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Hanne Søndergaard Birkmose

For a number of years, sustainable growth and green investments have been a priority on the European political agenda and the EU Commission has set out to make Europe the first climate- neutral continent in 2050. If the EU is to meet this ambitious target, it will take a huge effort from not only Member States but also private businesses and investors. Thus, the EU Commission has initiated an enabling framework for private investors and the public sector to facilitate sustainable investments. A key element in the green transformation is the 2020 Regulation on the establishment of a framework to facilitate sustainable investment (the sustainable taxonomy), which sets a standard for how to identify environmentally sustainable economic activities. Another key element is private entities’ disclosure on how and to what extent their activities are associated with economic activities that qualify as environmentally sustainable as well as financial market participants’ disclosure of sustainability-related information in regard to the financial products they design and offer. The 2019 Regulation on sustainability‐related disclosures in the financial services sector regulates the latter. First, this article gives an overview of the two frameworks in order to analyse the disclosure regimes set out for companies and financial market participants. Second, it applies the new obligations to existing legislative measures, such as MiFID II and sector regulation and discusses how the new obligations call for amendments to the existing frameworks. The article concludes that the new sustainability‐related obligations are rather comprehensive, and that compliance with the obligations are complicated by the fact that while many of the obligations apply from 10 March 2021 the detailed level two regulation is still not in place.

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As of now, the post crisis debate about the role of institutional investors in corporate governance has resulted in the SRD II being implemented in Danish law. This only seems to be the preliminary culmination. The adoption of a revised stewardship code in the UK and the EU Commission’s Action Plan: Financing Sustainable Growth both seems to imply that the bar for what to expect of the institutional investors has been raised. Not only in relation to active ownership, but also in relation to investment practice. This article aims to describe the recent development and points to some of the possible implications of a development where companies and institutional investors have a role in the solution of some of our time’s great challenges. The article finds that such development raises fundamental questions involving the purpose of the company and under which circumstances – if any – institutional investors’ funds can give ESG considerations a higher priority than the financial return to their beneficiaries. These questions need to be discussed ahead of the expected development.

Artiklen bygger på et oplæg holdt i forbindelse med NTS Anniversary Conference. Nordic Cooperation on the Implementation of EU Company Law, som fandt sted i København den 4. oktober 2019.