Introduction

Scope of application

Compliance program

Protection of whistleblowers

Audit and sanctions

Rules arising from the Sapin II Law

EU law

French law

Rules derived from competition law

Sapin II Law/Competition

Scope ratione personae

Scope ratione materiae

Scope

Development of plan

Measures included in plan

Inclusion in management report

Vigilance plan

Injunctions

Civil liability

Sanctions

Duty of vigilance (devoir de vigilance)

CSR programs

Reporting

Communication

Reporting and communication

Judicial sanctions

Risk to reputation, strategy and stability

Corporate Social Responsability (CSR)

Middlenext Code

IFA Corpus

AFEP - MEDEF Code

Types

Principles of governance

Principles incorporating CSR values

Principles

Comply or explain

Binding force

Private codes of conduct

Compliance

Setting up a CSR program involves several stages. It is essential for the undertaking to identify its ethical needs, key issues, the existing measures and the risks to be anticipated. As a general rule, an audit of the undertaking should be carried out to determine the objectives to be achieved and the stakeholders involved. According to the Global Reporting Initiative , the undertaking must first …

Implementation of program

Setting up a CSR program involves several stages. It is essential for the undertaking to identify its ethical needs, key issues, the existing measures and the risks to be anticipated. As a general rule, an audit of the undertaking should be carried out to determine the objectives to be achieved and the stakeholders involved. According to the Global Reporting Initiative , the undertaking must first determine the themes relevant to sustainability reporting, which enables the company to communicate information on its most significant impacts on the economy, the environment and people. They are defined in three stages: understanding the organization's context, identifying potential and actual impacts, and assessing their significance. During these stages, the organization regularly identifies and assesses its impacts, as part of its day-to-day activities, by engaging with the relevant stakeholders and experts . To understand the organization's context, the undertaking must first consider the activities, business relationships, stakeholders and sustainability landscape of all the entities it controls or has an interest in, including minority interests. The organization must then consider the actual and potential impacts it causes or to which it contributes through its activities, as well as the actual and potential impacts that are directly linked to its transactions, products or services, through its business relationships. This identification constitutes the first stage of due diligence, defined as the process of identifying, avoiding, mitigating and justifying the way in which the organization remedies its actual and potential adverse impacts .

Where the organization is unable to identify actual and potential adverse impacts across all its activities and business relationships, it can carry out an initial assessment or scoping exercise to identify the general areas of its activities and business relationships where adverse impacts are most likely to be present and significant, and then identify and assess the actual and potential adverse impacts for those general areas. Assessing positive impacts involves the undertaking examining its contribution to sustainable development through its activities, and determining how it can shape its purpose, business model and strategies to produce positive effects that contribute to the goal of sustainable development. The final stage in defining the relevant themes, measuring the significance of impacts, involves identifying and then prioritizing them, in order to take steps to address them and determine the themes for reporting. This assessment involves both quantitative and qualitative analysis . The significance of an impact is the only criterion for determining whether a theme is relevant for reporting. Having tested its relevant themes, the undertaking must have them uphold by the governance body, or if there is none, by a senior manager or group of senior managers within the organization.

In addition to determining the relevant themes for sustainability reporting, implementing a CSR program also involves consultation with stakeholders. According to ISO26000, the undertaking must recognize, take into account and respond to the interests of its stakeholders. In addition to identifying them and taking account of their interests and rights under the law, it must recognize that certain stakeholders can have a significant influence on its activities. It must therefore :

- assess and take into account the relative ability of stakeholders to contact, interact with and influence the undertaking;

- take account of the relationship between the interests of its stakeholders and the broader expectations of society and sustainable development, as well as the nature of the relationship between stakeholders and the undertaking;

take into account the point of view of stakeholders whose interests are likely to be affected by a decision or activity, even if they play no formal role in the governance of the undertaking, or if they are unaware of these interests.

- identify stakeholders , the undertaking needs to determine those to whom it has legal obligations, those who might be positively or negatively affected by its decisions or activities, or likely to be concerned by them, and recall those who have been involved in the past when similar concerns have had to be addressed. It must also consider who might be in a position to help the undertaking address specific impacts, to influence its capacity, or who would be at a disadvantage if excluded from the dialogue. Finally, it must determine who in the value chain is affected.

The Fédération Syntec, which represents French companies and groups , defines a stakeholder as any party, whether internal or external to an undertaking, who has an interest in its operation in terms of social responsibility. It believes that all undertakings should draw up a stakeholder map in order to stand back and provide a concrete structure for the relationships they maintain, both internally (employees) and externally (subcontractors, suppliers, service providers, press, local authorities, etc.), in order to improve dialogue with their stakeholders, anticipate risks (payment deadlines, competitive risks, recruitment issues, etc.), promote innovation and create a virtuous ecosystem around their undertaking.

