Out-Law Analysis | 29 Apr 2022 | 4:35 pm | 3 min. read
The Irish Central Bank (CBI) met with the funds industry earlier this month to clarify its expectations of them in respect of EU-level sustainability taxonomy and disclosure requirements, following its recent review.
The confirmation is particularly timely following on from the recent statement by the European Supervisory Authorities (ESA), which had led to some confusion about how the requirements of the EU regulation on sustainability-related disclosures in the financial services sector (SFDR) and Taxonomy Regulation be implemented during the transition period.
The CBI intends to prepare a report summarising its findings. Fund managers should note that the views expressed by the CBI at the meeting are initial thoughts and its thinking on this may evolve over time. Most importantly, the CBI indicated that it is open to engaging directly with industry on these topics to get a better sense of the challenges that managers face in implementing SFDR and Taxonomy Regulation. The CBI also intends to carry out a further thematic review on implementation of its requirements later in the year.
According to the recent ESA statement, during the interim period of waiting for the level two measures to be finalised, the ESAs expect financial market participants to express the extent to which their underlying investments are in environmentally sustainable economic activities, as a numerical percentage figure.
If fund managers intend to update these disclosures before 1 January 2023, they need to be considering how best to approach this issue now
The CBI has now indicated that its initial view is that for existing ‘article 8’ (‘environmentally and socially promoting’) and ‘article 9’ (‘products targeting sustainable investments’) funds, any further updates to their offering documents on foot of its review, including any explicit quantification of taxonomy alignment, could be addressed by financial market participants when they update their documents in 1 January 2023 to address the level two measures. The CBI noted that for article 6 ('non-sustainable') funds, the 1 January 2023 deadline did not apply, meaning it would be appropriate to make any necessary amendments the next time the documents are being updated. The CBI also indicated that any new funds would have to comply with the current disclosure expectations immediately.
The CBI’s initial indication that existing Irish funds do not need to immediately update their disclosures to include an explicit quantification of taxonomy alignment and have until 1 January 2023, which aligns with the deadline to incorporate level two measures, is very helpful. It is important for fund managers to note, however, that if they intend to update these disclosures before 1 January 2023, the quantification of taxonomy alignment will need to be included at that point and it is also required to be included within any new fund supplement, so in reality, they need to be considering how best to approach this issue now.
In general, the CBI was satisfied with the disclosures of the article 6 fund documents that it reviewed, especially where they indicated that they do not deem sustainability risks to be relevant. However, the CBI did express concerns where article 6 funds indicate that they do believe that sustainability risks are relevant, where the disclosures made are generic in nature.
Where an article 6 fund does indicate that such risks are relevant, the CBI has emphasised that it needs to provide specific disclosures, setting out the manner in which they are integrated into investment decisions and the results of the assessment of the likely impact of those risks on the returns of the funds.
The CBI did express some concerns with some funds that it sampled which designated an index as a reference benchmark but did not disclose information on how and whether the index is consistent with the environmental or social characteristics promoted by the fund. It also indicated that managers need to ensure that the composition of the index against the screening criteria is also monitored by the fund manager/investment manager and that they do not simply rely on the index provider to do this.
The CBI also expressed concern at statements made by managers that they would not monitor investment managers’ compliance with their environmental, social and governance (ESG) strategy on an ongoing basis, but instead annually.
These clarifications come after the European Commission formally adopted the regulatory technical standards (RTS) to be used by financial market participants when specifying certain disclosure requirements under the SFDR. The RTS provide technical detail on the content, methodology and presentation required from relevant firms when submitting financial disclosures under the SFDR and Taxonomy Regulation.
Under the RTS, it will remain mandatory for financial market participants to use a prescribed disclosure template for their annual manager-level principal adverse impacts (PAI) report. PAI reporting will require relevant firms to provide extensive disclosures on matters including greenhouse gas emissions and other indicators in template format. The RTS does not clarify whether any products can be excluded from PAI reports.
The standards do not formally define article 8 and 9 products and retain the approach in previous drafts that pre-contractual and periodic disclosures should be made through mandatory templates. The Commission also emphasised that the SFDR articles 8 and 9 are ‘anti-greenwashing’ disclosure rules, rather than a positive labelling system.
The latest draft of the RTS will now be scrutinised by the European parliament and the Council of Ministers and are expected to apply from 1 January 2023.
Co-written by Lucy Deane of Pinsent Masons.
07 Apr 2022
01 Apr 2022