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

There are two coexisting approaches to CSR. The first is that CSR is a voluntary approach on the part of organization, based on a desire for self-regulation designed to anticipate potential binding legislative action, while at the same time producing differentiated standards adapted to the situation of each individual undertaking. This approach leads to a greater willingness on the part of underta …

Voluntary or compulsory

The French acronym RSE has several meanings: responsabilité sociale des entreprises, responsabilité sociétale des entreprises or responsabilité sociale et environnementale des entreprises. It refers to the responsibility of undertakings for the effects they have on society. According to the Commission, the concept means that companies “decide voluntarily to contribute to a better society and a cleaner environment” . For undertakings, social responsibility means not only fully meeting their legal obligations, but above all going beyond them and investing “more” in human capital, the environment and stakeholder relations. Undertakings must therefore first and foremost take into account the negative social and environmental externalities of their activities before committing themselves to broader responsibility.

Derived from the English term “corporate social responsibility (CSR)”, the concept originated in the United States. It was originally based on the moral premise that private appropriation can only be justified if it serves the common good, and challenged the notion of profit as the sole raison d'être of undertakings. At the beginning of the 20th century, it often took the form of a certain paternalism, whereby the undertaking granted its employees certain social benefits, such as housing or education for their children, in order to secure their loyalty .

In the 1950s-60s, the publication by economist Howard Bowen - founder of the cooperative movement, which influenced the approach of many American and English-speaking industrialists, such as Henry Ford, Thomas Edison and Chester Barnard - of a work on the responsibilities of businessmen , gave new impetus to the concept of CSR. According to Bowen, the doctrine of social responsibility refers to the idea that the voluntary assumption of social responsibility by the businessman is, or could be, an operational means of solving economic problems and achieving the economic objectives pursued by the undertaking more generally. The business leader's responsibility is understood as his obligation to follow policies, make decisions, or adopt approaches that are desirable in terms of the undertaking's objectives and values. According to Bowen, the businessman's decisions must take account of the public good and economic policy considerations, in order to avoid regulations that would limit his freedom of action and promote the decentralized functioning of the American economy.

Until the 1970s, undertakings were primarily concerned with their economic performance and shareholder satisfaction. However, several major events in that decade changed all that. Environmental accidents such as the Seveso disaster and the Bhopal chemical plant explosion, climatic upheavals linked to global warming, the destruction of the ozone layer and deforestation, the disinvestment of public authorities and the globalization of trade gave rise to a growing reflection on the social and environmental responsibility of undertakings, an awareness that accelerated in the 1990s with the Rio Earth Summit in 1992 and, in 2000, the launch of the Global Compact by Kofi Annan. Henceforth, companies were expected not only to perform economically, but also to make a social, even societal, engagement. In this context, they must be accountable for their actions to shareholders, as well as to stakeholders such as customers, employees, public authorities and NGOs.

https://www.europarl.europa.eu/meetdocs/committees/deve/20020122/com(2001)366_en.pdf

In France, for example, the Boussac group, specialized in textiles, built workers' housing estates around its factories, which had their own crèches with linen provided, day-care centers, vacation camps, dispensaries or laundries, as well as an apprenticeship center: https://www.vosgesmatin.fr/economie/2018/08/14/richesse-et-declin-de-l-empire-textile-boussac

BOWEN, Social responsibilities of the businessman, 1953, Harper & Brothers.

Concept and origin

Undertakings are becoming increasingly aware that they are more than just economic vehicles; they are full-fledged members of an ever-changing society, which it is of vital importance to improve. Although their primary concern is to generate profits, they can also pursue social and environmental objectives, by integrating social responsibility as a strategic investment at the heart of their business strategy, management tools and activities. By assuming their corporate social responsibility, and voluntarily making commitments that go beyond the regulatory and conventional requirements to which they are subject, they adopt an open mode of governance that reconciles the interests of the various stakeholders, from management to employees to outsiders, within a global approach to quality and sustainable development . In effect, corporate social responsibility is expressed towards employees and, more generally, towards all stakeholders who are affected by the undertaking but who can, in turn, influence its success.

