Judgement in the case of Zenith and Exolum vs. the State of the Netherlands

Publication | 27-01-2023

NB This is a translation, the official text of this court ruling can be found on Uitspraken.nl Jurisprudentie bij Rechtspraak.

1. The proceedings

1.1. The course of the proceedings is apparent from:

• the summons of December 16, 2022, and the recovery writ of December 20, 2022, with exhibits and additional exhibits,
• the statement of defence, with exhibits;
• the pleadings of Zenith et al. and the State.

1.2. The oral hearing took place on January 6, 2023. The judgement has been set at the hearing.

2. The facts

Based on the documents and the proceedings at the hearing, the following is assumed in this case.

2.1. Zenith and Exolum are independent tank storage companies. In the Netherlands they are involved in the storage and transport of fuels and the mixing and/or processing of fuels in accordance with the specifications of their customers.

Zenith et al. are affiliated with the trade association Association of Dutch Tank Storage Companies (hereinafter: VOTOB).

2.2. The Human Environment and Transport Inspectorate (hereinafter: ILT) is a department of the Ministry of Infrastructure and Water Management. The ILT is mandated to exercise supervisory and enforcement powers on behalf of the State Secretary and Minister to ensure compliance with legislation and regulations (article 2 paragraph 1(a) Decree Establishing the Human Environment and Transport Inspectorate). The ILT can draw up policy rules to clarify existing legislation and regulations and to explain intended enforcement and supervision (article 26 paragraph 2 Organization and Mandate Decree Infrastructure and Water Management). This concerns, among other things, the fulfilment of the duty of care from Article 9.2.1.2 of the Environmental Management Act (Wm).

2.3. Article 9.212 Wm reads as follows:

Anyone who professionally manufactures, imports, applies, treats, processes or makes available to another person a substance, mixture or genetically modified organism in the Netherlands, and who knows or could reasonably have suspected that his actions with that substance or mixture or organism hazards to human health or the environment may arise, is obliged to take all measures that can reasonably be required of him in order to prevent or limit those hazards as much as possible.”

2.4. Within the EU, the Netherlands is one of the largest countries for industrial tank storage and this sector forms an important global link for the international market for liquid products, including fuels. Part of the export of petrol and diesel intended for road traffic from the Netherlands goes to countries in West Africa, where environmental requirements are less stringent than in the Netherlands and the rest of the EU.

2.5. For the Netherlands, the fuel quality is regulated in (inter alia) Directive 98/70/EC on the quality of petrol and diesel fuel. The directive has been implemented in, among other things, the Fuel Air Pollution Decree (hereinafter: Bbl). The Bbl stipulates that the environmental specifications from Annex I of the Directive must be met, which include limit values ​​for sulphur (10 mg/kg) and benzene (1.0% v/v), among other things. Pursuant to Article 2.2 paragraph 2 of the Bbl it has been prohibited since 1 January 2014 to supply fuel with more than 2 mg manganese per litre. Article 2.8 of the Bbl stipulates that the aforementioned specifications do not apply to petrol and diesel exported outside the EEA.

2.6. Since 2018, the State has had several investigations carried out into the quality of petrol and diesel exported from the Netherlands to West African countries for road traffic. On this basis, the State has concluded that the petrol and diesel exported from the Netherlands to low- and middle-income countries, including ECOWAS countries, contain substances that are (very) harmful to health and the environment in the countries concerned. This concerns sulphur in both petrol and diesel and benzene and manganese in petrol. The values ​​found are many times higher than permitted on the European market. According to the studies, the use of these fuels leads to air pollution, premature death, fetal growth retardation, respiratory infections and heart disease. According to these studies, the Netherlands is one of the largest exporters of low-grade fuels to these countries.

These research results have been shared with companies and parties in the fuel sector.

2.7. In 2020, the heads of government of the ECOWAS countries (Economic Community of West African States) adopted two guidelines to harmonize the quality of fuel and vehicle standards as of January 1, 2021. According to the directive C/DIR.1/09/2020 the sulphur standard in petrol and diesel will be reduced to a maximum of 50 ppm. The benzene content in petrol is reduced to a maximum of 1% v/v and the manganese content is limited to 6 mg per litre. These guidelines have not yet been (fully) implemented.

