On 27 September 2016 the upper house of the Dutch parliament approved legislation implementing EU directive 2014/95/EU on the disclosure of non-financial information by certain large public-interest entities.
Entities subject to new requirements
Public-interest entities – in short listed companies, banks and insurers – qualifying as 'large' and having an average of more than 500 employees, must include in their management reports a non-financial statement containing certain CSR-related information. Large listed companies must also include in their management reports a description of their diversity policy. For both categories 'large' means that two of the following three criteria are met: (i) a balance sheet total of more than € 17,5 million; (ii) net turnover of more than € 35 million and; (iii) an average of more than 250 employees.
New CSR-related information
The non-financial information statement must at a minimum describe how the entity deals with environmental, social and employee matters, respect for human rights and anti-corruption and bribery matters. The statement must describe the policies pursued in relation to those matters, the results of the policies and the principal risks related to those matters. The statement must also include the non-financial key performance indicators relevant to the particular business of the entity. Only information necessary for an understanding of the entity's development, performance and position and the impact of its activities need be included.
The listed companies that are required to provide a description of their diversity policy must incorporate it in their corporate governance statement (which is already mandatory for such companies). The description must relate to the diversity policy applied in relation to the entity's management and supervisory boards with regard to aspects such as age, gender and educational/professional background. The description must also include the objectives of the policy, how it has been implemented and the results in the preceding financial year.
With respect to both new requirements a "comply or explain" approach applies. As provided in the directive, the auditor merely checks whether or not the non-financial and/or corporate governance statements are present. In the case of listed companies, the Authority for the Financial Markets (AFM) - the relevant regulator - can review whether the statements have been included and whether they are substantively consistent with the rest of the management report, or can request the Enterprise Division of the Amsterdam Court of Appeal to order the company to provide additional information. Interested parties, such as shareholders and the works council, can request the Enterprise Division to order the company to correct the management report, in the case of listed companies the AFM can request this as well.
Public interest entities must include the above statements in their management reports for financial years commencing on or after 1 January 2017. The date on which the new law will enter into force has not yet been officially set but it is expected that the deadline for implementing the directive - 6 December 2016 - will be met.