1. 1. Focal point ESG

On 01.06.2023, the EU Parliament resolved to adopt a common position on the draft Corporate Sustainability Due Diligence Directive[1] (CSDDD-Draft). The CSDDD is to become a further central pillar of the regulatory edifice that the EU is currently erecting under the headings of "Corporate Social Responsibility" (CSR) and "Environment/Social/Governance" (ESG). The following contribution will first provide a quick overview of the regulations. The regulations significantly expand and sharpen the concept of "sustainability" and harness the tools of reporting and corporate law[2] to steer investments into a “sustainable” direction and transform the entire EU economy. However, the rules also entail high costs and other burdens on companies. At the same time, many of the rules are neither necessary nor suitable for the protection of the climate, the environment, and human rights; this holds particularly true in the area of "governance." This brings into focus the principle of proportionality, which sets limits for legislators at the EU and national level. In the upcoming political process, companies should insist that proportionality is maintained. This does not only apply to the CSDDD, but to the Corporate Sustainability Reporting Directive (CSRD)[3] and its implementation as well.

1. 2. The EU's ESG requirements: Multiple combined encroachments on companies

With its aforementioned resolution, the Parliament has opened the door for the CSDDD-Draft into the further legislative process, namely into the "trilogue" between Parliament, Commission and Member States; the latter have already agreed on a common position in December 2022, from which the Parliament's position partly deviates. In addition to the planned CSDDD, the EU's ESG edifice includes a large number of legal acts, notably the Taxonomy Regulation[4], the CSRD already mentioned, and the draft Directive on Substantiation and Communication of Explicit Environmental Claims (Green Claims Directive).[5] The ESG obligations in question intervene at quite different points, but pursue similar end purposes and interact: (1) The CSRD obliges covered companies to report retrospectively and prospectively on ESG aspects ("sustainability aspects") in a new part of the management report, the sustainability report. (2) The CSDDD is intended to impose ESG due diligence obligations and standards on covered companies across the board, including throughout the supply chain. However, it goes significantly beyond the German Lieferkettensorgfaltspflichtengesetz (LkSG) and explicitly provides for liability of companies and corporate bodies in the event of violations. In this connection, the CSDDD-Draft does not rely on companies finding appropriate ways and means to comply with the relevant requirements, but instead imposes organizational requirements (organizational duties). (3) The CSRD in turn requires companies to report on how they have organized themselves to comply with the ESG requirements (including the future CSDDD) (organizational reporting). (4) The CSRD also requires companies to report on their sustainability measures and their (lack of) effect. (5) Pursuant to the CSRD, companies must also report on the organization, responsibilities and expertise of their management and supervisory bodies. (6) Violations lead to heavy fines in the case of infringements, and in the case of the CSDDD also to the publication of said fines (outlawing). (7) CSRD and the CSDDD-Draft also provide for management duties which may not only result in claims by companies against management and supervisory bodies. Rather, sustainability reporting is intended to help "stakeholders" of all kinds (NGOs, affected parties, trade unions, etc.) to take legal action against companies in the event of a wide variety of violations. (8) The new rules further “juridify” (subject to legal requirements) corporate management action and thus push back entrepreneurial freedoms and managerial discretion.[6] Thus, the methods of intervention are diverse, coordinated and mutually reinforcing. In short, ESG entails multiple combined encroachments on companies. The already long list of requirements is further extended by the "European Sustainability Reporting Standards" (ESRS) providing detailed standards for reporting under the CSRD, but by the German Corporate Governance Kodex of April 2022.

1. 3. The ESG requirements at a glance
      1. CSRD: Reporting on investment steering and commitment

According to its recitals 1 and 2, the CSRD ties in with the Commission's "Green Deal", which is

"... to protect, preserve and enhance the Union's natural capital and safeguard the health and well-being of Union citizens from environmental risks and impacts."

