Explanatory Memorandum to COM(2018)354 - Disclosures relating to sustainable investments and sustainability risks - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2018)354 - Disclosures relating to sustainable investments and sustainability risks. |
|---|---|
| source | COM(2018)354  |
| date | 24-05-2018 |
1. CONTEXTOFTHEPROPOSAL
• Reasons for and objectives of the proposal
This proposal is part of a broader Commission's initiative on sustainable development. It lays the foundation for an EU framework which puts environmental, social and governance (ESG) considerations at the heart of the financial system to help transform Europe's economy into a greener, more resilient and circular system. ESG factors should be considered when taking decisions on investments in order to make investments more sustainable.
This proposal and the legislative acts proposed alongside it aim to integrate ESG considerations into the investment and advisory process in a consistent manner across sectors. This should ensure that financial market participants — undertakings for collective investment in transferable securities (UCITS) management companies, alternative investment fund managers (AIFMs), insurance undertakings, institutions for occupational retirement provision (IORPs), European venture capital fund (EuVECA) managers, European social entrepreneurship funds (EuSEF) managers and investment firms - that receive a mandate from their clients or beneficiaries to take investment decisions on their behalf would integrate ESG into their internal processes and inform their clients in this respect. This proposal would also ensure that investment firms and insurance intermediaries providing advice consider ESG as drivers of value in the advice given as part of their duties towards investors and that they provide investors with the related information. Furthermore, to help investors compare the carbon footprint of investments, the proposals introduce new categories of low carbon and positive carbon impact benchmarks. These proposals, which are mutually reinforcing should facilitate investments in sustainable projects and assets across the EU.
The Commission’s package follows global efforts towards a more sustainable economy. Governments from around the world chose a more sustainable path for our planet and our economy by adopting the 2016 Paris agreement on climate change and the United Nations 2030 Agenda for Sustainable Development.
The EU is committed to development that meets the needs of the present without compromising the ability of future generations to meet their own needs. Sustainability has long been at the heart of the European project. The EU Treaties recognise social and environmental dimensions and that they should be addressed together.
The 2016 Commission Communication on the next steps for a sustainable European future1 links the Sustainable Development Goals (SDGs) of the United Nations 2030 Agenda for Sustainable Development to the European policy framework to ensure that all EU actions and policy initiatives, within the EU and around the world, take the SDGs on board from the outset. The EU is also fully committed to reaching the EU 2030 climate and energy targets and to mainstreaming sustainable development into EU policies, as Jean-Claude Juncker announced in the 2014 Political Guidelines for the European Commission2. Therefore, many of the European Commission’s policy priorities for 2014-2020 feed into the EU climate objectives and implement the 2030 Agenda for Sustainable Development. These include the
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Next steps for a sustainable European future. European action for sustainability (COM(2016) 739 final). A New Start for Europe: My Agenda for Jobs, Growth, Fairness and Democratic Change - Political
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Investment Plan for Europe3, the Circular Economy Package, the Energy Union package, the review of the EU Bioeconomy Strategy4, the Capital Markets Union5 and the EU budget for 2014-2020, including the Cohesion fund and research projects. In addition, the Commission launched a multi-stakeholder platform to follow-up and exchange best practices on implementing the SDGs.
Achieving EU sustainability goals requires major investments. It is estimated that an additional annual investment of EUR 180 billion is needed to meet climate and energy targets alone by 2030.6 A substantial part of these financial flows will have to come from the private sector. Closing this investment gap means significantly redirecting private capital flows towards more sustainable investments and requires comprehensively rethinking the European financial framework.
In this context, in December 2016 the Commission established a High-Level Expert Group to develop an overarching and comprehensive EU strategy on sustainable finance. The Group’s report, published on 31 January 2018, provided a comprehensive vision on sustainable finance for Europe and identified two imperatives for Europe's financial system. The first is to improve the contribution of finance to sustainable and inclusive growth. The second is to strengthen financial stability by incorporating environmental, social and governance factors into investment decision-making. As a follow-up, on 7 March 2018 the Commission published an Action Plan on Financing Sustainable Growth7.
Financial products, be they investment funds, life insurance or pension products, and portfolio management services are provided to pool investors’ capital, and invest that capital collectively through a portfolio of financial instruments such as stock, bonds and other securities. While existing rules in Directive 2009/65/EC8, Directive 2009/138/EC9, Directive 2011/61/EU10, Directive 2014/65/EU11 and Directive (EU) 2016/234112 require institutional
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Economic and Social Committee, the Committee of the Regions and the European Investment Bank: An
Investment Plan for Europe (COM(2014) 0903 final).
