He would in fact have preferred to study cuneiform script. Freerk Vermeulen, a partner in the Litigation & Arbitration Department and head of the Supreme Court litigation team, was no stranger to the legal profession in his youth, as his father was a lawyer. 'But it seemed boring to me.'
He wanted to pursue his interest in Classical Antiquity. 'But my father told me I would never find a job in that field, so I decided to study law.' After an uninspiring first year, the profession increasingly came to life for him. 'When we started applying what we had learned, I began to like it more and more.'
The pleasure he finds in the practice of law has translated into an impressive track record. After completing his studies in Utrecht, Freerk started working at the law firm of Houthoff Buruma in The Hague. 'My father had been involved in Supreme Court proceedings with Rob Meijer from that firm. He had good memories of the experience, so I decided to apply.' During his time at Houthoff Buruma, Freerk frequently crossed paths with lawyers from NautaDutilh. 'Sometimes I litigated against them in bankruptcy cases. I also worked on some Supreme Court cases for NautaDutilh.' He had in the meantime specialised in Supreme Court proceedings. 'More and more law firms began to realise that it was a good idea to develop a Supreme Court litigation practice internally.' A phone call from NautaDutilh in 2009 prompted Freerk to make a switch after eight years. 'I became a partner, which was a big diagonal step. It was encouraging that Marc Blom (former chairman of the board) saw the potential in me.'
'Litigation appeals to me as it requires both depth and breadth of knowledge.'
Supreme Court litigation practice
Freerk was entrusted with the task of developing NautaDutilh's Supreme Court litigation practice. 'Litigation appeals to me as it requires both depth and breadth of knowledge. There are both intellectual and analytical challenges. The proceedings we handle involve discussions at the highest level, which is an enormous challenge.' His strength is the legal component. 'I can quickly come up with innovative insights, but I can also be extremely precise'.
As a partner, Freerk had other responsibilities, in addition to his day-to-day legal work. 'Suddenly I was an entrepreneur and could start designing a practice.' He soon realised that NautaDutilh is a firm where staff and partners who wish to develop and broaden their skills face few restrictions. 'One of the areas I've become more involved in recently is ESG (environmental, social and governance) and climate law. You're still expected to perform your usual work, but NautaDutilh gives you room to explore new areas of interest. In this way, it's possible to continue to grow professionally.'
In 2012, Freerk read a news item about a climate litigation case that could go all the way to the Supreme Court. The Urgenda Foundation wanted to force the Dutch government to make more efforts to reduce CO2 emissions in the Netherlands. The foundation, led by Marjan Minnesma and Professor Jan Rotmans, considered that the government was not doing enough to achieve the goals of the Paris Agreement on climate change.
Freerk's interest was piqued. 'I knew little about climate law, but it was a case that could be big and legally groundbreaking. It was exciting, difficult and daring: it ticked all the boxes. At the time, I wasn't interested in being involved for sustainability reasons.'
After reading the draft summons on the website of the Urgenda Foundation, Freerk picked up the phone. 'It felt like I was ambulance chasing, referring to a method used by personal injury lawyers in the US to offer their services. You follow the ambulance and hand out your business card.' Freerk let it be known that if the case were to go all the way to the Supreme Court, he would welcome the opportunity to oversee the matter. 'But the lawyer who was handling the case at the time wasn't interested in my offer.'
Freerk wasn't deterred. 'The remarkable thing was that the summons was based to a large extent on input from dozens of professors. They had provided the scientific ammunition. This gave the case a lot of weight.'
A different legal basis
The Urgenda Foundation's victory made world headlines in 2015. The court ruled that by the end of 2020 the Dutch government had to reduce greenhouse gas emissions by at least 25 per cent compared to 1990 levels. 'Together with Marjan Minnesma, I then looked at what NautaDutilh could do with a view to possible appellate and Supreme Court proceedings.'
NautaDutilh eventually came on board on a pro bono basis. 'Urgenda was represented by Höcker Advocaten. In the run-up to the appeal, we held many discussions with them, trying to challenge their way of thinking. NautaDutilh considered human rights to be a potential basis. 'It was a huge surprise that the court of appeal followed suit. Kudos to them because, as a judge, you assume a great deal of responsibility in doing so.'
This choice by the appellate court suddenly gave the case a broader basis. In the first instance, the government was found to have breached its duty of care not to create or allow unnecessary dangers in the lives of citizens; now it was about violating the basic human right to a healthy living environment. According to the court, citizens have a right to be protected against the consequences of extreme heat and precipitation, the disruption of ecosystems and rising sea levels. 'The bar was suddenly raised enormously.'