Within this framework, the CSRD has nothing less than the task of using the means of reporting to effect

"transition to a fully inclusive economic and financial system in line with the Green Deal and the United Nations sustainable development goals."[7]

The aim is to enable "stakeholders" to understand the company not only in terms of its assets, financial position and business results, but also in terms of its "sustainability". For these purposes, the companies covered must, pursuant to Art. 19a (1) CSRD[8], include in their management report "information necessary for an understanding of the impact of the company's activities on sustainability aspects and[9] for an understanding of the impact of sustainability aspects on the company's business performance, results and position" (sustainability report). "Stakeholders" in this context, pursuant to recital (9), are not only financiers, but all "citizens", notably "civil society actors, including non-governmental organizations and social partners, who want to make companies more accountable for their impact on people and the environment." Thus, on the one hand, the CSRD is intended to redirect capital and investment toward sustainable technologies and companies, and to make it more difficult to pursue unsustainable technologies and companies (investment steering). On the other hand, it is intended to enable third parties to hold companies accountable (summons for service).

"Sustainability aspects" are, pursuant to Art. 2 No. 17 CSRD, not only the environment and climate protection as well as human rights, but also "social" and "governance factors". That goes a long way. The Commission also suspiciously demands further details on how the companies have collected the information and who in their organization is responsible for sustainability. Pursuant to Art. 19a para. 2 CSRD, information must be provided on:

1. the role of the administrative, management and supervisory bodies in relation to sustainability aspects, and their expertise and ability to perform this role;
2. the "due diligence process" carried out by the company with regard to sustainability aspects;
3. the existence of incentive schemes linked to sustainability aspects offered to members of the administrative, management and supervisory bodies, and
4. the management’s measures "to prevent, mitigate, remedy or terminate actual or potential adverse impacts [on sustainability aspects] and the success of those measures" (Art. 19a (2) (f) (iii) CSRD).

The last obligation may effectively force companies to self-incriminations[10] as it facilitates (and is intended to facilitate) enforcement of claims against companies. As the already quoted recital (9) makes clear, this is even one of the central objectives of the CSRD.

The reporting requirements are to be detailed by the "European Sustainability Reporting Standards" (ESRS), which are to be produced by the European Financial Reporting Advisory Group (EFRAG)[11] and then to be transformed into EU law by Delegated Regulations of the Commission in accordance with Art. 29b para. 1 subpara. 6 CSRD. EFRAG has issued drafts of these standards in November 2022.[12] Draft standard "ESRS 2" requires reporting on, for example, the composition (including gender) of the boards as well as responsibilities and access to expertise and capabilities regarding sustainability issues, the role and functioning of management in determining and managing sustainability impacts, risks and opportunities, including presentation of reporting lines, control mechanisms and improvement processes (paras. 17-21), the way the company fulfills its sustainability due diligence obligations pursuant to draft standard "ESRS 1" section 4 (sustainability due diligence) (paras. 28-31; cf. also paras. 49-52), and the company's risk management and internal control system regarding sustainability (paras. 32-34).

Draft ESRS 2, paras. 35-47, requires information on the sustainability strategy and how it takes into account the "interests and views" of other "stakeholders". Further obligations for comprehensive reporting on impact, risk and opportunity management, including "policies, actions and resources" (paras. 48-57) are added, as well as reporting on the applied benchmarks and the measurement of success ("tracking effectiveness of policies and actions") (paras. 71-79).

Draft standard "ESRS G1" in turn requires reporting on, among other things, (a) "corporate culture"; (b) management of relationships with suppliers; (c) avoidance of corruption and bribery; (d) the company's engagement in political influence, including lobbying; (e) protection of whistleblowers; (f) animal welfare; and (g) payment practices, particularly with regard to payment compliance vis-à-vis small and medium-sized enterprises.

