Il lavoro propone un'analisi critica delle "concezioni volontaristiche" della responsabilità sociale di impresa (RSI, o CSR), vale a dire concezioni che ritengono che un comportamento socialmente responsabile possa essere adottato dalle imprese su base volontaria, senza un intervento da parte della legge.
Una concezione volontaristica della RSI è stata fatta propria dalla Commissione Europea: a cominciare dal Libro Verde sulla RSI del 2001 (COM(2001)366 final), e senza soluzione di continuità nel corso degli anni successivi fino alla strategia per l'Europa 2020 (COM(2010)2020), la Commissione, indicando la promozione della RSI tra le azioni prioritarie per il futuro dell'Europa, ha definito la RSI "un concetto in base al quale le imprese integrano preoccupazioni sociali e ambientali nella loro attività … su base volontaria". Dall'altro lato dell'Oceano Atlantico, concezioni volontaristiche della RSI sono altrettanto diffuse.
In questo lavoro, intendiamo dimostrare che tutte le concezioni volontaristiche della RSI - che concepiscono la RSI come intrinsecamente differente da un'attitudine caritatevole e anzi come profittevole per l'impresa - soffrono di importanti contraddizioni interne che in ultima analisi le rendono teoricamente insostenibili e praticamente irrealizzabili. In essenza, riteniamo che vi sia una contraddizione insanabile nel dire che la RSI può essere realizzata su base volontaria e allo stesso tempo che ciò non richiede, o rende almeno opportuno, un cambiamento nella legge. Questa contraddizione deriva da una serie di difetti.
Primo, assumiamo che potremmo affidarci al mercato, e specialmente a consumatori e investitori responsabili, per spingere le imprese a raggiungere il livello ottimale di RSI. Anche assumendo che il mercato funzioni in un tale contesto (cosa della quale dubitiamo fortemente), però, il meccanismo di mercato non è per sua natura in grado di condurre a una società giusta. I mercati sono capaci di selezionare la preferenza della maggioranza riguardo a ciò che è giusto per i singoli individui. Non sono capaci, invece, di selezionare ciò che è giusto per la società nel suo complesso. Per questo, c'è bisogno della politica e in ultima analisi della legge.
D'altra parte, se la RSI deve essere concepita come ricerca del profitto nel lungo termine, allora occorre identificare chi, all'interno dell'impresa, si trova nella posizione migliore per identificare e quantificare i ritorni dell'investimento in RSI e di determinare la qualità e quantità ottimale di quell'investimento. Abbiamo cioè un problema di governance. Questo problema, però, non è di ordine esclusivamente tecnico. Se l'investimento in RSI risponde ad un obiettivo di profitto nel lungo termine, il problema è quello di bilanciare interessi in conflitto tra loro - vale a dire profitto nel breve termine contro profitto nel lungo termine - che pertengono a individui diversi. La scelta di fronte alla quale siamo posti è allora, ancora una volta, una scelta di ordine politico: a chi vogliamo attribuire il potere di decidere il bilanciamento degli interessi in conflitto? Una volta fatta questa scelta, poi, come rendiamo i decisori responsabili nei confronti dei diversi portatori di interessi e più specificamente nei confronti dell'obiettivo di lungo periodo richiesto dalla RSI? Nell'attuale quadro normativo, questo sembra virtualmente impossibile. Nulla nella legge impedisce a coloro che devono effettuare il bilanciamento di resistere agli incentivi di breve termine per perseguire gli interessi di lungo periodo della comunità degli stakeholders. Questo rischierebbe soltanto di aumentare la discrezionalità degli amministratori sia verso gli azionisti, sia verso gli altri stakeholders.
La questione diventa in realtà la seguente: se la RSI è profittevole, perché gli amministratori non dovrebbero essere obbligati dalla legge a perseguirla? Nel creare programmi di RSI, gli amministratori creano una comunità di interessi tra gli stakeholders che è analoga alla comunità degli azionisti che il diritto societario considera rilevante rispetto alla creazione di un dovere di correttezza degli amministratori verso tale comunità. Se è così, dobbiamo allora chiederci se gli stakeholders appartenenti a tale comunità non dovrebbero poter sostenere la responsabilità degli amministratori e dell'impresa stessa se questo obbligo di correttezza venisse violato.
The paper proposes a critical analysis of what we call "voluntary conceptions of CSR" - that is, in short, conceptions that predicate that socially responsible behaviour can and should be embraced by companies on a voluntary basis, without intervention by law. This conceptions also imply that socially responsible behaviour does not require any change in existing corporate law.
A voluntary conception of CSR has been particularly embraced by the European Commission: starting from the Green Paper on CSR of 2001 (COM(2001)366 final), and consistently throughout the years to the Europe 2020 strategy (COM(2010) 2020), the Commission, while indicating the promotion of CSR among its priority actions for the future of Europe, has defined CSR as "a concept whereby companies integrate social and environmental concerns in their business … on a voluntary basis". On the other side of the Atlantic Ocean, voluntary conceptions of CSR are equally spread.
In this paper, we want to demonstrate that voluntary conceptions of CSR - conceived as different from a charitable attitude and as ultimately profitable for companies- all suffer from important internal contradictions that ultimately make them theoretically untenable and practically unworkable. In essence, we argue that there is an irresolvable contradiction in saying that CSR can be embraced voluntarily and, at the same time, that this does not require or strongly suggest a change in existing law. This contradiction stems from a number of shortcomings.
First, we could rely on the market and especially on responsible consumers and investors in order to push companies to achieve the optimal level of CSR. However, even assuming that market works in such a context (which we strongly doubt), the market mechanism is not able to lead to a fair society. Markets are good at selecting the majority's preferences regarding what is good for individuals. They are not good in selecting what is right for society. There is a need for politics and ultimately for law.
On the other hand, if the pursuit of CSR is to be conceived in terms of (long term) profits, we need to identify who is best placed within the company to identify and quantify returns from investing in CSR and to determine the optimal quality and quantity of CSR investment. We have a problem of governance. The problem, however, is not merely technical. If investing in CSR responds to a long-term profitability, the problem is to strike a balance between conflicting interests - short-term vs long-term profits - that correspond to different individuals. The choice we are faced to then really becomes, once again, a political choice: who do we want to entrust with the power to strike the balance between these conflicting interests? Once we have made this choice, how do we make these individuals accountable towards the different constituencies and namely to the long-term perspective required by CSR? Under existing law, this seems virtually impossible. Nothing in the law prevents those entrusted with the power to strike the balance to resist short-term incentives in order to pursue the long-term benefits for the stakeholders' community. This risks only to increase managers' discretion and decrease their accountability towards shareholders and stakeholders.
The question really becomes the following: if CSR is good for companies, why shouldn't managers be obligated to pursue CSR as a matter of law? In creating CSR programs, managers create a community of interest among stakeholders that is akin to the community of shareholders that corporate law considers in order to state that managers are under a duty of the fairness to the community itself. If it is so, then we must ask whether stakeholders belonging to this community shouldn't be in the position of claiming managers' liability and the liability of the company itself for breaching their duty of fairness.
1. The conceptions of voluntary CSR - 2. Voluntariness as a prominent feature of CSR: the regulatory framework - 3. Voluntary CSR as a form of charity? - 5. How to lead to the perception of the “instrumental” nature of CSR: pressure from outside? - 6. More on the perception of "instrumentality". The pressure from inside and the distinction between short and long term - 7. Is more discretion in carrying out long-term choices a minimal, but acceptable solution? - 8. Voluntariness with no legal obligations for anyone? - NOTE
In this paper, we intend to argue that certain conceptions of voluntary CSR - namely, the conception officially supported by the EU Commission and the so-called team production theory, supported by part of the American doctrine (1) - if taken seriously, and developed in line, undergo a series of practical and theoretical impasses, able to undermine their own viability. For "conceptions of voluntary CSR" we mean those theories that argue the possibility that CSR develops in a relevant and positive manner without significant changes in the regulatory system. In other words, there would be no need for new laws, nor for acrobatic efforts to subvert established interpretations. Furthermore, these theories argue that such a spontaneous development of CSR would not produce further legal consequences that could significantly alter the current equilibriums. We intend to demonstrate that the two propositions which assert, respectively, the feasibility of a significant voluntary CSR, and the potential for this to happen without significant change in the legal system, are practically and logically incompatible.
In European law, voluntariness is the salient feature of the definition of CSR (2). The starting points are the Green Paper (18-7-2001 COM 2001 366, n. 2.20) and Commission's Communication of July 2, 2002 (COM 2002 347, par. 3). From then on, the official notion of corporate social responsibility is described as "the voluntary integration by companies of social and environmental concerns in their business operations and business relationships with stakeholders". The characteristic of voluntariness is repeated by saying that socially responsible companies adopt "a socially responsible behaviour beyond legal requirements and voluntarily assume such a commitment because they consider it in their long-term interest". The concept has been taken up in the Communication of 22 March 2006 (COM 2006 136 final, paragraph 1) and reiterated in the European Competitiveness Report of 2008, without substantial concessions to the more dubious position of the European Parliament (Resolution of March 13, 2007 (2006/2133 (INI)) (3). We are not aware of an official definition of CSR in the U.S., but it seems that the analysis of normative data leads to results which, although characterized by some uncertainty, are broadly similar to those that we see in Europe. Both the indications contained in the Principles of Corporate Governance of the American Law Institute, according to which directors "may take into account ... ethical considerations that are reasonably regarded as appropriate to the responsible conduct of business" (4), and the indications than can overall be obtained from the majority of the so-called constituency statutes, and, finally, those derivable, at least according to some interpretations, from the common law, converge in admitting, but not requiring, that directors, in making their decisions, take into account the interests of stakeholders other than the shareholders (5). Which is equivalent, in essence, to state that the consideration of the interests of third parties has to be brought back to a voluntary choice. The situation does not seem to be substantially different in the United Kingdom, where the consideration of stakeholders is formally set as mandatory (as in certain U.S. States) but is still subject to assessment by the directors of the interest of shareholders; with the result that the reference to the interests of other stakeholders either plays a role in qualifying the best interests of the shareholders (the interest that they too can have [...]
If we were to stop at this level of the analysis, we should recognize that, in the end, CSR presents few problems to legal scholars and that all the talk over CSR produces from a legal standpoint (and perhaps not only from a legal standpoint) a mountain of gossip. If it all comes down to the fact that who wants to do a good deed must be regarded as free to do it, we do not think that the issue opens any perspective of interest. Of course one can always discuss the limits within which this freedom can be exercised and how we should allocate the responsibility for these decisions among the various corporate bodies. However, since it is clear that we don't see legions of alleged victims of excessively socially responsible behaviour by directors of their companies, this problem seems rather theoretical. Furthermore, if we take into account the trivial observation that in a system characterized by the existence of competitive markets, a company that unilaterally decides to systematically take over the costs of solving social and environmental problems beyond what is required by law, would not be able to survive for long, the whole thing sounds likely to end in a finding of substantial irrelevance of CSR both legally, and practically. Before embracing this conclusion, however, it has to be remarked that this is not the image of CSR presented in the works of supporters of its importance, and, for what interests us most, in the official European documents. The Commission expressly excludes that CSR can be likened to a kind of charity that anyone can do if he or she wants to (7). The question then is: what is the difference between voluntary CSR and charity? The answer is in all the documents in which the Commission illustrates (see eg. the articulated analysis contained in the "European Competitiveness Report 2008") the economic benefits that companies may derive from the adoption of business-oriented CSR policies (8). Therefore, it is not about the salvation of the soul, but also about the salvation of the purse. Which, as usual, can dramatically change the scenery.
The problem becomes more complex, and the legal issues involved potentially more pressing, if we make the reasonable assumption that CSR practices are not always clearly identifiable, and above all, that many of them are recognizable as both responsible and profitable only by those who put themselves in a particular perspective. We thus arrive at a first crossroad. If there are some individuals that are able to capture more than others the positive impact of these practices, the possibility of securing those individuals greater influence - by way of an amendment or a different interpretation of the rules that affect the balancing of powers within the corporation- becomes a potentially important legal issue. And here comes a bifurcation. A first alternative is to rely on the mere pressures that the company may receive from outside. A second is to act on the internal mechanisms which determine the distribution of power in the company. Let's start by examining the first alternative. The reference here is to the possible pressure that socially responsible investors and consumers may exercise on companies' decisions. From the point of view of the desirability of an intervention by the legal system, there are two problems. The first, immediate and obvious, concerns the opportunity to enhance the action of these influence groups. Since it seems impractical to attempt to turn the external pressure into an internal constraint (as it would happen by providing for a representation of certain categories of stakeholders in the corporate bodies) it all seems to boil down to an information problem. Many of the ongoing debates on the optimal legislative framework for the disclosure by firms concerning their socially relevant activities, has to do with this aspect. In our opinion, however, there is a potentially much more serious and complex problem, that is usually ignored and that we can dare to ignore only until the phenomenon of socially responsible investing will remain, as it is now, relatively limited. The problem can be expressed through a question. From the perspective of the overall purpose of the legal system, does it make sense to sponsor a system in which the choices of firms in socially relevant areas are exclusively or mainly conditioned by the pressure that their potential investors and consumers are able to exercise? We just briefly summarize what we think is the core of the problem (10). The point is that even imagining a fully functioning market, [...]