The climate case of the century
In late 2019, the Supreme Court rejected the government's final appeal, finding that the appellate court had sufficient authority to hold the government accountable. This ruling has had far-reaching consequences. Several coal-fired power plants must now close; those that continue to operate may do so at only up to 35 percent capacity. An additional two billion euros has been made available for sustainable energy subsidies. In addition, the government has earmarked one billion euros for a series of other measures, such as LED lighting in greenhouses, a fridge buyback programme, and more subsidies for insulation and other energy-saving measures.
Freerk was not immune to the importance of the 'climate case of the century', as it was dubbed by the media. 'From a legal standpoint, it was enormously significant. When you're pleading, you know that people all over the world are watching to see if they can do something about the failing policies of their government. You feel the weight of the case on your shoulders.' Following the Urgenda ruling, similar cases were brought in Ireland and France. 'It's unprecedented for Dutch case law to have such a significant international impact.'
It also prompted a reexamination of the relationship between law and politics. 'Many people, both lawyers and politicians alike, viewed the verdict negatively. As a lawyer, you may think it’s a slippery slope when the courts start ordering the government to take drastic measures. We [as legal profession] don't generally tell the government what choices to make.'
In the Urgenda case as well, the court left the choices to be made in the hands of the government. 'One factor that played a role was that the government itself had set ambitious targets in terms of emission levels. Nevertheless, we have been the worst performing country in Europe for years. The reduction of greenhouse gases must be accelerated as we move towards 2050, but previous cabinets have pushed the real burden under the rug. This is a concern going forward.'
Freerk: 'We all know that the level of carbon in the atmosphere is linked to global warming and that global warming can have serious consequences for biodiversity, for example, and can lead to more water shortages, extreme weather conditions and flooding. The longer we wait to reduce emissions, the longer and more expensive it will be to repair the damage caused by the higher concentration of greenhouse gases. The court emphasised that the rate of emissions reductions is not for the government alone to decide. If no action is taken, it is most likely that a dangerous situation will arise. And yet it is in our power to do something about it.'
Not an eco-warrior
During the proceedings, Freerk's view of the case also changed. 'I became increasingly personally invested. I am not someone who constantly wants to bring up climate change, but I did notice that I started talking about it more at the dinner table. I was struck by the fact that I hardly had to explain the basic issues to my children; it's a big concern for the next generation.'
'It shouldn't be a political issue at all; it's strictly necessary to take an interest in the climate.'
He would by no means call himself an eco-warrior. 'It shouldn't be a political issue at all; it's strictly necessary to take an interest in the climate. It's such a fundamental, all-encompassing issue and plays a role in almost everything we do.'
'We can be very reactive, but climate law is already changing rapidly. So it's good to know where you stand as a firm.'
According to Freerk, the legal profession would do well to think about its role in the climate transition sooner rather than later. 'We can be very reactive, but climate law is already changing rapidly. So it's good to know where you stand as a firm.'
Lawyers are by nature trained to represent all types of interests, for whatsoever client. 'Everyone should have access to justice, but I am increasingly aware that climate law goes beyond personal preferences as to whether or not to take on a case. As a firm, we are now choosing to focus on climate law, which sends a certain signal.'
Freerk tries to look at the problem as realistically as possible. 'Some may be inclined to get involved in order to assuage their conscience. I think that's an important driver for many people, but if you are realistic, you look at the maximum impact.'
Freerk's views are supported by legislation in the pipeline. Take, for example, the human rights due diligence that is increasingly required of multinationals by European law. 'Banks have some time already been obliged to account for the impact of their business, and the same goes for many listed companies. But all companies of public interest with more than 500 employees must be able to explain by the end of this year how much of their turnover is related to sustainability.'
Freerk believes this is an opportunity for lawyers. 'If you, as a lawyer, are ready on time to assist companies in this area, I think the impact of your firm is many times greater than if you refuse a client with a lagging emissions profile. Ultimately, in the transition phase, it's all about balance. It's possible to come up with a balanced approach to how we, as a firm, can promote sustainability at the required pace.'
The legal profession will probably have a limited impact in this respect. 'The push for greater regulation doesn't come from our line of work, but rather from the market and the general public. One of our tasks is to guide companies to be as transparent as possible regarding their emissions and how far along they are in terms of emissions reduction. If transparency in this area is enforced, it is mainly up to investors, employees and consumers to make the necessary behavioural adjustments.'
He acknowledges that it remains a complex discussion. 'But, ultimately, it's important to look at what you in fact do, rather than at what you choose not to focus on.' If only to avoid becoming discouraged. 'I am professionally reasonably well trained not to get discouraged. Besides, I think it paralyses us, whereas we, as a society, should be taking action now. The complexity of climate change is not going away. It is up to us now, despite all the pressure, to think at a more abstract level, both as individuals and as a firm, about the contribution we can make.’
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