Ropes & Grey "CSRD Transposition Tracker"- A Study in the Development of Compliance Complexity

 

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A generation ago it used to be something of a sport to time the transposition of EU directives into the national legal orders of Member States.  In the old days, perhaps in exasperation, perhaps strategically (never let a crisis go to waste) the European Court of Justice  developed a host of quite remarkable jurisprudential approaches, including direct effect.  

Things have changed. . . . at least a little, and certainly with respect to the Corporate Sustainability Due Diligence Directive (EU) 2019/1937 6145/24 (DRS 13; SUSTDEV 19; COMPET 117; CODEC 279) (Brussels, 15 March 2024), adopted by the EU Council on 15 March 2024 and approved by the JURI Committee on 19 March 2024, awaiting final approvals and preparation of final text. It appears that in anticipation of its effective time (Art. 30, Transposition), much of which will occur starting three years from the entry into force of the Directive, mostly on or after 2028 Member States have begun to consider introduction or modification of their clusters of sustainability based corporate compliance regulations to conform to the (at least broad outlines) of the CR3D, or to align their compliance and due diligence regimes to those anticipated in the final version of the CS3D. 

The project, as is customary within EU regulatory spheres, will be complicated as to space, place and time, producing both complexity for business and opportunity for lawyers. For the rest of us, information relating to implementation (and later the politics and litigation around enforcement) requires substantial aid. One effort to provide information has been undertaken by Michael R. Littenberg, Marc Rotter and Molly Connolly of and for the law firm Ropes and Grey, who have devised and posted online what they call the Ropes & Grey CSRD Transposition Tracker. As they describe their work to date:

in conjunction with leading law firms across Europe – has updated its CSRD Transposition Tracker. The Tracker describes Corporate Sustainability Reporting Directive developments across the 27 EU member states and three EEA EFTA countries. This update includes information and developments as of the end of March, as well as additional commentary from the participating law firms.  Countries continue to make progress towards implementation. So far: Five countries have adopted legislation implementing CSRD (at least in part); Ten have proposed legislation; and Another seven have held consultations.

Their data on efforts to date is quite interesting and follows below.  It may be accessed online HERE. 

The information, and its subsequent changes as Member States move toward transposition is quite interesting.  Most interesting, perhaps (beyond the issues of interpretation and strategic countermeasures by all affected parties) goes to compliance itself. With the proliferation of CS3D variants in national legal orders, confined at least by the CS3D and its interpretation (eventually by the European Court of Justice; and perhaps on its flanks by the European Court of Human Rights (here)) and countered or aligned by the domestic legal orders of 3rd party states protecting their own interests or other regional systems (eg here, here, and here), it is likely that CS3D will produce a strong incentive toward digitalization of compliance and the development of descriptive and predictive bid data programs to ensure both optimum compliance and effective strategic encountering. These programs may also lend themselves to generative programming (AI), but at least within the EU that may require alignment of CS3D with the EU AI Act (see discussion HERE).