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EBI STUDIES IN
BANKING AND CAPITAL MARKETS LAW
Sustainable
Finance in Europe
Corporate Governance,
Financial Stability and Financial Markets
Edited by Danny Busch · Guido Ferrarini
Seraina Grünewald
EBI Studies in Banking and Capital Markets Law
Series Editors
(all members of the EBI Academic Board)
Danny Busch, Financial Law Centre (FLC), Radboud University Nijmegen,
Nijmegen, The Netherlands
Christos V. Gortsos, National and Kapodistrian University of Athens,
Athens, Greece
Antonella Sciarrone Alibrandi, Università Cattolica del Sacro Cuore,
Milan, Italy
Editorial Board
(all members of the EBI Academic Board)
Dariusz Adamski, University of Wroclaw
Filippo Annunziata, Bocconi University
Jens-Hinrich Binder, University of Tübingen
William Blair, Queen Mary University of London
Concetta Brescia Morra, University of Roma Tre
Blanaid Clarke, Trinity College Dublin, Law School
Veerle Colaert, KU Leuven University
Guido Ferrarini, University of Genoa
Seraina Grünewald, Radboud University Nijmegen
Christos Hadjiemmanuil, University of Piraeus
Bart Joosen, Free University Amsterdam
Marco Lamandini, University of Bologna
Rosa Lastra, Queen Mary University of London
Edgar Löw, Frankfurt School of Finance & Management
Luis Morais, University of Lisbon, Law School
Peter O. Mülbert, University of Mainz
David Ramos Muñoz, University Carlos III of Madrid
Andre Prüm, University of Luxembourg
Juana Pulgar Ezquerra, Complutense University of Madrid
Georg Ringe, University of Hamburg
Rolf Sethe, University of Zürich
Michele Siri, University of Genoa
Eddy Wymeersch, University of Ghent
The European Banking Institute
The European Banking Institute based in Frankfurt is an international
centre for banking studies resulting from the joint venture of Europe’s
preeminent academic institutions which have decided to share and coor-
dinate their commitments and structure their research activities in order
to provide the highest quality legal, economic and accounting studies in
the field of banking regulation, banking supervision and banking resolu-
tion in Europe. The European Banking Institute is structured to promote
the dialogue between scholars, regulators, supervisors, industry represen-
tatives and advisors in relation to issues concerning the regulation and
supervision of financial institutions and financial markets from a legal,
economic and any other related viewpoint.
As of May 2021, the Academic Members of the European Banking
Institute are the following: Universiteit van Amsterdam, University
of Antwerp, University of Piraeus, Alma Mater Studiorum—Univer-
sità di Bologna, Universität Bonn, Academia de Studii Economice din
Bucures, ti (ASE), Trinity College Dublin, University of Edinburgh,
Goethe-Universität, Universiteit Gent, University of Helsinki, Univer-
siteit Leiden, KU Leuven University, Universidade Católica Portuguesa,
Universidade de Lisboa, University of Ljubljana, Queen Mary University
of London, Université du Luxembourg, Universidad Autónoma Madrid,
Universidad Carlos III de Madrid, Universidad Complutense, Madrid,
Johannes Gutenberg University Mainz, University of Malta, Università
Cattolica del Sacro Cuore, University of Cyprus, Radboud Universiteit,
BI Norwegian Business School, Université Panthéon - Sorbonne (Paris 1),
Université Panthéon-Assas (Paris 2), University of Stockholm, University
of Tartu, University of Vienna, University of Wrocław, Universität Zürich.
Supervisory Board of the European Banking Institute:
Thomas Gstaedtner, President of the Supervisory Board of the
European Banking Institute
Enrico Leone, Chancellor of the European Banking Institute
Sustainable Finance
in Europe
Corporate Governance, Financial Stability
and Financial Markets
Editors
Danny Busch Guido Ferrarini
Financial Law Centre (FLC) Department of Law
Radboud University Nijmegen University of Genoa
Nijmegen, The Netherlands Genoa, Italy
Seraina Grünewald
Financial Law Centre (FLC)
Radboud University Nijmegen
Nijmegen, The Netherlands
© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer
Nature Switzerland AG 2021
This work is subject to copyright. All rights are solely and exclusively licensed by the
Publisher, whether the whole or part of the material is concerned, specifically the rights
of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on
microfilms or in any other physical way, and transmission or information storage and
retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology
now known or hereafter developed.
