Paper's abstract

Morgane Tirel, The New Social Interest, A Change in Normative Model
As a power issue and a reflection of controversies over the role and purpose of the company, social interest appeared in the French civil code, in a striking manner, thanks to French "loi PACTE". Contrary to the widespread idea that this legislative consecration is merely a formalization - at constant law - of case law, it is argued here that the legislator has affirmed for the first time, albeit implicitly, a new, expanded conception of social interest. By imposing the requirement to manage a society in accordance with its social interest by taking into consideration the social and environmental stakes linked to its activity, article 1833 paragraph 2 of the French Civil Code nevertheless conceals a fundamental ambiguity: the legislator intended to make social and environmental stakes a component of social interest, while requiring them to be merely "taken into consideration". This apparent paradox actually reflects a new normative model. Avoiding the difficulty of directly imposing on societies to comply with indeterminate social and environmental stakes - at the cost of major legal insecurity -, the legislator has erected a duty to reflect and deliberate on these stakes during the social decision-making process, betting that this procedural imperative will change the practical actions of the actors. This new normative model reflects a renewed conception of the role and purpose of the corporate shareholder, expressly depositary of a certain conception of the general interest.

Key Words : RSE - soft law
t. 62, 2020 : p. 537-564

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