Art. 49 and 54 TFEU, Recital 2 of Directive (EU) 2019/2121 of the European Parli…
“In any discussion about a proposed venture, a number of questions need to be asked in order to discern whether or not it will contribute to genuine integral development: What will it accomplish? Why? Where? When? How? For whom? What are the risks? What are the costs? Who will pay those costs and how?”, Pope Francis
Many years ago I was asked to take part in a debate about ethics in businesses. On that occasion I decided to move away from conventional assertions to focus my research on texts that are the basis of the Western world ethics, so I started to read with great interest Papal Encyclicals dedicated to the Church’s social doctrine[1]discovering a world totally unknown to me, full of precious and useful suggestions for us jurists too.
First of all, I deem it absolutely banal but not useless to remind ourselves that in mankind’s history religious precepts represented, at first, the logical and moral background of rules of behaviour and then of an infinite number of legal rules. By that I certainly do not mean to suggest that the stances taken by the Catholic Church through the Popes should have some role in the formation of legal rules, but yet I deem it very interesting, from a lay point of view, to observe their evolution, even with the sole purpose to assess the degree of compliance of the rules with the principles of catholic ethics.
In the second place I noted how rules broadly shared in the society are more likely to be spontaneously observed by its members. It is sufficient to recall the story of the legislation against smoking in our country to realise the absolute indisputability of this simple assertion. It is totally clear, in my opinion, that if the society is culturally ready, the introduction of new laws will be painless and quickly effective; on the contrary, rules imposed without a proper understanding of the context are likely to be always disobeyed, regardless of the regulatory and penalty system established by the legislator. In this sense, the position of the Pope, who is the spiritual guide of the large majority of the Italian population and, above all, of more than one fifth of the world population, being at the same time the most authoritative voice in the Christian world - the largest religion with its 2.2 billion devotees - is certainly a firm condition for certain recommendations to be accepted by large groups of the western population, which is still one of the driving forces of worldwide development.
After all, I believe that the analysis of all aspects of an Encyclical that may affect the formation of the cultural, social and behavioural orientations of the society within economy is anything but useless or inappropriate for scholars of all branches of economic law.
When dealing with such high-level texts and topics the risk remains of appearing impudent and arrogant. I hope, and I am reasonably confident, that this will not happen if the issue is approached with proper humility, with the sole aim to develop, exclusively from a lay point of view, the discussion about a text that, because of its authority, of the issues dealt with and positions taken cannot but significantly affect the way in which mankind is getting ready to face the difficult challenges of the next decades.
These brief notes intend only to highlight some passages of Pope Francis’ Encyclical, which offer useful directions in relation to the management of an undertaking and its purposes.
Finally, a last introductory note. Why this topic in an issue dedicated to President Vincenzo Salafia? President Salafia has devoted all his professional life, first, for many years, as judge, and then as professional and jurist, to the consistent and intellectually honest interpretation of the rules, becoming a model of rectitude, scrupulousness and righteousness for all of us. I believe that there is no better present for his birthday than showing him our gratitude and admiration, trying to take his teachings and to address to the young so that they may shy away from interpretations of convenience and serve as interpreters with scrupulousness, following the interests pursued by the legislator and the well-being of the community.
The Pontiff’s analysis is harsh and hits with rigor the drifts of the capitalistic system, disrespectful of the individual and its prerogatives[3].
By way of example, at paragraph 26, with regard to climate change he affirmed: “many of those who possess more resources and economic or political power seem mostly to be concerned with masking the problems or concealing their symptoms, simply making efforts to reduce some of the negative impacts of climate change. However, many of these symptoms indicate that such effects will continue to worsen if we continue with current models of production and consumption.”
At para. 51, quoting a harsh and truthful stance of the Bishops of the Patagonia-Comahue Region, he observed: “There is also the damage caused by the export of solid waste and toxic liquids to developing countries, and by the pollution produced by companies which operate in less developed countries in ways they could never do at home, in the countries in which they raise their capital: ‘We note that often the businesses which operate this way are multinationals. They do here what they would never do in developed countries or the so-called first world. Generally, after ceasing their activity and withdrawing, they leave behind great human and environmental liabilities such as unemployment, abandoned towns, the depletion of natural reserves, deforestation, the impoverishment of agriculture and local stock breeding, open pits, riven hills, polluted rivers and a handful of social works which are no longer sustainable’ ”.
