The topics of environmental, social and governance (ESG) are becoming increasingly important for the financial industry and must be taken into account at various levels. ESG information also plays a significant role when raising money through the capital market. The European Securities and Markets Authority (ESMA) has therefore announced a public statement on sustainability-related information in prospectuses in accordance with Regulation (EU) 2017/1129 (Prospectus Regulation) on July 11, 2023. Accordingly, ESMA’s requirements must be taken into account when issuing non-equity securities, in particular green bonds, and for issuing stocks. The Prospectus Regulation requires that a securities prospectus contains all required information that is essential for investors to form an informed opinion for the investment decision. This information may include, in particular, ESG information, which must then be included in the prospectus accordingly. However, the ESMA requirements are only intended to specify the existing information requirements. Additional information requirements, however, are not established. BaFin welcomes ESMA’s comments and will also take them into account in the approval procedure for a securities prospectus.
Circumstances of the Issuer and Type of Security are Decisive for ESG Disclosures
The type of sustainability information required to meet the requirements of the Prospectus Regulation depends on the materiality of the information for an investor. The circumstances of the issuer and the nature of the securities in question will determine what information is considered material. In this regard, issuers must specify the basis for any statements about their sustainability profile or that of the securities they issue. Information provided in the risk factors of a securities prospectus should not be used to excuse failure to address factors over which the issuer exercises control. For example, a disclaimer that the proceeds of the offering may be invested contrary to the project selection criteria set forth in a prospectus relates to a factor over which an issuer exercises control. It should therefore not be included as a disclaimer. The comprehensibility of sustainability information should be ensured by complying with the requirements set out in Regulation (EU) 2019/980. In particular, the prospectus should clearly define the components of the mathematical formulas and, where applicable, clearly describe the product structure. All technical terms relating to sustainability should also be adequately defined.
ESG Aspects to be Considered for Stocks and Non-Dividend Securities in the Securities Prospectus.
To the extent that sustainability-related disclosures are required to be included in a company’s non-financial reporting on the basis of other European directives, issuers should also include these disclosures in a stock prospectus. With respect to bonds whose proceeds are used to finance or refinance green or social projects or activities, ESMA expects disclosure on how the proceeds are used and managed, as well as information that enables investors to assess the sustainability objectives underlying the project evaluation and selection process. For bonds where the financial or structural characteristics depend on the issuer achieving predefined ESG targets, disclosures on the selected Key Performance Indicators (KPIs) and Sustainability Targets (SPTs) are to be included in the securities prospectus. Furthermore, information shall be included to enable investors to assess the consistency of the KPIs and the related SPTs with the relevant sector-specific science-based targets (if applicable) and the issuer’s sustainability strategy. For the aforementioned types of bonds, if issuers intend to disclose post-issuance information, this should be included in the securities prospectus. In addition, it should be indicated which information will be reported and where it can be obtained.
The competent lawyer for questions concerning the information documents such as e.g. a securities prospectus in the case of a public offering of (electronic) securities in our law firm is attorney Dr. Konrad Uhink.