1. 1. 2. Draft CSDDD

The draft CSDDD is, as it were, the EU's Lieferkettensorgfaltspflichtengesetz (LkSG). However, the draft goes beyond the LkSG in several respects: It covers the downstream stages of the value chain (distribution, service, further processing, disposal), incorporates more international agreements in the areas of environmental protection and human rights, provides for explicit liability of companies and their bodies and, in addition to "proportionate, effective and dissuasive" sanctions for violations, also requires the publication of imposed sanctions (outlawing).

Other EU - requirements are to be added for a more complete picture, notably the Transparency Regulation,[13] the Taxonomy Regulation[14], the Whistleblower Directive of 2019[15] and the Directive on on Representative Actions for the Protection of the Collective Interests of consumers[16].

1. 4. Multiple liability consequences for the companies and their managment and supervisory bodies

The legal acts presented impose a variety of burdens and liability risks on companies, which complement and reinforce each other: (1) The rules provide for high fines for companies in the event of violations. (2) The CSDDD draft provides for civil liability for the companies (damages and removal). (3) Even where no direct liability for damages is provided for, there is a risk of corporate liability: Firstly, the ECJ tends to affirm civil liability even where EU requirements do not provide for civil liability (arg. effet utile), and secondly, it tends to give EU ESG rules third-party protective effect (example: vehicle exhaust emission regulations) and thus elevate them to protective laws within the meaning of § 823 (2) of the German Civil Code.[17] (4) Moreover, breaches of substantive ESG rules can in turn lead to breaches of ESG reporting obligations and thus to criminal liability, fines and/or civil liability under capital market rules, either because the breach should have been reported from the outset, or because the breach was to be published ad hoc or in the next regulatory report after it was discovered, but in fact was not so reported. All' of this embeds itself in a litigious environment. Environmental groups and private individuals are already known to try to enforce environmental standards through lawsuits in civil courts.[18] Shareholder organizations are also increasingly claiming to pay attention to sustainability criteria and to insist on them in companies.[19] The high moral standards of ESG requirements give additional impetus to such lawsuits. All of this also has an impact on directors' and officers' liability; Articles 22, 25 and 26 of the CSDDD-Draft contain mandatory provisions in this regard.[20]

1. 5. ESG - Barriers to Proportionality

The above obligations intervene in the sphere of the relevant companies and thus encroach on their fundamental rights, notably the freedom to conduct a business, freedom to choose an occupation, the right to work and the right to property (Art. 15 et seq. of the European Charter of Fundamental Rights)[21]. However, encroachments on fundamental rights must be proportionate, to-wit, both under EU and national law. There is not enough space here to go into the question of the proportionality of the ESG legal acts as multiple combined encroachments in depth. But even a first stocktaking shows that some of the new ESG requirements are disproportionate:

To begin with, the encroachments by the described ESG rules are deep: CSRD and the draft CSDDD oblige to detailed and voluminous reporting and (at least de facto) to elaborate compliance management systems (CMS). Reporting is also fraught with liability and can result in self-incrimination. In addition to the - high - financial sanctions, the draft CSDDD also aims at ostracism through publication (Art. 20 (4)). Furthermore, empirical evidence shows that the effort put into CMS has only a limited effect:[22] There is a growing body of evidence that CMS often fizzle out without effects.[23] Compliance manuals, ethical guidelines (code of conduct), the existence of an independent compliance department, regular training courses and compliance hotlines have all been found to lack impact[24]. Two reasons are likely to play a strong role here: First, it is extraordinarily difficult to design CMSs that fit precisely.[25] Second, pursuant to empirical research on white collar crime, legal violations are often caused by an unpredictable coincidence of perpetrator characteristics and opportunity.[26] This draws into question the suitability of many an ESG provision to reach their intended goal. Unsuitable provisions are, however, inproportionate. Last but not least, numerous ESG requirements are not to protect the climate, the environment and human rights. They are intended to further good governance and thus objectives that are ranked significantly lower than climate, environment and human rights. All of the above has to be taken into account in the proportionality test.

