ESG: Environmental, Social, Governance

Taking responsibility – Utilising opportunities – Implementing sustainable, future-oriented practices  

Since the adoption of the European Green Deal, sustainability together with its ecological, social and business aspects has noticeably gained momentum and visibility. In their effort to shift towards a sustainable, ESG-compliant economy many companies – and increasingly also the public sector – find themselves confronted with a host of increasingly complex challenges. 

We offer advisory services in line with this development and provide reliable solutions for handling the arising legal and statutory requirements. We believe that although ESG involves certain risks, it also offers a range of opportunities worth pursuing in accordance with the specific character, circumstances and vision of a company and its organisation, or with the public sector.

Here you can find our ESG roadmap.

Environmental

Climate protection, supply chains, trading green certificates, environmental criteria in real estate and the construction industry, sustainability in contract tendering processes, for example, are the current hot topics. The “E” in ESG stands for “Environmental” and represents the rapid development of new environmental standards by the legislature. It is an important driver of processes that will increasingly influence a company’s activities. 

Companies are more than ever faced with the challenge of defining concrete sustainability objectives and strategies applicable to themselves and their impact on the environment. These objectives form the basis for introducing and ensuring compliance with particular environmental due diligence and reporting obligations. In addition, they encourage development of innovative concepts and sustainable forms of corporate activity and establishing them in the market. 

Climate protection

The adverse effects of climate change on the environment and its corresponding impact on humanity and the economy are well known and are becoming increasingly noticeable. Climate protection has thus become one of the most pressing global challenges of our time and is increasingly at the centre of economic, political and social discussions. Both public and private actors are aware that in order to become climate-neutral, CO2 emissions need to be reduced and further steps taken against environmental pollution. 

Legal developments at national level in the form of climate protection laws at federal and member state level as well as regulatory tools at EU level show that the legislature acknowledges the need for change. Transition to green energy and mobility plays a crucial role in climate protection.   

 

Core consultation areas 

  • Energy transition 
    • Expansion of renewable energy production (wind, solar, biomass, etc.)
    • Grid expansion (electricity)
    • Building and expansion of green hydrogen (production and infrastructure)
      • Setting up of hydrogen core network across Germany
      • Transformation of urban natural gas distribution grids 
    • Digitalisation
  • Heat transition
    • Heat generation (especially geothermal energy)
    • German Buildings Energy Act (Gebäudeenergiegesetz, GEG)
    • Urban heat supply plan
  • Mobility transition
    • Upgrading and expanding railway networks for long-distance rail services and local public transport (such as the German railway plan (Deutschlandtakt), local transport concepts)
    • Innovative mobility concepts (such as self-driving vehicles, alternative driving concepts, car-sharing models, urban and last-mile logistics)   
       

Your contacts: Dr. Marie Ackermann, Thoralf Herbold

Due diligence in supply chains

The German Act on Corporate Due Diligence Obligations in Supply Chains (Lieferkettensorgfaltspflichtengesetz, LkSG; aka the Supply Chain Act) became applicable for companies in Germany with more than 1000 employees as of 1 January 2024. Implementing this Act in real-life business scenarios is complicated. It requires time and human resources, who ideally are equipped with appropriate know-how. All company divisions are affected by the implementation of such due diligence measures, which involve a number of steps ranging from the (initial) determination of responsibilities and specialised persons in charge to (annual) reporting obligations. The Act is an initial step towards dealing with the risks and their impact on company results and the corporate environment in a systematic and strategic manner. The EU Corporate Sustainability Due Diligence Directive (CSDDD) will further intensify this process in the near future.

 

Core consultation areas 

  • Corporate analyses in relation to the applicability of the LkSG 
  • Due diligence in terms of human rights and the environment along the supply chain 
  • Risk management systems (responsibilities, risk analyses, complaints systems, etc.)
  • Reports and documentation related to fulfilment of due diligence obligations

Further information can be found in our information brochure on the LkSG.

Your contact: Dr. Oliver Jauch

Sustainability in public procurement law

In order to bring about a transformation of the state, economy and society, it is essential to take sustainability criteria into consideration when awarding public contracts. Public procurement law has tremendous potential to steer companies in that direction, and is also used in the public sector. Public procurement law facilitates ESG-compliant social, ecological and innovative procurement. It can act as a medium for fair government action suitable for all generations. Furthermore, public procurement law and the possibility of sustainable procurement will also become increasingly more important for private actors, as this will be linked to public procurement law through relevant ancillary provisions in government grants and subsidies.

 

Core consultation areas

  • Urban sustainability strategies
  • Sustainability aspects in public procurement procedures
  • Internal guidelines on awarding contracts in conjunction with sustainable procurement
  • Structuring and execution of tendering procedures with regard to climate protection and transition to green energy and mobility
  • Implementation of provisions related to public procurement law 
  • Strategic tender preparation in accordance with tender document specifications (including structuring internal relationships of syndicate structures)

Your contacts: Dr. Heiko Hofmann, Dr. Jan Peter Müller

Sustainability in the real estate sector

The question of sustainability in the construction and real estate industry is of crucial importance considering its economic significance and the high consumption of resources. The sector is faced with great challenges in this respect, for which solutions will have to be found. The main focus in this context is on compliance with statutory requirements and proactive development and implementation of innovative concepts.