2.8. In a letter dated 24 June 2021, the ILT informed companies and parties in the fuel sector and announced externally that the export of low-grade fuels violates the duty of care of Article 9.2.1.2 Wm. The ILT has requested companies to inform it no later than 1 September 2021 of the measures they are taking or will take to fulfil their duty of care.

2.9. In April 2022, the ILT announced that it intends to publish a policy rule in which, in the context of the duty of care, requirements are set for the quantities of sulphur, benzene and manganese in petrol and sulphur in diesel that is exported to (among others) ECOWAS countries.

2.10. In a letter dated 31 May 2022, VOTOB (also on behalf of its members) raised objections to the proposed policy rule. In this letter, VOTOB writes that it endorses the pursuit of better fuel quality, but points to what it considers to be an unfavourable timing and the lack of coordination with, for example, Belgium, the EU and the ECOWAS countries. She writes that she expects that more high-sulphur products will still be exported from other countries to the ECOWAS countries as a result of the proposed policy rule, and she points to the negative consequences for Dutch industry. Furthermore, VOTOB notes that it has not received a response to its proposal that the Dutch government should sit down together with the ECOWAS countries, the UNEP (UN Environment Program), the EU and the international business community to work towards a broader global solution. The letter also contains legal objections to the proposed policy rule.

2.11. On 15 August 2022, the State Secretary adopted the policy rule establishing enforcement policy regarding the quality requirements that apply to petrol and diesel for road traffic intended for export to low- and middle-income countries outside the EU, in particular destined for ECOWAS countries, in connection with the supervision and enforcement of the duty of care of Article 9.2.1.2 of the Environmental Management Act (hereinafter: the Policy Rule) (Government Gazette 2022, 20956). This stipulates that the following specifications will be used for the enforcement of the duty of care until 1 April 2023:

a. gasoline contains a maximum of 150 ppm of sulphur, a maximum of 1% (v/v) of benzene, and a maximum of 6 mg/litre of manganese;

b. diesel contains a maximum of 350 ppm of sulphur.

and after April 1, 2023, the following specifications:

a. gasoline contains a maximum of 50 ppm of sulphur, a maximum of 1% (v/v) of benzene, and a maximum of 2 mg/litre of manganese;

b. diesel contains a maximum of 50 ppm of sulphur.

The Policy Rule entered into force on August 16, 2022.

2.12. The explanatory notes to the Policy Rule discuss, among other things, the legal and market economic objections. The explanatory memorandum states – insofar as relevant here – the following:

“Scope policy rule

The fuel producers, traders and terminals operating from the Netherlands manufacture and supply fuels for the entire world. The fuel market in West Africa is important in terms of exported fuels outside the EU. The ECOWAS region consists of 15 countries with a total of 400 million inhabitants. The region relies on imports for more than 80% of their fuel consumption. Nigeria is the largest fuel market in the ECOWAS region and is more than 90% dependent on imports for gasoline. In the past three years (2019-2021), on average more than 40% of the fuels imported by Nigeria were produced in and originated in the Netherlands. (…)

The dependence of the ECOWAS region on fuel imports may increase in the future, depending on the progress of production possibilities in the destination countries. Indeed, fuel consumption is growing strongly: in the ECOWAS region, it is expected to increase from 28.2 million tons (in 2017) to 54 million tons in 2040.

Partly in view of the large share of Dutch exports in the West African fuel market, it is important to point out to operating fuel producers, traders and terminals that they comply with the duty of care pursuant to Section 9.2.1.2 of the Environmental Management Act.

(...)

Reasonableness

(...)

Financial viability

Although only limited information is available on profit margins, in a normally functioning oil market, based on studies, (...), the extra costs for cleaner fuels are estimated as financially viable for the sector.

Studies of the costs of clean fuels and vehicle technology in the US, India, China, Africa and Mexico consistently show that these costs are less than the health damage caused by poor quality fuels and vehicles. (...)

Enforcement

In addition to this policy rule, the National Enforcement Strategy (...) applies to the enforcement of Section 9.2.1.2 of the Environmental Management Act. The ILT includes all facts and circumstances in its supervision and enforcement. This may also mean that the policy rule can be deviated from if it is clear that producers, traders and terminals are taking their responsibility by taking concrete actions and measures that have effective effects in order to achieve better quality fuels and thus comply with Article 9.2.1.2. to comply with environmental management law. An active interpretation of responsibility as a producer is also in line with the producer responsibility that follows from the OECD Guidelines for International Corporate Social Responsibility (iMvO). When enforcing, the ILT must base itself on this policy rule and also take into account Section 4:84 of the General Administrative Law Act.