(SWD(2017) 374 final).
Economic and Social Committee and the Committee of the Regions: Action Plan on Building a Capital
Markets Union (COM(2015)468 final).
The estimate is a yearly average investment gap for the period 2021 to 2030, based on PRIMES model
projections used by the European Commission in the Impact Assessment of the Proposal of the Energy
Efficiency Directive (2016).
Economic and Social Committee and the Committee of the Regions: Action Plan: Financing
Sustainable Growth (COM(2018)097 final).
coordination of laws, regulations and administrative provisions relating to undertakings for collective
investment in transferable securities (UCITS) (OJ L 302 17.11.2009, p. 32).
taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) (OJ L 335,
17.12.2009, p.
1).
Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC and Regulations
(EC) No 1060/2009 and (EU) No 1095/2010 (OJ L 174 1.7.2011, p.
1).
financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (OJ L 173,
12.6.2014, p. 349).
Directive (EU) 2016/2341 of the European Parliament and of the Council of 14 December 2016 on the
activities and supervision of institutions for occupational retirement provision (IORPs) (OJ L 354,
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investors and asset managers to act in the best interest of their clients and provide scope for integrating s usta in abi lity risks, they do not systematically consider and integrate them in a consistent way in their investment decisions and disclosure processes.
Directive 2009/65/EC and Directive 2011/61/EU are complemented by four fund frameworks:
• Regulation (EU) No 345/2013 on European venture capital funds13,
• Regulation (EU) No 346/2013 on European social entrepreneurship funds14,
• Regulation (EU) 2015/760 on European long-term investm e nt funds15, and
• Regulation (EU) 2017/1131 on money market funds16
The regulatory landscape for financial products is completed by distribution rules, including the rules on advice, laid down in Directive 2014/65/EU and Directive (EU) 2016/9717. These Directives require investment firms and insurance intermediaries providing advice to act in the best interest of their clients, but they do not require them to explicitly consider ESG risks in their advice nor to disclose those considerations.
Directive (EU) 2016/2341 represents a first step towards a more concise disclosure framework in the financial services sector in relation to ESG factors. Directive (EU) 2017/828 on long-term shareholder engagement increased the transparency obligations for institutional investors and asset managers by requiring them to develop and disclose an engage ment strategy including a description of how they monitor investe e companies on non-financial performance, social and environmental impact and corporate governance, and to disclose on an annual basis how their engagement policy has been implemented. Nevertheless, there is still a lack of transparency on how institutional investors, asset managers and financial advisors consider sustainability risks in their investment decisionmaking or advisory processes. As a result, their clients do not get the full information they need to inform their investment decisions or recommendations. In addition, undertakings subject to Directive 2014/95/EU on disclosure of non -financi al and diversity information by certain large undertakings and groups which amended Directive 2013/34/EU on the annual financial statements, consolidated financial statements and related reports draw up non-financial statements about the undertakings development, performance, position and impact of their activities, relating to inter alia environmental, social and employee matters.
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European venture capital funds (OJ L 115, 25.4.2013, p.
1).
European social entrepreneurship funds (OJ L 115, 25.4.2013, p. 18).
European long-term investment funds (OJ L 123, 19.5.2015, p. 98).
Regulation (EU) 2017/1131 of the European Parliament and of the Council of 14 June 2017 on money
market funds (OJ L 169, 30.6.2017, p.
8).
Directive (EU) 2016/97 of the European Parliament and of the Council of 20 January 2016 on insurance
distribution (OJ L 26, 2.2.2016, p. 19).
Directive 2007/36/EC as regards the encouragement of long-term shareholder engagement (OJ L 132,
20.5.2017, p.
1).
Directive 2013/34/EU as regards disclosure of non-financial and diversity information by certain large
undertakings and groups (OJ L 330, 15.11.2014, p.
1).
Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual
financial statements, consolidated financial statements and related reports of certain types of
undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and
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• Consistency with existing policy provisions in the policy area
This proposal introduces additional requirements to existing elements of the relevant legislation. These new elements are consistent with the objectives of the existing policy provisions in the policy area, and in particular Directive 2009/65/EC, Directive 2009/138/EC, Directive 2011/61/EU, Directive 2014/65/EU, Directive (EU) 2016/97, Directive (EU) 2016/2341, Regulation (EU) No 345/2013, Regulation (EU) No 346/2013 and Regulation (EU) 2015/760. The proposal aligns the rules in the different legislative frameworks and safeguards consistency with them.
