summons

Notre Affaire à Tous Les Amis de la Terre, and Oxfam France v. BNP Paribas - summons

Litigation

Sabin

Notre Affaire à Tous Les Amis de la Terre, and Oxfam France v. BNP Paribas - Other

decision

Notre Affaire à Tous Les Amis de la Terre, and Oxfam France v. BNP Paribas - decision

Filing Year For Action

In October 2022, French environmental NGOs Notre Affaire à Tous, Les Amis de la Terre, and Oxfam France sent a notice of intent to sue BNP Paribas. Considering the answer by BNP Paribas, sent on January 24, 2023, as largely insufficient and unsatisfactory, the NGOs decided to bring suit before the Judicial Court of Paris. The notice of intent to sue - which was the first, and necessary, pre-trial step – and the subsequent summons filed before the Judicial Court of Paris on February 23, 2023 claim that BNP Paribas violated the loi sur le devoir de vigilance of 2017 (Law on the duty of vigilance, incorporated in articles L. 225-102-4 and L. 225-102-5 of the French Commercial Code), the articles of the Civil Code on the prejudice écologique (articles 1246-1252 of the French Civil Code), which refers to any “non-negligible impairment of the components or functions of ecosystems or the collective benefits derived by humans from the environment”, and BNP’s “unilateral commitment of will” to limit and combat climate change.

The law on the duty of vigilance provides that specific companies (those that employ “at least five thousand employees within the company and its direct and indirect subsidiaries, whose head office is located on French territory, or that has at least ten thousand employees in its service and in its direct or indirect subsidiaries, whose head office is located on French territory or abroad”) must establish a plan to prevent the violation of human rights and environmental damage that may occur in the course of their business. The plan must “include reasonable vigilance measures to identify risks and prevent serious violations of human rights and fundamental freedoms, the health and safety of individuals and the environment, resulting from the activities of the company and those of the companies it controls (...) as well as from the activities of subcontractors or suppliers with whom there is an established business relationship, when these activities are related to that relationship.” If the plan is not correctly drafted or is inadequate to measure and prevent these risks, the company is liable for the damages that it could have prevented. Anyone with a legitimate interest can also ask for injunctive relief to force the company to comply with the law, a groundbreaking preventative mechanism for French legal proceedings.

The summons sent by Notre Affaire à Tous et al. to BNP Paribas details multiple violations of the law. The violations relate not only to how BNP Paribas’ plan is drafted but also the lack of clarity concerning the report of information about investments and loans and, last but not least, the shortcomings of the measures that the bank allegedly implements to respect the parameters of the Paris Agreement. First, the plan is not self-sufficient, but it refers to other documents that do not provide for binding commitments. Second, it does not identify with sufficient clarity the climate risks deriving from its activities, both in terms of the fossil fuel projects in which BNP Paribas is directly involved and the companies that it supports through its financing and investments. Third, it is not transparent concerning the disclosure and reporting of information concerning BNP Paribas’ financing and investment activities, as it is limited only to some sectors and does not include scope 3 emissions. Fourth, the plan does not contain any precise and exhaustive information on the stocks and flows of financing and investments to companies active in the fossil fuel sector. Finally, the plan does not include the commitment to cease all financing and investments that support the expansion of fossil fuels that is necessary to comply with the law on the duty of vigilance. Therefore, the plaintiffs claim that BNP Paribas must immediately terminate any financing to companies which develop new fossil projects and any investment in any company which develops new fossil projects. Concerning its existing investments, BNP Paribas must exercise its voting rights and influence in order to force the invested company to renounce new fossil projects and adopt, detail and publicly implement measures compatible with limiting global warming to 1.5°C. If this is not possible, BNP Paribas must divest. Moreover, concerning its activities of financing and investment in any GHG emitting activities, it must adopt, publish and effectively implement all measures compatible with a 1.5°C trajectory. 