(...)

European level playing field

The terminal sector in particular has pointed out that the entry into force of the policy rule in anticipation of this European level playing field will lead to economic damage at the terminals because, as a result of the policy rule, fuel producers and traders will move their blending activities as well as future investment activities to terminals and locations in other European countries. The sector has therefore pointed to the need for a level playing field, at least in Europe. The ILT endorses this importance. Achieving an international level playing field is a constant focus of the ILT. This will, among other things, be linked to the initiative of the Belgian and the European Parliament for legislation on an international duty of care for multinational companies. France introduced such legislation in 2017. (...) The sector itself also has a role to play in achieving a level playing field from the point of view of the duty of care.”

2.13. On September 29 and 30, 2022, an international conference of UNEP (the United Nations Environment Program) on cleaner fuels took place in Nairobi at ministerial level. Representatives from a number of ECOWAS countries were present at this conference, as well as ministers and representatives from the Netherlands, Belgium and Sweden, among others. Oil companies were also present at this conference. The final statement of this conference includes a call to oil-exporting countries to export only oil with a maximum sulphur content of 50 ppm as from July 1, 2023, and a similar call to oil-importing countries.

2.14. In a letter dated 25 October 2022, Zenith et al. sent the Minister and the ILT a draft summons containing their objections to the Policy Rule. Subsequently, the parties held a meeting on 23 November 2022.

3. The dispute

3.1. Zenith et al claim, concisely summarized:

I.

a. primarily: to order the State to render the Policy Rule inoperative (or have it rendered ineffective) until a final judgment has been given on the lawfulness of the Policy Rule in any proceedings on the merits; or
b. alternatively: to order the State not to apply the Policy Rule in all cases against all parties until a final judgment has been given on the legality of the Policy Rule in any proceedings on the merits; or
c. more alternatively: to order the State to make such provision(s) as the Court in preliminary relief proceedings in good justice considers to fall within the line and purport as described in the summons;

II.

in all cases: to convict the State if the claim under 1. under a. or b. or c. is granted, until publication of the inoperative or non-application of the Policy Rule or the measures taken by the preliminary relief judge, in a press release on www.ilent.nl and www.rijksoverheid.nl with the judgement submitted as an appendix by press release within fourteen days at the latest after service of the judgement, as well as notification of the judgement to all parties invited to the informal consultation;

III.

Order the State to pay Zenith et al. € 925 by way of reimbursement of the extrajudicial costs on the basis of the Report BGK-integral 2013; all this with an order for the State to pay the costs of the proceedings, including subsequent costs, plus the statutory interest.

3.2. Zenith et al. base this claim on the following.
Zenith et al. endorse the purpose of the Policy Rule, but not the means that has no legal basis and – more importantly – does not serve the purpose.
The Policy Rule contains an incorrect interpretation of the duty of care and is in conflict with Article 2.8 of the Bbl, based on the Wm, which explicitly states that the environmental specifications for sulphur, benzene and manganese do not apply when fuels are exported outside the EU.  By adopting the non-democratically legitimized Policy Rule instead of an Order in Council, the legislative process has been thwarted.
In addition, the Policy Rule is ineffective because the demand for inferior fuel will not disappear as a result. Zenith et al. expect their customers to shift their activities to other ports, for example Antwerp, so that the Policy Rule will not have the desired (environmental) effect.
The Policy Rule is therefore unmistakably non-binding. By adopting the Policy Rule, Zenith et al. suffer damage because (potential) customers stay away, because these customers are not sure that they will remain immune from enforcement despite Article 2.8 Bbl. Adopting the Policy Rule unchanged is therefore unlawful towards Zenith et al.
In order to get the Policy Rule off the table, Zenith et al. have performed various extrajudicial activities. The State is obliged to reimburse the costs incurred for this in accordance with the scale of the Report BGK-integral.

3.3. The State puts forward a reasoned defence and concludes that the claim should be declared inadmissible or rejected, with an order against Zenith et al. to pay the costs of the proceedings, including subsequent costs, plus interest. This defence will be discussed below, as appropriate.

