement 16 Environmental aspects in M&A transactions What are the main environmental aspects to consider in M&A transactions? A preliminary question is whether the transaction concerns shares or assets. When buying shares, one automatically and fully succeeds the seller in all existing rights and obligations. When buying assets, only the title to rights and obligations that are legally attached to the assets pass. When shares change hands, the transition of permits is practically never an issue. Normally, the transition of the permit to a new owner of assets will have to be notified to the permit authorities, but the permit authorities will not have the power to set new conditions because of the sale. For EZPA permits, it should be noted that the buyer has to adhere to the permit conditions, even if no notification to the authorities is obligatory. EZPA permits are related to activities, not to the identity of the permit holder. The notification is mainly a formality. There is one exception: under the Financial Provisions Decree under the Soil Protection Act, the seller of contaminated soil should take care that the new owner provides certain guarantees for remediation, otherwise the seller will continue to be considered responsible by the authorities. The permit and enforcement situation of a target can be checked at the offices of the permit authority. Serious contamination is entered into the land registry, as are other limitations under administrative law to a site. Further research with respect to soil pollution may be necessary. An important question is whether investments are necessary to meet the requirements under permits that are to be renewed in the near future. For example, if the European Commission puts forward new best available techniques conclusions, EZPA permits need to be updated within four years to comply with the new BATs. Zoning plans in the vicinity should be checked as to whether the existing activities can continue. 3

4 17 Environmental aspects in other transactions What are the main environmental aspects to consider in other transactions? Most of the aforementioned environmental aspects are important in all kinds of transactions to the extent that they can influence the value of the target company. The environmental aspects that can have the greatest effect on a transaction are those that involve absolute emission limits that may have been reached already, thus denying the new owner of a plant any change or expansion. Most notorious in this respect are noise, external risk, air quality and (nitrate) emissions onto nature conservation areas. 18 Environmental aspects in public procurement Is environmental protection taken into consideration by public procurement regulations? Neither the Dutch 2012 Public Procurement Act nor the European Public Procurement Directives (Directives 2014/23, 2014/24 and 2014/25) formulate absolute environmental criteria that have to be taken into account when awarding a contract. If, however, the contracting authorities employ the tender criterion most economically advantageous tender, the authority will set criteria to determine the best price quality ratio. These criteria (under Dutch law: can, under European law: have to) include environmental aspects. In any case, the contracting authority needs to make sure that a tender conforms to environmental regulations Environmental assessment 19 Activities subject to environmental assessment Which types of activities are subject to environmental assessment? The environmental impact assessment is regulated in the ECA and in the Environmental Impact Assessment (EIA) Decree. An assessment is mandatory when significant negative effects to the environment have to be reckoned with. This is deemed to be the case with a list of types of plants that includes building oil refineries, nuclear power stations, chemical installations, motorways, railways, airports, pipelines for gas or oil and dams and flood-control dams of certain capacities, as well as for the plans enabling these projects. For some of the listed activities with a lower impact, an evaluation on an individual basis is mandatory to determine whether an assessment is necessary. An assessment is not a licence. It provides the information required to weigh up fully the environmental impact when taking decisions on plans and projects. The outcome of the assessment, the environmental impact report, describes the consequences for the environment of the plan and a number of alternatives. 20 Environmental assessment process What are the main steps of the environmental assessment process? An assessment procedure comprises seven or five steps, depending on the underlying permit policy: (i) the initiator notifies the competent authority of his intentions (unless the authority is the initiator); (ii) public participation and recommendations focusing on the scope and the level of detail of the environmental impact report; (iiia) the competent authority seeks advice on the necessary scope and level of detail of the report; (iiib) the competent authority advises on the necessary scope and level of detail of the report (unless the authority is the initiator); (iv) environmental impact report the initiator is responsible for writing the report; it is not subject to any time limit (good interaction with project development is recommended during this step); (v) publication of environmental impact report and application or draft decision. The competent authority publishes the report together with the application for the decision necessary for the planned activity within eight weeks, so that reactions by the public and recommendations by the EIA commission can be received. If