Legal & Policy

What is the CSDDD?

If adopted, the European Commission’s proposal for a Corporate Sustainability Due Diligence Directive (CSDDD) would require companies to establish due diligence procedures to address adverse impacts of their actions on human rights and the environment, including along their value chains worldwide. The aim is to foster sustainable and responsible corporate behaviour and to introduce sustainability considerations in companies’ operations and corporate governance.

The CSDDD is part of the European Green Deal – a set of policy initiatives by the European Commission with the overarching aim of making the European Union's climate, energy, transport and taxation policies fit for reducing net greenhouse gas emissions by at least 55% by 2030, compared to 1990 levels, and climate-neutral by 2050. Together with existing regulations and other regulatory initiatives such as the Corporate Sustainability Reporting Directive (CSRD) or the EU Taxonomy Regulation, the CSDDD represents a further step towards sustainable business under uniform European conditions.

Which obligations will apply to whom?

The CSDDD imposes different obligations on different types of companies (see overview table below). All companies within its scope will have to implement due diligence measures to identify, end, prevent, mitigate and account for negative human rights and environmental impacts of their actions. For instance, due diligence would imply developing and implementing “prevention action plans”, obtaining contractual assurances from direct business partners, and subsequently verifying compliance. Companies covered by the directive would need to ensure due diligence not just regarding their own operations, but also regarding the activities of all entities in their value chains with which they have direct and indirect business relationships.

Companies with a turnover of more than 150 million Euro (group 1 & 3 below) will also have to develop a plan to ensure that their business strategy is compatible with limiting global warming to 1.5 °C in line with the Paris Agreement. Companies that identify climate change as “a principal risk for, or a principal impact of,” their operations would have to include emissions reduction objectives in their business plans.

Notably, the Commission’s proposal would achieve senior-level responsibility for sustainability. Directors of EU companies would be responsible for setting up and overseeing the implementation of due diligence, as well as integrating due diligence into the corporate strategy. The CSDDD adds consideration of human rights, climate change and environmental consequences to the existing fiduciary duty of directors to act in the best interests of the company.

The Commission may issue guidelines for specific sectors or specific adverse impacts in consultation with Member States and stakeholders, the European Union Agency for Fundamental Rights, the European Environment Agency, and where appropriate with international bodies having expertise in due diligence.

What human rights and environmental impacts are covered?

For due diligence, the CSDDD aligns with the main international human rights and environmental law standards. However, it only covers those rights and prohibitions specifically listed in the Annex to the proposal as well as any human rights risks that are foreseeable. The list includes a range of labour rights, the prohibition of interference with freedom of thought, conscience and religion, and the right to freedom of association, assembly, the rights to organise and collective bargaining. Although freedom of expression is not explicitly listed, it would presumably still fall within the scope of due diligence of any media organization given its operational context.

The list also includes certain violations of international environmental law concerning, for instance, the handling, collection, storage and disposal of waste, or the use of biological resources that could have adverse impacts on biodiversity. Companies with more than 500 employees and at least EUR 150m turnover will also have to ensure that their business model and strategy are compatible with the transition to a sustainable economy and with the limiting of global warming to 1.5 °C in line with the Paris Agreement. Companies that have or should have identified climate as a principal risk for or a principal impact of their operations, should include emissions reduction objectives in their plan.

Note that the CSDDD does not cover the entire range of sustainability or ESG (Environmental Social Governance) standards. The latter include, for instance, considerations of diversity and inclusion or anti-corruption, but would not be covered by the CSDDD.

How will the new rules be enforced?

The CSDDD will be enforced at Member State-level. The Commission proposes three enforcement mechanisms: administrative supervision and sanctions, civil liability, and financial incentives.

• Administrative supervision and sanctions: Member States would designate an authority to supervise and impose administrative sanctions, including fines and compliance orders. At the European level, the Commission will set up a European Network of Supervisory Authorities that will bring together representatives of the national authorities to ensure a coordinated approach. Natural and legal persons would be entitled to submit “substantiated concerns” to any supervisory authority alleging that a company is failing to comply.

• Civil liability: Member States will ensure that victims have access to compensation for damages resulting from the companies’ failure to comply with their due diligence obligations.

• Financial incentives: Implementation of the emission reduction plans will be embedded in the financial incentives of directors of EU companies by linking their variable remuneration to their contribution to fulfilling these plans.

Part of the CSDDD would be enforced through existing Member States' laws. For instance, the CSDDD does not foresee an additional enforcement regime in case directors do not comply with their obligations under this directive. However, Member States would have to amend their laws and regulations on directors' duties, adding consideration of human rights, climate change and environmental consequences to their existing fiduciary duties. This will have various implications under domestic company law. For instance, shareholders may be able to sue directors who violate this fiduciary duty. The CSDDD may even add to the risk of sustainability-related strategic litigation, which has become a growing concern for companies.

