August 22, 2023
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The EU’s Taxonomy Regulation entered into force on 12 July 2020. It created a framework relating to the reporting of environmental sustainability of economic activities and investments. It does this by defining various standardized criteria that economic activities and investments must meet, and which corporate performance may be measured against, in order to qualify as “environmentally sustainable.” In 2023, a new Corporate Sustainability Reporting Directive made express provisions for non-EU entities to be covered by certain specific reporting requirements under the EU’s separate Accounting Directive and Transparency Directive. It seems to have also become assumed in some quarters that the Taxonomy Regulation would also apply to third-country issuers, given that some provisions of the Transparency Directive cross-refer to the Taxonomy Regulation. However, the text of CSRD contains no express provision requiring an extraterritorial extension in scope of the Taxonomy Regulation to such persons. This publication discusses why there are good arguments for the alternative proposition—that the Taxonomy Regulation does not apply, and was not intended to apply, to non-EU issuers.
The interplay between the Corporate Sustainability Reporting Directive (CSRD) and the Taxonomy Regulation is difficult to navigate. The text of CSRD includes no express provision extending the scope of the Taxonomy Regulation to third-country issuers. Third-country issuers with securities listed on an EU regulated market are uncontroversially subject to the EU’s Transparency Directive,[1] which governs disclosure of financial and business matters of issuers (with exemptions for certain wholesale debt issuers)[2], and that directive was amended to include environmental reporting at least for EU issuers.
Some market participants, commentators and official sector communications seem to be based upon an assumption that, considering the purpose of the CSRD, it ought to have the effect of extending the scope of the Taxonomy Regulation to these third-country issuers. Such an interpretation would result in significant and onerous additional obligations for relevant third-country issuers (in addition to the substantial obligations already imposed by the CSRD and the sustainability reporting standards being adopted under it). In our view and as will be discussed in more detail in this publication, the legislative texts, preparatory papers and recitals lend themselves to a more natural reading that the Taxonomy Regulation does not apply to third-country issuers.
The below table summarises the position in relation to third-country issuers in the context of CSRD, which is structured as a set of amendments to other existing pieces of legislation.
|
Law |
Amended by CSRD? |
Key sustainability topics covered |
Applies to third-country issuers subject to the Transparency Directive? |
|
Accounting Directive |
Yes |
Sustainability reporting rules in Articles 19a and 29a requiring certain EU undertakings to report various specified pieces of sustainability-related information in their management reports. |
Yes, as a result of the cross-references in Articles 4(2)(c) and 4(5) of the Transparency Directive to Articles 19a and 29a and related provisions of the Accounting Directive. |
|
Certain EU branches and EU subsidiaries of third-country undertakings generating sufficient EU revenue also required by Article 40a to produce sustainability reports at the level of that third-country parent. |
No (unless indirectly by virtue of in-scope EU branches and subsidiaries subject to Article 40a of the Accounting Directive, if the third-country undertaking meets the threshold for EU-generated turnover). |
||
|
Transparency Directive |
Yes |
Cross-refers to sustainability reporting rules in Articles 19a and 29a of the Accounting Directive in relation to management reports. |
Yes. See endnote 11 of this note. |
|
Cross-refers to Article 8(4) of the Taxonomy Regulation in relation to management reports. |
Not clear on the face of the legislation that the cross-references to the Taxonomy Regulation apply, discussed in this note. |
||
|
Taxonomy Regulation |
No |
Establishes a taxonomy for determining whether an economic activity is environmentally sustainable to facilitate sustainable investment. Article 8 and the delegated act adopted under Article 8(4) require undertakings subject to obligations under Article 19a or 29a of the Accounting Directive to publish certain taxonomy-related information in their reports. |
Not on the face of the legislation, discussed in this note. |
Non-EU companies with EU listings have raised concerns about the onerous and potentially extraterritorial nature of the EU legislative proposals concerning environmental issues, in particular those that form part of the “European Green Deal,” a package of policies with the aim of climate neutrality by 2050. For example, members of U.S. House and Senate Committees have recently written to Treasury Secretary Janet Yellen to express their concerns about “onerous extra-territorial climate mandates” imposed on U.S. businesses by the CSRD and other EU ESG legislation and the possibility that these will “significantly harm” U.S. businesses.[3] Similar concerns have been raised in relation to the European Commission’s proposed Corporate Sustainability Due Diligence Directive (CSDDD), which is part of the Green Deal and is intended to complement the CSRD.
