Empresa e direitos fundamentais: o dever constitucional de devida diligência no exercício de atividade econômica organizada

Abstract

This research delves into the intricate interplay between business operations and the safeguarding of fundamental rights, with a specific focus on the responsibility of corporations in protecting and promoting these rights. Its primary objective is to answer what the company's constitutional obligation is to incorporate the promotion and protection of fundamental rights into their. In today's dynamic landscape, characterized by burgeoning social expectations and corporate endeavors towards diversity, environmental stewardship, and adherence to Environmental, Social, and Governance (ESG) principles, there exists a proliferation of initiatives. However, there remains a lack of clarity regarding the precise actions companies should undertake and how they should demonstrate their commitment to these ideals. Simultaneously, in an increasingly globalized world and digital environment, nation-states encounter mounting challenges in upholding and advancing fundamental rights within the realm of corporate affairs. The proposition to incorporate corporate responsibilities for protecting and promoting these rights into corporate objectives necessitates a paradigm shift concerning the obligations of non-state actors towards fundamental rights. This shift moves from a framework primarily centered on refraining from causing harm to one focused on actively realizing and preserving the fundamental rights of others, albeit with the inherent risk of impeding free enterprise. In light of these developments, beyond the application of a proportionality test to resolve apparent conflicts between constitutional norms on a case-by-case basis, there arises a pressing need to delineate the legally binding duties of corporations concerning fundamental rights. The underlying hypothesis posits that corporations should be constitutionally bound to uphold fundamental rights. This assertion stems from the recognition that the soft law instruments present in international law and voluntary codes of conduct pertaining to corporate social and environmental responsibility fall short in ensuring the efficacy of fundamental rights protection and legal certainty. This assertion applies to both the relationships between corporations and various stakeholders, including the state, competitors, and civil society, as well as corporations and their shareholders. Clarity in obligations is essential for administrators to navigate their fiduciary duties without contravening legal mandates. The thesis advances the idea of expanding the efficacy of fundamental rights through the imposition of a corporate duty of due diligence towards fundamental rights, bolstered by a proactive stance against violations. This entails a framework of specialized protective measures that are indispensable for fulfilling the obligation to respect fundamental rights. Further than this specialized protect duty, there are no inherent constitutional duties; instead, there exists voluntary conduct that may be encouraged or mandated by specific laws, provided it aligns with the boundaries established by the Constitution.