Again at para. 61: “(…) aside from all doomsday predictions, the present world system is certainly unsustainable from a number of points of view, for we have stopped thinking about the goals of human activity (…)”. At para. 93, with regard to “The common destination of goods”, he affirmed every ecological approach needs to incorporate a social perspective which takes into account the fundamental rights of the poor and the underprivileged. The principle of the subordination of private property to the universal destination of goods, and thus the right of everyone to their use, is a golden rule of social conduct and “the first principle of the whole ethical and social order”. The Christian tradition has never recognized the right to private property as absolute or inviolable, and has stressed the social purpose of all forms of private property.” At para. 94 mentioning the stance expressed by the Bishops of Paraguay: “Every campesino has a natural right to possess a reasonable allotment of land where he can establish his home, work for subsistence of his family and a secure life. This right must be guaranteed so that its exercise is not illusory but real. That means that apart from the ownership of property, rural people must have access to means of technical education, credit, insurance, and markets”.
In chapter three “the human roots of the ecological crisis”, he moved from the opportunities and risks arising out of technologies. In particular at para. 102 he observed: “Humanity has entered a new era in which our technical prowess has brought us to a crossroads. We are the beneficiaries of two centuries of enormous waves of change: steam engines, railways, the telegraph, electricity, automobiles, aeroplanes, chemical industries, modern medicine, information technology and, more recently, the digital revolution, robotics, biotechnologies and nanotechnologies. It is right to rejoice in these advances and to be excited by the immense possibilities which they continue to open up before us, for ‘science and technology are wonderful products of a God-given human creativity’”. And, after having reminded how the modification of nature for useful purposes has distinguished the human family from the beginning and having acknowledged that thanks to technology men were able to overcome many material limitations he concluded “how can we not feel gratitude and appreciation for this progress, especially in the fields of medicine, engineering and communications? How could we not acknowledge the work of many scientists and engineers who have provided alternatives to make development sustainable?”.
Again he acknowledged (para. 103) that technology, besides enabling the production of means improving the quality of human life, can also “produce art and enable men and women immersed in the material world to “leap” into the world of beauty. Who can deny the beauty of an aircraft or a skyscraper? Valuable works of art and music now make use of new technologies. So, in the beauty intended by the one who uses new technical instruments and in the contemplation of such beauty, a quantum leap occurs, resulting in a fulfilment which is uniquely human."
Nonetheless he warned against the “impressive dominance over the whole of humanity and the entire world” that may be given to those with the knowledge, and especially the economic resources to use them (para. 104).
“Human beings are not completely autonomous. Our freedom fades when it is handed over to the blind forces of the unconscious, of immediate needs, of self-interest, and of violence. In this sense, we stand naked and exposed in the face of our ever-increasing power, lacking the wherewithal to control it. We have certain superficial mechanisms, but we cannot claim to have a sound ethics, a culture and spirituality genuinely capable of setting limits and teaching clear-minded self-restraint” (para. 105).
Again at para. 109: “The technocratic paradigm also tends to dominate economic and political life. The economy accepts every advance in technology with a view to profit, without concern for its potentially negative impact on human beings. Finance overwhelms the real economy (…). The lessons of the global financial crisis have not been assimilated, and we are learning all too slowly the lessons of environmental deterioration. Their behaviour shows that for them maximizing profits is enough. Yet by itself the market cannot guarantee integral human development and social inclusion”. At para. 123: “We should not think that political efforts or the force of law will be sufficient to prevent actions which affect the environment because, when the culture itself is corrupt and objective truth and universally valid principles are no longer upheld, then laws can only be seen as arbitrary impositions or obstacles to be avoided.”.
After having vigorously reminded the unique role of work in the education of the human person, at para. 129, he affirmed: “In order to continue providing employment, it is imperative to promote an economy which favours productive diversity and business creativity”. (…) “To ensure economic freedom from which all can effectively benefit, restraints occasionally have to be imposed on those possessing greater resources and financial power. To claim economic freedom while real conditions bar many people from actual access to it, and while possibilities for employment continue to shrink, is to practise a doublespeak which brings politics into disrepute. Business is a noble vocation, directed to producing wealth and improving our world. It can be a fruitful source of prosperity for the areas in which it operates, especially if it sees the creation of jobs as an essential part of its service to the common good.”
“A consumerist vision of human beings, encouraged by the mechanisms of today’s globalized economy, has a levelling effect on cultures, diminishing the immense variety which is the heritage of all humanity. Attempts to resolve all problems through uniform regulations or technical interventions can lead to overlooking the complexities of local problems which demand the active participation of all members of the community” (para. 144). “The disappearance of a culture can be just as serious, or even more serious, than the disappearance of a species of plant or animal. The imposition of a dominant lifestyle linked to a single form of production can be just as harmful as the altering of ecosystems” (para. 145).