• Consistency with other Union policies
Europe is increasingly faced with the catastrophic and unpredictable consequences of climate change and resource depletion. That is why more sustainable economic growth, i.e. transitioning to a low-carbon, more resource-efficient and circular economy, more transparency and long-term thinking and planning, whilst ensuring the stability of the financial system, is key to the long-term competitiveness of the EU economy. As the financial system has a vital role to play here, we must stimulate private capital in more sustainable investments. Such thinking is at the core of the Capital Markets Union (CMU)21 project.
This proposal is complementary to this objective and a priority action in the CMU mid-term review as it contains measures to harness the transformative power of financial technology and to shift private capital towards sustainable investment. It contributes to the development of more integrated capital markets by making it easier for investors to benefit from the single market whilst taking informed decisions.
This proposal is part of a more comprehensive EU package to achieve the EU's climate and sustainable development agenda and feeds into the Union's energy and climate goals for 2014-2020, such as the Clean Air Policy, the Circular Economy Package, the Energy Union Strategy, including the Clean Energy for All Europeans Package and the EU Strategy on Adaptation to Climate Change. Unlike the other EU initiatives, this proposal focuses explicitly on financing aspects by the private sector. It is consistent with the review of the European System of Financial Supervision22 that provides for amendments to regulations establishing the European Banking Authority23, the European Insurance and Occupational Pensions Authority24 and the European Securities and Markets Authority25 so that the Authorities take account of risks related to environmental, social and governance factors when carrying out their tasks. In this way it ensures that financial market activities are more consistent with sustainable objectives. The Commission proposal on a pan-European
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Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Action Plan on Building a Capital Markets Union (COM(2015)468 final).
Proposal for a Regulation of the European Parliament and of the Council amending Regulations (EU) No 1093/2010, 1094/2010, 1095/2010, 345/2013, 346/2013, 600/2014, 2015/760, 2016/1011, 2017/1129 (COM(2017) 536 final).
Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC (OJ L 331, 15.12.2010, p. 12). Regulation (EU) No 1094/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Insurance and Occupational Pensions Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/79/EC (OJ L 331, 15.12.2010, p. 48).
Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ L 331, 15.12.2010, p.
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personal pension product (PEPP) provides for several disclosures in relation to ESG factors26.
2. LEGALBASIS, SUBSIDIARITYAND PROPORTIONALITY
• Legal basis
This proposal falls within the area of shared competence in accordance with Article 4(2)(a) of the Treaty on the Functioning of the European Union (TFEU) and is based on Article 114 TFEU which allows the adoption of measures for the approximation of national provisions having as their object the establishment and functioning of the internal market.
Disclosures to end-investors reinforce their protection because they aim to better inform their investment choices. Currently, end-investors cannot reap the benefit of the internal market because there is no dedicated and coherent disclosure framework on the integration of ESG risks by asset managers, including investment firms which provide portfolio management, IORPs and other pension providers, insurance undertakings which make available IBIPs, insurance intermediaries and investment firms providing advice. Moreover, end-investors do not currently receive coherent disclosures by financial products and services that target sustainable investments.
The analysis carried out as part of the impact assessment report suggests that financial market participants and financial advisors lack regulatory incentives to disclose to end-investors how they integrate sustainability factors in their investment decision process. This, in turn makes it more difficult and costly for end-investors to make informed investment choices. Disclosures in asset management, insurance and pensions sectors remain unsystematic, incoherent and fail to ensure comparability.
The impact assessment report identified considerable differences among Member States and financial services sectors. There is also a parallel development of market-based practices based on commercially-driven priorities which give rise to divergent outcomes and thus cause further unnecessary market fragmentation. Divergent disclosure standards and market-based practices make it very difficult to compare different financial products and services, create unfair conditions for different financial products and services, manufacturers and distribution channels, and erect additional barriers to the internal market. Divergences are also confusing to end-investors and distort their investment decisions and reduce opportunities for sustainable investments. Different requirements and approaches obstruct the fundamental freedoms and thus have a direct effect on the functioning of the internal market. Also, in order to respond to the Paris Climate Agreement, as financial market participants represent an important driving force, Member States are likely to adopt additional divergent national measures to incentivise more sustainable investments. However, these divergent measures could create obstacles to the smooth functioning of the internal market and be detrimental to financial market participants. The disclosure rules do not regulate market access for these financial market participants and financial advisors but govern the way their activities are carried out. The rules underpin the correct and safe functioning of the internal market, safeguard competition between different financial market participants and financial advisors and preserve behavioural incentives for innovation. Consequently, the appropriate legal basis is Article 114 TFEU.
