Anmerkungen:
Nach Informationen von SSRN wurde die ursprüngliche Fassung des Dokuments August 3, 2023 erstellt
Beschreibung:
In line with the European Green Deal, the EU Action Plan on sustainable finance was adopted in March 2018 as part of the European Capital Markets Union’s efforts to help re-orienting private capital to more sustainable investments. To that end, Regulation (EU) 2019/2088, as amended, (the “SFDR”) on sustainability-related disclosures in the financial services sector was adopted that came into force in March 2021. Apart from the SFDR, several other initiatives have since then been adopted by the European Commission (“EC”), including, amongst others:• a regulation amending the Benchmark Regulation in relation to low carbon benchmarks and positive carbon impact benchmarks;• a regulation on the establishment of a framework to facilitate sustainable investment ; and• delegated regulations/directives amending the MiFID II Delegated Regulation 2017/565 (“MiFID II LVL 2”), Commission Directive 2010/43/EU (“UCITSD LVL 2”) and Commission Delegated Regulation (EU) 231/2013 (“AIFMD LVL 2”) that integrate ESG considerations and preferences into investment advice and portfolio management; and incorporate sustainability risks.Together with relevant laws implementing the mentioned regulations/directives and several new other initiatives, including the CSRD , CS3D , ESAP and a proposed legal framework covering ESG rating agencies , the European legislator clearly introduces “rule-based ESG duties” for a wide range of actors that are active in the European asset management industry. It does so by taking a “cross-sectoral approach” and ensuring a “level playing field” throughout European asset management, banking, and insurance laws. Ultimately, the European “ESG legislative framework” seeks to contribute in eliminating “greenwashing”, i.e. a form of marketing in which green values are deceptively used to persuade investors that the financial products of a financial market participant or financial adviser are “ESG friendly” and therefore “better.”This contribution focusses on explaining that the recently introduced “ESG duties” for European investment funds and their managers under European financial regulatory laws can be classified as “rule-based ESG duties,” largely substituting traditional corporate law “ESG fiduciary duties” applying to European investment funds and their managers.For this purpose, this contribution starts by framing in Section II the scope of the EU ESG obligations by defining to what types of fund managers, (delegated) investment managers, investment advisers/distributors (e.g. MiFID II investment firms and credit institutions), and investment funds the EU “ESG legislative framework” applies. Section III explains that the “ESG conduct of business rules” applying to these actors can be seen as rather “principle-based.” On the contrary, Section IV highlights that the “ESG transparency rules” applying on the “product-level” are more “rules-based” and, as discussed in Section V, the EU legislator seeks to “feed” these disclosures with detailed data to be provided by transparency obligations relating to companies on the “investment-level.” Section VI concludes