“Authentic development includes efforts to bring about an integral improvement in the quality of human life, and this entails considering the setting in which people live their lives” (para. 147).
“The notion of the common good also extends to future generations (…). We can no longer speak of sustainable development apart from intergenerational solidarity. (…) Since the world has been given to us, we can no longer view reality in a purely utilitarian way, in which efficiency and productivity are entirely geared to our individual benefit. Intergenerational solidarity is not optional, but rather a basic question of justice, since the world we have received also belongs to those who will follow us.”(para. 159).
“The twenty-first century, while maintaining systems of governance inherited from the past, is witnessing a weakening of the power of nation states, chiefly because the economic and financial sectors, being transnational, tends to prevail over the political. Given this situation, it is essential to devise stronger and more efficiently organized international institutions, with functionaries who are appointed fairly by agreement among national governments, and empowered to impose sanctions.” (para. 175).
“One authoritative source of oversight and coordination is the law, which lays down rules for admissible conduct in the light of the common good.” (para. 177).
“But it does mean that profit cannot be the sole criterion to be taken into account, and that, when significant new information comes to light, a reassessment should be made, with the involvement of all interested parties. (para. 187). “Politics must not be subject to the economy, nor should the economy be subject to the dictates of an efficiency-driven paradigm of technocracy.” (para. 189). “A technological and economic development which does not leave in its wake a better world and an integrally higher quality of life cannot be considered progress” (para. 194). “The principle of the maximization of profits, frequently isolated from other considerations, reflects a misunderstanding of the very concept of the economy” (para. 195, where he also affirmed that the calculation of costs of a business activity cannot disregard the total calculation of social costs).
“Since the market tends to promote extreme consumerism in an effort to sell its products, people can easily get caught up in a whirlwind of needless buying and spending. Compulsive consumerism is one example of how the techno-economic paradigm affects individuals.” (para. 203).
A first interesting aspect concerns the dissertation, contained in the Encyclical, of all the founding principles of our economic legislation. Indeed, it is possible to notice in the development of the reasoning an analysis, focused on the scope of application, of the essential elements of Article 3 of the Treaty on the European Union and more specifically paragraph 3. The words of the Holy Father give a complete interpretation of the notions of sustainable development, of balanced economic growth, of social market economy, of social progress and environment protection, as well as of responsible use of science and technology progress.
The benefit for interpreters of the rules, be they jurists, professionals or young students, seems to me clearly evident. We have been provided with an authoritative text that, with Pope Francis’ simple and clear words, enable us to discuss not of a dry legislative text but of its actual implementation.
It will be easier for all of us to use these concepts in the interpretation of rules based on them because we will have a source, free from conditioning, that shows us a very effective and consistent reconstructive approach.
The discussion on economic objectives, on the kind of efficiency to be pursued, favouring allocation or redistribution, on the form of operation of solidarity and on the relevance of negative externalities cannot but be resized by such a a crystal-clear reading of the collective well-being goal.
Moreover, with regard to Article 41 of the Constitution, the Encyclical makes it appear as so outdated and inappropriate the attempts to amend it in a liberal way [the possibility was discussed by the former legislative body to add in the first paragraph the aside: “and everything is permitted that is not expressly prohibited by law”], also by reducing the restrictions contained in paragraph 2,[4] that one wonders whether the world is taking, or should take, to some extent, an opposite direction[5].
Although the agenda of international organisations certainly does not contemplate the overcoming or even only the reduction of the principle of freedom of economic initiative, which, rather, in continuity with the previous Encyclicals, is considered once again as an essential element of personal growth and fulfilment, it being the result of creativity and of the irrepressible drive towards knowledge that is typical of human beings, the prospect indicated by Pope Francis may certainly contribute to a more complete and convincing reading of that social usefulness that article 41 sets as limit to the exercise of economic activities. In the same way and in a system that is totally congruent, this seems to be particularly important in giving a concrete content to the concept of social market economy, which must necessarily involve a careful evaluation of redistribution effects as well as of negative externalities.
I cannot tell if in order to cause a concrete virtuous change in the management of undertakings it is necessary to radically reconsider, in the regulations of lucrative companies, the concept of company interest or if, instead, it is sufficient, when applying the same, to give more relevance to the limit of social utility set by the Constitution as boundary of freedom of enterprise. Yet I believe that, at least in the general perception, the era is finally faded of managements based exclusively on shareholder values[6]; different, wider, interests must be kept in mind by directors, so that the enterprise truly creates welfare for its social and territorial context[7].