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The taking up of activities as fund managers is regulated by Directive 2009/65/EC, Directive 2011/61/EU, Regulation (EU) No 345/2013 and Regulation (EU) No 346/2013. Taking up activity as IORPs is regulated by Directive (EU) 2016/2341, as insurance undertakings by Directive 2009/138/EC, as providers of portfolio management by Directive 2014/65/EU and as financial advisors by Directive 2014/65/EU and Directive (EU) 2016/97. These financial market participants and financial advisors will continue to be subject to these frameworks, and the disclosure rules they lay down will be supplemented by the disclosure rules contained in this new Regulation.
This proposal amends Directive (EU) 2016/2341, which was based on Articles 53, 62 and 114(1) TFEU. It empowerments the Commission to adopt delegated acts specifying the ‘prudent person’ rule with respect to the consideration of ESG risks and the inclusion of ESG factors in internal investment decisions and risk management processes. Since general governance and risk-management should already integrate ESG factors and risks, these activities should be organised to comply with the delegated acts. As the Commission plans to make use of current empowerments under Directive 2009/65/EC, Directive 2009/138/EC and Directive 2011/61/EU to specify the integration of ESG risks under those Directives, the empowerments under Directive (EU) 2016/2341 provide for means to equally safeguard consumer protection and a level playing field between IORPs and other financial market participants. As the proposed changes to Directive (EU) 2016/2341 concern rules related to investment behaviour by IORPs, Article 114 TFEU is the appropriate legal basis.
• Subsidiarity (for non-exclusive competence)
This proposal complies with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union (TEU).
According to the principle of subsidiarity, Union action may only take place if the envisaged aims cannot be achieved by Member States alone. The identified problems are not limited to the territory of one Member State. Consequently, the proposal’s aim is to ensure a coordinated solution to shortcomings stemming from the current EU legislation covering financial market participants and financial advisors. Uniformity and legal certainty of the exercise of the Treaty freedoms can be better ensured by taking action at EU level.
• Proportionality
This proposal complies with the principle of proportionality as set out in Article 5 TEU. The proposed measures are necessary to achieve the objectives of transparency and reducing investors’ search costs to determine how sustainability risks are integrated in the investment process by financial market participants and financial advisors. The availability and quality of information on this aspect is key element in creating equal conditions by ensuring a coherent approach across sectors and Member States. Consultation showed that the costs of considering and integrating ESG factors are limited.
The impact assessment report accompanying this proposal suggests that Directive 2009/65/EC, Directive 2009/138/EC, Directive 2011/61/EU, Directive 2014/65/EU, Directive (EU) 2016/97, Directive (EU) 2016/2341, Regulation (EU) No 345/2013 and Regulation (EU) No 346/2013 do not explicitly consider and require disclosures on sustainability. This proposal aims reduce search costs for end-investors on sustainable investments.
level.
