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Faculty of LawInstitut für Nachhaltigkeit, Unternehmensrecht und Reporting

Research areas and projects

Characteristics of the INUR

The INUR links the Faculty's legal research on corporate law with reference to sustainability. The research fields of the INUR include in particular:

  • Corporate Reporting and Auditing.
  • Corporate Governance and Responsibility.
  • Corporate Taxation.

In all research fields we cooperate in a broad research network with colleagues from other departments and universities. We are also in intensive dialogue with practitioners (practice network). 

 

Research issues und projects

Combating greenwashing

In order to encourage companies to seriously address the issue of sustainability and to help shape the politically desired "green transformation", the legislator standardises reporting obligations, among other things. Companies must report on ESG aspects and disclose their concepts and implementation steps. To this end, the EU has presented a new Corporate Sustainability Reporting Directive (CSRD) with a significantly expanded scope of application. Similar reporting obligations apply to financial intermediaries (especially financial advisors) and financial products on the basis of the Sustainable Finance Disclosure Regulation.

In all these sustainability-related reporting obligations, so-called greenwashing is a problem: companies may present themselves as "greener" in their sustainability reports than they actually are, financial advisors may promote "green" financial products that do not contain as many "green assets" as suggested. 

In light of this, important and exciting research questions arise:

  • What exactly is greenwashing, how and why does it occur? How can it be measured? Why are ESG ratings so inconsistent? Can the very heterogeneous aspects of E-S-G be meaningfully reflected in a single ESG rating metric at all? How can the comparability of ESG ratings be improved? Is a higher correlation of ESG ratings at all desirable and possible? What role do cultural peculiarities and characteristics play in the measurement (e.g. employee satisfaction according to the criterion of turnover rate Japan vs. USA; or according to the criterion of employee surveys China vs. EU etc.)? Can and should cultural specificities be eliminated?
  • How can greenwashing be prevented or at least reduced? How should it be sanctioned (after the fact)? Here, similar to other accounting scandals and compliance problems, questions of the various sub-disciplines of corporate law intertwine:
    • How should the corporate governance system be set up and, if necessary, re-sharpened to combat greenwashing? Do we need new reporting lines and processes, new experts, new committees, new audits?
    • How do the new European Reporting Standards on governance aspects (e.g. European Sustainability Reporting Standard G1: Governance, risk management and internal control etc.; ESRS G's), which are currently being developed, relate to company law? Are adjustments to company law necessary or advisable? Will the German Corporate Governance Code (DCGK) be needed in addition to the ESRS G's in the future?
    • Are emitters and financial advisors liable for green-coloured sustainability reports? What role do non-governmental standards (such as the GRI) play and what legitimacy do they have in the unfolding of the duty conon?
    • What is the role and responsibility of auditors in this context? Is there a need for new auditing obligations and who should carry out the audit of sustainability reports? Should the audit of financial reporting and sustainability reporting be in one hand (i.e. both audited by the auditor)? Is integrated auditing advisable because this is most in line with the idea of integrated reporting and ultimately integrated thinking? Or should regulatory experiments be conducted with forms of split audits (shared audits)? Etc.

 

Climate litigation

Recently, so-called climate lawsuits have been gaining in importance worldwide. States are being sued (with the argument that they are doing too little to avert the climate crisis), but increasingly also corporate bodies. So far, two main causes of action have been brought against corporate entities: "damage to the environment" (e.g. lawsuits brought by individual victims against companies, such as the Schell case in The Hague and the RWE case before the Higher Regional Court of Hamm) and "shareholders' interest" in the case of investments in so-called "stranded assets" (Enea case in Poland and similar successful activities, e.g. in Japan). In the future, claims for greenwashing (misleading information) could be added.

Are such lawsuits also conceivable under German private law? What obligations exist in corporate groups and along the supply chain? How can and should the corporate governance system be designed to protect against liability risks? How should we react to identifiable undesirable developments? Is the causality of the contributions of individual corporate entities to the global climate crisis and the resulting individual damages measurable and legally relevant? Are corporate activities illegal if they are carried out with official permits? How viable is the "stranded asset" argument compared to corporate discretion and the business judgement rule according to § 93 para. 1 sentence 2 AktG? And much more.

Here again, there are cross-connections to reporting. On the one hand, climate change lawsuits can be fuelled by (faulty) sustainability reporting. On the other hand, climate claims are a significant risk that must be reported in financial reporting and that is increasingly taken into account by investors and can thus also influence the financing conditions of companies.

 

Dual Purpose forms of company law und legal form variants

Sustainable corporate governance can be implemented in all corporate forms. Many companies have always been managed with ESG aspects in mind. Nevertheless, legal policy alternatives to the existing numerus clausus of corporate law forms are being discussed: Is there a need for new dual purpose corporate law forms? Is it advisable to introduce state-sanctioned new "labels" (as France has done with the Entreprise à mission)? Is a GmbH variant recommended in which distributions to shareholders are prohibited (so-called GmbH with tied assets, GmbH-gebV)? How can the corporate governance system of traditional forms of company law be modernised and sharpened with regard to sustainability?

In this context, there are also cross-connections with foundation law. Current law allows quite generously for corporate foundations. In some cases, such structures are not integrated into "normal" company law. Is this appropriate? Are corporate foundations a structure worthy of legal protection? Which rules of corporate law should be applicable to corporate foundations? Are further special tax regulations recommended in this respect?

 

Green Taxation

Tax law is often used by politicians for steering purposes. In this respect, it is obvious that tax law will also increasingly play a role in the politically desired "green transformation". Tax reporting obligations have already been established (country-by-country reporting) and will probably be further expanded. But the "core area" of tax law is also likely to become "greener" in the future. Here, too, many exciting research questions arise: What role can and should tax law play in the "green transformation"? For example, are Paris-compliant incentives recommended for the corporate tax rate or the tax base? Are the criteria for possible "green tax rules" sufficiently concrete and justiciable? How do any new corporate tax rules fit into the German system of dual corporate taxation? Do the EU and Germany have a free "right of invention" for "green taxes"? How do taxes and levies differ? Etc.