Règlement sur la publication d’informations en matière de durabilité dans les services financiers : l’AMF propose une révision ciblée visant à l’insertion de critères minimaux environnementaux

On 13 February 2023, the Autorité des marchés financiers (AMF) published a press release, proposing the introduction of minimum environmental requirements in European law that must be met by financial products in order to be classified as Article 8 or Article 9 which would be a useful additional to the current regulatory framework.
The Sustainable Finance Disclosure Regulation (SFDR), adopted in 2019, was designed by the European co-legislators and the Commission as an ESG transparency regime applying to financial entities and products. Contrary to a labelling mechanism, SFDR does not set out any minimum expectations and only requires financial actors to disclose information about their claims and practices on sustainability matters.
Therefore, SFDR and the current „Article 9“ and „Article 8“ classification does not help appreciating the extent to which financial products and their investments are sustainable. In that respect, the notion of “sustainable investment” set out in Article 2(17) of SFDR is worded in vague terms, and its implementation by financial actors has resulted in very different understandings of what sustainability is.
Thus, it appears that SFDR has (i) created a gap between the reasonable expectations expressed by investors and the reality of the practices and (ii) fuelled greenwashing. Divergent interpretations and frameworks have emerged, fragmenting the single market and hampering the financing towards a more sustainable European economy. The AMF conducted an informal consultation with financial actors and reached the conclusion that, to reduce greenwashing, it is paramount that the European Commission introduces minimum expectations that financial products should meet to be categorised Art.9 or Art.8 under SFDR.
The AMF therefore make the following proposal of minimum environmental standards:
1. Considering that Art.9 and 8 categories are widely recognised in Europe, the Commission should maintain them while introducing minimum standards that a product shall meet in order to be classified in either category.
2. The vague definition of sustainable investment should be clarified to become tangible.
3. A minimum proportion of Art.9 products’ underlying assets should consist of investments in activities aligned with the EU Taxonomy.
4. Manufacturers of Art.9 and Art.8 products should be required to adopt a binding ESG approach when taking investment decisions regarding the underlying assets of such products.
5. Art.9 products should exclude investments in fossil fuel sector activities that are not aligned with the EU Taxonomy. As regards Art.8 products, investments in such activities are possible provided strict conditions are met that guarantee that such activities are committed to an orderly transition.
6. Manufacturers of Art.9 and Art.8 products could be required to adopt engagement policies and disclose them at the level of such products.
7. Manufacturers of Art.9 and Art.8 products could be required to report on the principal adverse impacts (PAI) of their investment decisions regarding these specific products.
8. A minimum proportion of Art.9 and Art.8 products’ underlying assets could consist of investments in „transition assets“.