Onder 4.4 Gerechtshof Den Haag 18 december 2015

Nor do the other grounds for inadmissibility of Milieudefensie’s claim advanced by Shell provide sufficient basis. The District Court considered and rejected those grounds in ground 4.5 of the interim judgment of 14 September 2011 and in grounds 4.13 and 4.14 of the final judgment of 30 January 2013. Those grounds for the decision are correct and must be considered to be repeated here and form part of this judgment. The following is added to them. For the admissibility of an action under art. 3:305(a) CC it is not an absolute condition that the claim cannot be achieved in any other way -nor is it in its present version in force since 1 July 2013; in the present case for instance via a class action instituted by all members of the Goi community, or via a representative action instituted by a number of those members for themselves and on behalf of other persons. It is a condition, however, that the claim seeks to protect similar interests of other persons. This requirement is satisfied if the interests that the action seeks to protect are suitable to be joined, so that an efficient and effective safeguarding of legal rights can be promoted for the benefit of the interested parties. In this manner the matters in dispute and claims advanced in the proceedings can be reviewed in one action, without having to take into consideration the special circumstances of the interested parties individually, such as the procedural implications if one of them dies, or at least without these dominating the debate and/or determining its outcome. That the interests which the action seeks to protect -to be more precise: the interest in establishing liability, cleaning the pollution and preventing new damages- are suited to being combined, is, rightly, not challenged. Nor is the District Court’s opinion challenged that the claims relating to this do exceed the individual interest of Eric Dooh (or Eric Dooh’s father). Nor is it true that the group of individuals for the benefit of whom this action has been instituted is so small and clearly defined that it was easy to initiate litigation in the names of the interested parties. Furthermore, Shell’s plea that the environmental interests of those affected by the spill in question are insufficiently safeguarded by Milieudefensie’s action is wrong or at least insufficiently substantiated; the condition that the interests of the persons represented must be ‘sufficiently safeguarded’ is meant to serve as a handle for the critical assessment of admissibility in those cases where the motives for instituting a class action are in doubt. This prevents claims organizations to abuse the right to class action for their own commercial motives. This is not to say that an organization with no or few supporters among the circle of those who have a direct interest by definition cannot fulfil this condition. The parliamentary history quotes the example of the Dutch Consumers’ Association, asking the court in a class action to prohibit an unfair commercial practice. The case is taken to court on behalf of every consumer who could potentially be affected by this commercial practise. Even if a minority of consumers are actually a member or are affiliated to the Consumers’ Association there is no doubt that the interests of the larger group of consumers are sufficiently safeguarded. Nor is there any reason to doubt the ultimate object of Milieudefensie to realize a cleaner environment in situ; to which a further clean-up of (possibly) still existing and the prevention of new oil spills are relevant. It is pointed out as an aside that the condition that the interests of the persons represented must be ‘sufficiently safeguarded’ has replaced the requirement of representativeness proposed originally, and that in that proposal non-profit organizations and environmental and animal welfare organizations did not have to comply with this requirement. It is unlikely that this point of view has since changed.

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