ESG becomes law: what you need to know

Environmental, social and governance (ESG) factors have moved from being a niche concern to a strategic board-level priority across all sectors and jurisdictions in a short space of time.

ESG implementation and reporting are no longer things companies do to be socially responsible: they have a legal obligation to embrace them.

From financial institutions to energy companies to tech start-ups, from small and medium-sized enterprises (SMEs) to publicly listed companies, all businesses need to focus urgently on ESG.

While the impact of ESG regulation is indisputable, the business and investment environment is opening up new opportunities and will continue to do so in future. Existing and future ESG regulation is about making people and the planet an integral part of a company's long-term strategy. This development creates opportunities for companies to do better for people and the planet, while creating greater value for investors. 

A changing playing field

Not only are governments becoming more demanding on ESG issues, shareholders and civil society movements are also making their voices heard. Consider the Urgenda Foundation, which took the Dutch state to court: it demanded that the government do more to reduce greenhouse gas emissions, and was successful. Whether the Belgian climate case can force the government to take action on climate change is currently being decided in the Court of Appeal.

The push for companies to adopt more concrete, measurable and enforceable ESG initiatives is coming from three directions: 

  • Stakeholder activism
  • European directives
  • National legislation

Sustainable finance action plan

In March 2018, the European Commission launched its Action Plan on Sustainable Finance, which aims to:

  1. Direct capital flows towards sustainable investments for inclusive growth
  2. Manage financial risks related to climate change and social issues
  3. Promote transparency and long-term thinking in finance

Key features include a single EU classification system (taxonomy), investor responsibilities, low-carbon benchmarks and improved sustainability guidance, all aimed at promoting a more sustainable financial future.

Non-financial reporting directive

To support the transition to a more sustainable economy, the European Parliament adopted the Corporate Sustainability Reporting Directive (CSRD) in late 2022. This is an extension of the Non-Financial Reporting Directive (NFRD), both in terms of the number of companies that have to comply with the standards and the number of topics they need to report on.

The NFRD came into force on 5 January 2023 and will eventually apply to around 50,000 companies. In the same way that companies are now required to carry out financial reporting, they will also have to report on sustainability. The largest companies will be the first to report, with smaller companies following later. On 3 September 2017, the Belgian legal system incorporated these requirements, which are now part of the Belgian Code on Companies and Associations.

Taxonomy regulation

The EU Taxonomy Regulation introduces a classification system for environmentally sustainable economic activities. Article 8 of this regulation imposes disclosure requirements on companies subject to the NFRD. These include the obligation to disclose the extent of a company’s engagement in environmentally sustainable activities and certain key performance indicators.

Corporate Sustainability Reporting Directive

Companies subject to the CSRD must include non-financial information in their annual management reports, covering environmental, social, human rights, anti-corruption, bribery and diversity issues. The CSRD also requires a brief description of the company's business model, policies, performance, key risks and non-financial performance indicators.

Sustainability reporting will follow mandatory EU standards: the first set of standards was published on 30 June 2023 and a second set with additional and sector-specific information will be published by 30 June 2024. Reporting must take into account the principle of double materiality, covering both how a company’s business is impacted by sustainability issues and how its business impacts society and the environment.

The CSRD emphasises the value chain, strategy, stakeholder interests, implementation of sustainability policies and progress towards sustainability goals.

It requires disclosure of due diligence processes, adverse impacts throughout the value chain, actions taken to mitigate such impacts, material sustainability risks and relevant indicators.

The CSRD has introduced comprehensive sustainability reporting requirements for large public-interest companies, so that they provide detailed and transparent information on their sustainability practices and impacts.

Corporate Sustainability Due Diligence Directive

This directive applies to large EU and non-EU companies. It requires them to carry out due diligence and to act on any findings. There are sanctions for non-compliance. The new civil liability regime allows direct claims by individuals who are harmed by a company's non-compliance.

For companies incorporated under the law of an EU member state, the CSDDD applies to companies with an average of more than 500 employees and a global turnover of more than €150 million in the last financial year. Alternatively, it applies if a company has an average of more than 250 employees and a global turnover of more than €40 million in the last financial year, with at least 50% of that turnover generated in sectors deemed to be high-risk. High-risk sectors include those involved in the manufacture of textiles, leather, agriculture, food, minerals and related trade.

In addition, the CSDDD introduces measures applicable to SMEs involved in the value chains of companies covered by the Directive, recognising the indirect impact on them.

I run an SME: what should I do?

Unlisted SMEs fall outside the scope of the CSDDD, so they are not directly subject to its provisions. However, SMEs with securities listed on an EU regulated market (excluding micro-enterprises) fall within the scope of the CSDDD, although they can opt out until 2012

. In addition, a specific set of EU sustainability reporting standards tailored to SMEs is being developed, which non-listed SMEs can adopt on a voluntary basis.

It is important to note that even if SMEs are not directly covered by the CSDDD, they may still be affected by it through their involvement in the value chains of larger companies. Both EU member states and companies within the scope of the CSDDD have an obligation to support SMEs in these value chains.

I’m a director: what does this mean for me?

The CSDDD has wider implications for directors of companies that fall within its scope. Directors have a fiduciary duty to promote the success of their companies, but they also face risks such as criminal and civil liability and sanctions, particularly if they are directors of listed companies. In addition, the focus on ESG and sustainability issues can lead to reputational damage. The CSDDD increases the regulatory burden on companies, both in terms of time and cost. There may also be a negative impact on share prices and the cost of directors and officers insurance premiums. Articles 25 and 26 of the CSDDD, which relate to the duties of directors of EU companies, remain subject to ongoing discussion and refinement.