The barriers which the above proportionality considerations throw up and which legislators and courts must observe, can only be touched upon here in a cursory manner:

(1) The explanatory memorandum to the CSDDD-Draft concedes its requirements to be disproportionate for small and medium-sized enterprises (SMEs). However, if the number of employees and turnover of a company grows, so do the organizational costs and liability exposure. Since employee and turnover figures on the one hand and organizational costs and liability risks on the other hand are likely to develop in the same direction, lawmakers’ own verdict of disproportionality for SMEs also applies to the regulations for larger companies.

(2) Permits and activities based thereon deserve full-fledged protection. It would, for example, be disproportionate to undermine issued permits by further reaching ESG due diligence obligations, procedural requirements, and ways for post-permit legal action.

(3) Where ESG regulations do not protect environment and human rights but "governance" (general legality obligation / Regeltreue) only, they must, in the proportionality test, not be weighed against the high values of "environment" and "human rights", but against the objects of protection affected in each case.

(4) Since CMS often fail to make a real impact and it is therefore impossible to predict or reliably measure the effect of specific CMS measures, companies must be granted broad entrepreneurial discretion in fulfilling the due diligence obligations imposed on them (business judgment rule). In this context, the limit of appropriateness (Zumutbarkeit) must also be respected, and in this context in particular the dignity of company employees and the preservation of the working atmosphere[27]. These stand in the way of excessive supervisory CMS measures characterized by mistrust.

(5) Companies must continue to be allowed to rely on the principle of trust. It states that management may expect that employees govern themselves lawfully unless there are fact based indications that this reliance is not justified.

(6) The liability of companies - especially in the case of incorrect sustainability statements - must be limited to intentional deceptions and financial losses, and the question of insurability and recourse by the company against the responsible parties must be regulated in a holistic and consitent manner. [27a]

(7) As a ceterum censeo: Irrespective of the ESG issue, corporate fines generally violate the fundamental rights of shareholders. The author refers to his comments submitted elsewhere.[28]

1. 6. Has the EU sufficient competencies?

There is much to suggest that the far reaching ESG regulations and their objectives exceed EU competencies: As outlined at the outset, the purpose of sustainability reporting is not just to help investors make investment decisions, but to hold companies "accountable for the impact of their operations on people and the environment" and to close the "gap between the information needs of users and the sustainability information provided by companies" (recital (14)). In substance, the regulations aim at an across-the-board "transition to a fully sustainable and inclusive economic and financial system in line with the European Green Deal and the United Nations sustainable development goals."[29] Things are similar with the CSDDD.

Against that background and the described multiple combined encroachments on the companies´ fundamental rights, it appears deficient if, according to their explanatory memoranda, CSRD and CSDDD are based on Articles 50 and 114 TFEU. Art. 50 (1) TFEU only authorizes "directives for the implementation of freedom of establishment for a particular activity". However, CSRD and CSDDD are not limited to “particular activities”. Furthermore, the explanatory memorandum does not explain why the EU should be entitled to disregard both Art. 5 TEU (principle of conferral) and the principle that international treaties (here: Art. 50 (1) TFEU) may not be interpreted in such a way that language contained is ignored.[30] If one still were to draw upon Art. 50, then its para. (2) (g) TFEU comes into view, which, however, is understood to allow only coordination, not standardization (and certainly not minuscule standardization like that under CSRD/ESRS and CSDDD, in particulare in conjunction with the Taxonomy Regulation). Furthermore, Art. 50 (2) (g) the provision indeed allows for the protection of shareholders and any third parties affected, in particular to prevent their interests to remain disregarded in the context of national company law systems. To be sure, this empowerment construed broadly.[31] However, a comprehensive standardization aiming at fundamental, across-the-board investment steering goes far beyond this.[32]