The use of general descriptive names, registered names, trademarks, service marks, etc.
in this publication does not imply, even in the absence of a specific statement, that such
names are exempt from the relevant protective laws and regulations and therefore free for
general use.
The publisher, the authors and the editors are safe to assume that the advice and informa-
tion in this book are believed to be true and accurate at the date of publication. Neither
the publisher nor the authors or the editors give a warranty, expressed or implied, with
respect to the material contained herein or for any errors or omissions that may have been
made. The publisher remains neutral with regard to jurisdictional claims in published maps
and institutional affiliations.
This Palgrave Macmillan imprint is published by the registered company Springer Nature
Switzerland AG
The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland
Series Editors’ Preface
The European Union (EU) has set ambitious climate-related and envi-
ronmental goals. In this respect, and according to the recent (2018)
European Commission’s Action Plan on Financing Sustainable Growth,
the financial sector should play a key role in this ‘green’ transition by
bringing together supply and demand for ‘green’ capital, supporting thus
sustainable finance.
The aim of this book on Sustainable Finance in Europe is to collect
views of expert academics and practitioners on the latest regulatory
developments in sustainable finance in the EU. The volume deliberately
includes a wide range of cutting-edge aspects. Although it mainly focuses
on the green transition and environmental sustainability, it also addresses
social and governance issues, i.e. all so-called ESG issues. The individual
contributions deploy different methods of analysis, including theoretical
contributions on the status quo of macro-financial research, as well as law
and economics approaches, encouraging thus interdisciplinary readership.
The book chapters are grouped in a thematic way, covering the
following areas: (i) General Aspects, including the impact of the current
COVID-19 crisis on the sustainability agenda (Part I); (ii) Sustainable
Finance and Corporate Governance (Part II); (iii) Sustainable Finance
and Systemic Risk (Part III); and (iv) Sustainable Finance and Financial
Markets (Part IV).
Some of the chapters included in this book are based on presentations
made at the 2020 Global Annual Conference of the European Banking
v
vi SERIES EDITORS’ PREFACE
Danny Busch
Christos V. Gortsos
Antonella Sciarrone Alibrandi
Contents
vii
viii CONTENTS
Index 505
Notes on Contributors
ix
x NOTES ON CONTRIBUTORS
xiii
List of Tables
xv
PART I
General Aspects
CHAPTER 1
1.1 Introduction
The European Union (EU) has launched ambitious climate plans.
According to the European Commission’s Sustainable Finance Action
Plan, the financial sector must play a key role in this green transition by
bringing together supply and demand for green capital.1
1 See the Green Deal presented by the European Commission on 10 December 2019
(COM (2019) 640 final) and the proposal dated 4 March 2020 for a ‘European Climate
Law’ (COM(2020) 80 final), amended on 17 September 2020 to include a revised EU
emission reduction target of at least 55% by 2030 (COM(2020) 563 final). The Sustain-
able Finance Action Plan was launched by the previous European Commission on 8 March
2018 (COM (2018) 97 final); for the present position, see https://ec.europa.eu/info/
business-economy-euro/banking-and-finance/sustainable-finance_nl.
The aim of this book is to collect the views of expert academics and
practitioners on the latest regulatory developments in sustainable finance
in the EU. The volume deliberately includes a wide range of cutting-edge
issues. Although it focuses on the green transition, it also addresses social
and governance issues. The individual contributions deploy different
methods of analysis, including theoretical contributions on the status
quo of macrofinancial research as well as law and economics approaches,
encouraging interdisciplinary readership.
The book chapters are grouped in a thematic way, covering the
following areas: (i) general aspects (Part I); (ii) sustainable finance and
corporate governance (Part II); (iii) sustainable finance and systemic risk
(Part III); and (iv) sustainable finance and the financial markets (Part
IV). This chapter provides a summary and overview of the chapters. But
before doing so we will discuss the impact of the COVID-19 crisis on the
sustainability agenda.
S. Grünewald
e-mail: S.Grunewald@jur.ru.nl
G. Ferrarini
Department of Law, University of Genoa, Genoa, Italy
e-mail: guido.ferrarini@unige.it
1 SUSTAINABLE FINANCE IN EUROPE … 5
2 That link is in any event assumed by the European Commission in the ‘Consultation
on the renewed sustainable finance strategy’ dated 8 April 2020 (p. 3) (https://ec.eur
opa.eu/info/consultations/finance-2020-sustainable-finance-strategy_en).
