Are you ready for new ESG-related obligations?

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What is going on?

The EU has adopted a new set of rules that will change the way in which asset managers and financial advisors address environmental, social and governance (“ESG”) when conducting business. Two of the cornerstones of the new legislation are:

  1. the Sustainable Finance Disclosure Regulation1 (“SFDR”), which imposes transparency requirements on asset managers with a view to integrating ESG factors into their risk management and portfolio management processes; and
  2. the Taxonomy Regulation2, establishing a general framework for a unified EU classification system (taxonomy) of environmentally sustainable economic activities.

Impact

At a high level, the SFDR requires in-scope entities to implement policies and make certain pre-contractual disclosures and periodic reporting on how ESG factors are being integrated into investment decisions and internal processes, but also to ensure marketing communications are consistent with such disclosures.

The Taxonomy Regulation creates a consolidated EU classification system of environmentally sustainable economic activities against which all financial products will need to be categorized. For products declared to be sustainable, disclosures will have to be made as to how and to what extent the taxonomy has been used. Other products (including those with ESG objectives but not qualifying as sustainable) will have to include a statement that the investments underlying the financial product in question do not take into account the EU criteria for environmentally sustainable investments.

When do the rules take effect?

The requirements under the SFDR do not apply until March 2021. The European Supervisory Authorities have been mandated to develop draft regulatory technical standards to specify the details of the presentation and content of the information to be disclosed under the SFDR. While the initial deadline for finalizing the technical standards was the end of 2020, this has now been postponed to a later date.

However, the European Commission has clarified that even though not all details will have been set out by March 2021, it expects in-scope entities to comply with the high-level principles of the SFDR as of then.

The Taxonomy Regulation will not kick in in practice until January 1, 2022 at the earliest.

Who needs to take action?

The Disclosure Regulation and the Taxonomy Regulation have a large scope of application. They apply to:

  1. financial market participants, including alternative investment fund managers (“AIFMs”), UCITS ManCos3, as well as investment firms and credit institutions providing portfolio management services; and
  2. financial advisors, including credit institutions and investment firms providing MiFID4 investment advice.

What should I do?

In-scope entities will have to review existing systems and procedures, as well as amend and expand them to satisfy the new ESG requirements. They will also have to analyze how the new concepts affect their operations and work towards obtaining quality and meaningful data from portfolio companies. The time and effort necessary to tackle this should not be underestimated.


  1. Regulation (EU) 2019/2088 of the European Parliament and of the Council of 27 November 2019 on sustainability-related disclosures in the financial services sector. 
  2. Regulation (EU) 2020/852 of the European Parliament and of the Council of 18 June 2020 on the establishment of a framework to facilitate sustainable investment.
  3. Management companies of undertakings for collective investment in transferable securities. 
  4. Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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