Art. 114 TFEU, in turn, authorizes "measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market", i.e. which serve the free movement of goods, persons, services or capital within the framework of Art. 26 TFEU. With regard to the outlined purpose of comprehensive investment steering of CSRD and CSDDD, however, it has also been pointed out that this exceeds the limits of Art. 114 TFEU.[33] As regards the CSDDD: According to its draft explanatory memorandum, the CSDDD is (among other things) intended to "ensure" the free movement of capital. However, the CSDDD merely regulates and standardizes internal due diligence obligations of companies, and capital providers are free to decide whether they prefer to invest in (a) companies with higher due diligence and the associated organizational costs or in (b) companies with lower due diligence and without the organizational costs in question, especially since the reports of the companies pursuant to the CSRD inform the financiers about the relevant actions of the companies. How the CSDDD is therefore supposed to contribute to the freedom of capital flows across the EU's internal borders within the meaning of Art. 26, 144 TFEU is not evident.

1. 7. Conclusion

For a whole range of reasons, the EU economy and its companies will be required to exert considerable effort in the coming years. Hence, it is probably better, both economically and ecologically, to rely on the principle of trust instead of minuscule regulations, at least where there are no or only minor risks. In additiion: In times of shortage of skilled workers, CMS, reporting obligations and the ever more voluminous legislative and regulatory apparatuses painfully drain human resources that could be better used to create value (including environmental and social value). Against that background, businesses and their managements should exercise their political influence so as to move lawmakers and EFRAG in this direction. It is important that ESG regulations observe the proportionality barriers outlined above. Areas in which this proposition can be forwarded are the upcoming implementation of the CSRD into national law, the making of the ESRS, and the further legislative process for the CSDDD. Politically speaking, at present many things are still in flux.

[1] Proposal for a Directive on corporate due diligence with regard to sustainability and amending Directive (EU) 2019/1937, COM/2022/71 final, document 52022PC0071, para. 1 of the Explanatory Memorandum.

[2] Cf. Schön, ZfPW 2022, 207, 210, also on the international references.

[3] Directive 2013/34/EU of 26.06.2013 as amended by Directive (EU) 2022/2464 of 14.12.2022 ("Sustainability Reporting Directive" or "Corporate Sustainability Reporting Directive [CSRD]").

[4] Regulation (EU) 2020/852 of 18.06.2020 on the establishment of a framework to facilitate sustainable investment and amending Regulation (EU) 2019/2088 of 27.11.2019 ("Taxonomy Regulation").

[5] Overview in Kuntz, ESG and the Weakening Business Judgment Rule, in: Thilo Kuntz (ed.), Research Handbook on Environmental, Social, and Corporate Governance, Edward Elgar, 2023 (forthcoming), at II, open access: https://ssrn.com/abstract=4395003, p. 7 ff.; Ruland/Bürger/Weber/Kroth, , Newsdienst Compliance 2022, 220027, p. 1 ff. See also Paefgen, Corporate Social Responsibility (CSR) als aktienrechtliche Legalitätspflicht und Geschäftsleitungsermessen, Festschrift K. Schmidt, 2019, vol. 1, p. 105 ff.

[6] On this context, Paefgen, Corporate Social Responsibility (CSR) als aktienrechtliche Legalitätspflicht und Geschäftsleitungsermessen, Festschrift K. Schmidt, Munich 2019, vol. 1, p. 105 ff, at III 1; the same, Corporate Social Responsibility (CSR) als aktienrechtliche Organverantwortung, Festschrift Seibert, Cologne 2019, p. 629 et seq, at I1 and III; most recently Kuntz, ESG and the Weakening Business Judgment Rule, in Thilo Kuntz (ed.), Research Handbook on Environmental, Social, and Corporate Governance, Edward Elgar, 2023 (forthcoming), at II, open access: https://ssrn.com/abstract=4395003, p. 7 ff.

