Netherlands

Key developments in 2024

ESG, climate litigation and forever chemicals

In a class action brought by ‘Stichting Fossielvrij’ against KLM concerning greenwashing, the Court of Amsterdam ruled on 24 March 2024 that several of the advertisements run by KLM were misleading and therefore unlawful. The public attention for the harmful effects of PFAS also continued. In April 2024 eleven interest groups (including firemen, military personnel and residents living near airports) commenced a lawsuit against the Dutch State, asking the State to take faster measures to curb both the emissions and spread of PFAS. The lawsuit also calls for improved monitoring and quicker enforcement. Further developments will likely take place in 2025.

In November 2024, the Court of Appeal of The Hague overturned the 2021 ruling in the climate case against Shell. The court confirmed Shell’s duty to align its business model with climate goals, particularly limiting global warming. While Shell’s efforts to reduce direct (scope 1) and electricity-related emissions (scope 2) are in line with climate objectives, the court found no legal violation regarding Shell’s scope 3 emissions, which stem from fossil fuel use by end-users (e.g., gasoline consumption). The court ruled that there is no clear standard for reducing these emissions and questioned whether a court order would effectively reduce global emissions, as other producers might compensate for Shell’s reductions.

CSRD

Insurers faced pivotal changes under the Corporate Sustainability Reporting Directive (CSRD), requiring detailed disclosures on ESG impacts and value chain risks. Key developments included the integration of the European Sustainability Reporting Standards (ESRS) and intensified stakeholder scrutiny on climate-related risks.

Class actions (WAMCA)

Up until now, the class action procedures initiated under our new regime have consistently remained stuck in the formal phase, the admissibility phase. In many complex class action (or so-called WAMCA)-procedures, this formal phase has proven to take years. In 2024, the first judgement on the merits under the new regime for class actions  took place. In this case, an energy company called Vattenfall was sued for overcharging companies for years. The Court of Amsterdam ruled that Vattenfall was allowed to charge these costs and did not act unlawfully. Furthermore, a notable judgement under the WAMCA concerning monetary damages was dismissed on substantive grounds, highlighting challenges in obtaining such awards. The case reflects the evolving nature of Dutch class action procedures, where outcomes are often tied to the specifics rather than procedural shortcomings. This suggests the framework of the new regime is maturing, but there are still hurdles in achieving financial compensation for claimants. 

AI-Act

Dutch insurers are experimenting with AI and many are already using AI models in their business.  It is currently most commonly used for customer service (i.e. chatbots), fraud detection and claims handling. With the AI-Act entering into force on 1 August 2024, a new legal framework has been created. Members of the Insurers' Association have already been bound since 2021 by the Ethics Framework for data-driven decision-making, requiring insurers to carry out additional checks when deploying automated decision-making, chatbots and other AI applications. This framework is based on the Ethics Guidelines for Trustworthy Artificial Intelligence, as commissioned by the EC, and hence based on similar principles as the AI-Act. 

Developments in product liability

The rise of AI has led to significant developments in liability law. First and foremost, the long standing directive on product liability from 1985 has been amended through a new product liability directive (2024/2853) of 23 October 2024, which has been published in the Official Journal of 18 November 2024. 

New unwritten ground for strict liability?

Furthermore, on January 12 the Dutch Supreme Court ruled that even if a building contractor has prepared and executed his work carefully, he may, under circumstances, be liable for damages that are the result of that work. This is significant, because in the Dutch legal system, one can only be held liable in case of either wrongdoing, or in cases of strict liability stipulated in our Dutch Civil Code. This potential ground for liability of a building contractor implies an unwritten ground for strict liability. The most notable circumstances mentioned, was the fact that a significant risk associated with the construction work materialized, that the contractor and the principal profited from the works whilst the party that suffered harm did not, and that the contractor and the principal could (or should) have insured themselves against liability. 

What to look out for in 2025

ESG, climate change litigation and forever chemicals

In 2025, the first hearing will take place in the lawsuit that Greenpeace brought against the Dutch State concerning the mitigation of climate change in Bonaire was found admissible. We also expect further developments in the PFAS-claim against the Dutch State (see above) and the lawsuits against Tata Steel that were announced in 2023, as well as a verdict in a Greenpeace-case concerning the measures the Dutch government has implemented to reduce nitrogen emissions.

CSRD

Looking ahead to 2025, insurers should prepare for external mandates, expanded assessments, and closer alignments with global frameworks like the International Sustainability Standards Board (ISSB). Enhanced transparency in underwriting and investment decisions will be crucial as regulators and investors demand robust, credible sustainability strategies and disclosures.

Class action

The WAMCA system continues to struggle due to the limitations imposed on litigation funders in a few major decisions in the second half of 2023 (i.e. Airbus and Tiktok decisions). Courts are showing an increasing interest in capping success fees for litigation funders. Simultaneously, it is expected that the appointment of representative organisations will be tied to stricter registration and certification requirements to ensure effective representation.

Natural disasters and climate insurance

Insurers face significant challenges due to the increasing financial burden caused by natural disasters such as floods, storms, and heatwaves. Flooding, in particular, is expected to have increasingly disruptive effects in the Netherlands due to climate change. Insurers are likely to raise premiums to cover rising costs and impose stricter conditions, such as higher deductibles or exclusions for certain risks. Additionally, they will invest more in risk modeling and preventive measures to mitigate damage. Collaborations with governments and customers focused on climate adaptation will also play a larger role in their strategies.

AI-Act

The deployment of AI by insurers is expected to increase, although the Dutch Central Bank and the Authority for Financial Markets find that the impact of AI on the financial sector in the coming years is still difficult to estimate. In 2025 and 2026, most obligations of the AI Act will become applicable, which is particularly going to impact the usage of high-risk AI in the context of credit scoring, and risk assessment and pricing of life and health insurances.  Insurers will need to timely start taking stock of their obligations under the AI Act.

Development in product liability

The new directive on product liability (2024/2853) needs to be implemented in the member states per 9 December 2026. Key changes of the new directive are that software and AI are now explicitly included within the scope of product liability. The range of liable parties is expanded to also include manufacturers' authorized representatives and service providers and there is a broader scope of damages (including lost data). The directive accommodates claimants in broader access to documents and a presumption of causality. The latter approach is also included in a separate proposal for AI liability, but this is not yet final and the outcome is uncertain.

New unwritten ground for strict liability?

As Dutch tort law usually requires a careless act, the ruling of the Dutch Supreme Court of 12 January has caused some controversy in the legal world. Some even wondered if that requirement could now be considered abandoned in general, as a result of this ruling. Even though the Supreme Court has definitely broken new ground, the scope of this ruling seems limited to (construction) cases that share the particular circumstances of this one. The impact of this ruling on the vast majority of tort cases should therefore not be overestimated too lightly, at least not until a more widely applicable ruling of the Supreme Court follows.

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