Scopo delle società, doveri degli amministratori e short-termism: prossima azione regolatoria UE?

La Commissione UE ha incaricato Ernst & Young di effettuare uno studio sulla questione del se  l’attività di impresa sia oggi  viziata da short termism (visione e progettualità a breve termine) e, in caso positivo, se ciò sia fonte di conseguenze negative.

La risposta (poco sorprendentemente) è positiva ad entrambe le domande, come emerge dal report finale <<Study on directors’ duties and sustainable corporate governance-Final report>>, 29 luglio 2020.

Short-termism (poi: s.t.) viene individuato e quantificato <<by looking at the evolution of the amount of net corporate funds being used for pay-outs to shareholders (in the form of dividends or shares buybacks) compared with the evolution of the amount used for the creation of value over the life cycle of the firm, namely through investment in infrastructure, workers training, Research and Development (R&D), and investments in sustainability>>, §, p. 9.

Le conseguenze negative sarebbero:

  • a livello ambientale: <Literature connects short-termism to unsatisfactory response to environmental issues both at individual55 (i.e. the psychological tendency of individuals to focus on the short-term and consequently neglect sustainability issues) and organisational level56 (i.e. the factors leading firms to prioritise short-term profits at the expense of long-term objectives)>>, p. 22;
  • a livello sociale: <<There is a substantial body of literature (though mainly focusing on the US context) linking shareholder primacy in corporate governance, the “financialisation”85 of the global economy, and increasing social inequalities.86 From a social perspective, short-termism exacerbates inequalities. In a context where share ownership is concentrated in the richest households (such as in the US), achieving higher share prices and larger dividend pay-out – the main objective of corporate executives focused on the short-term – is beneficial to a just small fraction of a country’s population (the share owners) and contributes to deepen the existing socio-economic cleavages>>, p. 26;
  • a livello economico: <<Short-termism has serious adverse economic effects on companies, their shareholders and their stakeholders, and undermines the macroeconomy. As discussed in section 3.2, the strength of the social norm of shareholder primacy in corporate governance theory and practice, combined with growing pressures from institutional and activist investors increasingly focused on the short-term market value of the shares, places intense pressure on corporate boards to prioritise the market valuation of the company and focus on short-term financial performance, driving down all other costs, at the expense of better employee compensation and stronger investments that are important for long-term productivity>, p. 28.

Il ruolo delle imprese è notevole per conseguire i relativi United Nations Sustainable Development Goals  : <as described in the previous sections, corporate short-termism is among the factors that hinder the achievement of environmental, social and economic sustainability. Without companies abandoning the business-as-usual and proactively embracing and promoting the sustainability transition, it will be hard to achieve such ambitious sustainability goals in the near future>, p. 30.

Le cause dello s.h. sarebbero:

