Commission Delegated Regulation (EU) 2023/363 of 31 October 2022 amending and correcting the regulatory technical standards laid down in Delegated Regulation (EU) 2022/1288 as regards the content and presentation of information in relation to disclosures in pre-contractual documents and periodic reports for financial products investing in environmentally sustainable economic activities (Text with EEA relevance)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EU) 2019/2088 of the European Parliament and of the Council of 27 November 2019 on sustainability-related disclosures in the financial services sector ¹, and in particular Article 8(3), fourth subparagraph, Article 8(4), fourth subparagraph, Article 9(5), fourth subparagraph, Article 9(6), fourth subparagraph, Article 10(2), fourth subparagraph, Article 11(4), fourth subparagraph and Article 11(5), fourth subparagraph thereof,

Whereas:

• (1) Commission Delegated Regulation (EU) 2022/1288 ² lays down the details of the content and presentation of the information in relation to the principle of ‘do no significant harm’. It also specifies the content, methodologies and presentation of information in relation to sustainability indicators and adverse sustainability impacts and the content and presentation of the information to be provided in pre-contractual documents, on website and in periodic reports, in relation to the promotion of environmental or social characteristics and sustainable investment objectives of financial products. Moreover, with regard to the financial products investing in an economic activity that contributes to an environmental objective within the meaning of Article 2, point (17), of Regulation (EU) 2019/2088, Delegated Regulation (EU) 2022/1288 also specifies the information on the degree of taxonomy-alignment to be disclosed within pre-contractual documents and periodic reports.

• (2) Commission Delegated Regulation (EU) 2022/1214 ³, with particular reference to fossil gas and nuclear energy sectors was adopted on 9 March 2022.

• (3) The Commission invited the European Supervisory Authorities to jointly propose amendments to Delegated Regulation (EU) 2022/1288 in relation to the information to be provided in pre-contractual documents, on websites, and in periodic reports about the exposure of financial products to investments in fossil gas and nuclear energy activities.

• (4) Those amendments are necessary to increase transparency and thereby to help financial markets participants and investors to identify environmentally sustainable fossil gas and nuclear related activities invested in by financial products. The provision of the more detailed information on investments in those activities should also foster comparability of the information disclosed to investors. Therefore, it is appropriate to provide transparency on investments in environmentally sustainable fossil gas and nuclear energy activities over the whole life of the relevant financial products, in pre-contractual documents and in periodic reports. Such information should also be included in the website disclosures. The European Supervisory Authorities noted that transparency about investments in sectors and sub-sectors related to fossil gas and nuclear energy activities is already required as part of the provisions for periodic reports under Delegated Regulation (EU) 2022/1288.

• (5) It is necessary to clarify that to trigger the application of Article 6 of Regulation (EU) 2020/852 of the European Parliament and of the Council ⁴, it is irrelevant if a financial product commits to invest in economic activities that contribute to an environmental objective within the meaning of Article 2, point (17), of Regulation (EU) 2019/2088.

• (6) In addition, European Supervisory Authorities noted that two changes were required to the cross-references in the periodic disclosures given that these were erroneous.

• (7) Delegated Regulation (EU) 2022/1288 should therefore be amended and corrected accordingly.

• (8) This Regulation is based on the draft regulatory technical standards submitted to the Commission by the European Banking Authority, the European Insurance and Occupational Pensions Authority and the European Securities and Markets Authority (European Supervisory Authorities).

• (9) The Joint Committee of the European Supervisory Authorities referred to in Article 54 of Regulation (EU) No 1093/2010 of the European Parliament and of the Council ⁵, in Article 54 of Regulation (EU) No 1094/2010 of the European Parliament and of the Council ⁶ and in Article 54 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council ⁷ has requested the advice of the Banking Stakeholder Group established in accordance with Article 37 of Regulation (EU) No 1093/2010, the Insurance and Reinsurance Stakeholder Group and the Occupational Pensions Stakeholder Group established in accordance with Article 37 of Regulation (EU) No 1094/2010, and the Securities and Markets Stakeholder Group established in accordance with Article 37 of Regulation (EU) No 1095/2010.

