La mission : une norme de gestion comme fondement de la gouvernance de l’entreprise responsable

Law, and in particular business law, has often been analyzed and assessed in terms of its contribution to the vitality of the economy, and to the performance of economic actors. And legislators have carefully avoided defining what the ?good management? of a company should look like, instead putting forward a ?business judgment rule? guaranteeing the discretion of an executive?s decisions. Articles 169 and 176 of the French ?loi PACTE,? enacted in May 2019, challenge this dominant approach by proposing a profound revision of the notion of société, which had remained relatively unchanged since the middle of the nineteenth century. By referring to the management of the activities of the company and enabling enterprises to assign to themselves purposes of a social or environmental nature, these new legal provisions tend to reorient the société commerciale toward a rationality that is not exclusively economic. The purpose of the company?s activities, and the responsibility for their management, become the fundamental underpinnings of corporate governance. This legal innovation relies on a very different approach from the usual avenues that have been classically explored in order to foster responsible business conduct. Schematically, these avenues can be divided into four categories: the development of ?external? regulation of companies? impacts (through environmental or labor law); the development of ?market-driven? schemes of governance through the movement of Corporate Social Responsibility (or CSR); the participation of non-shareholder stakeholders to the governing bodies of the company (e.g., mitbestimmung, the German term for ?codetermination?); or the regulation of an ?organizing power? stemming from the interplay between several branches of the law, such as labor and company law. In this article, we show that PACTE law relies on a ?management norm? as defined in previous work by Hatchuel and Segrestin. In short, one can identify three stages of reasoning on which to base the management norm as a source of accountability for a management authority. First, the collective action led by the manager, if it is a priori likely to contribute to a collective interest and not only to the pursuit of personal or particular interests, is also potentially generating risks. Faced with these identified risks, the manager is expected to respect a norm, which is not entirely defined by law, but which is based on and refers to an external and shared managerial corpus, i.e., a set of rules and knowledge on the action to be considered acceptable. The manager is then deemed to be at fault if he or she does not respect these norms, including out of incompetence. The management norm model therefore draws an original accountability regime compared to the four models presented above. However, it becomes clear that the accountability of the manager is only effective if the body of knowledge required is commensurate with the risks incurred. By requiring management to ?take into consideration? the social and environmental issues of the company?s activity, the PACTE law indeed builds on this management norm logic: it can only refer to an external corpus that will determine what is reasonable to expect from the manager. The société à mission then proposes a significant extension of this logic, in two ways. Firstly, it extends what constitutes ?good management? of the company to purposes chosen by the company itself. In this sense, the manager is not only bound by the set of management norms that the law has already assigned to him or her: the company adds its own management norms. This first extension has a major effect: it encourages companies to consider what could be of collective interest in the future; what could be accepted as a management norm applicable to companies worldwide. Second, by inscribing new statutory purposes, the company refers to bodies of knowledge that are not necessarily established yet. It is therefore necessary to restore the effectiveness of the management norm, i.e., to avoid what some commentators have called ?purpose-washing,? which consists of making commitments that do not give rise to any verification capacity. The law requires the articles of association to specify the procedures for monitoring the execution of the mission. The company should therefore build the means of evaluation that will be associated with these new objectives in a rigorous and controlled manner. This is the ambition of mission committees, which do not only play a role of control over established bodies of knowledge, but also a role similar to that of a scientific council, i.e., the creation of these new bodies of knowledge. Through the société à mission, the legislator thus explicitly recognizes the ?innovative? or ?creative? nature of the company?s activity. Indeed, by allowing freedom to define missions, but requiring the setting of appropriate control mechanisms, it offers a constitutive framework for the enterprise beyond.