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In recent years, the emphasis on sustainable and responsible investment has grown significantly. This shift is driven by increasing awareness of environmental, social, and governance (“ESG”) issues among investors, regulators, and the public. One of the key regulatory frameworks shaping this landscape is Regulation (EU) 2019/2088 of the 27th November 2019 on the sustainability-related disclosures in the financial services sector (the “SFDR”) which took effect on the 10th March 2021. The SFDR aims to strengthen protection for end investors by enhancing transparency and promoting sustainability in the financial markets. It mandates disclosure obligations on financial market participants and advisors to disclose how they integrate ESG factors in their risk processes. Within this framework, Article 8 funds, often referred to as “light green” funds, play a crucial role.

Applicability of the SFDR

The SFDR applies to “financial market participants” and “financial advisors” as defined in Article 2 of the regulation. From a securities perspective, financial market participants include investment firms providing portfolio management, alternative investment fund managers (“AIFMs”), and management companies of undertakings for collective investment in transferable securities (“UCITS ManCos”). Financial advisors encompass investment firms providing investment advice, AIFMs offering advisory services as stipulated in Directive (EU) 2024/927 of the 13th March 2024 on delegation arrangements, liquidity risk management, supervisory reporting, the provision of depositary and custody services and loan origination by alternative investment funds (“AIFMD II”), and UCITS ManCos providing investment advice as stated in Directive 2009/65/EC of the 13th July 2009 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities. [1]

What are Article 8 Funds?

Article 8 of the SFDR pertains to financial products that promote, among other characteristics, environmental or social characteristics, or a combination of those characteristics, provided that the entities in which the investments are made follow good governance practices.

These funds, therefore, stand at the intersection of ethical investment and traditional financial performance, appealing to investors who seek to align their portfolios with broader sustainability goals without compromising on returns.

Key Characteristics of Article 8 Funds

Funds which fall within the scope of Article 8 of the SFDR are characterised by their commitment to promoting environmental or social characteristics. However, unlike Article 9 funds, which have sustainable investment as their core objective, Article 8 funds do not necessarily aim to make a positive impact. Instead, they ensure that the companies they invest in follow good governance practices, such as sound management structures, employee relations, remuneration practices, and tax compliance.

To determine whether a fund falls within the parameters of Article 8 of the SFDR, it is essential to understand that “promotion” of a product extends beyond marketing communications. The notion of promotion also considers products which are named or labelled as “sustainable” and “ESG” and includes any direct or indirect claims, information, or impressions related to environmental or social characteristics in investment policies, marketing, and disclosures. [2]

Regulatory Requirements

Fund managers offering Article 8 products must comply with several disclosure requirements aimed at increasing transparency for investors. These include:

Pre-contractual Disclosures: Information on how the fund’s environmental or social characteristics are met, including details on the investment strategy, asset allocation, and sustainability indicators used to measure the achievement of these characteristics. Specifically, fund managers are expected to attach the relevant pre-contractual disclosures to the offering documentation of the investment fund and include a prominent statement about the additional information therein. [3]

Website Disclosures: Publicly accessible information about the fund’s promotion of environmental or social characteristics, including methodologies, data sources, and sustainability risks. The SFDR mandates financial market participants to publish and maintain on their websites details of their consideration of principal adverse impacts (“PAIs”) on sustainability, as well as how their remuneration policies are consistent with integrating sustainability risks.

Periodic Reports: Regular updates on the extent to which environmental or social characteristics are met, detailing the performance of sustainability indicators and any actions taken in this regard.

The Role of the Taxonomy Regulation

Complementing the SFDR is Regulation (EU) 2020/852 of the 18th June 2020 on the establishment of a framework to facilitate sustainable investment (the “Taxonomy Regulation”). This regulation provides a common language for investors, companies, and policymakers, ensuring that investments labelled as environmentally sustainable genuinely contribute to the EU’s environmental objectives.

The Taxonomy Regulation establishes criteria for determining whether an economic activity qualifies as environmentally sustainable based on six environmental objectives: climate change mitigation, climate change adaptation, sustainable use and protection of water and marine resources, transition to a circular economy, pollution prevention and control, and protection and restoration of biodiversity and ecosystems.