• Choice of the instrument
This proposal includes provisions which in a coordinated manner address shortcomings in investor protection measures and guarantee end-investors more legal certainty. The lack of transparency on the integration of sustainability risks and on pursuing sustainable investments would not be solved solely by amending Directive 2009/65/EC, Directive 2009/138/EC, Directive 2011/61/EU, Directive 2014/65/EU, Directive (EU) 2016/97, Directive (EU) 2016/2341, Regulation (EU) No 345/2013 and Regulation (EU) No 346/2013, as this could give rise to uneven implementation. The proposal aims to increase transparency on the integration of sustainability risks and on the pursuance of sustainable investments. A directly applicable regulation, providing full harmonisation, is necessary to achieve these policy objectives and is the best way to deliver maximum harmonisation between the various regulatory frameworks while avoiding divergences.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER
Contents
- CONSULTATIONS
- Communication from the Commission to the European Parliament, the Council, the European
- Commission Staff Working Document on the review of the 2012 European Bioeconomy Strategy
- Communication from the Commission to the European Parliament, the Council, the European
- The estimate is a yearly average investment gap for the period 2021 to 2030, based on PRIMES model
- Communication from the Commission to the European Parliament, the Council, the European
- Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 on the
- Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the
- Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative
- Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in
- Directive (EU) 2016/2341 of the European Parliament and of the Council of 14 December 2016 on the
- Regulation (EU) No 345/2013 of the European Parliament and of the Council of 17 April 2013 on
- Regulation (EU) No 346/2013 of the European Parliament and of the Council of 17 April 2013 on
- Regulation (EU) 2015/760 of the European Parliament and of the Council of 29 April 2015 on
- Regulation (EU) 2017/1131 of the European Parliament and of the Council of 14 June 2017 on money
- Directive (EU) 2016/97 of the European Parliament and of the Council of 20 January 2016 on insurance
- Directive (EU) 2017/828 of the European Parliament and of the Council of 17 May 2017 amending
- Directive 2014/95/EU of the European Parliament and of the Council of 22 October 2014 amending
- Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual
- Commission Proposal for a Regulation of the European Parliament and of the Council on a pan-
- Consequently, the proposal does not go beyond what is necessary to tackle the issues at EU
- the importance of a clear
- Regulation (EU) No 1286/2014 of the European Parliament and of the Council of 26 November 2014 on key information documents for packaged retail and insurance-based investment products (PRIIPs)
ANDIMPACTASSESSMENTS
• Stakeholder consultations
Responses to a public consultation on long-term and sustainable investment (18 December 2015 to 31 March 2016) suggested that the link between the duties of institutional investors and asset managers and ESG is weak and that the markets do not sufficiently integrate ESG risks and do not sufficiently respond to ESG opportunities.
The High-Level Expert Group on Sustainable Finance (HLEG) was set up in December 2016 to help develop an EU strategy on Sustainable Finance through recommendations: it published a HLEG interim report on Financing a Sustainable European Economy in mid-July 2017 and presented the report at a stakeholder event on 18 July 2017, followed by a consultation questionnaire. A feedback statement was published along with the HLEG final report on Financing a Sustainable European Economy on 31 January 2018. The feedback statement summarises the respondents’ replies to the questionnaire. There were certain strong trends in all the responses, including
EU-wide strategy on sustainability;
• the im portance of providing a favourable environment for sustai nable investment and subsequent finance;
• the need to define institutional investors’ and asset managers’ duties regarding
sustai nability, which could be extended to embed wider environmental, social and governance considerations; that duty should also include the notion of sustai nabi lity ;
• the need for improved disclosures.
The Commission received eight responses to the inception impact assessment on institutional investors and asset managers duties regarding sust aina bil ity (13 November
2017 to 11 December 2017). All of them supported the Commission’s work to ensure that
sustai nability factors are assessed, consistently taken into account and disclosed by institutional investors and asset managers. Moreover, they all referred to issues such as transparency and disclosure, supervision of ESG integration, clarity of investors duties in the existing EU legislation, comparability and reliability of available data or risk management and governance arrangements.
The Commission further consulted stakeholders through a public consultation on institutional investors’ and asset managers’ duties regarding sustainability (13 November 2017 to 29 January 2018). The consultation followed up on the two out of the eight recommendations in HLEG interim report and, in particular, sought views on the integration of ESG factors by institutional investors and asset managers. The Commission received 191 responses to the consultation.
The Commission also conducted targeted interviews with stakeholders (January to February 2018), i.e. with medium-sized/large asset managers and institutional investors (insurance companies and pension funds) that have already integrated ESG factors in their investment decision process and/or have socially responsible investment products. 23 entities were interviewed. Questionnaires on input and data were used. The vast majority of interviewed entities confirmed the need to clarify at EU level whether institutional investors’ and asset managers’ duties involve assessing ESG-related risks and taking them into account if they are relevant. The interviewed entities provided further details on areas such as investment strategy, risk management, governance measures (i.e. an ESG specific committee, ESG board member, ESG internal control processes), engagement with investees and voting policy. Some entities also mentioned that they have in place separate ESG policies, must report to an ESG committee and to their board and that their remuneration policies were aligned with ESG. Asset managers mentioned that the benefits of integrating ESG included its positive impact on financial performance (particularly over the long term), improved risk/return characteristics of the portfolio they manage, reputational benefits of ESG integration, and ability to attract new clients. Insurers and pension providers mentioned an increase in demand by investors. Most of the interviewed entities disclose ESG-related at entity level and in annual/periodic reports, while others have client-specific disclosure, which is not public. A few entities have started to make public ESG disclosure at product level.