3 See also D. Schoenmaker: https://www.bruegel.org/2020/04/a-green-recovery/ (6
April 2020).
4 Always subject to state aid restrictions of course. To ensure that national govern-
ments can act swiftly and know what is allowed during the COVID-19 crisis, the
European Commission published a specific temporary state aid framework. The Commis-
sion is currently handling applications under state aid rules with unprecedented speed and
applying the rules in a generous spirit. See: https://ec.europa.eu/competition/state_aid/
what_is_new/covid_19.html.
6 D. BUSCH ET AL.
under the EU SURE instrument to help protect jobs and keep people
in work. The issuings consisted of 5-, 10- and 15-year bonds. There
was very strong investor interest in these highly rated instruments, and
the oversubscription resulted in favourable pricing terms for the bonds.
The raised funds are transferred to the beneficiary Member States in
the form of loans to help them directly cover the costs related to the
financing of national short-time work schemes and similar measures as
a response to the pandemic. On 27 October 2020, the EU SURE
social bond was listed on the Luxembourg Stock Exchange, and will
be displayed on the Luxembourg Green Exchange, the world’s leading
platform exclusively dedicated to sustainable securities.5
Moreover, at the extraordinary European Council of 17–21 July 2020,
the European Heads of Government reached an agreement on the Euro-
pean Multiannual Budget and the Corona Recovery Fund (the Next
Generation EU Plan).6 The Agreement on the EU budget (2021–2027)
looks roughly as follows. The European budget for 2021–2027 will be
EUR 1.074 billion. More money is going to innovation, sustainability
and the climate. 30% of all expenditure in the budget must contribute to
the European climate target. Member States that receive money from the
EU budget must put the European values of freedom and democracy into
practice. Thus, they must have independent judges.7
The Corona Recovery Plan consists of the following. There will be
a fund of EUR 750 billion, funded by bonds issued by the European
Commission itself. Of this amount, EUR 390 billion are for subsi-
dies. The other EUR 360 billion are loans. 30% of all expenditure of
the Corona Recovery Fund must contribute to the European climate
target. So as soon as the Corona Recovery Fund is released, the Euro-
pean Commission will over time issue bonds of a total nominal value
of EUR 750 billion. At least 30% of those bonds will be issued as
green bonds. Member States must implement reforms and investment
plans to get or borrow money from the Recovery Fund. Member States
that receive subsidies or loans from the Fund must strengthen their
5 See https://ec.europa.eu/info/business-economy-euro/economic-and-fiscal-policy-
coordination/financial-assistance-eu/funding-mechanisms-and-facilities/sure_en/.
6 See https://ec.europa.eu/info/strategy/eu-budget/long-term-eu-budget/eu-budget-
2021-2027_en.
7 See https://ec.europa.eu/info/strategy/eu-budget/long-term-eu-budget/eu-budget-
2021-2027_en.
1 SUSTAINABLE FINANCE IN EUROPE … 7
8 See https://ec.europa.eu/info/strategy/eu-budget/long-term-eu-budget/eu-budget-
2021-2027_en.
9 https://nos.nl/artikel/2360118-akkoord-over-begroting-op-top-europese-unie.html
(10 December 2020).
10 See https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/
DE/2021/bvg21-023.html; https://buendnis-buergerwille.de/bverfg-bundespraesiden
ten/.
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preserve. The constructive forces of the world persistently won his
deference and support.
The intensely British desire to have a moral, and, if possible, a
religious foundation for a political creed would command our deepest
respect, were the human mind capable of accommodating its
convictions to morality and religion, instead of accommodating
morality and religion to its convictions. Cecil, a stern individualist,
weighted with a heavy sense of personal responsibility, and disposed
to distrust the kindly intervention of the State, finds, naturally
enough, that Christianity is essentially individualistic. “There is not a
line of the New Testament that can be quoted in favour of the
enlargement of the function of the State beyond the elementary duty
of maintaining order and suppressing crime.”
The obvious retort to this would be that there is not a line in the
New Testament which can be quoted in favour of the confinement of
the function of the State to the elementary duty of maintaining order
and suppressing crime. The counsel of Christ is a counsel of
perfection, and a counsel of perfection is necessarily personal and
intimate. What the world asks now are state reforms and social
reforms,—in other words, the reformation of our neighbours. What
the Gospel asks, and has always asked, is the reformation of
ourselves,—a harassing and importunate demand. Mr. Chesterton
spoke but the truth when he said that Christianity has not been tried
and found wanting. It has been found difficult, and not tried.