This paper considers whether or not the CSRD was intended to extend the scope of the Taxonomy Regulation. Nothing in this paper should be taken as arguing that the aim and purpose of CSRD and related measures as regards international commitments and public policy imperatives to improve sustainability and reduce carbon emissions are not laudable; this paper simply presents a view on the extension of certain EU legislation to non-EU companies.
The CSRD entered into force on 5 January 2023 and introduces corporate sustainability reporting rules that will apply to certain EU and non-EU undertakings by making amendments to:
In our note of 14 December 2022, we summarized CSRD and its scope generally. As set out in further detail in that note, the CSRD imposes corporate sustainability reporting rules on the following categories of undertaking:
(1) EU undertakings that are:
(2) Non-EU undertakings with sufficient EU-generated turnover and at least (i) an EU branch with a net turnover of more than EUR 40 million; or (ii) an EU subsidiary that is large or EU-listed as described above. The obligations apply to these non-EU undertakings indirectly, since the obligations are imposed on the EU subsidiary or branch, rather than the non-EU undertaking itself.
The new sustainability reporting rules are imposed indirectly on these non-EU undertakings by Article 40a (Sustainability reports concerning third-country undertakings) of the Accounting Directive, as amended by CSRD.
(3) Certain non-EU undertakings with securities admitted to trading on one or more EU-regulated markets (i.e. non-EU issuers in scope of the Transparency Directive).
The new sustainability reporting rules are imposed on these non-EU undertakings by cross-references to the Accounting Directive in Article 4 (Annual financial reports) of the Transparency Directive, as amended by CSRD, which cross-refers to the sustainability reporting rules in Articles 19a, 29a and related provisions in the Accounting Directive.
Some wholesale debt issuers are exempt from Article 4 of the Transparency Directive and would therefore appear not to be within scope of the CSRD.[8]
The Taxonomy Regulation, which entered into force on 12 July 2020, created a framework relating to the environmental sustainability of economic activities and investments. It does this by providing for overarching criteria that economic activities and investments must meet in order to qualify as “environmentally sustainable.”
Although it was not itself amended by CSRD, the Taxonomy Regulation is closely related to CSRD. Both pieces of legislation comprise part of the European Green Deal, and there are a number of interactions between the two legislative packages. For example, there are cross-references in (i) the Accounting Directive and Transparency Directive to the Taxonomy Regulation and (ii) the Taxonomy Regulation to the Accounting Directive (as amended by CSRD).
The effect of these cross-references is that some of the undertakings in scope of CSRD reporting obligations are also required to comply with the Taxonomy Regulation, including in particular Article 8 of the Taxonomy Regulation and the delegated act (the Disclosures Delegated Act[9]) adopted under that Article. Article 8 of the Taxonomy Regulation requires certain undertakings to disclose how and to what extent their activities are associated with Taxonomy Regulation–qualifying environmentally sustainable economic activities. The Disclosures Delegated Act prescribes the content, methodology and presentation of information to be disclosed by undertakings in scope of Article 8 concerning what proportion of their economic activities is environmentally sustainable for these purposes.
It is already clear that the EU undertakings described in section (1) above of our categorization of CSRD undertakings (i.e. large, parent of a large group or listed SME) are subject to the Taxonomy Regulation. This is because the Taxonomy Regulation cross-refers to the relevant operative provisions (Articles 19a and 29a) of the Accounting Directive and expressly makes them applicable to such entities:
Article 1(2)(c), Taxonomy Regulation: “[This Regulation applies to:] undertakings which are subject to the obligation to publish a non-financial statement or a consolidated non-financial statement pursuant to Article 19a or Article 29a of [the Accounting Directive].”
Article 8(1), Taxonomy Regulation: “Any undertaking which is subject to an obligation to publish non-financial information pursuant to Article 19a or Article 29a of [the Accounting Directive] shall include in its non-financial statement or consolidated non-financial statement information on how and to what extent the undertaking’s activities are associated with economic activities that qualify as environmentally sustainable under Articles 3 and 9 of this Regulation.”
There are also provisions in the Accounting Directive itself that require such undertakings to comply with Article 8 of the Taxonomy Regulation (see Article 29d of the Accounting Directive).
