Sustainability-Reporting under the CSRD: Standard Setting and its Conformity with EU Law

Violation of the principle of democracy and EU law

Sustainability is becoming an increasingly important topic – including for the European economy. In future, not only will capital market-orientated companies be required to report on the fulfilment of certain environmental and social criteria, but all companies above a certain size. This required the creation of a directive, the Corporate Sustainability Reporting Directive (CSRD).

The EU has delegated the development of the necessary standards to the EU Commission. However, it only defines a few key points itself and refers the details to the European Financial Reporting Advisory Group (EFRAG). This is a private Belgian organisation.

This approach has been strongly criticised and, in the opinion of Prof Dr Martin Nettesheim, violates several legal principles. In a detailed expert opinion, the lawyer, who specialises in constitutional and administrative law as well as European and international law, explains that these delegation regulations are incompatible with the EU treaties and gives detailed reasons for this.

He also points out that this approach also violates the provisions of Germany’s Basic Law. “The decisions of EU lawmakers touch on the right to democracy and constitutional identity. They can therefore be challenged by all Germans in the form of a constitutional complaint.”