[7] CSRD Proposal, Explanatory Memorandum, COM(2021) 189 p. 4; critically AKBR (Arbeitskreis Bilanzrecht Hochschullehrer Rechtswissenschaft), Stellungnahme zum CSRD-Vorschlag der EU-Kommission DB 2021, 2301, 2303, and Ekkenga, ZHR 187 (2023), 228, 242 et seq., 246.

[8] In legal terms, the CSRD contains provisions on amendments to the Accounting Directive, cf. footnote 2. "Art. 19a" is therefore not an article of the CSRD, but of the Accounting Directive. Nevertheless, for ease of reading, article numbers are referred to the CSRD in the following, e.g. "Art. 19a CSRD".

[9] The word "and" (instead of "or") clarifies that information is to be included in the sustainability report only that is of importance for the understanding of both sustainability and the economic situation (requirement of "double materiality"); see also ESRS 1, para. 46-55.

[10] Likewise Ekkenga, ZHR 187 (2023), 228, 245. On the validity of the prohibition of self-incrimination (nemo tenetur - principle) for companies, see in detail C. Dannecker, Der nemo tenetur-Grundsatz - prozessuale Fundierung und Geltung für juristische Personen, ZStW 2015, 370, 375 ff, DOI 10.1515/zstw-2015-0014.

[11] Recital (39) on the European Financial Reporting Advisory Group - EFRAG states that it is a "not-for-profit association established under Belgian law ... . ... To ensure high quality standards ... EFRAG should have sufficient public funding to guarantee its independence." Whether the Commission conducted a procurement procedure and why the contract is open-ended is not disclosed in the recitals of the CSRD.

[12] https://www.efrag.org/lab6 (accessed May 29, 2023).

[13] Regulation (EU) 2019/2088 of 27.11.2019 on sustainability-related disclosure requirements in the financial services sector; for more detail Ruland/Bürger/Weber/Kroth, Newsdienst Compliance 2022, 220027, p. 5 f.; critically Ekkenga, ZHR 187 (2023), 228, 234 ff.

[14] Regulation (EU) 2020/852 of 18.06.2020 on the establishment of a framework to facilitate sustainable investment and amending Regulation (EU) 2019/2088; for more detail Ruland/Bürger/Weber/Kroth, Newsdienst Compliance 2022, 220027, p. 6.

[15] Directive (EU) 2019/1937 of 23.10.2019 on the protection of persons who report infringements of Union law; for more detail, Ruland/Bürger/Weber/Kroth, Newsdienst Compliance 2022, 220027, p. 4; Schmolke, NZG 2020, 5, 6.

[16] Directive (EU) 2020/1828 of 25.11.2020 on representative actions for the protection of the collective interests of consumers.

[17] On the liability under purchase and tort law for "sustainably defective product" most recently Gsell, ZHR 187 (2023), 392 et seq.

[18] In detail, most recently Kieninger, ZHR 187 (2023), 348 ff;

[19] Schön, ZfPW 2022, 207, 224.Cf. e.g. the UN Principles for Responsible Investment, which nearly 4,000 investors with assets under management of around 120 trillion U.S. dollars have committed themselves to comply with, https://www.unpri.org/about-us/what-are-the-principles-for-responsible-investment (accessed May 26, 2023). Principles 2 and 3 read: "We will be active owners and incorporate ESG issues into our ownership policies and practices. We will seek appropriate disclosure on ESG issues by the entities in which we invest."

[20] Cf., Bachmann, Zielsetzung und Governance von Unternehmen im Lichte der Klimaverantwortung, ZHR 187 (2023), 166, 197 f., 200 f.

[21] On the nature of the CSRD as encroachments on the companies and the applicability of the principle of proportionality AKBR (Arbeitskreis Bilanzrecht Hochschullehrer Rechtswissenschaft), Stellungnahme zum CSRD-Vorschlag der EU-Kommission DB 2021, 2301, 2304.