The concept of stakeholders took off in the United States with the publication of Freeman's work  which laid the foundations for a new approach to corporate governance. In Freeman's view, enterprises needed to take account not only of the expectations of their shareholders, but also of their various stakeholders, the notion of stakeholder being defined as“any group or individual who can affect or is affected by the achievement of the organization's objectives". Initially developed to make corporate managers aware of the crucial importance of dealing with groups or individuals whose interests go beyond the purely economic, the concept of stakeholder has subsequently developed within the framework of organizational ethics and CSR. All stakeholders, including employees, consumers and investors, are likely to play a decisive role - whether in their own interests or in those of other parties concerned, in areas such as working conditions, the environment or human rights - in encouraging companies to adopt socially responsible practices, even if the decision to assume this responsibility can only be taken by the companies themselves. This partnership-based approach to governance ultimately forces managers to strike a balance between short-term profitability and long-term investment, between making financial capital profitable and enhancing the value of human capital.

https://www.europarl.europa.eu/meetdocs/committees/deve/20020122/com(2001)366_en.pdf.

FREEMAN, Strategic management. A stakeholder approach, Pitman, 1984

A new concept of the undertaking

There are two coexisting approaches to CSR. The first is that CSR is a voluntary approach on the part of organization, based on a desire for self-regulation designed to anticipate potential binding legislative action, while at the same time producing differentiated standards adapted to the situation of each individual undertaking. This approach leads to a greater willingness on the part of undertakings to go beyond the regulations by which they are already bound, enabling them to increase their competitiveness and productivity through greater investment in human capital, the environment and stakeholder relations. The second relegates the voluntary approach to the background, and considers that legislation needs to be stepped up to force companies to take the necessary measures in this field. In France, the second approach seems to be increasingly replacing the first. For its part, the Commission has made it clear that corporate social responsibility is not intended to replace regulations or legislation on social rights or environmental standards, or the drafting of appropriate new legislation. It considers that where such regulations do not exist, an appropriate regulatory or legislative framework must be put in place to define a fair basis on which socially responsible practices can be developed . In the Commission's view, the introduction of a CSR approach is important in all types of enterprises and all sectors of activity, from SMEs to multinationals, even if it is more commonly implemented in large undertakings. In fact, it seems essential that CSR be applied more widely in SMEs, including micro-businesses, which are the biggest contributors to the economy and employment.

When CSR is implemented on a voluntary basis, it may take the form of a code of conduct that binds the undertaking or its governing bodies. It can also be illustrated by the inclusion of CSR clauses in contracts with partners, requiring them to respect principles or values whose violation could justify the termination of contractual relations. To ensure that their CSR programs are properly applied, some big companies have even set up ethics committees responsible for implementing national CSR standards. As a general rule, this committee acts as an advisory body and as a driving force for CSR. The mandatory approach, on the other hand, is the result of all the relevant legislation and regulations . These include the measures that must be put in place to prevent and uncover corruption, to facilitate reporting and protect whistleblowers, and the duty of vigilance which, in addition to fighting corruption, requires enterprises to respect human rights, human health and environmental protection. Since the Pacte Law of 22 May 2019, the social and environmental implications of their activities must be taken into consideration by all companies (Art. 1833 Civil Code).

Particularly Law No 2016-1691 of 9 December 2016; Law 2017-399 of 9 March 2017.

In 2013, France set up a national platform for global action on corporate social responsibility, which makes recommendations on the social, environmental and governance issues raised by corporate social responsibility. It brings together the relevant government departments, organizations representing both the business and economic communities, workers' unions, and representatives of civil society and research, and includes a member of parliament and a senator among its members.

In particular, the platform aims to promote CSR, both through public policies and through support for voluntary initiatives by private players, to highlight best practices and to encourage stakeholder consultation upstream of and in support of international standards negotiations. Its role is to:

- make any recommendations it considers relevant to the State, or to other institutions and organizations, including its members, likely to enhance genuine corporate social responsibility practices by undertakings and other organizations, particularly with regard to the promotion of CSR initiatives;

- take part in consultations with government departments, notably following national environmental and social conferences, as part of referrals or in response to international invitations;

- contribute to the formulation of a draft “national plan of priority actions” in favor of CSR, addressing both public policies and private initiatives, and exploring the means to develop them;

- build a widely accessible documentary base to encourage the spread of a CSR-friendly culture and support its own work, in particular by producing reports and studies on the state of CSR in France and worldwide, and ensuring maximum transparency on the platform's activities;

- contribute through its proposals to the development of French positions for CSR negotiations.

Compliance

125. Voluntary or compulsory

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Sous parties

Les notions juridiques connexes

125. Voluntary or compulsory

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Sous parties

Les notions juridiques connexes

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