 

Core consultation areas

  • Sustainability in tenancy law, in particular drafting green leases (ESG clauses)
  • Landlord-to-tenant electricity supply models, Buildings Energy Act (Gebäudeenergiegesetz, GEG), urban heat supply plan
  • Sustainability criteria in real estate transactions
  • Sustainable real estate financing agreements
  • Innovative real estate utilisation concepts (such as corporate living, urban and last-mile logistics, sustainable usage concepts and spatial designs) 
  • Sustainable construction and recycling economy (circular economy, cradle to cradle) 

Your contacts: Dr. Damian Tigges, Dr. Wolf zur Nieden

Certificates: evidence and trading

The use of sustainable energy sources is increasingly being called for and demanded. The market should be able to rely on the fact that an energy source offered to be sustainable does indeed provide energy that is sustainable and classified as progressive and that the assumptions underlying the calculations hold true. For this reason, the European Union and the German Federal government increasingly expect verification in the form of certificates for sustainable energy sources (electricity, gas, heat, refrigeration) in order to ensure transparency and unambiguity. These certificates are independent commodities which can be traded across borders or sold on trading platforms.

 

Core consultation areas

  • Guarantee of origin (Herkunftsnachweis, HKN) (electricity, gas, heat, refrigeration) and green energy certificates
  • CO2 certificates
  • Biogas certificates and Biogas Register
  • Green Hydrogen certificates
  • Carbon farming certificates  

Your contact: Dr. Liane Thau

Social

The “S” in ESG stands for social sustainability. This includes companies’ responsibility towards its employees, clients and society in general. Questions regarding labour conditions, diversity and inclusion in the workplace, occupational health and safety standards and the impact on local businesses must be addressed along with business and HR strategies.

Unlike in the case of “E” in ESG, the European Union was unable to agree on a social taxonomy regulation for sustainable activities; however, the European Sustainability Reporting Standards (ESRS) contain the initial requirements that need to be fulfilled for sustainability reporting from 2024. In addition, a company’s reputation and attractiveness as an employer are the most important strategic drivers in an ever intensifying demographic race for specialists and managers. This motivates companies to create appropriate legal frameworks for sustainable working models, remuneration systems and protection schemes.

 

Core consultation areas

Sustainable working (hours) models (new work)

  • Diversity, inclusion, gender equality, equal career
  • Mental health
  • Flexible working hours arrangements, remote work within Germany and abroad

Sustainable remuneration and incentive models (new pay)

  • ESG criteria for remuneration and incentivisation (employees and management) 
  • Agreement on objectives
  • Equal pay
  • Occupational pension scheme
  • Employee participation programmes (equity or stock option plans)
  • Corporate living (as part of employee retention measures), cf. new work

Sustainable protection schemes (D&I)

  • Health protection 
  • Protection against discrimination 
  • Agreement to support inclusion 
  • Whistleblower protection system

Ethical use of technology/AI

  • Use of AI in employment contracts 
  • Performance and conduct monitoring

Conflict management and mediation

  • Negotiation and communication training for managers 
  • Moderation and mediation between business and social partners
  • Mediation during team conflicts

Your contacts: Dr. Alexander Insam, Dr. Dirk Freihube 

Governance 

Companies are increasingly required to consider relevant sustainability aspects and report on them. This involves taking into account the risks to the company itself along with the company’s impact on the environment. In particular, these aspects are part of the principles of corporate governance (the “G” in ESG). As an internal system of rules, guidelines and processes corporate governance should be focused on the actual implementation and achievement of the company’s sustainability goals and should ensure appropriate reporting. 

More and more requirements and standards for good, sustainable corporate governance are being stipulated by the legislature and case law. Furthermore, various industries and private initiatives are developing parameters to be applied to good, sustainable corporate governance. Investors and business partners are in turn considering the extent to which their corporate governance is aligned with the ESG objectives in their assessments by applying their assessment criteria. 

ESG compliance

ESG requirements and standards need to be considered while developing compliance management systems. It is imperative to appropriately comply with sustainability reporting obligations and other ESG laws. This is the only way to avoid liability risks for the company and management, for instance, in a greenwashing scenario.  