4. The assessment of the dispute

Introduction

4.1. It is not in dispute between the parties that the use of petrol and diesel that does not meet the requirements set in the Netherlands and the EU has serious negative consequences for health and the environment. Furthermore, it is not in dispute that the Netherlands (i.e., companies established in the Netherlands) is a relatively large exporter of low-grade petrol and diesel to (among others) the ECOWAS countries.

4.2. It is up for assessment whether the Policy Rule, by which the State sets quality requirements for fuels intended for export, should be rendered inoperative or left out of application. First of all, it must be assessed whether the provisional relief judge can substantively assess Zenith et al.'s claim. In the opinion of the preliminary relief judge, this is the case. These formal points are explained below.

Jurisdiction, admissibility, urgent interest and suitability for summary proceedings

4.3. Zenith et al. have argued that the State is acting unlawfully towards them. This means that the jurisdiction of the civil court, in this case the preliminary relief judge, has been given.

4.4. Zenith et al. can only be successful in their claim if no other legal course of action with sufficient guarantees is open to them. It is not in dispute that the (adoption of the) Policy Rule itself is not appealable. The State has taken the position that Zenith et al. can await possible enforcement, after which they can turn to the administrative court, whereby the administrative court still has the option of testing the lawfulness of the Policy Rule. In the opinion of the preliminary relief judge, however, Zenith et al. have made it sufficiently plausible that they cannot be expected to await possible enforcement. They have argued that they are already experiencing the consequences of the Policy Rule, because (potential) customers who want to (continue to) export low-grade fuel can no longer contact them, or at least have doubts about this, as a result of which there are less, or for a more limited volume, contracts concluded. Although the State rightly pointed out that Zenith et al. failed to provide any substantiation on this point, it is not inconceivable in the given circumstances, in which the adjusted standards have not been implemented globally, that there are market parties who wish to continue with the export of low-grade fuels. It is therefore conceivable that Zenith et al. are already experiencing the consequences of the Policy Rule, while there are as yet no concrete enforcement decisions against which they can appeal before the administrative court. In addition, Zenith et al. have stated without contradiction that the Public Prosecution Service has launched or is considering launching a criminal investigation into several companies in the fuel sector, based on the Policy Rule. This makes it sufficiently plausible that Zenith et al. directly experience the effect of the Policy Rule and that they have an interest in obtaining a (preliminary) judgment on its lawfulness from the civil court.

4.5. In view of the alleged loss of customers, the tightening of the specifications as of 1 April 2023 and the possible administrative and criminal enforcement, Zenith et al. have a sufficiently urgent interest in their claim. The fact that Zenith et al. only brought this preliminary relief proceedings a few months after the entry into force of the Policy Rule does not change this. The State cannot reproach Zenith et al. for first entering into a discussion with VOTOB about the objections that they had previously put forward before issuing the summons, together with VOTOB.

4.6. Contrary to what the State apparently believes, the size of the procedural documents in a file is not decisive for the question whether a case is suitable for summary proceedings, which is (mainly) the urgent interest. The complexity of a case can play a role in the weighing of interests to be made.

Substantive assessment
4.7. Zenith et al. raise various, distinguishable, objections to the Policy Rule. According to Zenith et al., the Policy Rule is in conflict with the duty of care formulated in Article 9.1.2.1 of the Wm and Article 2.8 of the Bbl. They also argue that the Policy Rule is at odds with the territoriality principle and that the Policy Rule interferes with the legislative process. In addition, according to Zenith et al., the Policy Rule is ineffective because the export of inferior fuel is moved to other countries. These objections are discussed below.
 

4.8. The main point of the assessment is that the court, and certainly the court ruling in preliminary relief proceedings, must adopt a restrained attitude when reviewing government actions that make use of the freedom to implement a statutory standard. The preliminary relief judge can only intervene if the Policy Rule is unmistakably unlawful. This may be the case, for example, when there is a conflict with a higher regulation (and in particular: there is no authority to give substance to a legal standard via a policy rule) or when evidently incorrect choices have been made in the Policy Rule.
 

The duty of care

4.9. The duty of care of Article 9.2.1.2 of the Wm (hereinafter: the duty of care) imposes an obligation on parties that professionally manufacture (among other things fuel) substances, import, apply or process them in the Netherlands or make them available to others to take all measures that can reasonably be expected of them in order to prevent or limit as far as possible the known dangers to humans and the environment associated with that substance. According to parliamentary history, this broadly formulated duty of care can be used, among other things, as a safety net in the absence of specific rules on substances.
 

