by Dr. Christoph Schork, Solicitor and Partner at HEUKING
The German legislature should have transposed the Corporate Sustainability Reporting Directive (CSRD) ((EU) 2022/2464 of 14 December 2022) into German law by 6 July 2024 at the latest. The draft for an implementation law for the CSRD from the Federal Ministry of Justice was available in March 2024. However, the government draft was not approved by the Federal Cabinet until 24 July 2024.
After the collapse of the coalition in November 2024, the law was not passed by the Bundestag by the end of 2024 as planned. In response to the deadline being missed, the European Commission initiated infringement proceedings against the Federal Republic of Germany in September 2024.
Current status quo: Sustainability reporting according to NFRD
As long as implementation into national law is pending, German companies are not legally obliged to comply with the CSRD requirements. Until the CSRD is implemented, ESG matters will be governed by the existing regulations on non-financial reporting (NFRD) enshrined in the German Commercial Code (HGB). According to these regulations, only capital market-oriented companies and large credit institutions and insurance companies with an average of more than 500 employees are required to publish non-financial reports for the 2024 financial year. Accordingly, the reports are not (yet) required to be audited by an external auditor.
Legal uncertainties and the role of "false" retroactivity
The central point of the current debate is the so-called "false" retroactive effect of a delayed CSRD implementation law. This occurs when a law retroactively affects circumstances that have not yet been concluded. This refers, for example, to events in the current 2025 financial year if the German implementation law comes into force in the course of this year. According to the case law of the Federal Constitutional Court, such retroactive effects are generally permissible, provided that the legislator balances the public interest in implementing the CSRD with the confidence of companies in the continuity of the previous legal situation. A legal opinion commissioned by the Institute of Public Auditors (Institut der Wirtschaftsprüfer, IDW) comes to a similar conclusion. This is because companies that have been aware of the CSRD and its requirements since 2023 have had sufficient time to prepare.
Voluntary CSRD reporting
Companies are free to report voluntarily in accordance with CSRD requirements even before the CSRD is implemented or (for large companies, as per § 267 of the German Commercial Code (HGB)) to prepare a sustainability report for the first time in order to meet the standards that may apply retroactively in the future. A report that complies with CSRD requirements ahead of schedule does not shorten the time-limited relief, as clarified by the European Financial Reporting Advisory Group (EFRAG) in its FAQ of 6 December 2024 (question ID 1090). The relief only applies from the first mandatory reporting year.
Harmonisation of reporting requirements
The European Commission is planning an "omnibus regulation" to standardise and simplify the various reporting requirements under CSRD, CS3D (Corporate Sustainability Due Diligence Directive) and the EU taxonomy regulation. A first draft is expected on 26 February 2025. However, fundamental obligations under the aforementioned EU regulations are not to be abandoned.
Conclusion
Given the current political situation in Germany, the CSRD implementation law is not expected to come into force until the second half of 2025 at the earliest. Regardless of the delays, many companies subject to the CSRD have already positioned themselves strategically and prepared for the new sustainability reporting requirements, for example by producing a CSRD trial report. Despite the existing uncertainties, it is worth viewing reporting not just as a chore, but as an opportunity to position yourself in the market.
Sustainability reports are not a passing trend, but are becoming a central component of modern corporate management.