In addition, on 18 July 2017, the Commission organised a conference on the ‘Sustainable Finance: Interim Report’. Approximately 450 representatives had the opportunity to discuss the HLEG interim report and to provide feedback. The Commission also organised a high-level conference on ‘Financing sustainable growth’ on 22 March 2018 to keep up the momentum with the One Planet Summit and continue to consolidate the support and commitment from EU leaders and key private players for the changes needed in the financial system to fund the transition towards a low-carbon economy.
• Collection and use of expertise
The Commission relied on several studies, information and data sources from the United Nations Environment Programme, the OECD, the HLEG, Eurosif, academia, think tanks, the European Fund and Asset Management Association, market reports and studies by private companies. The process also drew on a Commission study on Resource Efficiency and Fiduciary Duties of Investors published in 2015. The Commission also relied on experience with two Horizon 2020 projects related to sustainable finance, i.e. a project on developing sustainable energy investment (SEI) metrics, benchmarks, and assessment tools for the financial sector and a project on energy transition risks and opportunities.
• Impact assessment
An impact assessment was carried out to prepare this initiative.
The proposal takes into account the opinions (the positive opinion with reservations issued on 14 May 2018 and the previous two negative opinions) issued by the Regulatory Scrutiny Board (RSB). The proposal and revised impact assessment address the comments of the RSB,
which concluded in their opinions that adjustments were necessary before proceeding further with this initiative. The Board’s major concerns were about the costs related to the disclosure requirements, both for smaller issuers and for relevant financial entities. Consequently, the policy options in the impact assessment report reflect the Board’s concerns by:
(a) clarifying the disclosures in relation to the integration of sustainability risks and disclosure requirements of financial products or services pursuing sustainable investments;
(b) identifying incentives for financial market participants and financial advisors to cut the costs which may be borne by investee companies, namely to use information in management reports or non-financial statements in accordance with Directive 2013/34/EU;
(c) providing for examples of situations where the information and data may not be directly available on the market or the available data may be of low quality and/or not comparable;
(d) improving the presentation of the cost-benefit trade-offs.
In general terms, the policy choices assessed in the impact assessment are as follows:
(a) explicitly requiring the integration of ESG risks in the investment decision or
advisory processes as part of duties towards investors and/or beneficiaries;
(b)
(c) (d)
introducing mandatory disclosures at the level of the financial market participants and financial advisors on how ESG risks are integrated in the investment decision and advisory process;
introducing mandatory disclosures for the given financial product or service, on integrating ESG risks in the investment decision or advisory process;
in addition, where financial market participants and financial advisors market financial products or services claim that such products or services pursue sustainable investment objectives, obliging them to disclose information on the contribution of the investment decisions to the sustainable investment objectives (ex-post disclosure in regular reporting) and on how the investment strategy is aligned with the sustainable investment objectives (ex-ante disclosure in pre-contractual and contractual documents).
This Regulation covers policy choices (a), (b), (c) and (d). Policy choice (a) is covered by the amendment to Directive (EU) 2016/2341 introducing empowerments for the Commission to adopt respective delegated acts.
Feedback received from stakeholders showed that a clear and coherent approach on integration of ESG risks would have the following economic impacts. First of all, end-investors will have more information on how financial market participants and financial advisors integrate ESG risks in their investment decision-making or advisory processes. ESG risks would be more systematically taken into account in financial modelling, leading to an optimal risk-return trade-off at least in the long-term, thereby fostering market efficiency. This will encourage financial market participants and financial advisors to be innovative in investment strategies or in their recommendations due to the consideration of a wider range of factors, both financial and non-financial, creating the conditions to attract new investors. And it will ultimately increase competition, incentivising entities to adopt high ESG standards.
Feedback from stakeholders also indicated that ESG-related costs are part of the overall internal and organisational costs related to the risk management and monitoring of certain exposures. In fact, the additional tasks imposed on financial market participants and financial advisors covered by this initiative would be incorporated within the existing organisational and operating procedures.
Mandatory disclosures will increase overall transparency, by reducing the asymmetry of information between end-investors and financial entities. The granularity of available information to end-investors will increase. Information will be effective in reaching the market, and better serve the general objective of reducing search costs for end-investors.
Some stakeholders indicated that the most significant costs would come from reviewing the pre-contractual and contractual documents (e.g. about EUR 40 000 per prospectus, which would be a one-off cost). However, these costs are expected to be limited if there is a transitional period, as suggested under the preferred option. Moreover, they indicated that the prospectus has to be periodically revised in any event; hence, the cost of adding ESG related information should be a fraction of it. Moreover, there are reputational benefits for financial entities from disclosure, as well as reduced costs for end-investors in finding financial products and/or services and taking investment decisions that correspond to their sustainability preferences.
