ECA Interview with Bram Akkermans: Sustainability and Private Law

By: Gabriel Panza, Read time: 6 min 

Prof Dr Bram Akkermans

With the growing threat of global warming, sustainability and the protection of Earth’s environment remain central not only to the EU but also to the whole world. The law adopts an interesting position in this conflict. Specifically, the law must balance economic efficiency with sustainable practices. For instance, in the field of private law, sustainability has been increasingly gaining attention. To offer perspective on this topic, Bram Akkermans, a professor at Maastricht University and an expert in Sustainable Property law, shared his expertise with us.  

Sustainability and Private Law in Practice

Bram suggests that the field of Sustainability and Private law be seen in the context of “how can private law contribute to achieving a sustainable society,” which “depends on how you define sustainability” and on the areas of private law you focus on. In company law, for instance, sustainability is framed as addressing “corporate social responsibility” and responsibility in global value chains. Conversely, “in tort law this is about corrective and environmental justice”, especially with “litigation on behalf of citizens against states but also on behalf of citizens, against private companies”. The Shell and Environmental Defence Force case in the Netherlands serves as an example of this. This climate case against Shell aimed to legally ban the company from creating new oil fields and to impose concrete reduction targets. The intention of Milieu Defence is to force Shell to align with the Paris Climate Agreement and to precede the progression of climate change.

 Contract law and Property law also concern sustainability. Contract law focuses on contractual remedies that may “prioritize repair over damages and replacement”. The EU has implemented the Right to Repair Directive, which imposes duties on sellers to make products repairable and promote sustainable consumption. Bram brings up an interesting point, stating that the law’s support for sustainability depends on “how you define sustainability,” and remarks that “if it’s just Ecosustainability, it’s easier.”

 However, if you adopt “a wider definition of sustainability”, it expands private law’s role to also include issues like “governance,” “democracy, “" equality, and values under the UN sustainable development goals. This approach is widely supported, as embracing pluralism in understanding sustainability will enable us to develop new ways of thinking about finance, consumption, and social justice.

How does Climate Change influence property law in the coming years?

Property law links more clearly with sustainability, as the key focus here is on “how do we use the land, and do you only have rights in private law, or do you also have obligations” to sustainable use? While property law seemingly allows owners to do as they please, we are finding out this “rights-based framework” is becoming “unsustainable in the sense that it is unmanageable”. Naturally, this leads to increased regulation, in which the state determines not only what owners “can do” but also what they “must do”.  In certain jurisdictions, this is seen in apartment owners’ obligations to “climate-proof their buildings”. Although these obligations don’t generally apply to homeowners. Bram states that he “thinks it’s unrealistic” to adopt these eco-friendly obligations to homeowners, as “resistance to change in property law is real”. Despite this, embracing climate-proof obligations is likely where climate change may influence property law, not only by granting rights but also by enforcing ecological responsibilities. This perspective reframes property law by having “administrative law of public frameworks” and private law to “come together a little bit”.  

Source: by Singkham on Pexels.

Currently, climate change is driving property law to evolve, with ownership and contractual structures supporting more sustainable construction, especially when building components are designed for reuse rather than for one-time use. This may lead to fundamental questioning of property law principles, such as accession, condominium law, and certain property rights.

The Energy Performance of Buildings Directive

Speaking of embracing climate-proof obligations, the EU is currently implementing the Energy Performance Directive, which aims to achieve a fully decarbonized building stock by 2050. It does so by adopting the Energy Performance Certificates (EPCs) scheme, which assesses the energy efficiency of buildings in a transparent and standardized manner. Bram argues the EPCs are “a great way to regulate building sustainability”, comparing them to “emission trading rights as they gradually tighten standards with time instead of forcing owners to take specific measures. Essentially, instead of telling owners that “you must invest… in solar panels and double glazing”, the system requires that buildings meet a minimum certificate level of “C or higher, for example” if they want to sell or rent.

This primarily targets “commercial buildings” as “low-hanging fruit,” but to make real progress, it requires collective investment, with the government helping fund the shift to a “sustainable future”. For buildings in Flanders, Belgium, with a floor area of less than 500 square meters, a C-level EPC is required when selling or leasing the property. This standard will lead to behavioral change by prompting property owners to upgrade as market access becomes more regulated. Bram suggests that “from a property law perspective, this is problematic”, so it must be balanced with tax incentives so that owners can afford such. Transactions.  

 How can students engage in sustainability and private law outside the class?

 Adopting more sustainable behaviour regarding private law as students requires a “brutally abstract” critical thinking. Students must “first and foremost” gain a “grasp and a very good understanding of what we mean by sustainability and sustainable developments” before they can apply it to real life. Perhaps students should reflect on what kind of society they want to live in. After this, students should question, “What does that mean for the things that I own”? For instance, students can ask, “Do you really need to buy a new iPhone every year?” or, perhaps, “Do you buy something secondhand?”  Doing this allows students to consider the environmental implications of their actions.

Overall, the fields of sustainability and private law remain increasingly important as the threat of climate change intensifies. Legal instruments such as EPCs demonstrate a shift towards nudging property owners to adopt sustainable practices without mandating specific technologies. In the future, integrating sustainability in all these areas of private law is crucial to creating a society that balances environmental responsibility and social rights