It is also clear that the non-EU undertakings described in section (2) above of our categorization of CSRD undertakings (i.e. with sufficient EU-generated turnover and an in-scope EU branch or subsidiary) are not subject to the Taxonomy Regulation. There is no cross-reference in the Taxonomy Regulation to the relevant operative provision (Article 40a) of the Accounting Directive, nor any reference in Article 40a of the Accounting Directive to the Taxonomy Regulation. This is confirmed in the Commission’s June 2023 User Guide to Navigate the EU Taxonomy for Sustainable Activities (the “Taxonomy User Guide”), which states that “The CSRD also applies to non-EU companies with activities in the EU above a certain threshold [i.e. Article 40a companies], but Taxonomy rules will not apply to these companies.”[10]
The Commission has also confirmed, in correspondence with market participants, that the Disclosures Delegated Act does not apply to these non-EU undertakings.
This position as regards the application of the Taxonomy Regulation to third-country issuers described in section (3) above of our categorization of CSRD undertakings, i.e. third-country issuers in scope of the Transparency Directive, has been more controversial. In our view, the better interpretation is that third-country issuers are not subject to this measure.
The cross-references in the Transparency Directive to the Taxonomy Regulation are drafted in a manner that makes them difficult to interpret. For example, under Article 4 of the Transparency Directive, management reports drawn up by issuers subject to the Transparency Directive must be drawn up:
“in accordance with Articles 19, 19a and 20, and Article 29d(1) of [the Accounting Directive], and shall include the specifications adopted pursuant to Article 8(4) of [the Taxonomy Regulation], when drawn up by undertakings referred to in those provisions.” (Article 4(5) of the Transparency Directive, first subparagraph)
“in accordance with Articles 29 and 29a and Article 29d(2) of [the Accounting Directive] and shall include the specifications adopted pursuant to Article 8(4) of [the Taxonomy Regulation], when drawn up by undertakings referred to in those provisions.” (Article 4(5) of the Transparency Directive, second subparagraph)
Under Article 4(2), issuers must then, “where appropriate,” include in their annual financial reports statements “confirming” that their management reports are “prepared in accordance with sustainability reporting standards referred to in Article 29b of [the Accounting Directive] and with the specifications adopted pursuant to Article 8(4) of [the Taxonomy Regulation]” (Article 4(2)(c), Transparency Directive).
In the absence of clear wording to the contrary, it would seem more plausible that these cross-references to the Taxonomy Regulation are intended to cross-reference the obligations for EU issuers already in scope of the Taxonomy Regulation rather than extending the scope of the Taxonomy Regulation for the first time to all third-country issuers that are in scope of the Transparency Directive.[11]
In the Taxonomy User Guide, “Use Case 12” appears to assume that non-EU companies are not in scope of the Taxonomy Regulation:
“Use Case 12: Reporting against the EU Taxonomy for non-listed SMEs or non-EU companies. Your company is a non-listed SME or a non-EU company, therefore it will not need to comply with the Taxonomy disclosures referred to in the CSRD. How can you still use the EU Taxonomy to measure and report your impact on climate change adaptation and mitigation?”
It might be argued that the references to “non-EU companies” here are intended to refer to non-EU companies not in scope of CSRD sustainability reporting obligations at all. However, if that were the case, we would expect to see a clear additional “use case” designed to guide third-country issuers through the Taxonomy Regulation. There is no such “use case” in the document.
As set out above, the Taxonomy Regulation clearly cross-refers to undertakings subject to obligations pursuant to Articles 19a and 29a of the Accounting Directive. It makes no such cross-reference to issuers in scope of the Transparency Directive. Such issuers are in scope of CSRD sustainability reporting obligations only by virtue of cross-references to the Accounting Directive in the Transparency Directive. It would be surprising had the EU finalised a legislative package intended to drastically extend the territorial reach of the Taxonomy Regulation without clear operative provisions to that effect. The principles of legal certainty and clarity ought to mean that clear express provisions in this regard should be expected for such an inclusion.
There is an alternative interpretation that these third-country issuers are to become indirectly subject to the obligations in Articles 19a and 29a of the Accounting Directive by virtue of the cross-references to those provisions in the Transparency Directive. However, in our view, it is difficult to see that this amounts to being subject to obligations “pursuant to” Articles 19a and 29a, since it is the Transparency Directive that imposes the direct obligations on these issuers.
If the EU intended for the Taxonomy Regulation to apply to third-country issuers, we would expect to see some explanation, justification or discussion in the preparatory papers drafted around the time the references to the Taxonomy Regulation were negotiated. Notably, the cross-references in the Transparency Directive to the Taxonomy Regulation were not present in the original CSRD and seem to first appear in the position of the European Parliament adopted at first reading on 10 November 2022. However, none of the preparatory papers discuss any intention or proposal by any of the EU institutions to make such a novel extension of the scope of the Taxonomy Regulation. Instead, there are general references to the need merely to “align” the CSRD proposal with the Taxonomy Regulation.