The second cue, strictly related to the first one, concerns the issue of how such functions and purposes may be actually realised, with particular regard to the governance of undertakings. An undertaking may fulfil its fundamental social role only through the adoption of transparent and all-encompassing governance systems that are bound to evaluate all interests involved, with priority for environment, occupation and workers’ protection[8].
In the end, the foundations of company law as we know them are called into question or, perhaps, more precisely, should evolve towards the research of a new and highly sustainable balance that truly enables the achievement of the goals established by the system, at least at European level.
A deep cultural change is required in those assuming roles of responsibility in the management of enterprises in order to overcome the exclusive logic of profit, set the management of the undertaking bearing in mind interests that are external to the same, abandon the search for efficiency at all costs to embrace an overall vision of the consequences of all choices, acknowledge and assure a real protection for all those suffering negative consequences as a result of the undertaking activity. On the other hand, maybe it is not reckless to state that, at least in the most evolved economies, the community is ready for such development. The principles expressed appear, to a great extent, very reasonable at first sight and it is the responsibility of the law to translate them in consistent actions. In my way of thinking, with the rules we have and in light of the modern and balanced principles that are the basis of European Treaties and of our Constitution, perhaps it is possible to give a new course to the exercise of entrepreneurial activities already today.
A fair, steady and rigorous application of the principles in case of tort, supported by an evolutionary interpretation of the principles of the legal system, could, in itself, already imply an extremely high level of protection of the community and of diffuse interests. The development of the rules and of their interpretation passes, in the first place, through a deep cultural refoundation, the setting up and research of a new way of thinking, the will to rebalance powers, assuring the protection of those who are most vulnerable and limiting excessive economic power. This function is attributed in the first place to politics, which must draw rules that are consistent with the principles of the legal system and, in the second place, to the law and law practitioners, who have the duty to identify the framework for interpretation and application on which the rules are based.
But it is necessary to be brave and to apply the existing rules always bearing in mind the purposes of the same. In such respect all jurists, professionals, the magistracy, in-house lawyers and in general law practitioners are required to perform an extraordinary commitment of consistency, without succumbing to the fascination of other, “less commendable”, interests[9].
[1] The list of documents and writings that made up what is defined as the Church’s social doctrine is wide. Those that are most relevant to the issues dealt with in this brief work, certainly include the following Encyclicals: Rerum novarum, by Pope Lion XIII of 15 May 1891; Quadragesimo anno, by Pope.
Pius XI of 15 May 1931; Mater et Magistra, by Pope Johannes XXIII of 15 May 1961; Popolorum progressio, by Pope Paul VI of 26 March 1967; Centesimus annus, by Saint John Paul II of 1 May 1991; Caritas in veritate, by Pope Benedict XVI, of 29 June 2009.
[2] See, by way of example, point 64, where, quoting Saint John Paul II he affirmed: “If the simple fact of being human moves people to care for the environment of which they are a part, Christians in their turn “realize that their responsibility within creation, and their duty towards nature and the Creator, are an essential part of their faith”. It is good for humanity and the world at large when we believers better recognize the ecological commitments which stem from our convictions”. See also point 67 where he clarified that the reference contained in the Bible to “till and keep” the garden of world “tilling” must be referred to cultivating, ploughing or working, while “keeping” means caring, protecting, overseeing and preserving: This implies a relationship of mutual responsibility between human beings and nature. Each community can take from the bounty of the earth whatever it needs for subsistence, but it also has the duty to protect the earth and to ensure its fruitfulness for coming generations”.
[3] This statement, and in particular the disapproval of the drifts of capitalism and of the blind and abusing avidity of finance is in line, with regard to the coherence and continuity, with the social doctrine of the Church expressed with the same strength and clarity in the previous Encyclicals, obviously with different accents and prospects at different historical moments.
[4] See in such respect the Constitutional Law Proposal of 16 December 2009, submitted by Vignali - Lupi - Palmieri - Pizzolante and bill no. 4144 A, on the initiative of the Government, approved with amendments by the First Commission for Constitutional Affairs on 22 September 2011. The subsequent Government’s downfall has the facto blocked the continuation of the initiative. Please see documentation on these initiatives and some concise comments at www.aperta-contrada.it/wp-content/uploads/2012/03/ApertaContrada-Dossier-art.-41-Cost.pdf.
[5] See par. 185: “In any discussion about a proposed venture, a number of questions need to be asked in order to discern whether or not it will contribute to genuine integral development. What will it accomplish? Why? Where? When? How? For whom? What are the risks? What are the costs? Who will pay those costs and how?”
