Onder 4.53. Rechtbank Den Haag 24 juni 2015

The question whether the State is in breach of its duty of care for taking insufficient measures to prevent dangerous climate change, is a legal issue which has never before been answered in Dutch proceedings and for which jurisprudence does not provide a ready-made framework. The answer to the question whether or not the State is taking sufficient mitigation measures depends on many factors, with two aspects having particular relevance. In the first place, it has to be assessed whether there is a unlawful hazardous negligence on the part of the State. Secondly, the State’s discretionary power is relevant in assessing the government’s actions. From case law about government liability it follows that the court has to assess fully whether or not the State has exercised or exercises sufficient care, but that this does not alter the fact that the State has the discretion to determine how it fulfils its duty of care. However, this discretionary power vested in the State is not unlimited: the State’s care may not be below standard. However, the test of due care required here and the discretionary power of the State are not wholly distinguishable. After all, the detailing of the duty of care of the person called to account will also have been included in his specific position in view of the special nature of his duty or authority. The standard of care has been attuned to this accordingly.

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