Further delay in Dutch implementation of CSRD expected following Council of State advice

On 3 June 2026, the Dutch Council of State issued its advisory opinion on proposed amendments to the CSRD implementing bill. The amendments would introduce a repair clause for "first wave" companies, aiming to provide legal certainty in light of the government's intention to retroactively implement the CSRD as of financial year 2024. See our February 2026 article for further background on the repair clause.

The Council is highly critical of how the government is justifying the retroactive effect and how it has explained the wording of and rationale behind the repair clause. The advice to the government is not to submit the amendments to the House of Representatives in their current form.

The outcome of this may well be that the Dutch CSRD implementation process will be further delayed. It also adds uncertainty to an already uncertain trajectory.

Retroactive effect: insufficiently substantiated

The Council's first objection relates to the retroactive application of the CSRD reporting obligations from the 2024 financial year. In its view, the government has failed to adequately substantiate why retroactive effect is necessary and appropriate.

The Council acknowledges that the correct and timely implementation of EU law may justify retroactive effect. It stresses, however, that this does not mean member states are automatically required to apply retroactive effect in cases of late implementation. On the contrary, given the principle of legal certainty and other relevant considerations, such an obligation is not self-evident.

The Council advises the government to either provide adequate substantiation for the retroactive effect in the explanatory memorandum accompanying the amendments, or to abandon its plans to introduce it.

Repair clause: necessity and wording questioned

In its advice, the Council also raises serious concerns about the repair clause. While it acknowledges the need to address uncertainties stemming from the late implementation of the CSRD, the explanatory memorandum fails to adequately substantiate the necessity of the clause or justify its current drafting.

In particular, the Council notes that the government's explanatory memorandum does not clearly identify the specific uncertainties the clause is intended to resolve and warns that the clause as currently drafted may itself create new legal uncertainties.

The Council advises the government to provide adequate substantiation for the repair clause and, if it is retained, to revise the explanatory memorandum.

Further delay in implementation expected

As a result of the Council's critical opinion, the proposed amendments must be returned to the Council of Ministers before it can be resubmitted to the House of Representatives.

These steps will further delay an already lengthy implementation phase. The parliamentary process will probably not resume until September, after the summer recess. This makes implementation before the 2027 financial year uncertain.

The government has several options going forward. It could retain both elements – retroactive effect and repair clause - in their current form, although this would be unusual given the strength of the Council's reservations. Alternatively, it could (a) retain both elements while addressing the Council's comments, (b) drop the repair clause while maintaining retroactive effect with stronger substantiation, or (c) abandon retroactive effect entirely, which would make the repair clause unnecessary.

We will continue to monitor developments closely and keep you updated.