the decision does not require an application for a decision to be submitted, the report will be published with the draft decision or preliminary draft decision; (vi) within a period of at least four weeks there should be participation, recommendations and hearing, where anyone may comment on the environmental impact report and raise objections to the application or draft decision; and (vii) decision the competent authority decides on the project, taking into consideration the environmental impact and the reactions and recommendations received. It explains what has been done with the EIA, also specifying what is to be monitored and when. The procedure takes six months at the very least. Under the shortened procedure, step (ii) is skipped and steps (iiia) and (iiib) are optional. There will be no advice from the EIA commission. Some categories of activities always require an EAI; others only if certain impact levels threaten to be surpassed. To decide whether this is the case, the initiator confers with the competent authorities. Afterwards, the authorities will decide if the EIA is required. The initiator may also decide to voluntarily carry out an EIA if he wants to stay on the safe side. Regulatory authorities 21 Regulatory authorities Which authorities are responsible for the environment and what is the scope of each regulator s authority? The City Executive Board is, in principle, responsible for enforcing the EZPA, unless zoning plans on provincial or state level require otherwise. For sites with an Integrated Pollution Prevention and Control installation (as given in the Industrial Emissions Directive), and for permits and exemptions under the Nature Conservation Act, the provincial boards are the competent authority. Generally, district water boards enforce the Water Act, though for activities concerning state waters the State Water Board is the competent authority. Also, for some other specific issues (nuclear energy, activities at the open seas (within the European Economic zone) Flora and Fauna Act), a representative of the state is the competent authority. These authorities issue operating permits, check notifications, are responsible for enforcement, etc. 22 Investigation What are the typical steps in an investigation? In case of permit violations, the authorities are generally obliged to investigate any notification they receive from third parties (other companies, residents, etc). Typically, an investigation is triggered by a company notifying the authorities of an incident (accident or excess emission) as it is obliged to do under its operating permit. Most of these notifications are passed on automatically by the permit authorities to the public prosecutor. The company will be under a duty to register emissions and incidents (either continually or on a regular basis) and to hand over the resulting reports to the authorities. Sometimes the authorities will add their own investigation. 23 Administrative decisions What is the procedure for making administrative decisions? The general procedure for administrative decisions requires involvement, in principle in the form of a prior hearing, of the party that has asked for the decision or the party that is expected to incur negative effects from the decision. In principle every administrative decision can first be challenged before the authority that has taken the decision (objection). Upon that challenge, the authority has to reissue a decision based on the information received in the objections procedure. The decision on the objections can be challenged before an administrative court. Often, the decision of the administrative court in first instance can be challenged before a superior administrative court. Where the public at large is consulted in preparing a decision in the first place, the objections stage is skipped. For several kinds of decision, including those on zoning plans, the court of first instance is skipped as well. In most procedures, only parties with a direct interest in the decision have standing. A typical exception is the zoning plan, which can be challenged by anyone in the preparatory stage (however, in the court stage, standing is required). If the authorities do not adhere to the relevant decision period and do not extend this period before the end of it, the applicant may be eligible for monetary compensation. Some permits (broadly, those that are not expected to harm third party interests) will be considered to have been automatically granted at some point in time if no decision is made within the decision period. 4 Getting the Deal Through Environment 2015

5 24 Sanctions and remedies What are the sanctions and remedies that may be imposed by the regulator for violations? There are four types of enforcement decision: an order to prevent any future incident on a penalty of a fixed sum; an announcement that the authorities will, after a certain period in which the person addressed gets the opportunity to restore the situation, repair an unlawful situation themselves (at the expense of the operator) or foreclose the part of the plant involved; an administrative penalty to be paid by the one who violated the permit (normally the operator); and a withdrawal of the permit. In urgent cases, the authorities may first act (for instance, bring about foreclosure of the relevant parts of a plant) and then confirm their decision in writing. The authorities will not be obliged to hear the company before an enforcement decision is taken if there is no time to do so, if a hearing cannot be expected to be of any use or if the hearing (and the warning it implies) would frustrate the decision to be taken otherwise. 25 Appeal of regulators decisions To what extent may decisions of the regulators be appealed, and to whom? Almost all administrative decisions by the administrative regulator may be challenged by any directly interested party. In environmental permit and enforcement cases, the following parties will be considered to have a standing: the company that has applied for the permit; persons and companies that can be expected to actually experience any effects by the activity covered by the permit; and organisations that have the protection of the environment as one of their goals in their articles of association, and can also show they actually practise environmental protection (merely litigating against environmental permits is not considered to be practising environmental protection). The most important grounds for appealing against administrative decisions are violation of a regulation (that has not been set aside by the rule that is applied correctly) and violation of any one or more of the principles of decent administration. Normally, the violation of a principle of decent administration can be invoked successfully only to the extent that the authorities are not strictly bound to mechanically apply the correct rule but where the authorities have discretion (certain room for policy decisions, as is the case with respect to enforcement). In practice, the principles of decent administration that are successfully invoked most frequently are: legal certainty; the principle that equal cases are handled equally; the principle that, within the realm of policy decisions, the interests involved have to be carefully weighed against each other; and the principle that decisions are to be adequately reasoned. Judicial proceedings 26 Judicial proceedings Are environmental law proceedings in court civil, criminal or both? The procedure before the administrative courts consists, at the very least, of the filing of appeals, a written defence and an oral hearing. In complicated environmental cases, the court will ask the advice of the regular adviser to the courts in environmental and zoning matters. The parties involved (government, permit-holder and possibly third parties, most importantly people living nearby and environmental organisations) get the opportunity to react to its reports. Cases regarding permits and enforcement are handled by the administrative courts. Normally, environmental matters are handled directly by the highest administrative court, the judicial branch of the Council of State. Enforcement matters may also lead to prosecution before the criminal (district) court. In that case, appeals will be heard before one of the four appellate courts. Finally, if the complaints meet certain specific requirements, a case can be brought before the Supreme Court. Civil matters in which environmental questions rise (tort, compliance of contracts, etc) will be heard by the civil section of the same courts that handle criminal matters. 27 Powers of courts What are the powers of courts in relation to infringements of environmental law? The administrative courts can confirm or annul administrative enforcement decisions (penalties, orders to repair, withdrawal of permit). Once a competent authority has taken action to repair a certain situation because it deemed the permit holder would not do so (in a timely fashion), the cost of that action can be recovered under civil law. Only after an administrative procedure is initiated (either through objections or appeal the connectivity requirement ), can parties request the president of the administrative court to take interim measures, though only if the matter ìs sufficiently urgent. This will be a temporary measure, until a final decision on the objections or appeal is handed down. The civil courts have no power to go beyond what has been asked by the claimant: a statement in law (confirming the qualification of the situation by the claimant), an order to pay a sum or an order to carry out a certain act or refrain from a certain act. Parties can request the president of the civil court for provisional measures, as long as there is a sufficient amount of urgency. In civil matters, an order or a prohibition has to be requested. A request for a statement by the court does not give standing in summary proceedings. No connectivity to a full procedure is required. Under the provisions in the Criminal Code, the courts may issue decisions for imprisonment and fines. Under the Economic Offences Act, only fines can be handed down. Next, the criminal courts may decide on certain measures demanded by the public prosecutor. The most important of these are the obligation to return to the state whatever profits have been reaped unjustly and the (temporary) foreclosure of a plant. 28 Civil claims Are civil (contractual and non-contractual) claims allowed regarding infringements of environmental law? The normal route for somebody who claims to be damaged by infringements of environmental law is to address the competent authorities with a request for enforcement. Also, especially if no direct reaction to such request is to be expected, the aggrieved party can claim before the civil court an order to stop the infringements or pay compensation for damages incurred. Where a company is under the contractual obligation not to cause certain environmental damages, its refusal to fulfil the contract may be brought before the civil courts. Finally, an infringement of environmental law may constitute a tort against somebody who suffers damages as a result of the infringement. 