According to the French committee for the environment and sustainable development (Comité français pour l'environnement et le développement durable) , stakeholders are both national and external to the undertaking, and may affect or be affected, directly or indirectly, in the short or long term, positively or negatively, by its activities, products, services and strategies deployed to achieve its objectives. The committee has drawn up an indicative list of stakeholders, which is unrealistic in view of its length , while specifying that it is specific to each undertaking, depending on the activity carried out.

In the final stage of implementing a CSR program, the undertaking must initiate a dialogue with its stakeholders, which can take several forms. It can be initiated by the undertaking itself, or begin as a response to one or more of its stakeholders. It can take place in informal or formal meetings, in various forms such as individual interviews, conferences, workshops, public hearings, round tables, advisory committees, regular and structured information and consultation procedures, collective negotiations and interactive forums. Such interactive dialogue is intended to enable stakeholders to make their views heard through two-way communication. ISO specifies that genuine dialogue with stakeholders implies that the parties are independent and that any financial or similar support is transparently disclosed.

In respect of employment law, Article L. 4121-3 of the Labor Code stipulates that the employer must consult the occupational risks assessment document and its updates, the social and economic committee and its health, safety and working conditions commission, if they exist, or the employee(s) responsible for the undertaking's occupational risk protection and prevention activities, as defined in Article L. 4644-1, if they have been designated. Failing this, if the expertise available within the company does not allow it to organize these activities, the employer may, on the advice of the social and economic committee, call on the services of occupational risk prevention specialists belonging to the inter-company occupational health and prevention service to which it belongs, or duly registered with the administrative authority with expertise in the field of occupational risk prevention and the improvement of working conditions. It has been held that employee representatives must be involved in the assessment of risks to workers' health and safety, and that the social and economic committee, whose remit is to promote health, safety and the improvement of working conditions in the undertaking, must be consulted in the event of any significant change in work organization .

The GRI is an international organization that proposes guidelines and indicators for sustainable development for undertakings. It is a benchmark for monitoring and reporting social, economic and environmental performance in the context of CSR.

The undertaking must document its process for determining the relevant issues, specifying the approach adopted, the decisions, assumptions and subjective judgments made, the sources analyzed and the evidence gathered. This review ensures that the relevant topics represent the organization's most significant impacts in each new reporting period.

According to the UN Guiding Principles, in order to identify, prevent and mitigate human rights impacts, and to report on how they are being addressed, undertakings must carry out due diligence as early as possible in the life of a new activity or relationship. Where undertakings have a large number of entities in their value chains, they should identify the general areas where the risk of negative human rights impacts is greatest, whether due to the operating environment of certain suppliers or customers, the particular activities, products or services involved, or other considerations, and prioritize them for the exercise of due diligence.

To assess negative impacts, the undertaking must determine their degree of severity, i.e. the likelihood of the impact occurring. In the case of potential adverse impacts on human rights, the severity of the impact takes precedence over its probability. 
The significance of positive impacts is determined by the scale and scope, as well as the probability of the impact.

Stakeholders are defined by ISO26000 as organizations or individuals who have one or more interests in any decision or activity of an undertaking. Some stakeholders are an integral part of the undertaking. They may be members, employees or owners. However, groups whose vocation is to defend social or environmental causes can be stakeholders of an undertaking whose decisions and activities have an essential and significant impact on those causes.

https://www.syntec.fr/wp-content/uploads/2020/10/rse_syntec_2020_def.pdf (in French).

Or Comité 21, which supports organizations in implementing sustainable development.

 - Representatives of the state, a local authority or a state institution (administration, government, ministry, local authorities) where the undertaking's international headquartersare located;

- the undertaking's senior management (general management and functional departments, sustainable development department, purchasing department, human resources department, legal department, sales department, administrative and financial department, public affairs department, board of directors, etc.);

- international trade union representatives;

- representatives of national trade union confederations in the country of the international headquarters;

- representatives of environmental protection NGOs;

- representatives of the majority shareholder, investors (banks, agents, responsible investors depending on the undertaking's business model) and rating agencies or analysts;

- representatives of the undertaking's personnel and employees (from staff representative bodies);

- representatives of major customers (direct and indirect for a “Business to Business” undertaking) or consumer/user associations (for a “Business to Consumer” undertaking);

- representatives of key suppliers, subcontractors or distributors;

- industry representatives (competitors, professional associations, industry associations, trade associations;

- researchers or academics (specialized in key areas for the undertaking);

- representatives of training or consulting organizations;

- representatives of future generations (students, young people).

- social representatives in the areas of greatest impact;

- representatives of NGOs or international solidarity foundations, partners and beneficiaries of sponsorship initiatives;

- representatives of the local population (citizens, residents, residents' associations, chambers of commerce, local associations, indigenous communities);

- special-interest organizations or experts (public or private);

- NGOs or industry organizations (if any);

- representatives of CSR initiatives carried out with undertakings in the same

- representatives of trade union confederations or federations

- representatives of a supervisory authority or self-regulatory body

TJ Nanterre, 14 April 2020, LawLex202400003211JBJ.

Compliance

133. Implementation of program

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

133. Implementation of program

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise