"Companies must emerge as winners from the legislator's incentive to find their reason to be"

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"It is not because the business of the company produces profits that are sufficient to provide the meaning of the work that takes place there" (Photo: Minister of Economy Bruno Le Maire in Paris, December 6) . ERIC PIERMONT / AFP

Tribune. At the beginning of October, the Law Pact (draft law on the growth and transformation of businesses), which includes a section on the social purpose of the company, was approved in the first reading in the National Assembly, before of his passage to the Senate in January 2019.

This theme, which came to light a few months ago with the publication of the Notat-Sénard report ("The company, object of collective interest", see PDF link), goes far beyond the only legislative debate. It is rooted in a fundamental reflection, which raises the question of the purpose of the business and that responds differently from purely financial considerations.

In a country like France, any change to the civil code is an event. The pact of law, which includes among its one hundred and forty articles, the modification of articles 1833 and 1835 of the civil code regarding the company and its statutes, will not escape the rule. But in order for this event to be truly datable, two pitfalls must be avoided.

The first mistake is that of judicialization. What & # 39; is it? Adding a paragraph to article 1833, which now provides for the management of a company to be considered "The social and environmental issues of his activity", there is a risk of transforming corporate social responsibility (CSR) into a legal weapon that can be wielded against all business leaders who will be accused of not doing enough on this ground. How to determine who is doing enough?

Concern for company executives

Hence their concern for this rewriting of the civil code, all the more legitimate because the formulation adopted is very broad given the very nature of CSR. Therefore, the effect of this legislative amendment on leaders could simply be to encourage them to prevent the judicial risks of non-compliance with these requirements. So it would open the era of CSR with threats of judgment … That, we agree, does not bring up anyone.

The second danger is that of "lacquer communication", if we are given the expression. The article 1835 of the civil code is actually to be modified adding the possibility, for the statutes of the company, to specify "The reason he wants to acquire in carrying out his business". The pitfall here is clearly identifiable, and already at work: it is a matter of reducing the CSR to elements of the language for internal and external communication.

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