It would also be surprising for the scope of the Taxonomy Regulation to be extended to third-country issuers without thought to amending or adapting in any way the Taxonomy Regulation or the Disclosures Delegated Act, which might properly apply to such entities. The EU has, as discussed above, brought third-country issuers in scope of Articles 19a and 29a of the Accounting Directive in a similar manner to EU issues, but the position with regards to the Taxonomy Regulation is compounded by practical difficulties in applying the delegated act made under Article 8(4) of the Taxonomy Regulation, discussed above.
For example:
The definition of “sustainability reporting” in the Transparency Directive (which is used in Article 4 of the Transparency Directive, the relevant parts of which are extracted above) cross-refers to the definition of that term in Article 2(18) of the Accounting Directive. That definition cross-refers only to Articles 19a, 29a and 29d of the Accounting Directive, and not to the Taxonomy Regulation.
A Draft Commission Notice dated 19 December 2022, relating to the interpretation of the Disclosures Delegated Act under Article 8 of the Taxonomy Regulation, seems to assume applicability of the Disclosures Delegated Act (and presumably, therefore, the wider Taxonomy Regulation regime) to third-country issuers, stating that:
“… the same phased approach described above will apply to third-country undertakings with securities listed on the EU regulated markets, due to the fact that the CSRD has also amended Directive 2004/109/EC (Transparency Directive).”
Notably, this notice is not directly on point and certainly was not written to answer the question of whether the Taxonomy Regulation regime applies to third-country issuers, but a question about the timing and nature of phased implementation. It is hoped that the points set out in this paper in relation to third-country issuers can also be considered before it is finalised, or that specific guidance on the point can be introduced.
Ultimately, the view of the European Commission, whatever that may be, is likely to be very persuasive to a Court or other body considering the matter.
The Commission has adopted delegated acts containing the first set of detailed sustainability reporting standards (ESRS) in accordance with Article 29b of the Accounting Directive, which requires the Commission to adopt these, taking into account technical advice from the European Financial Reporting Advisory Group (EFRAG) and other EU legislation, including the Taxonomy Regulation. The first set of ESRS, which are the standards to be used by undertakings in scope of Articles 19a and 29a of the Accounting Directive, contain the following requirement:
“113. ‘The undertaking shall include in its sustainability statement the disclosures pursuant to Article 8 of [the Taxonomy Regulation] and to the Commission Delegated Regulations that specify the content and other modalities of those disclosures. The undertaking shall ensure that these disclosures are separately identifiable within the sustainability statement. The disclosures relating to each of the environmental objectives defined in the Taxonomy Regulation shall be presented together in a clearly identifiable part of the environmental section of the sustainability statement. These disclosures are not subject to the provisions of ESRS, with the exception of this paragraph and the first sentence of paragraph 115 of this standard.
…
115. The undertaking shall structure its sustainability statement in four parts, in the following order: general information, environmental information (including disclosures pursuant to Article 8 of [the Taxonomy Regulation]), social information and governance information…’
(ESRS 1)
The explanatory note published by EFRAG in November 2022 alongside the pre-adoption drafts of the ESRS explained as follows:
“The undertakings subject to the scope of the CSRD are also obliged to disclose information required by Article 8 of the Regulation (EU) 2020/852 (Taxonomy Regulation) in conjunction with the Commission Delegated Regulation (EU) 2021/2178 …”
These statements potentially assume an obligation to comply with Article 8 of the Taxonomy Regulation for all undertakings in scope of CSRD, including third-country issuers, but they make no direct comment on the issue.
More plausibly, these statements can be interpreted as relevant only to EU issuers or issuers already in scope of the Taxonomy Regulation. In addition, the reference to “undertakings subject to the scope of the CSRD” may suffer from a conflation of CSRD and the Non-Financial Reporting Directive, described in detail below in our discussion of the Taxonomy User Guide.
It is expected that non-binding technical guidance on the ESRS will be published by EFRAG. It may be that the issue will be addressed in more detail in that guidance.
The European Council and European Parliament, to whom the delegated acts containing the ESRS are expected to be transmitted in August for a scrutiny period of two months (extendable by a further two months), may reject the delegated acts (though they may not amend them). Separate ESRS will be adopted in relation to non-EU undertakings in scope of Article 40a of the Accounting Directive. It is difficult to draw any conclusions from the current ESRS until there is a final and complete set of ESRS and related guidance, which may include specific nuances for third-country undertakings.