The combination of a more competitive and efficient market in ESG products and services and the growing demand from end-investors for them, helped by the reduction in search costs, should ultimately cause this market to grow.
• Fundamental rights
The proposal promotes rights enshrined in the Charter of Fundamental Rights (the ‘Charter’). It has an impact on the integration of a high level of environmental protection (Article 37 of the Charter) and various social rights (such as Articles 25 and 26 of the Charter) as well as social cohesion (Article 36 of the Charter) since its main objective is to foster the integration of sustainability factors by institutional investors and asset managers and provide for a disclosure framework as regards the integration and impacts of investments on the real economy and their ability to stimulate and provide for the right incentives for transitioning to a green, low-carbon and resource-efficient economy.
4. BUDGETARYIMPLICATIONS
The proposal does not have a budgetary impact for the Commission.
5. OTHERELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
An evaluation of this Regulation will be conducted at the latest 60 months after its entry into force.
• Detailed explanation of the specific provisions of the proposal
Article 1 lays down the subject matter of the Regulation, namely the transparency requirements of financial market participants, insurance intermediaries which provide insurance advice on insurance-based investment products (‘IBIPs’) and investment firms which provide investment advice (financial advisors), on the integration of sustainability risks in their investment decision-making processes or, where relevant, advisory processes and
transparency as regards financial products which target sustainable investments, including reduction in carbon emissions.
Article 2 sets out terms and definitions that are used for the purposes of this Regulation, in particular ‘financial market participant’, ‘financial product’, ‘sustainable investments’ and others. In particular, ‘financial market participant’ means an insurance undertaking which makes available an IBIP, a manager of an alternative investment fund (‘AIFM’), an investment firm which provides portfolio management, an institution for occupational retirement provision (‘IORP’), or a UCITS management company, a manager of a qualifying venture capital fund or a qualifying social entrepreneurship fund. Since under Regulation (EU) 2015/76027, European long-term investment funds (‘ELTIFs’) may only be managed by AIFMs, AIFMs managing ELTIFs fall under the definition of financial market participant and are thus obliged to meet the transparency requirements under this Regulation with regard to ELTIFs. In order to include group life insurance policies with investment components in the scope of this Regulation, for the purposes of this Regulation IBIPs include IBIPs as defined in Article 4(2) of Regulation (EU) No 1286/201428 as well as insurance investment products made available to professional investors.
Under Article 3 financial market participants are required to publish written policies on the integration of sustainability risks in investment decision making process. The financial market participants are required to publish them on their websites and maintain the policies up-to-date. This obligation also extends to financial advisors.
Article 4 lays down that financial market participants must include in pre-contractual disclosures information on how financial market participants and financial advisors incorporate sustainability risks. This is in addition to what is already required under applicable sectorial rules (Directive 2009/65/EC, Directive 2009/138/EC, Directive 2011/61/EU, Directive 2014/65/EU, Directive (EU) 2016/97, Directive (EU) 2016/2341, Regulation (EU) No 345/2013 and Regulation (EU) No 346/2013). Financial market participants are required to provide descriptions of the procedures and conditions applied for integrating sustainability risks in investment decisions, the extent to which sustainability risks are expected to have an impact on the returns of the financial products offered and how the remuneration policies of financial market participants take into account the integration of sustainability risks and sustainable investments. The same obligations, adapted to fit the advisory process, are imposed on financial advisors.
Article 5 sets out pre-contractual transparency rules on sustainable investments. Financial market participants are required to include information on how the target of sustainable investments is ensured, i.e. whether an index has been designated as a reference benchmark and an explanation as to why the weighting and constituents of the benchmark differ from a broad market index. Managers of qualifying social entrepreneurship funds making available information on the positive social impact targeted by a given fund in accordance with the methodologies under Regulation (EU) No 346/2013, may use this information for the purposes of Article 5. Article 5 lays down specific disclosure rules for financial products that target the reduction in carbon emissions. To standardise and streamline the pre-contractual disclosures, this Article empowers the Commission to adopt regulatory technical standards. Draft regulatory technical standards should be jointly developed, through the Joint Committee of the European Supervisory Authorities (‘Joint Committee’), by the European Banking
Regulation (EU) 2015/760 of the European Parliament and of the Council of 29 April 2015 on European long-term investment funds (OJ L 123, 19.5.2015, p. 98).