[22] Kölbel, MschrKrim 2017 (6), 430, 440 f., 444 ff.; Reuter, Verbessern Unternehmenssanktionen die Rechtstreue des Managements? – Kriminologische Antworten mit verfassungsrechtlichen Konsequenzen, Festschrift Thümmel, 2020, pp. 674, 686 f.; id. Corporate Fines Hit the Wrong and Fail Their Purpose, European Journal of Criminal Law (EuCLR), 2020, 365, 385 et seq.

[23] E.g. Bergmann, MschrKrim 2016 (1), 3, 6; Harbarth, ZHR 179 (2015), 136, 155; Jüttner, CCZ 2021, 1 et seq.; Kölbel, MschrKrim 2017 (6), 430, 440 et seq., 442 et seq.; from the U.S. literature, e.g. Krawiec, Washington University Law Quarterly 81 (2003) 487, 510.

[24] Treviño/Weaver/Gibson/Toffler, California Management Review 41 (1999) 131, 140; Krawiec, Washington University Law Quarterly 81 (2003) 487, 510 et seq., 514; Schwartz, Journal of Business Ethics 32 (2001) 247 et seq.; McKendall/DeMarr/Jones-Rikkers, Journal of Business Ethics 37 (2002) 367, 376.

[25] Impressive Jüttner, CCZ 2021, 1 ff.

[26] Cf. in the context of corporate sanctions Reuter, Verbessern Unternehmenssanktionen die Rechtstreue des Managements? – Kriminologische Antworten mit verfassungsrechtlichen Konsequenzen, Festschrift Thümmel, 2020, pp. 674, 686 f.; id. Corporate Fines Hit the Wrong and Fail Their Purpose, European Journal of Criminal Law (EuCLR), 2020, 365, 385 et seq.

[27] OLG Nürnberg, Urt. v. 30.03.2022 - 12 U 1520/19, para. 80, with reference to Fleischer in Münchener Kommentar zum GmbHG, 3rd ed. 2019, § 43, para. 139 with further references.

[27a] Reuter, Flogging the Wrong: EU Corporate Fines Violate the Fundamental Rights of Shareholders, Journal of European Competition Law & Practice, 2020, 301 ff., sub V (iii), https://doi.org/10.1093/jeclap/lpaa052

[28] Reuter, Corporate Fines Hit the Wrong and Fail Their Purpose, European Journal of Criminal Law (EuCLR), 2020, 365, 385 et seq.; the same, Systematically Flogging the Wrong: EU Corporate Fines Violate the Fundamental Rights of Shareholders - The European Commission as Revenant of the Persian Great King Xerxes, Europe-an Business Law review, 2021, 681 et seq.; Open Access Abstract: the same, Flogging the Wrong: EU Corporate Fines Violate the Fundamental Rights of Shareholders, Journal of European Competition Law & Practice, 2020, 301 ff., https://doi.org/10.1093/jeclap/lpaa052

[29] More detailed AKBR (Arbeitskreis Bilanzrecht Hochschullehrer Rechtswissenschaft), Stellungnahme zum CSRD-Vorschlag der EU-Kommission DB 2021, 2301, 2302 et seq.

[30] In this direction Randelzhofer/Forsthoff in Grabitz et al, The Law of the European Union, Status: 78th EL January 2023, Art. 50, para. 3, and Art. 59 TFEU, para. 2.

[31] Korte in Calliess/Ruffert, EUV/AEUV, 6th ed. 2022, Art. 50 TFEU, para. 24 f.

[32] AKBR (Arbeitskreis Bilanzrecht Hochschullehrer Rechtswissenschaft), Stellungnahme zum CSRD-Vorschlag der EU-Kommission DB 2021, 2301, 2303; critically also Schön, "Nachhaltigkeit" in der Unternehmensberichterstattung, ZfPW 2022, 207, 237 f.

[33] In this direction AKBR (Arbeitskreis Bilanzrecht Hochschullehrer Rechtswissenschaft), Stellungnahme zum CSRD-Vorschlag der EU-Kommission DB 2021, 2301, 2303.