The current state of the CSDDD

The CSDDD was proposed by the Commission in February 2022. In December 2022, the European Council finalised its general approach. It proposes to narrow the scope to cover only EU companies with more than 1,000 employees and EUR 300m net worldwide turnover, and non-EU companies with EUR 300m net turnover generated in the EU. By contrast, members of the European Parliament (MEPs), where the proposal is still awaiting Parliament’s position, seem inclined to expand, rather than narrow, the scope of the CSDDD to a wider range of companies.

The Council also rejected the Commission's proposal that due diligence should fall under the directors' fiduciary duty of care. Instead, due diligence processes should be incorporated into risk management systems and company policies. It also deleted the original proposal to base variable remuneration on directors' contributions to sustainability. By contrast, MEPs might be inclined to broaden the scope of environmental issues to include more obligations related to nature and biodiversity as well as climate-related objectives.

The CSDDD is expected to enter trilogue negotiations later in 2023 with the aim of adopting the directive by 2024. Its rules will not become applicable before 2025 at the earliest.

The CSDDD doesn’t apply to me – why should I care?

Many PSM will not be covered by the CSDDD because they are public entities. While not required to implement due diligence procedures, Members could still be affected in virtue of their direct or indirect business relationship with the relevant companies. Concretely, in-scope companies that deal with PSM might ask for contractual assurances and subsequently verify compliance.

Members might also choose to establish due diligence procedures on a voluntary basis. Sustainability due diligence could be set to become a common business practice in the media sector. Social and environmental considerations are becoming an essential part of consumer decisions. Feeling overwhelmed or powerless themselves, many people look to companies and public entities to take the lead on climate change. [1] PSM have an opportunity to strengthen their legitimacy and the trust of their audiences by leading on these issues. On the other hand, violations of human rights or environmental law resulting from failures of due diligence risk significantly harming PSM’s reputation, its relationship with audiences and other stakeholders, and its authority to hold others accountable.

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What is the Corporate Sustainability Reporting Directive? 

The Corporate Sustainability Reporting Directive (CSRD) requires large and/or listed companies to publish regular reports on the social and environmental risks they face, and on how their activities impact the rights of people and the environment. The aim is to enable investors, civil society organisations, consumers and other stakeholders to evaluate how sustainable these companies are.

The CSRD is part of the European Green Deal – a set of policy initiatives by the European Commission. The overarching aim is to make the European Union fit to reduce net greenhouse gas emissions by at least 55% by 2030, compared to 1990 levels, and climate-neutral by 2050.

What are the main differences between the CSRD and the NFRD?

The CSRD amends the Non-financial Reporting Directive (NFRD), expanding the scope of these reporting requirements to a broader set of large companies, as well as listed SMEs. The NFRD applies only to so-called “public-interest entities”, such as listed companies, banks, or insurance companies, [1]  with more than 500 employees. As a result, the companies needing to report on non-financial issues goes from approximately 11 700 under the NFRD to approximately 50 000 companies under the CSRD.

The CSRD also modernizes and strengthens the rules about the social and environmental information that companies must report on by specifying that the information must be relevant, comparable, reliable, and accessible. Companies will have to report according to binding standards. By contrast, under the NFRD, large companies were free to choose the standard for publishing sustainability information. Under the NFRD auditing is voluntary. The CSRD makes it mandatory. 

Who does the CSRD cover?

Whether a public service media (PSM) organisation will fall within the scope of the CSRD depends on its legal form. PSM organisations established under public law will not be covered. But many PSM that are established under private law will be. For instance, a PSM that is incorporated as a joint stock company will be covered even if it is entirely owned by the State.

Precisely which kind of private legal entities will be required to report varies across Member States. A list of the relevant types of companies can be found in Annex I and Annex II of the EU Accounting Directive 2013/34/EU. Of those companies, the CSRD only requires companies that fulfill any of the following criteria to report on sustainability:

• all listed companies on the EU regulated market, including listed SMEs (but not micro-enterprises)
• all large companies that exceed two of the three following criteria: 
  • 250 employees during the financial year 
  • balance sheet of more than EUR 20 million
  • net turnover of more than EUR 40 million  
• non-EU companies generating a net turnover of more than EUR 150 million and having a subsidiary in the EU that follow the criteria applicable to EU companies or a branch in the EU generating more than EUR 40 million net turnover

The CSRD doesn’t apply to me – why should I care?

Many PSM will not be covered by the CSRD because they are public entities. Still, they may choose to use the same reporting standards on a voluntary basis. Requests for sustainability information from companies you are dealing with (e.g., banks, or companies you supply) are likely to increase once the CSRD becomes applicable to them. As a result, collecting and disclosing sustainability information will likely become a common business practice in the media sector. Using CSRD standards could make it easier to report the necessary information to banks, clients, partners and other stakeholders.