The second alternative is to rely on internal mechanisms. The theme of CSR seems then to collapse, with virtually no dross, into that of governance. CSR becomes a phenomenon that, from a legal standpoint, does not pertain in the first instance to the behaviour of firms, but to their internal constitution. Let the law be concerned with creating an appropriate organization. The good behaviour will follow. We touch here on a topic currently widely discussed by corporate law scholars, which regards the alternative between enhancing the influence of shareholders, or that of the directors, or enhancing the freedom of managers (13). This debate is usually framed within a conceptual framework that takes advantage of a currently very popular opposition: the one between short term and long term. Perhaps it is no coincidence that the topic (the distinction between short and long term) is becoming central not only in debates related to financial markets, but also in those relating to the regulation of companies and even in the context of antitrust law, where static, short-period efficiency is now often opposed to the (supposedly better) results that monopolistic competition is accredited - from Schumpeter onwards - to produce in the long run. The issue of short vs. long term is also the basis of the theories that argue the convenience for shareholders to abstain from opportunistic behaviour towards other stakeholders. The idea is that opportunistic behaviour may provide some immediate gain, but at the cost of a general reduction of the collaboration of the stakeholders and the consequent production of a surplus in the future, compared to what could have been produced in the absence of the opportunistic behaviour. It's clear, however, that if the major future gains were sure, and immediately quantifiable, their valuation, discounted for the time necessary to produce them, would be reflected in the calculations that everybody does in the present, thus making the distinction between short and long term essentially collapse. The problem arises to the extent that one assumes that this evaluation involves considerable uncertainty and debate. Hence the issue, which is mainly debated among corporate law scholars at the moment, that refers to the identification of the individuals who are potentially able to perform this assessment objectively and with the highest probability of correctness. Which means, translated into terms that are of interest for a company law [...]
One might observe that some possibility is better than no chance, and therefore still worth the effort to reaffirm the legitimacy of decisions in favour of the long term and to entrust power to the individual with the lowest bias in favour of the short term. A further and more serious problem then arises. The anodyne representation of a contraposition between short and long term is actually quite misleading. We use a simple example to explain this point. If one individual has to decide between going to a movie or save the money to take a trip at a later time, this individual faces a choice between short and long term. If a group of people that controls shared resources decides that nothing more is spent on going to the movies and everything is saved so that one day those who will be members of the group can make a nice trip, this is not a question of short vs. long period, but a question of possible conflicts of interest. It is clear that the situations we face when dealing with CSR are much more similar to the one that occurs in the second case than to that of the first. This applies not only to stakeholders, whose subject variability and heterogeneity of interests is obvious, but also for shareholders. Even leaving aside the delicate issue of conflicts among shareholders, as one of our starting points is that the benefits in the long term are not immediately perceivable nor they are quantifiable, it necessarily follows that a choice that seems negative to a part of the market, and thereby causes an immediate fall in share prices, is not a wise and neutral choice for all, but it is a choice that affects the interests of current shareholders who are not available or simply cannot wait for the long term, when the market will recognize its mistake. If one considers this profile, the creation of incentives and disincentives (including liabilities) to rebalance the pressure towards the short or the long term, becomes not a practical problem of how to get higher or lower efficiencies, but a problem of balancing conflicting interests. Therefore, the idea of leaving this balance to the decision maker (be he a shareholder, director or manager) is much less attractive. The decision to authorize an occasional care for the long term, without rebalancing the effects in the short term, cannot be presented as a practical choice in which more is better than less, but must be seen as the choice to rely on someone to manage the interests of others in the absence of a [...]
It seems to us that a final set of issues deserve to be explored. Let's start back from the voluntary nature of CSR and ask ourselves: voluntary for whom? For the individual entrepreneur, the answer is perhaps relatively easy. Is it as easy in the case of a manager - whether he is the majority shareholder, a director or a manager of a company - who acts (also) in the interest of others? If we continue to accept the premise that there are many situations in which CSR can produce a higher total surplus, the answer should be that in situations like this one the adoption of CSR practices should be mandatory for the directors and managers of the company (15). This sole consideration undermines the absolute dogma of voluntariness. And this is obvious to anyone. Here, we would like to pose another, far more complex and much less obvious, problem. Formulated in simple terms, the question goes like this: can we imagine the existence of an obligation binding the manager to ensure that the company behaves in a certain way, without the violation of this obligation resulting in a claim by the victims not only against the manager, but against the company itself? When a corporate decision harms the interest of a component or damages this component beyond the corporate interest, this component is usually deemed entitled to be compensated not only by the director, but also by the company. If there were an obligation of managers towards stakeholders, we should probably come to a similar conclusion. We then move to the following question: if there is an obligation to pursue a policy of respecting the interests of stakeholders when this policy is in the interest of the company - conceived as the interest of shareholders in the long term -, does this create a right of the stakeholders to demand that directors behave consequently? The topic is of obvious delicacy and we do not dare to propose definitive solutions. But, in our opinion, we should think more about the mechanisms of legal protection of the interests of the members of the corporation. It is well known that there are approximately two of these mechanisms. The first mechanism builds on the prohibition to harm the corporate interest and turns this principle into a legally guaranteed protection of the component that may be injured by the breach of the prohibition. The second mechanism, according to the dominant opinion, builds on the contractual relationships between the various components of the company and refers to [...]
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