  • Directors’ duties and company’s interest: <In all jurisdictions, the core duty of the board is to protect and promote the interests of the company. Numerous multijurisdictional studies underline how the prevalence of shareholder primacy in companies hinders their long-term contribution to sustainability and influences the interpretation of the concept of “company’s interest”. This has been increasingly understood as the maximisation of shareholder value in the short term. This social norm has been thought to be a legal provision, even if no jurisdictions prescribe this>, p. 32
  • Pressure from investors: <As far as investors are concerned, the growing importance of institutional investors correlates with a shortening of investor engagement in companies, in terms of shorter tenue of shares and increased frequency of portfolio turnovers, as described by economic data and findings surmised from the literature review. These developments, combined with the increased role played by activist investors – like activist hedge funds – having an explicit short-term orientation, determined an overall dynamic in which investors with a short-term focus exert pressure on boards to focus on short-term shareholder value maximisation and distribution, rather than on long-term value creation>, p. 33;
  • Sustainability strategy, sustainability targets and estimation of sustainability risks and impacts: <Embedding sustainability aspects in business strategy, or setting a sustainability strategy,124 as well as setting measurable targets, seems to be a key step for companies to reduce sustainability-related risks and negative impacts, maximise opportunities, and move their business beyond short-term focus and create value in the long term. However, as shown by the legal review, with a few exceptions, national regulatory frameworks do not enshrine an obligation for companies to adopt and disclose a sustainability strategy. This implies that the adoption of a sustainability strategy, including the identification of science-based ESG targets and their alignment with “global” goals (e.g. the SDGs), is in most cases left to the voluntary initiative and discretion of the companies thus generating a fragmented picture>, p. 34;
  • Board remuneration: <<The current structure of executive pay is also identified in part of the literature as a key driver behind short-termism. A substantial strand of literature argues that share-based remuneration of executives reinforces, rather than works against, the capital market pressure for maximisation of  returns to shareholders in the short term. Share-based remuneration schemes create incentives for executives to focus on shareholder value maximisation and manage corporate resource in a way aimed to increase share price, benefiting themselves and the shareholders, at the expense of investments that are necessary for the long-term sustainability of the company>, p. 36;
  • Board composition: <As highlighted by the findings of the literature review,  board composition is key to promote a shift towards greater business sustainability and long-term focus. A diversified board with a wide range of relevant skills and experience is important to challenge the business-as-usual, avoid group think, and raise questions in terms of the long-term sustainability and value creation. Data from the literature suggest that in most companies the board lacks competence and expertise in sustainability matters and is still largely dominated by men. Concerning sustainability expertise, although there is lack of granular data, the literature indicates that companies where the board includes at least one member with ESG, ethics or sustainability experience, or where there is a board-level committee or advisory body with ESG-related responsibilities, are a minority>, p. 36;
  • stakeholder involvement: <As highlighted by the literature, the prominence of shareholder primacy in corporate governance and the pressure it generates to pursue short-term profit maximisation leads board members not to take sufficient account of the long-term interests of stakeholders other than shareholders (such as employees, creditors, suppliers, customers and the society at large as well as the environment).     This can have negative consequences on the long-term success of a company, as it might undermine its social license to operate. As a matter of regulatory frameworks, it is argued in the literature that, to some extent, a duty for directors to take the interests of all stakeholders into account is recognised, in some form or another, in all EU jurisdictions.>, p. 37. Un maggior coinvolgimento degli stakeholders <can help companies to counterbalance pressure from financial markets and short-term investors and give “voice” – if not representation – to subjects with a strong interest in the long-term sustainability of the company>, p. 37;
  • l’enforcement, alquanto problematico: <As a consequence, enforcement of the company’s claims against its directors faces two major problems: conflict of interest (obvious in the case of one-tier board structure, where the board brings the company’s claim against its own member), and collective action (in case of derivative actions, the shareholders who bring the legal action bear all costs, while benefits from the claimant’s efforts accrue also to passive shareholders). As reported in the literature, due to these obstacles, enforcement levels are currently low in all Member States.   In the current context, stakeholders of the company (other than shareholders) lack legal standing to enforce directors’ duty of care, even when they have a legitimate interest in the long-term sustainability of the company. This means that stakeholders such as employees, local communities, etc. lack enforcement mechanisms to effectively ensure the protection of their legitimate interests in corporate activities, and therefore to exercise substantial influence over the board and board members and keep them accountable>, p. 38.

Ciò visto, è necessaria un’azione a livello europeo per i motivi spiegati a p. 44 segg.

Seguono possibili soluzioni, dalla più morbida a quella più rigida (a livello legislativo): § 4.4. segg., p 50 ss

Non mancano critiche : v. il dibattito aperto su questo Report dall’Oxford Business Law Blog e qui i post ad es. di Roe-Fried-Spamann-Wang, EC Corporate Governance Initiative Series: ‘The European Commission’s Sustainable Corporate Governance Report: A Critique’ del 20.10.2020 oppure Richter-Ohnemus-Thomsen, EC Corporate Governance Initiative Series: ‘A Response From the Copenhagen Business School’ del 26.10.2020.