The communication of non-financial information according to the Directive 2014/95/EU as an instrument for the promotion of corporate integrity in Europe

Introduction

On 22 October 2014 the European Council adopted the Directive 2014/95/ EU¹ (the ‘Directive’) which mandates the Member States to issue regulations on the subject of non-financial information within the December 2016 and with effects starting from financial years ending on 31 December 2017.

This was the further step of the European policy on transparency and business reporting, whose implementation begun with Directive 2003/51/EC.^{[1] [2]}

Generally, the increasing political attention of European Union for transparency was caused by political concerns regarding (a) the long-long term necessity to provide the conditions for sustainable economic growth, and (b) the need to rebuild the trust of consumers and investors on the performance of undertakings also with regard to ethical behaviours in the context of the economic crisis (Gaztea and Fernandez, 2017).

Despite the first legislative initiative on non-financial reporting was adopted in 2001, the decisive acceleration to the European policies on this subject was given by the communication from the Commission on A renewed EU strategy 2011-2014 for corporate social responsibility (‘CSR’) of 25 October 2011^[3] and two resolutions issued by the European Parliament: Corporate social responsibility: accountable, transparent and responsible business behaviour and sustainable growth (2012/2098[INI]) and Corporate social responsibility: promoting society’s interests and a route to sustainable and inclusive recovery (2012/2097[INI]), both approved on 6 February 2013^{[4] [5]} (Assonime, 2017).

Especially the last two resolutions pointed out the importance of a proper communication by undertakings on non-financial issues, such as sustainability, social and environmental factors, in order to make investors and consumers able to make aware decisions; therefore, the European Parliament asked the Commission to arrange a specific legislative proposal which combined flexibility and proportionality of transparency measures in relation to the sizes of enterprises with the need for comprehensive information to the market.

Indeed, there had been criticisms concerning: (1) the lack of transparency, both from the qualitative and quantitative perspective, on non-financial information (Aureli, Masnaghi and Salvatori, 2018); (2) the insufficient diversity in the composition of the boards of directors, as well as the lack of transparency in this regard, often at the origin of the mismanagement of companies, their limited inclusive and innovative character and, ultimately, their reduced contribution to growth (Bellisario, 2017).

Therefore, with its Action Plan 2011-2014 on CSR, the Commission announced its program to improve the disclosure of information on social and environmental issues and uniform rules for all the market players to such respect; indeed, non-financial disclosure was deemed as an across-the-board issue for the development of CSR, as it is able, on one hand, to ease the engagement with stakeholders and the identification of risks for sustainability, and, on the other hand, to increase the trust of investors and consumers on enterprises and, thus, help the arrangement of an effective remedy to the economic crisis (European Commission, 2011; Gaztea and Fernandez, 2017).

As it was brightly summarised:

The key concept that is often repeated through the Impact Assessment document prepared by the ELJ Commission is the idea that large undertakings should report on their capacity to create ‘shared value’ rather than ‘shareholder value’.

(Monciardini, Dumay and Biondi, 2017: p. 10)

The communication of non-financial information 221 The Directive and its implementation A brief description

The immediate purpose of the Directive is to increase the transparency of corporations in non-financial issues reporting. But this is only a means, the end is more ambitious, i.e. to contribute to a sustainable global economy.

(Gaztea and Fernandez, 2017: p. 292)

Indeed, the Directive obliges large companies^[6] which are public-interest entities^[7] to include in the management report a non-financial statement containing information to the extent necessary for an understanding of the undertaking’s development, performance, position and the impact of its activity, relating to, at least, environmental, social and employee matters, respect for human rights, anticorruption and bribery matters.

• [1] Directive 2014/95/EU of the European Parliament and of the Council of 22 October 2014amending Directive 2013/34/EU as regards disclosure of non-financial and diversity information by certain large undertakings and groups Text with EEA relevance [2014] Of L330/1.
• [2] With the Recommendation of 30 May 2001, the Commission invited Member States toadopt the appropriate measures for the detection and assessment of environmental costs inthe annual and consolidated accounts of companies. Subsequently the directive n. 2003/51/EC amended the Directive on annual accounts (Directive 78/660/EEC) and that on consolidated accounts (Directive 83/349/EEC) by introducing non-financial information requirements. Currently these obligations are established by art. 19 of Directive 2013/34/EU whichcontains the regulation of the content of the management report.
• [3] Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions - A renewed EUstrategy 2011-14 for Corporate Social Responsibility COM(2011)681 of 25 October 2011.
• [4] European Parliament resolution of 6 February 2013 (2012/2098(INI)) on corporate socialresponsibility: accountable, transparent and responsible business behaviour and sustainablegrowth [2016] OJ C24/28.
• [5] European Parliament resolution of 6 February 2013 on Corporate Social Responsibility: promoting society’s interests and a route to sustainable and inclusive recovery (2012/2097(INI))[2016] OJ C 24/33.
• [6] The entities obliged to publish the non-financial statement are those that exceed on their balance sheet dates the following criteria: (a) balance sheet total: Euro 20,000,000; (b) net turnover: Euro 40,000,000; (c) the average number of 500 employees during the financial year
• [7] According to Directive 2013/34/EU, by public-interest entities it is meant undertakingswhich are: (a) governed by the law of a Member State and whose transferable securities areadmitted to trading on a regulated market of any Member State within the meaning of point(14) of Article 4(1) of Directive 2004/39/ECof the European Parliament and of the Councilof 21 April 2004 on markets in financial instruments; (b) credit institutions as defined in point(1) of Article 4 of Directive 2006/48/EC of the European Parliament and of the Councilof 14 June 2006 relating to the taking up and pursuit of the business of credit institutions,other than those referred to in Article 2 of that Directive; (c) insurance undertakings withinthe meaning of Article 2(1) of Council Directive 91/674/EEC of 19 December 1991 on theannual accounts of insurance undertakings; or (d) designated by Member States as public-interest entities, for instance undertakings that are of significant public relevance because ofthe nature of their business, their size or the number of their employees.