• (10) The amendments to Delegated Regulation (EU) 2022/1288 are limited adjustments of the existing regulatory framework and are necessary to align the disclosure framework to Delegated Regulation (EU) 2022/1214, which is to apply from 1 January 2023. Given the limited scope of the amendments and the need to ensure legal certainty and coherence with the application of Delegated Regulations (EU) 2022/1214 and (EU) 2022/1288, it would have been disproportionate for the European Supervisory Authorities to conduct open public consultations or analyses of the potential related costs and benefits,

HAS ADOPTED THIS REGULATION:

Article 1

Amendments to Delegated Regulation (EU) 2022/1288

Delegated Regulation (EU) 2022/1288 is amended as follows:

• (1) in Article 15, paragraph 2 is replaced by the following:

‘2.   For the purposes of paragraph 1, point (a), all of the following shall apply:

• (a) financial market participants shall use:

• (i) the same key performance indicator for the aggregated investments in non-financial undertakings;

• (ii) the same key performance indicator for the aggregated investments in the same type of financial undertakings;

• (b) for insurance and reinsurance undertakings that carry out non-life underwriting activities, the key performance indicator may combine the investment and the underwriting key performance indicators in accordance with Article 6 of Delegated Regulation (EU) 2021/2178;

• (c) where the financial products invest in environmentally sustainable economic activities referred to in Sections 4.26, 4.27 and 4.28 of Annexes I and II to Delegated Regulation (EU) 2021/2139, or in environmentally sustainable economic activities referred to in Sections 4.29, 4.30 and 4.31 of those Annexes, the graphical representations shall illustrate separately the proportion of the aggregated investments in:

• (i) environmentally sustainable economic activities referred to in Sections 4.26, 4.27 and 4.28 of those Annexes;

• (ii) environmentally sustainable economic activities referred to in Sections 4.29, 4.30 and 4.31 of those Annexes.’

;

• (2) Article 55 is amended as follows:

• (a) in paragraph 1, the introductory sentence is replaced by the following:

‘For financial products referred to in Article 6, first paragraph, of Regulation (EU) 2020/852, financial market participants shall include in the section ‘What was the proportion of sustainability-related investments?’ in the template set out in Annex IV all of the following information:’;

• (b) in paragraph 2, the following point (d) is added:

• ‘(d) where the financial products made investments during the period covered by the periodic report in environmentally sustainable economic activities referred to in Sections 4.26, 4.27 and 4.28 of Annexes I and II to Delegated Regulation (EU) 2021/2139 or in environmentally sustainable economic activities referred to in Sections 4.29, 4.30 and 4.31 of those Annexes, a graphical representation shall illustrate separately:

• (i) the aggregate of the environmentally sustainable economic activities referred to in Sections 4.26, 4.27 and 4.28 of those Annexes;

• (ii) the aggregate of the environmentally sustainable economic activities referred to in Sections 4.29, 4.30 and 4.31 of those Annexes.’;

• (3) Annexes II to V are replaced by Annexes I to IV to this Regulation.

Article 2

Corrections to Delegated Regulation (EU) 2022/1288

Delegated Regulation (EU) 2022/1288 is corrected as follows:

• (1) in Article 55(1), in point (b), point (iv) is replaced by the following:

• ‘(iv) the information referred to in Article 15(3), point (b);’;

• (2) in Article 62(1), in point (b), point (iv) is replaced by the following:

• ‘(iv) the information referred to in Article 15(3), point (b);’.

Article 3

Entry into force

This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 31 October 2022.

For the Commission

The President

Ursula VON DER LEYEN

ANNEX I

‘ANNEX II

Template pre-contractual disclosure for the financial products referred to in Article 8, paragraphs 1, 2 and 2a, of Regulation (EU) 2019/2088 and Article 6, first paragraph, of Regulation (EU) 2020/852

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’

ANNEX II

‘ANNEX III

Template pre-contractual disclosure for the financial products referred to in Article 9, paragraphs 1 to 4a, of Regulation (EU) 2019/2088 and Article 5, first paragraph, of Regulation (EU) 2020/852

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ANNEX III

‘ANNEX IV

Template periodic disclosure for the financial products referred to in Article 8, paragraphs 1, 2 and 2a, of Regulation (EU) 2019/2088 and Article 6, first paragraph, of Regulation (EU) 2020/852

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’

ANNEX IV

‘ANNEX V

Template periodic disclosure for the financial products referred to in Article 9, paragraphs 1 to 4a, of Regulation (EU) 2019/2088 and Article 5, first paragraph, of Regulation (EU) 2020/852

Image omitted; see official source

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’