Preparatory papers and recitals to CSRD cited below refer to issuers, including third-country issuers, falling under “the same sustainability reporting requirements” as EU undertakings subject to the Accounting Directive and the “extension of the sustainability reporting requirements” to issuers, “including non-EU issuers.” It could be argued that since Article 8(4) of the Taxonomy Regulation will apply to EU issuers, the same rules are intended to apply to third-country issuers:
The recitals and the preparatory papers cited above all refer merely to “sustainability reporting requirements” and not specifically to the Taxonomy Regulation. As noted above, “sustainability reporting” is defined in the Transparency Directive as relating to the reporting under Articles 19a, 29a and 29d of the Accounting Directive, which provisions are uncontroversially applied to third-country issuers. This language in the recitals, in our view, is therefore better interpreted as a reference only to the various sustainability reporting requirements in the Accounting Directive itself and not to those in the Taxonomy Regulation.
Footnote 9 to the Taxonomy User Guide referred to above (and other materials relating to CSRD) generally suggests that the scope of the Taxonomy Regulation has been extended to all undertakings in scope of CSRD, except as described in section (2) above of our categorization of CSRD undertakings:
“The Non-Financial Reporting Directive (NFRD) covered companies (including partnerships) that (i) have more than 500 employees (on average) and (ii) a balance sheet total of EUR 20 million or a net turnover of EUR 40 million in a financial year (i.e. ‘large companies’ if both conditions are met) and (iii) are EU Public Interest Entities (PIE), i.e. a traded company on a regulated market (i.e. a ‘listed company’), a banking company, an authorised insurance company or a company carrying out an insurance market activity. The Corporate Sustainability Reporting Directive (CSRD) extends this scope to all large companies (even if un-listed) and all listed SMEs (except micro-enterprises). The CSRD also applies to non-EU companies with activities in the EU above a certain threshold, but Taxonomy rules will not apply to these companies.”
This seems to imply that entities under section (3) above of our categorization of CSRD undertakings (third-country issuers subject to the Transparency Directive) are in scope of the Taxonomy Regulation, since they are not expressly called out as an exception. However, this interpolation may have arisen because references in various communications to the Non-Financial Reporting Directive (the pre-CSRD iteration of the Accounting Directive) have been used interchangeably with references to the CSRD. This would be inaccurate, since the scope of CSRD is wider than that of the Non-Financial Reporting Directive (including in particular because the former amends the Transparency Directive to extend the scope of sustainability reporting rules to third-country issuers). It is easy to see how using the two references interchangeably might result in an omission of any reference to third-country issuers as exempt from the extension of scope of the Taxonomy Regulation, since such issuers were not in scope of the Non-Financial Reporting Directive. That an inaccurate conflation occurred becomes obvious from the following statement on page 7 of the Taxonomy User Guide (emphasis added):
“The EU Taxonomy ... is also closely linked to other EU policies related to non-financial disclosure. First, it complements the EU’s Non-Financial Reporting Directive (NFRD) or Corporate Sustainability Reporting Directive (CSRD) as companies that fall under the scope of the NFRD (or now CSRD) have a mandatory obligation to disclose alignment of their activities or investments with the criteria set out in the EU Taxonomy.”
We understand that some may take the view that a purposive reading of CSRD lends itself to the interpretation that CSRD extends the scope of the Taxonomy Regulation to these third-country issuers, given the focus of CSRD generally on significantly extending the scope and nature of sustainability-related disclosures to be made by in-scope undertakings.
It could be argued that there is a degree of ambiguity in the operative provisions, although for the reasons discussed above, this would be a stretch. Recourse should only be had to purposive interpretations where the texts are unclear and two interpretations could be taken. In our view, it would be an incorrect application of purposive interpretative principles to invoke these so as to assert a broad extraterritorial jurisdiction of onerous new legislation to third country entities, in the absence of a clear express provision to this effect. Moreover, it is difficult in our view to draw a purposive interpretation of this nature given the lack of clear evidence of intention in the preparatory papers and, at present, inconsistent guidance (in particular in the Taxonomy User Guide).
The position discussed in this paper may change if the European Commission (or a relevant national listing authority) were to publish guidance to the effect that the Taxonomy Regulation does apply to these third-country issuers as a result of the relevant provisions of CSRD. It is also open to member states to “gold-plate” their national law or take different interpretations; the view in this paper is based only on the text of the EU legislation itself and not on any member state implementation proposals.
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