Towards an EU Impact Investing Framework - A Critical Review of the EU Sustainable Finance Regulations: 3CL Seminar

Speaker: Professor Dirk Andreas Zetzsche (Professor of Financial Law, University of Luxembourg)

Abstract: Sustainability-oriented investors want to pay for impact, not compliance. We analyse the regulatory challenges and opportunities of impact investing. We find that advancing impact investing requires a departure from the EU Sustainable Finance Framework's (EUSFF) prevailing input-orientation and an adjustment of EU asset-management law towards an EU Impact Finance Framework.

In its current form, the EUSFF over-emphasises exclusion, using rule-based ex ante definitions of sustainable business (herein termed input). If a large share of global capital follows these rules, unsustainable firms’ capital costs will increase, furthering innovation of sustainable alternatives. However, the EUSFF alone cannot prevent global capital flows into unsustainable investments, and non-EU countries follow different approaches. Although the EUSFF encourages, in effect, the sale of unsustainable EU businesses to non-EU firms, its input orientation has not helped the planet: the same activities continue elsewhere, often under weaker environmental and social standards, leaving the planet worse off. Further, the EUSFF’s disregard for proven ex post impacts risks large-scale capital misallocation and “impact washing”. Worse, the input focus comes at the cost of investments paired with audited evidence of positive ESG impacts ex post.

We argue for shifting EU financial regulation from input to (proven) impact. Yet, rather than adding a new product category, we propose recognising positive impacts through five fine-tuned steps that simplify EU financial regulation, taking into account regulatory developments in the United Kingdom and Switzerland. These include abolishing the link between “do no significant harm” under the Taxonomy Regulation and the Sustainable Finance Disclosure Regulation, simplified reporting aligned with product materials and the emerging IFRS Disclosure Standards, introducing a new proportionality threshold for mid-sized AIFMs, and revising ESMA’s rules on fund names.

Professor Zetzsche is Professor of Financial Law at the University of Luxembourg where he has held the ADA Chair in Financial Law (inclusive finance) since March 2016 and functions as the Head of the Department of Law since 2024. He is also coordinator of the Faculty of Law, Economics and Finance's House of Sustainable Governance & Markets and Co-PI of the Future FinTech National Centre of Excellence in Research and Innovation.

Professor Zetzsche has published more than 400 publications on inclusive and sustainable finance, corporate governance, FinTech and RegTech, and collective investment schemes. He has spoken at most of the leading universities globally and has advised many of the major regulators, eg the FSB, the BIS, the Basel Committee, the European Commission, the European Parliament, ESMA, EBA, the ESRB and the US SEC. In February 2023, he made the case for financial inclusion at the United Nations Social Commission, and spoke on inclusive and sustainable finance at COP27, 28, 29 and 30.

Professor Zetzsche's paper Towards an EU Impact Investing Framework is available on SSRN.

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