Regulation (EU) No 1286/2014 of the European Parliament and of the Council of 26 November 2014 on key information documents for packaged retail and insurance-based investment products (PRIIPs)
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Authority (‘EBA’), the European Insurance and Occupational Pensions Authority (‘EIOPA’) and the European Securities and Markets Authority (‘ESMA’).
Article 6 introduces a requirement for financial market participants to publish on their websites next to the information to be provided in accordance with Article 5 and Article 7, a description of the sustainable investments target, information on the methodologies used to assess, evaluate and monitor the effectiveness of investments. To standardise and streamline the pre-contractual disclosures, this Article also provides for an empowerment for regulatory technical standards. Draft regulatory technical standards should be developed, jointly through the Joint Committee, by the EBA, the EIOPA and the ESMA.
Since the current disclosure requirements set out by EU legislation do not provide all the information necessary to properly inform end-investors about the sustainability-related impact of their investments, financial market participants are therefore required under Article 7 to describe in periodical reports the specification of the impacts of sustainable investments by means of relevant sustainability indicators. Managers of qualifying social entrepreneurship funds making available information on the overall social outcome achieved and the related methods used in accordance with Regulation (EU) No 346/2013 may use this information for the purposes of Article 7. Where an index has been designated as a reference benchmark, financial market participants are also required to include a comparison where an index has been designated as a reference benchmark, between the impacts of the portfolio with the benchmark, and a broad market index in terms of weighting, constituents and sustainability indicators. The descriptions should be added to the reporting obligations on financial market participants laid down by Directive 2009/65/EC, Directive 2011/61/EU, Directive (EU) 2016/2341, Regulation (EU) No 345/2013 and Regulation (EU) No 346/2013. As regards insurance-based investment products, Directive 2009/138/EC lays down no annual reporting obligations on insurance undertakings. Therefore, Article 7 ensures that the respective disclosures are made available annually and in accordance with Article 185(6) of Directive 2009/138/EC, i.e. in writing, and in an official language as determined in accordance with that Directive. Article 7 also ensures that investment firms which provide portfolio management disclose the information in the periodical reports referred to in Article 25(6) of Directive 2014/65/EU. To meet the disclosure requirements, financial market participants may use information in management reports in accordance with Article 19 or non-financial statements in accordance with Article 19a of Directive 2013/34/EU. To standardise and streamline the disclosures, this Article also lays down an empowerment for regulatory technical standards. Draft regulatory technical standards should be developed jointly through the Joint Committee, by the EBA, the EIOPA and the ESMA.
Under Article 8 financial market participants and financial advisors must ensure that all the information published on their websites is kept up-to-date, including a clear explanation of any amendments to the published information.
Under Article 9 financial market participants and financial advisors must ensure that marketing communications do not contradict the information disclosed pursuant to this Regulation unless sectoral legislation, in particular Directive 2009/65/EC, Directive 2014/65/EU, Directive (EU) 2016/97 and Regulation (EU) No 1286/2014 provide for stricter rules. Article 9 also empowers the Commission to implement technical standards. Draft implementing technical standards should be developed jointly through the Joint Committee, by the EBA, the EIOPA and the ESMA.
Article 10 amends Directive (EU) 2016/2341. The amendment empowers the Commission to specify in delegated acts, in accordance with Article 290 TFEU, the ‘prudent person’ rule with respect to the consideration of environmental, social and governance risks and the
inclusion of environmental, social and governance factors in internal investment decisions and risk management processes. Since governance and risk-management rules under Directive (EU) 2016/2341 already apply to investment decisions and risks assessments, including environmental, social and governance considerations, the activities and underlying processes of IORPs should be informed to comply with the delegated acts. The delegated acts should ensure consistency, where relevant, with delegated acts adopted under Directive 2009/65/EC, Directive 2009/138/EC and Directive 2011/61/EU.
Article 11 lays down that an evaluation of the application of this Regulation must be conducted at the latest 60 months after it enters into force.
Under Article 12, this Regulation should apply 12 months following its publication in the Official Journal of the European Union. However, the empowerments laid down in Article 5(5), Article 6(2), Article 7 i, Article 9(2) and Article 10 apply from the date this Regulation enters into force. Also, to ensure the first annual reports containing information in accordance with Article 7(1) to (3) relate to the complete calendar year, the application of Article 7(1) to (3) is deferred to January 1 of the year following the date referred to in the second subparagraph of this Article.