[6] Today this is still the main reference parameter of the Corporate Governance Code adopted by Borsa Italiana S.p.a. in the version approved in July 2015: see article 1.P.2.: “Directors act and resolve with awareness of the facts and autonomously, pursuing the priority goal to create value for shareholders in the medium-long term.” The idea of “creation of value for shareholders in the long term” is not unrelated to the contemporary version of the shareholder value theories: see the paradigm (by definition of the same) of the “enlightened shareholder value” (or “enlightened value maximization”) proposed by Michael C. Jensen, Value Maximization, Stakeholder Theory, and the Corporate Objective Function, Journal of Applied Corporate Finance, Vol. 14,No.3, Fall 2001, available on Social Science Research Network, papers.ssrnj.com/abstract_id=220671.
See also, for the wide references to the ongoing discussion, V. E. Harper Ho, “Enlightened Shareholder Value”: Corporate Gover- nance Beyond the Shareholder-Stakeholder Divide, 36 Journal of Corporation Law 61 (2010), papers.ssrn.com/sol3/pa- pers.cfm?abstract_id=1476116. However, the sole addition of the long-term perspective is subject to the risk of not moving the terms of the issue and, if taken seriously, creates lots of problems both from a theoretical and a practical point of view. It should be noted that the Principles of Corporate Governance, OECD Report to G20 Finance Ministers and Central Bank Governors of September 2015 in the foreword, at page 10, clarify: “The principles recognise the interests of employees and other stakeholders and their important role in contributing to the long-term success and performance of the company. Other factors relevant to a company’s decision-making process, such as environmental, anti corruption or ethical concerns are considered in the Principles (…)” but they are dealt with in more detail in other OECD reports. To prove that Corporate Social Responsibility conceived as a system of voluntary measuring of social impact, cannot produce any remarkable result in the modification of the behaviour of enterprises see F. Denozza e A. Stabilini, The Shortcomings of Voluntary Conceptions of CSR, in rivistaodc.eu/edizioni/2013/2/saggi/the-shortcomings-of-voluntary-conceptions-of-csr/.
[7] See from this point of view Section 172 of the English Companies Act 2006, entitled “Duty to promote the success of the company”, often mentioned as example of knowledgeable regulatory approach, which provides as follows: “1) A director of a company must act in the way he considers, in good faith, would be most likely to promote the success of the company for the benefit of its members as a whole, and in doing so have regard (amongst other matters) to - (a) the likely consequences of any decision in the long term, (b) the interests of the company's employees, (c)the need to foster the company's business relationships with suppliers, customers and others, (d) the impact of the company's operations on the community and the environment, (e) the desirability of the company maintaining a reputation for high standards of business conduct, and (f)the need to act fairly as between members of the company. Where or to the extent that the purposes of the company consist of or include purposes other than the benefit of its members, subsection (1) has effect as if the reference to promoting the success of the company for the benefit of its members were to achieving those purposes.
[8] See in such respect Principles of Corporate Governance, OECD Report to G20 Finance Ministers and Central Bank Governors, cit., in chapter IV, The role of stakeholders in corporate governance, 37 ff. The issue naturally crosses the wide and prolific discussion concerning corporate social responsibility (or CSR), which has among its players also the main international institutions. These include the European Commission: see in such respect the Communication “A renewed EU strategy 2011-14 for Corporate Social Responsibility”, COM(2011) 681 final of 25 October 2011, in which the Commission referred to its own CSR definition as “a concept whereby companies integrate social and environmental concerns in their business operations and in their interaction with their stakeholders on a voluntary basis”, and proposed to adopt the following, more modern, version of the same: “the responsibility of enterprises for their impacts on society”.. See also: the Ten Principles of UN Global Compact (https://www.unglobalcompact.org/AboutTheGC/-TheTenPrinciples/index.html); the United Nations Guiding Principles on Business and Human Rights (http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf); the Tripartite Declaration of principles concerning multinational enterprises and social policy –4th Edition of ILO, 2014, www.ilo.org/empent/Publications/WCMS_094386/langen/index.htm, and finally the OECD Guidelines for Multinational Enterprises, mneguidelines.oecd.org/text/.
[9] Intellectual honesty, equidistance, balance, rigorous technic and brave critique: all talents that should belong to a jurist, who today is too often flattened on the most convenient positions: this is in brief the thought of the late unforgettable Maestro B. Libonati, Di petrolio, di intese, e di altre cose meno commendevoli, in Riv. dir. comm., 2002, 185 ff.
