Corporate social responsibility and drafting the non-financial statement: legal and economic aspects

The legislative decree of the 30th December 2016, n° 254, of implementation of Directive n° 2014/95, reporting information of non-financial aspects and information about the diversity related to certain business and certain large groups, has required the public entities and large groups to draft and to publish a declaration, individual or consolidated, including information about socio-environmental themes. The aim of this field project is to analyze the legal and economic aspects related to the draft of the non-financial statement and to verify the legal and economic benefits about those aspects. Before describing each of the above aspects, it seems appropriate to mention the definition of corporate social responsibility and the objectives of the Directive n. 2014/95.

I. Corporate social responsibility and objectives of the Directive n. 2014/95

With regard to the first profile, it is important to recall the global financial market crisis and the increasing need of a sustainable global economy which have marked profound changes relied to the environmental topic in the business disclosure. Hence, the importance of the concept of corporate social responsibility, for which “To be socially responsible not only means to fully meet the applicable legal requirements, but also to invest in human capital, in the environment and in the relations with the stakeholders. All this leads to a better control of the change and to a balance between the social development and an increased competitiveness”. Lately, this topic has gained an increasing development globally: first of all, following the spread of the international standards of the non-financial reporting, which increased stakehoolder’s interest for a sustainable enterprise policy; in the second place, through the adoption of the Global Agenda for sustainable development 2030, approved by Onu on September 25th, 2015, which contains the 17 targets of sustainable development and 169 sub-targets. Among those targets, it is stipulated that “in order to achieve those targets, the Agenda requires a strong involvement of all the parties in the Society, including both business and public sector, civil society and philantropic institutions, universities and research institutes, media and educational professionals. Hence, the corporate social reporting, which defines the sustainable strategies and the spread of sustainable information for the business, represents indestructible standards for the creation of value in the present and, above all, in the future, a necessity and not only a primality.  In order to achieve the objectives established by Onu, the European Union has adopted the Directive n.  2014/95, incorporating the change of the Directive 2013/34 regarding the non-financial report and information of diversity related to certain business and certain large groups. The aim of the Directive is to “grow the relevance, the uniformity and comparability of the information disclosed by certain business and certain large groups in the whole Union, in order to harmonize the legislative systems, as a tool of alignment of the legislative, regulamentary and administrative provisions of the members of the European Union, in accordance with the principles of subsidiarity and proportionality ex art. 5 TUE.  The communication of non-financial information is even more important to “manage the transition towards a sustainable global economy, combining long-term viability, social justice and environmental protection.”. In the light of the above, the field project will focus on the legal and economic aspects stemming from transposition of the D.lgs n. 254/16, in accordance with the principle of loyal cooperation ex art. 3, comma 2, of TUE and the art. 10 and 11 of the Constitutional Charter.

II. Legal aspects ex D. lgs n. 254/16

With regards to the legal aspects, as laid down in the D.lgs. n. 254/16, the parties responsible of the drafting and publishing the non-financial report, individual or consolidated, are mainly quoted companies, banks and important insurance and reinsurance undertakings. It appears necessary that the company in the business year concerned has had, on the average, a number of employees greater than 500 people and, at reporting date, has passed at least one of the following size limits: Balance sheet total pairs to 20,000,000,00 euro; total net revenues and benefits pairs to 40,000,000,00 euros. For what concerns the non-financial report, art. 3 of the Legislative decree 254/16 states that the non-financial report, in order to secure the understanding of the business activity, its trend, its results and the impact of itself, in accordance to the principle of materiality, must provide a description related to the business model of management and organization of the business activities, included the information about the management of the socio-environmental issues; the policies practised by the company, included the ones of due diligence, the results achieved through them and the  related non-financial key performance indicators; the main risks, generated or suffered, associated with these issues that derive from the company’s activity, its products, its services or the trade relations, including where needed, the subcontracting and supply chains. The non-financial report must provide a full explanation about the socio-environmental issues, hence the use of the energy resources, the emissions of greenhouse gases, the pollutant emissions in the atmosphere, the impact on the environment and on healt and safety, te social aspects and the ones related to the employees, including the actions taken to ensure gender equality, the respect of human rights, measures taken to avoid violations, and the actions taken to prevent discriminatory attitudes and actions, the struggle against corruption, both active and passive. Indeed, in accordance with the principle of “comply or explain”, and in order to control the respect on the above issues and to understand the activity of the company, the statement also mentioned the standard of self-reporting used by the compay, which could be equal or different to the one used in the previous financial year, as long as it is motivated and it suites the company policy and the statement of materiality. The choice of the accounting standards is made by taking into account the guidelines drawn up by the European Union as provided for in Directive 2014/95, i.e the international reporting standards. The companies, in exceptional cases, could also omit the information the disclosure of which could seriously compromise its social position. For what concerns the role of the social bodies: the administrators of the entity have the responsibility to guarantee that the relation is issued and published in compliance with the provisions of the Decree. The supervisory board has to monitor on their compliance and to report back in the annual report of the assembly; the entity in charge of the statuatory audit of the financial statement has to performs his duties with reference to the non-financial report, checking on its realization by the administrators and expressing with a specific report about the conformity of the  information provided. Lastly, for what concerns the disclosure regime, the non-financial report can be attached to the management report i.e. consitute an alternative report.