29 Defences and indemnities What defences or indemnities are available? Defences against claims regarding breaches and infringements of environmental law expire by lapse of time (five years after knowledge of the infringement and of the identity of the one who committed the wrongful act, and a maximum of 30 years after the incident that caused damages to the environment occurred). Under recent case law, in case of physical harm, the 30-year limitation does not always apply, which is especially important in asbestos cases). A defence frequently employed in soil pollution cases is that others caused the pollution and that the owner accepted the contamination that is typical (unavoidable) when he acquired the lot. In criminal cases, guilt has to be established; in economic offences, however, the guilt requirement has been reduced to strict liability on the basis that an entrepreneur is supposed to have wanted everything that has actually happened in his business. In cases of (possibly) more than one tortfeasor, the claimant may hold anyone liable for the whole if the claimant can establish that one of the tortfeasors could have caused all damages on his own. 30 Directors or officers defences Are there specific defences in the case of directors or officers liability? Directors or officers personal liability plays a role in criminal cases mostly. It requires their personal fault, either in misdoing or failing to do things that would normally have prevented the mishap from occurring. In civil cases, 5

6 directors or officers liability will play a role only if the company cannot fulfil its obligations because of lack of funds or when the only shareholder also manages the company on a daily basis. 31 Appeal process What is the appeal process from trials? In administrative and criminal cases, the appeal process is a repetition of the procedure at the district court level: the appellate judges do have to investigate the case at the hearing themselves, exactly as the court of first instance does. In civil cases, parties put forward specific grievances against a verdict. If one of the grievances succeeds, the appellate judge will re-examine the case as a whole. The Supreme Court only judges on points of law and reasoning by the appellate judge. International treaties and institutions 32 International treaties Is your country a contracting state to any international environmental treaties, or similar agreements? The most important treaties for the environment are the treaties that shape the environmental policy of the EU. By and large, environmental law is written by the European institutions. The Netherlands is also party to a large number of environmental treaties, directly and via the EU: 1961 Treaty of Paris and 1964 Treaty of Brussels and 1965 Treaty of Vienna regarding strict liability for mishaps from the production of nuclear energy; 1973 MARPOL Treaty, regarding the prevention of pollution of the sea by ships and the treaty to prevent dumping of waste into the sea; 1975 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES); 1975 Wetland Convention of Ramsar; 1979 Treaty of Bonn regarding the protection of wild migrating animals; 1983 Treaty of Bonn regarding pollution of the North Sea by mineral oil and other substances; 1991 Espoo and 2003 Kiev Treaties on cross-border EIA; 1992 UN Framework Treaty on climate change and the Kyoto protocol; 1992 OSPAR Treaty regarding the protection of the marine environment of the North Eastern Atlantic Ocean; 1993 Biodiversity Treaty signed at Rio; Update and trends The following emerging trends are of interest in the Netherlands: The main trend in Dutch environmental law is the continuing integration of different environmental laws into one Environmental Act, which should come into force in Since 2013, just having standing is not enough to successfully challenge an administrative decision. The relativity requirement ensures that only those whose interests are (supposed to be) protected by a provision can invoke this provision. Parties can no longer, for example, halt housing projects by invoking the Building Code, since the Building Code does not aim to protect those not living in the house that the code applies to. Administrative procedural law is increasingly steering towards finality in conflict resolution. The annulment of decisions is to be avoided as much as possible; instead, the authority will be given the option to revise their decision as to make it lawful (often after being given clear instructions by the judge), or the judge s verdict will replace the decision altogether. The development of regulations and subsidy systems for wind parks, especially offshore. A new Nature Protection Act, replacing the Nature Conservation Act 1998, The Flora- and Fauna Act and the Woods Act. Eventually, this Act will be included in the integrated Environment Act UN Convention of the Law of the Sea; 1999 Treaty of Bern protecting the river Rhine; and 2001 Treaty of Aarhus regarding access to information, consultation of the public and access to the courts in environmental matters. 33 International treaties and regulatory policy To what extent is regulatory policy affected by these treaties? By and large, environmental law in the Netherlands is written by European institutions. To the extent that the above treaties contain sections that can be invoked directly by Dutch citizens in court, the authorities will be forced to implement them fully and in a timely fashion. For direct invocation of treaties, the obligations need to be self-executing ; in other words, they require no further implementation in national law in order to (be able to) function. William van der Feltz Matthijs Timmer APO Box CH, The Hague The Netherlands vanderfeltz@feltz.nl timmer@feltz.nl Tel: Fax: Getting the Deal Through Environment 2015