Opinion | 'Corporate social responsibility is not dependent on laws or regulations', de Volkskrant

The giving away of all shares by Patagonia founder Yvon Chouinard, to invest the company's dividend in sustainable projects, rightfully drew attention on Thursday. An excellent example of using legal structure to put a company in service of society and fight against the climate crisis.

The increase of societal impact through entrepreneurship is also receiving attention in the Netherlands. Ambitious companies in Benelux have had the opportunity to obtain a B Corp-certificate since 2015, and soon some significant European sustainability guidelines will be introduced into our national legislation. All important initiatives, but where is our own legislator?

Netherlands still lacks a legal form that truly supports socially-driven entrepreneurs and perhaps even helps them to move forward compared to polluting companies. This puts us behind countries such as Italy, France, and the United Kingdom, each with a separate legal form for entrepreneurial do-gooders.

New Legal Form

Is it not possible then? It certainly is. In 2018, the Christian Union already submitted an initiative note proposing to introduce a new legal form for socially-driven enterprises: the BV-maatschappelijk (BVm). For the legal connoisseur: this should become a lex specialis of the BV instead of a new legal entity or a modality thereof. After many Parliamentary questions and consultation, the BVm seems to have been stripped down to merely a jacket for better recognition and acknowledgment of social enterprises. Without fiscal benefits, this seems to be a thin basis for introduction.

In addition, it is a missed opportunity that the cooperative and the NV will not receive respective social variants (thus, no Coöpm and NVm). The argument put forward for this, that these legal forms already serve a different purpose (the material/economic interests of members/shareholders), ignores that this is no different with the BV. Depriving a cooperative or NV with a social purpose of an ‘m’ does an injustice to that enterprise. Because it is evident from Patagonia’s example that even (and especially) billion-dollar companies can make an impact.

But why would you, as an entrepreneur, wait for the introduction of the BVm? Four years after the initiative note, the bill has been postponed again until early 2023. More importantly, everything envisaged with the BVm can already be achieved legally (and better).

The form chosen by Patagonia corresponds to the steward-ownership model. A structure in which the company owns itself, and the strategy is not driven by shareholders. Steward-ownership separates control and economic interest, for example by setting up a separate foundation with specific control to protect the company's mission.

Using a suitable legal structure to truly put a company in service of society has long been possible, and is not only reserved for foundations or BVs. Where there is a will, there is a way. No new law is needed for that.

As appeared in de Volkskrant.