Sustainability is also becoming an essential part of consumer decisions, with increasing expectation on organizations to be sustainable. [2] Working on sustainability is a good way to create social impact and a positive effect on a PSM’s brand value. [3] It also has a positive impact on reach, both in terms of general audience and young audiences, and leads to higher audience satisfaction. [4] At the same time, many Europeans are concerned about false sustainability claims and do not trust mere brand pledges. [5] PSM are facing increasing public pressure to justify their legitimacy by providing evidence of their social impact. [6] Therefore, sustainability reporting according to uniform standards can increase transparency and comparability, provide a basis for better, dialogue and communication with audiences and other stakeholders, improve your reputation and attract young talent.

When will the CSRD enter into effect ?

The European Commission adopted the CSRD in late 2022. The Directive entered into force in January 2023. The rules will start applying between 2024 and 2028:

• From 1 January 2024 for large public-interest companies (with over 500 employees) already subject to the non-financial reporting directive, with reports due in 2025.
• From 1 January 2025 for large companies that are not presently subject to the non-financial reporting directive (with more than 250 employees and/or €40 million in turnover and/or €20 million in total assets), with reports due in 2026.
• From 1 January 2026 for listed SMEs and other undertakings, with reports due in 2027. SMEs can opt-out until 2028.

The rules introduced by the NFRD remain in force until companies must apply the new rules of the CSRD.

What are the reporting requirements?

Companies must disclose the impact of sustainability topics on the company’s value (financial materiality), impact on the economy, the environment, and people (impact materiality), and how they are interconnected. Companies must provide qualitative and quantitative information on their: 

• business model and strategy including its resilience to sustainability risks, opportunities, and transition plans 
• targets and the progress made to achieve those targets
• role of the administrative, management and supervisory bodies and their expertise and skills to fulfil these roles
• policies, processes, and incentive schemes 
• adverse impacts and actions to prevent, mitigate and remediate them
• principle risks and their management 

Relevant information includes intangibles, including intellectual, human, as well as social and relationship capital. Information about the company’s value chain will also be required where appropriate. The information should be forward-looking and retrospective, qualitative and quantitative, and cover short, medium and long-term horizons.

What reporting standards will need to be followed?

Companies subject to the CSRD will have to report according to European Sustainability Reporting Standards (ESRS). The draft standards are developed by the EFRAG (European Financial Reporting Advisory Group), a private association established in 2001 with under the auspices of the European Commission. Its Member organisations are European stakeholders, national organisations and civil society organisations. EFRAG provides technical advice to the European Commission in the form of fully prepared draft EU Sustainability Reporting Standards and/or draft amendments to these Standards.

The Commission should adopt the first set of cross-cutting standards and standards for all sustainability topics (i.e., environment, social and human rights, and governance) by mid-2023, based on the draft standards published in November 2022. Sector-specific standards are expected to follow by 30 June 2024. [7] With the carbon footprint of the video industry having surpassed that of the aviation industry, [8] the Commission may adopt specific standards for the (audiovisual) media sector.

How should the report be submitted?

Sustainability information must be included in the management report and digitalized as companies will be required to prepare their financial statements and their management report in a single electronic reporting XHTML format. [9]

What about the mandatory audits?

The CSRD also requires companies to audit the sustainability information they disclose. The information will be subject to mandatory external “limited” assurance, but is expected to shift towards a more rigorous “reasonable” assurance requirement at a later stage.

Contact Details

Sophia Wistehube
Legal Counsel
Legal & Policy
wistehube@ebu.ch

Related Links

Sustainability Summmit 2023
EBU Climate Journalism that Works
Sustainability: An Outline of Public Service Media Involvement

Endnotes

[1] Member States may designate additional types of public-interest entities.

[2] EBU Media Intelligence Service, (January 2023, Member exclusive).

[3] EBU Media Intelligence Service, Environmental Sustainability at Public Service Media, (forthcoming, Member exclusive).

[4] Ibid.

[5] Ibid.

[6] EBU Media Intelligence Service, Unpacking Social Impact, (February 2023, Member exclusive).

[7] Guidance may come from the Media and Audiovisual Action Plan (MAAP) Acton 6 which aims to help the audiovisual media industry become climate neutral by 2050 by facilitating the exchange of best practices. A group of organisations have agreed to work together towards the development of a unified measurement methodology of CO2 emissions, that will contribute to the reduction of carbon emissions.

[8] Futuresource Consulting, Sustainability in Video Entertainment: 2022 Industry Update (November 2022).

[9] Article 3 of the Commission Delegated Regulation (EU) 2019/815.

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