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On a sunny day in late March 2022, Jens Mosselmans had just stepped out of a hearing before the Belgian Constitutional Court in Brussels, on the Koningsplein (Place Royale), and the adrenalin was still pumping.

“After 20 years of being a lawyer, I am still charged up after a court audience,” he says over a video call. “Every time! But afterwards, it’s a nice moment with your colleagues because you did something together and we always go relax and have coffee or a couple of beers. Celebrating teamwork together is very important to me.”

Arguments before the Constitutional Court in Belgium are exceedingly rare, so when they do occur litigants want only the best representation. Jens helps heavy industry and energy companies navigate environmental and public law, which comprises administrative, tax, criminal, and procedural law
as well as constitutional cases. This corner of legal practice can provide national and regional governments, and ministers or other officials within them, with much discretionary power. As such, it is easily politicised, and therefore constantly changing. Companies are often at their wits’ end trying to predict how decisions over which they have no control might affect their operations, and such uncertainty inhibits their ability to plan ahead. Jens advises them on possible outcomes or developments, and challenges decisions that go against their interest and which a court might find unreasonable.
 
As a member of the Sustainable Business & Climate Change team at NautaDutilh, much of Jens’ work these days concerns the energy sector. “I’m advising the traditional stakeholders in energy – fossil fuel companies, gas power stations – that want to make the transition to renewable energy. That’s the part that makes it interesting,” he says.

Debates over how to conduct this transition in Belgium erupted into a political crisis during the second half of 2021. The Green Party had made its participation in a fragile coalition government conditional upon a nuclear phase out by 2025. But as gas prices soared over the winter of 2021-2022, the wisdom of this policy was called into question. Russia’s invasion of Ukraine in February made the debates even more immediate; politics had again entered the fray of already complex and technical changes to administrative and environmental law, and Jens suddenly found himself at the centre of these economic and political tensions. The upshot
for Jens’ clients was yet more uncertainty. “I’ve spent the last six months on this topic,” he says.

Dramatic transitions
It’s a testament to Jens’ character that he withstands such pressures with exceptional good humor, equanimity, and charm. A few days after his appearance before the Constitutional Court, he spoke from the terrace at Brouwerij ‘t IJ, in Amsterdam. Beneath De Gooyer molen, at 26.6 meters the tallest wooden windmill in the Netherlands and dating from 1609, one of the oldest in Amsterdam, it’s an apt setting for a conversation about transitioning (back) to reliance on renewable energy.

Jens is disappointed that this debate was even necessary: The transition to clean energy, he maintains, “should have been tackled 20 years ago.” Transitioning involves permits, subsidies, and other requirements that take years to sort. “You have to lay the basis in a sustainable manner,” Jens says. For years, he and his colleagues “believed that renewable energy projects would increase and foster the energy transition. But that’s not the case in Belgium. Nevertheless, as a firm, we will continue to advise our clients in all these domains, and I think we have a solid track record.”

Jens exhibits perhaps a surprising degree of determination for someone who, early in life, had no inclination to become a lawyer. Instead, he wanted to be an actor. His parents offered to pay for acting school on the condition that he first obtain a university degree. He would be the first member of his family to attend university, and Jens suspects that his parents knew that after a few years, he would lose interest in acting. They were right: After three years, he decided to pursue a career in the law. “I just hadn’t the appetite for acting anymore,” he recalls.

Jens joined NautaDutilh in 2004, and immediately acquired the taste for constitutional arguments when tasked to prepare a brief for the Constitutional Court. Soon after, he got to work advising clients on environmental issues. “I worked especially on heavy soil pollution for major oil companies, which always had problems at their gas stations,” he recalls.

Later he turned his attention to urban law and public procurement. He assisted with permitting, including arguing appeals following a permit refusal.

“Challenging a permit refusal is always an uphill struggle,” Jens admits.

The decision to grant a permit ultimately resides with a single person, Jens points out. He recalls a case where the government’s expert advisers recommended that a permit be issued, but the minister denied it.

“I can easily attack a decision if it’s poorly motivated – if it’s not supported by the file,” Jens says. “One of the principles of administrative law is reasonableness: If you neglect all the advice that has been rendered by the experts, then I have a solid case.”

Alternate strategies
Politics can sometimes interfere, which complicates matters. In such instances, Jens prefers to re-route the permit request through administrative procedure, rather than litigation. “Achieving a socially responsible solution is not usually obtained through long, costly legal procedures,” he believes. He recently successfully deployed this strategy on behalf of a petroleum company; failure would have meant the loss of hundreds of jobs. Another recent case, involving a large industrial concern, led to the client’s working to put a former waste product from soil pollution to use in the circular economy.

‘Achieving a socially responsible solution is not usually obtained through long, costly legal procedures’

 

In 2020, NautaDutilh’s board invited Jens to join the Sustainable Business & Climate Change team. “I a bit Forrest Gump’d my way into it,” he says with typical modesty. His expertise on the energy transition in Belgium would be a beneficial complement to the same domain of work by NautaDutilh partners in the Netherlands, such as Gaike Dalenoord (see interview, p. 6), enabling the firm to offer representation on similar topics in two jurisdictions. “They contacted me, saying, ‘You have this background, and some economic background – why don’t you join our core team of sustainable business experts?’ I didn’t hesitate for a second.”

Diverse portfolios
Nowadays Jens represents companies that might have any form of energy production in its portfolio, he says. “I’m representing energy companies that have everything in their portfolio – oil, gas, wind, and solar,” Jens says. “Companies come to me and say, ‘We have to comply with this environmental legislation, how do we do it? How can we implement this? How can we cope with governmental requirements?’”

One such requirement is sustainability clauses, which are sometimes added to the conditions for the government’s granting of a permit. New gas plants, which will need to be constructed as a result of the mandated shutdown of all but two of Belgium’s nuclear power facilities, are among the energy sector infrastructure projects that are subject to such clauses. “Concrete deadlines are imposed for converting the plant to running on hydrogen instead of natural gas,” Jens points out. As such, the firm’s advice on implementing these clauses can make a concrete contribution to the energy transition.

Operationally, it’s not always easy for clients to change their business overnight. But Jens finds that “companies in Belgium are really trying to do their best to comply with the regulations and standards that society now imposes. It’s very challenging, but at the same time very cool, to help them maintain a balance on the thin line of politics, the law, and economics.”

Enhancing the ’S’ of ‘ESG’
Recent work that perhaps animates Jens the most concerns another aspect of social responsibility. One of Jens’ clients is Belgium’s Federal Agency for the Reception of Asylum Seekers, known as Fedasil, a public interest organisation that organises applicants’ protection and ensures the quality and consistency of their housing. Fedasil was engaging with the owner of some holiday home parks to receive recent arrivals from Ukraine. He knew that the counsel for the opposing party would have less experience than he, Jens recalls, “so it’s easy for me to start talking legal. Regulatory public procurement law, it’s kind of exotic; not a lot of people know about it.” He pointed to sections of the contract he could invoke to render it null and void, and talked the owner down to a substantially lower rate for Fedasil. “I kept my poker face up, and we struck a deal,” Jens says.

So despite his parents’ intervention, Jens Mosselmans became an actor after all. “I won’t have a penny more in my pocket, but I feel good that they won’t earn a lot of euros on the backs of these refugees.”


 

Also read:

Download the full CSR report here

 

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