 

Core consultation areas

  • Sustainability reporting: Verification, monitoring and reporting obligations, particularly related to 
    • Corporate Sustainability Reporting Directive (CSRD, EU Corporate Sustainability Due Diligence Directive/CSDDD)
    • Supply Chain Act (LkSG)
    • Non-Financial Reporting Directive (NFRD)
    • Sanctions/Foreign trade law
    • German Sustainability Code 
  • ESG due diligence by companies and corporate bodies
  • ESG risk assessment         

Your contacts: Dr. Lars Weber, Dr. Christian Bürger 

Corporate and M&A

ESG provisions have brought about extensive developments in company law, which presents management and supervisory boards with new challenges both in terms of content and organisation. It is advisable to establish sound ESG expertise in order to cope with these challenges. Sustainability is increasingly becoming a topic of discussion even in transactional business. This is particularly the case during the preliminary review of a target company. 

 

Core consultation areas

  • ESG due diligence in M&A transactions: ESG compliance of the target company and fulfilment of the acquirer’s expectations 
  • ESG criteria while drafting sales and joint venture agreements     
  • ESG guidelines for management contracts and supervisory board mandates (proof of expertise and knowledge)
  • ESG requirements during decision-making by management and supervisory boards (business judgement rule, liability prevention, potential breach of obligations and non-compliance, German corporate governance code)
  • Sustainability and ESG committees of the supervisory boards       
  • ESG features in municipal companies   
  • Steward ownership   
  • Sustainability obligations at the time of insolvency proceedings and their relevance for the insolvency administrator
  • ESG legal action

Your contacts: Dr. Karla Gubalke, Dr. Tobias Riethmüller

Antitrust law

Achieving sustainability objectives often involves high costs, which cannot always be honoured and settled by buyers and consumers. In some cases therefore, sustainability objectives can only be achieved through cooperation between companies. Antitrust law specifies the framework for such cooperation, the extent of which should be sounded out and drafted in a legally watertight manner.

 

Core consultation areas

  • Compliance in terms of antitrust law in sustainability initiatives and while implementing a circular economy 
  • Dealing with the German Federal Cartel Office and the European Commission

Your contacts: Dr. Maxim Kleine, Dr. Christian Bürger  

Sustainable Finance 

The European Union has identified the transformation of the financial market sector as the key instrument for achieving its climate objectives. On the one hand, the shift towards better sustainability requires massive global investment; on the other hand, financial products such as stocks, shares and debentures need to become more sustainable in order to comply with the EU's objectives.

To bring this about, the EU adopted a comprehensive, sustainable finance policy to define and regulate financial market products. The aim is to channel the flow of capital into sustainable projects and increase the transparency of financial instruments. Financial institutions are required to abide by more stringent regulatory provisions and adapt their internal processes and risk analyses. This renders the structuring of sustainable investments and ESG-compliant financial instruments, such as green bonds or green loans, all the more complex.  

 

Core consultation areas

ESG regulatory framework in the financial services sector (taxonomy regulation for sustainable activities, sustainable finance disclosure regulation)

ESG-compliant financial instruments (green bonds/loans, social bonds/loans and sustainability-linked bonds/loans)

ESG capital market compliance

  • Corporate Sustainability Reporting Directive
  • Sustainability-related disclosure obligations and implementation of other regulatory requirements

Social entrepreneurship financing

Green funds

Your contacts: Dr. Yorick Ruland, Dr. Tobias Riethmüller

Sustainability Claims 

The shift towards a sustainable world suitable for future generations is no longer a matter of societal pressure alone; instead, this is increasingly based on national and international binding regulations. These regulations leave room for interpretation in many cases. Furthermore, the authorities and courts are increasingly preoccupied with interdisciplinary ESG concepts. In the event of misconduct or breach of the ESG regulatory framework, companies are not only susceptible to considerable risk to their reputation, but they are also confronted with specific liability and indemnity situations which can be initiated or claimed by a number of relatively new actors, particularly in the form of class actions.

 

Core consultation areas

Breach of capital market information obligations

  • Liability for sustainability-related disclosure obligations: Breach of taxonomy regulation for sustainable activities, sustainable finance disclosure regulation (SFDR)
  • Liability for sustainability-related reporting: Breach of Corporate Sustainability Reporting Directive (CSRD) 
  • Prospectus liability
  • Breach of ad-hoc information obligations (sustainability aspects and risks as insider information)
  • Incorrect periodical reporting
  • Criminal liability, particularly as per section 264a German Criminal Code (StGB)
  • Monitoring of capital market information damages on account of ESG compliance breaches as per German Capital Markets Model Case Act (Kapitalanleger-Musterverfahrensgesetz, KapMuG)

Your contact: Dr. Yorick Ruland

Greenwashing

  • Liability claims on account of greenwashing in investment products (SFDR breach as basis for alleged greenwashing)
  • Liability claims on account of misleading information about product/service sustainability (advertisement with sustainability information as integrity breach)

Your contact: Dr. Yorick Ruland

Equal pay/Anti-discrimination

  • Defending actions for payments focussing on settlement of wage differences due to unjustified pay discrimination based on gender

Your contact: Dr. Dirk Freihube 

Misconduct in the supply chain

  • Liability due to breaches within the supply chain (LkSG, CSDDD)

Your contact: Dr. Oliver Jauch

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