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

The phenomenon of economic and financial globalization has led to a considerable expansion in the size and power of certain undertakings, which sometimes relegate the influence and authority of the State to the background. Inspired by the Anglo-American concept of “corporate governance”, more and more multinationals are adopting internal rules, in addition to those laid down by law, which centralize the best practices to be adopted with regard to the organization and operation of the various corporate bodies in the interests of greater economic efficiency and to prevent damage to their assets and reputation that could result from legal convictions in the event of deviant behavior.

According to the OECD, the notion of corporate governance refers to a set of relationships between an undertaking's management, its board of directors, its shareholders and its stakeholders. It also determines the structure and systems by which the undertaking is managed and its objectives are defined, as well as the means of achieving these objectives and monitoring performance . More precisely, governance refers to the set of mechanisms which have the effect of delimiting the powers and influencing the judgments of managers, in other words, which “govern” their conduct and define their discretionary spaces. These rules of governance, which are principally geared to the fair, sound and transparent management of the undertaking, are generally contained in private codes, which may be called “codes of conduct”, “company codes”, “ethical charters” or “best practice guides" . They may be codes of good conduct specific to the undertaking, or sectoral codes applicable to several undertakings grouped together by area of activity.

Although they were initially inward-looking, enterprises have gradually become aware of the importance of positioning themselves in relation to the social responsibility their activities entail. In its Green Paper of 2001 , the Commission emphasizes that the concept of social responsibility is intended to raise awareness among undertakings, so that they decide on their own initiative to contribute to the improvement of society and reduce their impact on the environment. It adds that being socially responsible means not only complying fully with applicable legal obligations, but also going beyond them and investing “more” in human capital, the environment and relations with stakeholders - employees, shareholders, investors, consumers, business partners, public authorities and NGOs. The organizations behind sector codes have consequently been reshaping them, either to include, or to emphasize, societal responsibility concerns. Thus, in 2016, the AFEP/MEDEF code was revised to include a reference to corporate social responsibility, and then, in 2018, to add that the board of directors must now focus on “promoting the creation of value by the undertaking over the long term by considering the social and environmental challenges of its activities”. The new versions of these codes are now aimed, in addition to establishing a moral code of business conduct, at providing undertakings with a compass enabling them to acquire good practices linked to respect for human rights, the organization of labor relations, education and training, social inclusion and equal opportunities, gender equality, or consumer protection. They emphasize the values around which the undertaking wishes to unite its members, while at the same time ensuring that its business partners, suppliers and subcontractors adopt these values in their business dealings.

A priori non-binding, codes of good conduct are often based on a “comply or explain” principle. The question then arises as to whether third parties can take legal action against any breaches of these codes.

G20 and OECD Principles of Corporate Governance, 2023, 8.

Codes of conduct are distinct from “ ethical codes ‘, which are ’the set of rules and duties that govern a profession or group of people in its operations and in its relations with the outside world”, See DGT (Direction Général du Travail) circular 2008-22 of 19 November 2008 on ethical charters, whistle-blowing procedures and internal regulations.

Green paper  of 8 July  2001- “Promoting a European framework for corporate social responsibility”, COM/2001/0366 final.

Corporate governance

140. Corporate governance