Brussels/Strasbourg, 5 February 2024
Legislators on Tuesday agreed on rules which will add considerable transparency and structure to how environmental, social and governance (ESG) ratings are undertaken and communicated.
The new rules will regulate the ecosystem of ESG rating activities to allow investors to make more considered investments and fight greenwashing. They were agreed between a delegation of MEPs, led by Aurore Lalucq (S&D, FR) and the Belgian Presidency of the Council, representing the member states.
More transparency – Break down the ESG rating
As a rule, separate E, S and G ratings shall be provided rather than a single ESG metric that aggregates E, S and G factors. Also, if an ESG rating covers the E factor, information will also need to be provided on whether that rating takes into account the alignment with the Paris Agreement and any other relevant international agreements. If an ESG rating covers the S and G factors, information must be given on whether that rating takes into account any relevant international agreements. This breakdown should allow investors to better target their investment into one of the three areas, and have a clearer idea of the rated entity’s credentials.
More transparency – Promote the ‘double materiality’ approach
The agreed rules add provisions to ensure that the rating agency should explicitly disclose whether the delivered rating assesses how the rated entity affects and is affected by E, S and G factors, i.e. whether the delivered rating addresses both material financial risk to the rated entity and the material impact of the rated entity on the environment, social and governance factors, or whether it takes into account only one of these.
In this way, ESG raters are encouraged to address the material impact of the rated entity on the environment and society (double materiality) more than is currently the case.
Boosting competition
An ESG rating provider established in the Union categorized as a small undertaking or as a small group will only be subject to some of the provisions for the first three years of its existence. This temporary light-touch approach should help start-up rating agencies and establish a more diverse ecosystem.
Quote – Aurore Lalucq (S&D, FR), rapporteur
After the deal was struck Ms Lalucq said:
“This agreement constitutes a historic breakthrough for sustainable finance. It was high time to establish clear rules in order to improve transparency in the ESG rating process and thereby restore confidence in the sustainable finance sector. Only this can allow ESG criteria to be useful tools serving the ecological and social transition.
“I am happy and proud to have negotiated on behalf of the European Parliament to make the EU the first major player to adopt ambitious legislation in this area, far from the clichés and false debates between accusations of greenwashing on the one hand and of woke capitalism on the other. One of the most important achievements of this text is the disaggregation of the Environmental, Social and Governance criteria. Only this can allow investors to be provided with transparent and reliable sustainability information.”
Background
ESG investing, that is, investing which takes ESG factors into account when making investment decisions, is becoming an important part of mainstream finance. The widespread popularity and interest in ESG goals is to be welcomed as a useful tool for redirecting investment towards more sustainable companies and projects. But it also presents the risk of mis-selling and greenwashing if ESG data lacks standardized and harmonized criteria. Therefore, ensuring accurate and reliable ESG information is key. The ESG ratings market currently suffers from a lack of such transparency.
The rules aim to introduce a common regulatory approach to enhance the integrity, transparency, responsibility, good governance, and independence of ESG rating activities, contributing to the transparency and quality of ESG ratings.
They will complement other already existing legislation such as the Sustainable Finance Disclosure Regulation, the Taxonomy Regulation, the Corporate Sustainability Reporting Directive, and the Green Bonds regulation.
Further information
Environmental, social and governance (ESG) ratings: EU Council background on trilogue agreement
5 February 2024, 22:30
The Council and European Parliament today reached a provisional agreement on a proposal for a regulation on environmental, social and governance (ESG) rating activities, which aims to boost investor confidence in sustainable products.
ESG ratings provide an opinion on a company’s or a financial instrument’s sustainability profile, by assessing its exposure to sustainability risks and its impact on society and the environment. ESG ratings have an increasingly important impact on the operation of capital markets and on investor trust in sustainable products.
I welcome this agreement. Increasing investor confidence through transparent and regulated ESG ratings can have a significant impact on our transition to a more socially responsible and sustainable future.
Vincent Van Peteghem, Belgian Minister of Finance
The new rules aim to strengthen the reliability and comparability of ESG ratings by improving the transparency and integrity of the operations of ESG ratings providers and preventing potential conflicts of interests.
Under the new rules, ESG rating providers will need to be authorised and supervised by the European Securities and Markets Authority (ESMA) and comply with transparency requirements, in particular with regard to their methodology and sources of information.
Main elements of the provisional agreement
The Council and the Parliament clarified the circumstances under which ESG ratings fall under the scope of the regulation, providing further details on the applicable exclusions. The agreement also clarifies the territorial scope of the regulation, by setting out what constitutes operating in the EU.
The Council and Parliament agreed that if financial market participants or financial advisers disclose ESG ratings as part of their marketing communications, they will include information about the methodologies used in such ESG ratings on their website. This was done through an amendment of the Sustainable Finance Disclosure Regulation.
The agreement clarifies that ESG ratings encompass environmental, social and human rights or governance factors. The agreement foresees the possibility to provide separate E, S and G ratings. However, if a single rating is provided, the weighting of the E, S and G factors should be explicit.
ESG rating providers established in the EU will need to obtain an authorisation from ESMA. ESG rating providers established outside the EU that wish to operate in the EU will need to obtain an endorsement of their ESG ratings by an EU authorised ESG rating provider, a recognition based on a quantitative criterion or be included in the EU registry of ESG rating providers on the basis of an equivalence decision in relation to the country of its origin and following a dialogue held between ESMA and the relevant third-country competent authority.
The Council and Parliament introduced a lighter, temporary and optional registration regime of three years for small undertakings and groups providing ESG ratings. Small ESG rating providers who opt in under the lighter regime will be exempted of paying ESMA supervisory fees. They will have to comply with some general organisational and governance principles, as well as transparency requirements vis-à-vis the public and users. They will also be subject to the powers of ESMA to request information and conduct investigations and on-site inspections. Upon exiting this temporary regime, small ESG rating providers will need to comply with all the provisions outlined in the regulation, including the requirements regarding governance and supervisory fees.
For small ESG ratings providers, the agreement also provides that if the conditions are met, ESMA could decide to exempt an ESG rating provider from some of the requirements but only in duly justified cases and based on the nature, scale and complexity of the business of the ESG rating provider and the nature and range of the issuance of ESG ratings.
The agreement introduces as a principle a separation of business and activities, with a possibility for ESG ratings providers not to set up a separate legal entity for certain activities, provided that there is a clear separation between activities and that they put in place measures to avoid potential conflicts of interests. However, this derogation would not apply to ESG rating providers that carry out consulting activities, audit activities and credit rating activities. ESG rating providers may nevertheless develop benchmarks if ESMA considers that sufficient measures have been put in place to address conflicts of interests.
Next steps
The provisional political agreement is subject to approval by the Council and the Parliament before going through the formal adoption procedure. The regulation will start applying 18 months after its entry into force.
Background
On 13 June 2023, the Commission presented a proposal for a regulation on ESG rating activities. The proposed rules concern the following:
- authorisation and supervision by ESMA of third-party providers of ESG ratings and scores
- separation of business for the prevention and management of conflicts of interests
- proportionate and principle-based organisational requirements,
- minimum transparency requirements to the public on ratings methodologies and objectives and more granular information to subscribers and rated companies
- transparency of fees and requirements for fees to be fair, reasonable and non-discriminatory
- possibility for third-country providers to operate on EU market if equivalence, endorsement or recognition