4.10. Zenith et al. cannot be followed in their assertion that the duty of care does not or cannot apply to the actions explicitly referred to in Article 9.2.1.2 Wm when the (fuel) materials are intended for export. Although the term export is not explicitly included in the provision, export from the Netherlands is not explicitly excluded from the duty of care either. In any case, the activities of Zenith et al. (and their customers) fall under the terms "import", "manufacturing", "processing", and/or "making available to another". The statement that the duty of care cannot relate to the protection of people and the environment outside the Netherlands cannot be accepted as correct either. It follows from the legislative history (Parliamentary papers II, 1980-1981, 16 800 no.3 p. 50 and 51 (mvt)) cited by the parties that when the predecessor of the Environmental Management Act was drafted, the interests of the Netherlands and those of the (then) European Communities were primarily considered. The remark mentioned there that the exclusive interest of protecting people or the environment in countries outside the European Communities is too far removed from the aim and purport of the draft was later nuanced by the remark of the Minister in the memorandum of reply, which stated: that “(...) the importance of this design is, in principle, boundless. After all, the dangers referred to can manifest themselves beyond the borders of the Netherlands and the European Communities.” (Parliamentary papers II, 1983-1984, 16 800 no.9 p. 46 and 49 (mvt)).  In view of the foregoing, the preliminary relief judge does not rule out the possibility that Zenith et al. are obliged on the basis of the duty of care to limit damage caused by the fuels stored and/or manufactured by them as much as possible. The fact that no concrete requirements were previously set for exports outside the EU fuel, does not mean that this is (now, still) not possible. Insights into the hazards associated with substances and the measures to be taken are constantly evolving, which means that the interpretation of the broadly formulated duty of care may also be subject to change. In these interlocutory proceedings it cannot therefore be assumed that the Policy Rule constitutes an unlawful extension of the duty of care.
 

4.11. With the Policy Rule, the State intends to give substance to the supervision and enforcement of the duty of care, which also provides (more) clarity to fuel producers, traders and terminals that produce petrol and diesel and export it to low- and middle-income countries , in particular the ECOWAS countries. The enforcement policy is a concretization of the announcement made on 24 June 2021 that the export of low-grade fuels to those countries constitutes a breach of the duty of care. The Policy Rule thus creates clarity about the requirements for fuels intended for export. These requirements naturally have consequences for Zenith et al., as they risk enforcement if they facilitate the export of fuel that does not meet the standards.
 

4.12. Zenith et al. cannot be followed in their argument that such requirements can only be laid down by order in council. Although Article 9.2.2.1 of the Wm stipulates that rules may be laid down by order in council with regard to the manufacture and export of substances, it does not follow from this that it is ruled out that policy rules may also be laid down that create clarity about the interpretation of the concept of duty of care. After all, in the absence of detailed standards, the (generally formulated) duty of care still applies. It cannot be seen why this could not be further fleshed out with a policy rule that clarifies the advanced understanding of the scope of that duty of care.
 

Article 28 Bbl

4.13. The Bbl contains rules regarding the standards applicable in the Netherlands for petrol and diesel with a view to air quality. The Bbl is the implementation of Directive 98/70/EC, and these standards apply to petrol and diesel sold in the EU. Article 2.8 Bbl stipulates that the Decree does not apply to fuel that is exported outside the EEA. That in itself makes sense since the Directive does not cover territory outside the EU. There is nothing to indicate that this provision in the Bbl is also intended to provide rules for fuels present in the EU but intended for export to countries outside the EU. Article 2.8 Bbl does not actually provide for fuels to be exported. This provision is without prejudice to the fact that requirements can and may be set for substances that are in the Netherlands but are intended for export outside the EU, for example in the form of further detailing the duty of care. There is therefore no reason to assume that the Policy Rule is in conflict with the provisions of (Article 2.8 of) the Bbl.
 

