Directive 2014/95/EU of the European Parliament and the Council of 22 October 20141 will enter into force on 1 January 2017. The Directive amends the Directive 2013/34/EU2 as regards disclosure of non-financial and diversity information by certain large undertakings and groups.
The 2013/34 Accounting Directive: a Framework
The Directive enhances disclosure requirements for large natural resource undertakings. In particular the Directive requires certain entities operating in the extractive industry or logging of primary forests to annually disclose material payments made to governments in the countries in which they operate on a country by country and on a project by project basis.
The enhanced disclosure and reporting requirements are contained in Chapter 10 of the Directive and apply to large undertakings and public interest entities with any activity involving the exploration, prospection, discovery, development and extraction of natural resources, in particular oil and gas, or the logging of primary forests.
The Directive takes into account the Commission’s better regulation programme and, in particular, the Commission Communication entitled “Smart Regulation in European Union”, which aims at designing and delivering regulations of the highest quality whilst respecting the principles of subsidiarity and proportionality and ensuring that the administrative burdens are proportionate to the benefits they bring. The Commission Communication entitled “Think Small First – Small Business Act for Europe”, adopted in June 2008 and revised in February 2011, recognises the central role played by small and medium-sized enterprises (SMEs) in the Union economy and aims to improve the overall approach to entrepreneurship and to anchor the “think small first” principle in policy-making from regulation to public service.
The Commission Communication entitled “Single Market Act”, adopted in 2011, proposes to simplify the Fourth Council Directive 78/660/EEC based on Article 54(3)(g) of the Treaty on the annual accounts of certain types of companies and the Seventh Council Directive 83/349/EEC based on the Article 54(3)(g) of the Treaty on consolidated accounts (the Accounting Directives) as regards financial information obligations and to reduce administrative burdens, in particular for SMEs.
The “Europe 2020 Strategy” for smart, sustainable and inclusive growth aims to reduce administrative burdens and improve the business environment, in particular for SMEs, and to promote the internationalisation of SMEs.
The coordination of national provisions concerning the presentation and content of annual financial statements and management reports, the bases used therein and their publication in respect of certain types of undertakings with limited liability is of special importance for the protection of shareholders and third parties. Simultaneous coordination is necessary in those fields – the Directive underlines it with particular emphasis- for such types of undertakings because, on the one hand, some undertakings operate in more than one Member States and, on the other hand, such undertakings offer no safeguards to third parties beyond the amounts of their net assets. Annual financial statements pursue various objectives and do not merely provide information for investors in capital markets but also give an account of past transactions and enhance corporate governance. Union accounting legislation needs to strike an appropriate balance between the interest of undertaking in not being unduly bordered with reporting requirements.
The new 2014 Directive
This Directive, amending the Directive 2013/34, will enter into force the 1 January 2017. The new EU rules are based on the Commission Communication entitled “Single market Act - Twelve levers to boost growth and strengthen confidence - Working together to create new growth” adopted on 13 April 2011, in which the Commission identified the need to harmonise the transparency of social and environmental information provided by undertakings in all sectors. This is fully consistent with the possibility for Member States to require, as appropriate, further improvements to the transparency of undertakings’ non-financial information, which is by its nature a continuous endeavour.
The Directive also underlines the need to improve undertakings disclosure of social environment information by presenting a legislative proposals in this fields3 .
The Directive is also built on two Resolutions of the European Parliament from 6 February 2013, respectively “Corporate Social Responsibility: accountable, transparent and responsible business behaviour and sustainable growth” and “Corporate Social Responsibility: promoting society’s interests and a route to sustainable and inclusive recovery”. In these resolutions the EP acknowledge the importance of business divulging information on the sustainability of social and environmental factors, with a view to identifying sustainability risks and increasing investor and consumer trust.