In this respect, any Article 8 fund which promotes environmental characteristics, must comply with taxonomy disclosures if it promotes environmental characteristics that contribute to an environmental taxonomy objective. Therefore, such funds must disclose how and to what extent they invest in activities that are aligned with the taxonomy principles, thereby enhancing transparency and preventing greenwashing.

The Impact of the Benchmark Regulation

Regulation (EU) 2016/1011 of the 8th June 2016 on indices used as benchmarks in financial instruments and financial contracts or to measure the performance of investment funds (the “Benchmark Regulation”) also plays an important role in the context of Article 8 funds. The Benchmark Regulation aims to ensure the accuracy and integrity of benchmarks used in financial instruments and contracts, or to measure the performance of investment funds. For Article 8 funds that designate an index as a reference benchmark, the SFDR requires disclosure of how this index is consistent with the fund’s environmental or social characteristics. This aligns with the Benchmark Regulation’s objective to enhance benchmark transparency and reliability, further ensuring that the benchmarks used by Article 8 funds genuinely reflect their sustainability claims. By adhering to the Benchmark Regulation, Article 8 funds provide investors with a clearer understanding of how their investments align with their sustainability preferences.

Why are Article 8 Funds Attractive to Investors?

Alignment with Values: Article 8 funds offer investors a unique opportunity to align their investment portfolios with their personal values and ethical considerations. By supporting companies that adhere to good governance practices and actively promote environmental or social characteristics, investors can contribute to positive societal impacts. This alignment with values is particularly appealing to socially conscious investors who seek to drive change through their financial decisions. Such investors are often motivated by a desire to support sustainable business practices, reduce their carbon footprint, and promote social equity.

Transparency: One of the key attractions of Article 8 funds is the enhanced transparency they provide. The SFDR mandates comprehensive disclosure requirements, ensuring that investors have access to detailed information about the fund’s sustainability practices and performance. These disclosures cover various aspects, including the fund’s investment strategy, the integration of ESG factors, and the methodologies used to measure sustainability outcomes. By offering clear and accessible information, Article 8 funds enable investors to make informed decisions and understand the real impact of their investments.

Risk Management: Integrating ESG factors into investment decisions is a crucial aspect of Article 8 funds that enhances their attractiveness. By considering environmental, social, and governance issues, these funds can identify and mitigate potential risks that might otherwise be overlooked. For instance, environmental risks such as climate change, resource depletion, and pollution can have significant financial implications. Social risks, including employment practices, community relations, and human rights issues, can also impact a company’s reputation and operational stability. Governance risks related to corporate structure, board composition, and transparency can affect investor confidence and long-term performance. By addressing these risks proactively, Article 8 funds help safeguard investments against unforeseen challenges, thus contributing to more resilient and sustainable investment portfolios.

Conclusion

The emphasis on sustainable and responsible investment, driven by increased awareness of ESG issues, is reshaping the financial landscape. The implementation of the SFDR plays a pivotal role in this transformation by mandating disclosure obligations for the financial market. As the regulatory environment continues to evolve and investor demand for sustainable products grows, Article 8 funds are likely to become an increasingly important component of the investment market. Notably, Article 8 funds offer a robust mechanism for investors to support sustainable practices, manage risks, and achieve financial returns, reflecting a significant shift towards more transparent investment strategies.

 

Footnotes

[1.]  In a circular issued by the Malta Financial Services Authority published on the 30th September 2021 on the Implementation of the SFDR, the regulatory authority confirmed that Professional Investment Funds (“PIFs”) and De Minimis AIFs also fall within the scope of the SFDR.

[2.] E.S.M.A.’s Guidelines on funds’ names using ESG or sustainability-related terms published on the 14th May 2024.

[3.] Commission Delegated Regulation (EU) 2022/1288 of the 6th April 2022 supplementing Regulation (EU) 2019/2088 with regard to regulatory technical standards specifying the details of the content and presentation of the information in relation to the principle of do no significant harm, specifying the content, methodologies and presentation of information in relation to sustainability indicators and adverse sustainability impacts, and the content and presentation of the information in relation to the promotion of environmental or social characteristics and sustainable investment objectives in precontractual documents, on websites and in periodic reports.

 

 

 

This document does not purport to give legal, financial or tax advice. Should you require further information or legal assistance, please do not hesitate to contact katya.tua@mamotcv.com or andrea.abela@mamotcv.com.

 

 

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