Territorial principle

4.14. As considered above, it cannot be ruled out that the duty of care protects interests in countries outside the Netherlands and the EU. Since enforcement is limited to the Netherlands, enforcement does not conflict with the principle of territoriality, i.e., the principle that regulation should be limited to regulation within national borders. Zenith et al. cannot be followed in their assertion that the State actually 

prescribes specifications for countries other than the Netherlands in which the fuels will be marketed. There is no question of 'prescribing' since the specified fuel specifications are in line with the specifications formulated in the Guidelines and UNEP standards drawn up by the ECOWAS countries. They also comply with the final statement of the Nairobi conference. The position that the ECOWAS countries (and other low- and middle-income countries) are being forced against their will by a standard is therefore not correct. The sole circumstance that these are agreements that must be implemented in the various countries and that have not (possibly) been implemented yet, does not detract from this. The State must be deemed to have the freedom to contribute to the creation of conditions that are in accordance with the aforementioned Directive, the UNEP standards and the aforementioned final statement by further shaping the duty of care. The intention of the State, which wants to prevent the use of harmful fuels in the ECOWAS countries by imposing the Policy Rule, is therefore in line with the (partial) responsibility of the State, judged to be present in the Urgenda judgment (High Council20 December 2019,ECLI:NL:HR:2019:2006.) to take (preventive) measures to protect the climate. ) to take measures. This responsibility undoubtedly extends to the environment (in general) and public health.

Crossing the legislative process

4.15. As considered above in 4.12, the provisional relief judge does not rule out the possibility that the duty of care will be filled in with a policy rule. This does not show that the choice for a policy rule instead of an Order in Council against Zenith et al. is unlawful. In this context, the State has also stated, without being contradicted, that various procedural safeguards have been taken into account in the preparation of the Policy Rule and that the Policy Rule has been coordinated with the various ministries and that the House of Representatives has also been involved in its preparation. Finally, the Policy Rule was submitted for consultation, so that Zenith et al. were able to comment on it via VOTOB, which they did. The ILT then addressed these objections in the explanatory notes to the Policy Rule. Insofar as Zenith et al. have an eye on the policy analytical review to be made for an Order in Council on this point, this will be discussed below under the heading of effectiveness.

Efficiency

4.16. One of the main objections of Zenith et al. is that the Policy Rule would not be effective, because the export of low-grade fuels is being moved to other countries from the Netherlands. According to Zenith et al., this makes their competitive position worse, without environmental and health gains in return. It must be admitted to Zenith et al. that it would be better for the interests of the environment and health and market forces if the fuel specifications were introduced at global or at least European level. This is also recognized by the State. This does not mean that the Policy Rule is therefore based on an evidently incorrect choice. It is important for this that the share of low-grade fuel from the Netherlands is relatively high and that it has not been demonstrated that all suppliers will relocate their production (and will thus not respond to a moral appeal to supply less polluted fuel to the ECOWAS countries in protection of human environment). In this context, the State stated without contradiction during the oral hearing that the Policy Rule has so far led to a number of large producers exporting cleaner fuel from the Netherlands and that, in any event, there is no question of a shift in production to, for example, Antwerp for the time being. The contrary has not been made plausible by Zenith et al. The State 

has also stated that efforts are being made to further cooperation in the Benelux context, in a European context and with the UNEP, so that it can be expected that the uneven playing field is only temporary.
 

Conclusion and litigation costs and expenses

4.17. The conclusion is that, in the opinion of the preliminary relief judge, the Policy Rule is not unlawful towards Zenith et al. The claims of Zenith et al., including those with regard to the extrajudicial costs, are therefore rejected.

4.18. Zenith et al., as the unsuccessful party, are ordered to pay the costs of these proceedings, as claimed plus the statutory interest. There are no grounds for an order to pay the subsequent costs, since the costs order also results in an enforceable title for these subsequent costs (cf. HR 19 March 2010, ECLI:NL:HR:2010:BL1116, NJ 2011/237).

5. The decision

The preliminary relief judge:

5.1. rejects the claim;

5.2. orders Zenith et al. to pay the costs of these proceedings, estimated so far on the part of Zenith et al. at € 3,853, of which € 1,016 in lawyer's salary and € 2,837 in court fees;

5.3. determines that, if the legal costs order has not been paid within fourteen days from today, Zenith et al. will owe statutory interest thereon;

5.4. declares this judgment provisionally enforceable with regard to the cost order.

This judgement was pronounced by H.J. Vetter, LL.M. and publicly pronounced on January 27, 2023.