Indeed, disclosure of non-financial information is vital for managing change towards a sustainable global economy by combining long-term profitability with social justice and environmental protection. In this context, disclosure of non-financial information helps the measuring, monitoring and managing of undertakings’ performance and their impact on society. Thus, the European Parliament called on the Commission to bring forward a legislative proposal on the disclosure of non-financial information by undertakings allowing for high flexibility of action, in order to take account of the multidimensional nature of corporate social responsibility (CSR) and the diversity of the CSR policies implemented by business matched by a sufficient level of comparability to meet the needs of investors and other stakeholders as well as the need to provide consumers with easy access to information on the impact of business on society.
The application and implementation of these provisions are relevant from the national (Member States) and the undertakings point of view. The coordination of national provisions concerning the disclosure of non-financial information in respect of certain large undertakings is of importance for the interests of undertakings, shareholders and other stakeholders alike. Coordination is necessary in those fields because most of those undertakings operate in more than one Member States.
It is also necessary to establish a certain minimum legal requirement as regards the extent of the information that should be made available to the public authorities and undertakings across the Union. The undertakings subject to this Directive should give a fair and comprehensive view of their policies, outcomes, and risks.
In order to enhance the consistency and comparability of non-financial information disclosed throughout the Union, certain large undertakings should prepare a nonfinancial statement containing information relating to at least environmental matters, social and employee-related matters, respect for human rights, anti-corruption and bribery matters. Such statement should include a description of the policies outcomes and risks related to those matters and should be included in the management report of the undertaking concerned. The non-financial statement should also include information on the due diligence processes implemented by undertaking, also regarding, where relevant and proportionate, its supply and subcontracting chains, in order to identify, prevent and mitigate existing and potential adverse impacts. It should be possible for Member States to exempt undertakings which are subject to this Directive from the obligation to prepare a non-financial statement when a separate report corresponding to the same financial year and covering the sane content is provided.
Amendments in the new Directive relate to (amongst others) :
Article 19 (Non-financial statement), according to which large undertakings which are public-interest entities having more than 500 employees during the financial year shall include in the management report a non-financial statement containing information to the extent necessary for understanding of the undertaking’s development, performance, position and impact of its activity, relating to, as a minimum, environmental, social and employee matters, respect for human rights, anti-corruption and bribery matters, including a brief description of the undertaking’s business model and a description of the policies pursued by undertaking in relation to those matters, including due diligence processes implemented and the outcome of those policies.
In addition the statement must include reference to the principal risks related to those matters linked to the undertaking’s operations including, where relevant and proportionate, its business relationships, products or services which are likely to cause adverse impacts in those areas, and how the undertaking manages those risks.
Member States may allow information relating to impending developments or matters in the course of negotiation to be omitted in exceptional cases where, in the duly justified opinion of the members of the administrative, management and supervisory bodies, acting within the competences assigned to them by national law and having collective responsibility for that opinion, the disclosure of such information would be seriously prejudicial to the commercial situation of the undertaking, provided that such omission does not prevent a fair and balanced understanding of the undertaking’s development, performance, position and impact of its activity.
Article 29 (Consolidated non-financial statements), that is relating to the public-interest entities which are parent undertaking of large group with more than 500 employees during the financial year shall include in the consolidated management report a consolidated non-financial statement containing information to the extent necessary for an understanding of the group’s development, performance, position and impact of its activity, relating to, as a minimum, environmental, social and employee matters, respect for human rights, anti-corruption and bribery matters.
Where a parent undertaking prepares a separate report corresponding to the same financial year, referring to the whole group, whether or not relying on national, Unionbased or international frameworks and covering the information required for the consolidated non-financial statement, Member States may exempt that parent undertaking from the obligation to prepare the consolidated non-financial statement, provided that such separate report is published together with the consolidated management report in accordance with Article 304 , or is made publicly available within a reasonable period of time, not exceeding six months after the balance sheet date, on the parent undertaking’s website, and is referred to the consolidated management report.
Finally Article 4 of the Amending Directive provides that Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 6 December 2016. They shall immediately inform the Commission thereof - for the financial year starting on 1 January 2017 or during the calendar year 2017.
When Member States adopt those provisions, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States that shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
Directive 2014/95 will be applied in Italy by a legislative decree .
The parliamentary procedure is currently on going and the legislative decree will be approved by the Council of Ministers in December.