17 - The Role of Non-Financial Disclosure and Liability in Sustainable Finance

Summary

The enactment of the European Non-Financial-Reporting-Directive (2014/95/EU) and the new (proposed) Corporate-Sustainability-Reporting-Directive as its successor introduced aspects of corporate social responsibility to the world of financial reporting for almost all listed corporations in the common market. This established a path dependency between the traditional financial and the (new) non-financial reporting regime. As the consequence, the actual non-financial reporting regime does not provide a unique scope of application and does not distinguish between business entities with and without an impact on corporate social responsibility. Nevertheless, the actual content of financial reporting and non-financial reporting is fundamentally different since financial information is a number-based information instrument and sustainability information is a text-based information instrument. Moreover, financial information and non-financial information do not require the same corporate governance procedure for drafting and examining. Finally, it is doubtful that the liability regime of financial disclosure can be used as some kind of blueprint for a civil liability regime for non-financial disclosure. Since the existing framework for civil liability in financial disclosure cannot be used for cases of incorrect non-financial disclosure, it is necessary to develop an independent regime of civil liability for incorrect non-financial disclosure. The existing path dependency between financial and non-financial disclosure prevents this necessary step.