In the light of the constitutive elements of the non-financial report, it appears worth pointing out that art. 1, comma 1073, of the budget law 2019, in order to have a more complete report of the non-declaration, has expanded the information about the risks issues to be submitted,  for what concerns the art. 3, comma 1, lett. C of the Legislative Decree n. 254/16. Especially the new fact sheet requires that the non-declaration report must state in a specific and accurate way both the way of managing the risks and the actions taken in order to mitigate and manage those risks. It must also be pointed out that the management of the risk it is limited to the risk understood as significative and not to any possible risk resulting from the business. By that legal point results that the administrative body will prepare an appropriate and accurate collection, validation and structural process regarding the non-financial datas, through the use of the autonomous reporting standard, following the training obligations provided by the D. Lgs. n. 254/16 and also in order to meet the principle of fair management of the business risk, as stated in the art 1176 and art. 2428, comma 2 of the Civil Code. The result is that the adoption of a risk model and an efficient  governance model of the management of non-financial risks – in the face of an additional cost of governance in the short term – will lead to multiple legal benefits: a better compliance related to the obligations of the D.Lgs. N 254/16; a better transparence towards the market, a better appeal towards the stakeholders. Those benefits of legal nature would combine with others, not less relevant, of economic nature.

III. Economic aspects ex D.lgs n. 254/16

The stakeholders, through the international accounting parameter GRI, are able to draw important information related to the performance of a company in a long-term, essential to attract long-term investors. The guidelines of GRI constitute the standard content that the non-financial report should contain for those who want to invest. The prospective performance of a company constitutes, therefore, a valid tool that is able to decrease the information asimmetry between manager and outsider, to determinate an important reduction of the equity cost in the long-term, keeping in mind a more expensive cost of the equity in the short-term. Recent studies have shown that the companies who are required to make a non-financial report, unlike the ones who are not, achieve a positive impact related to the share price performance in the long-term, straight after the publication of the report. A recent study on a sample of companies rated on Stock Exchange, recognized that the trend of the companies subject to the directive, unlike the ones who are not, is exceptionally good. Indeed, the companies awarded for producing an excellent integrated reporting, benefit from extra market-return: a better resources allocation from a decisional perspective, a greater involvement of the shareholer and stakeolder, a reduced reputational risk and a better risk management related to the non-financial global challenges. The integrated reporting represents, in this sense, the challenge that companies are facing now, a key factor to create value over time.

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avv. Roberto Casano

Sono un Avvocato con oltre due anni di esperienza nel settore della consulenza legale. Socio co–fondatore di CMA Iurisblog, collaboratore presso la rivista scientifica Salvis Juribus nonché diplomato al Master in Corporate Governance presso l’Università Cattolica di Milano. Nel corso del mio iter professionale ho collaborato presso studi legali, notarili e società di consulenza, maturando esperienza professionale nel settore del diritto civile e societario. Quanto al primo, ho redatto lettere di messa in mora, decreti, precetti, pignoramenti e pareri concernenti persone fisiche e giuridiche. Quanto al settore societario, ho predisposto atti costitutivi di srl, cessioni di quote di srl, procure speciali, procedure di internal dealing, verbali assembleari e di cda. Le mie esperienze professionali e formative denotano la mia limpida volontà di intraprendere la carriera di giurista di impresa in una realtà di caratura nazionale o internazionale. A completamento del mio percorso professionale, nell’Ottobre 2019 ho conseguito il titolo di Avvocato e da tale periodo sono alla ricerca di una nuova e stimolante realtà professionale in cui condividere e potenziare le mie abilità giuridiche.

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