Cecil’s conclusions anent the unconcern of the Gospels with forms
of government were, strangely enough, the points very ardently
disputed by Bible-reading England. A critic in the “Contemporary
Review” made the interesting statement that the political economy of
the New Testament is radical and sound. He illustrated his argument
with the parable of the labourers in the vine-yard, pointing out that
the master paid the men for the hours in which they had had no
work. “In the higher economics,” he said, “the State, as representing
the community, is responsible for those who, through the State’s
malfeasance, misfeasance, or nonfeasance, are unable to obtain the
work for which they wait.”
But apart from the fact that the parable is meant to have a spiritual
and not a material significance, there is nothing in the Gospel to
indicate that the master considered that he owed the late-comers
their day’s wage. His comment upon his own action disclaims this
assumption: “Is it not lawful for me to do what I will with mine own?”
And it is worthy of note that the protest against his liberality comes,
not from other vine-growers objecting to a precedent, but from the
labourers who cannot be brought to see that an hour’s work done by
their neighbours may be worth as much as twelve hours’ work done
by themselves. Human nature has not altered perceptibly in the
course of two thousand years.
Great Britain’s experiment in doling out “unemployment pay” was
based on expediency, and on the generous hypothesis that men and
women, outside of the professional pauper class, would prefer work
with wages to wages without work. A cartoon in “Punch”
representing the Minister of Labour blandly and insinuatingly
presenting a house-maid’s uniform to an outraged “ex-munitionette,”
who is the Government’s contented pensioner, suggests some rift in
this harmonious understanding. Progressives have branded
temperamental conservatism as distrust of the unknown,—a mental
attitude which is the antithesis of love of adventure. But distrust of
the unknown is a thin and fleeting emotion compared with distrust of
human nature, which is perfectly well known. To know it is not
necessarily to quarrel with it. It is merely to take it into account.
Economics and ethics have little in common. They meet in amity,
only to part in coldness. Our preference for our own interests is
essentially and vitally un-Christian. The competitive system is not a
Christian system. But it lies at the root of civilization; it has its noble
as well as its ignoble side; it is the main-spring of both nationalism
and internationalism; it is the force which supports governments, and
the force which violently disrupts them. Men have risen above self-
interest for life; nations, superbly for a time. The sense of shock
which was induced by Germany’s acute reversion to barbarism was
deeper than the sense of danger induced by her vaulting ambitions.
There is no such passionate feeling in life as that which is stirred by
the right and duty of defence; and for more than four years the Allied
nations defended the world from evils which the world fancied it had
long outgrown. The duration of the war is the most miraculous part of
the miraculous tale. A monotony of heroism, a monotony of sacrifice,
transcends imagination.
Now it is over. Citizens of the United States walked knee-deep in
newspapers for a joyous night to signify their satisfaction, and at
once embarked on vivacious disputes over memorial arches, and
statues, and monuments. The nations of Europe, with lighter pockets
and heavier stakes, began to consider difficulties and to cultivate
doubts. No one can fail to understand the destructive forces of the
world, because they have given object-lessons on a large and lurid
scale. But the constructive forces are on trial, with imposing chances
of success or failure. They are still in the wordy stage, and now, as
never before, the world is sick of words. “This is neither the time nor
the place for superfluous phrases,” said Clemenceau (ironically, one
hopes), when he placed in the hands of Count von Brockdorff-
Rantzau a peace treaty which some stony-hearted wag has informed
us was precisely the length of “A Tale of Two Cities.” The appalling
discursiveness of the Versailles Conference has added to the
confusion of the world; but fitted into the “Preamble” of the Covenant
of the League of Nations are five little vocables, four of them
monosyllabic, which embody the one arresting thought that
dominates and authorizes the articles,—“Not to resort to war.” These
five words are the crux of the whole serious and sanguine scheme.
They hold the hope of the weak, and the happiness of the insecure.
They deny to the strong the pleasures—and the means—of
coercion.
The rapid changes wrought by the twentieth century are less
disconcerting to the temperamental conservative, who is proverbially
slow, than movements which take time to be persuasive. For one
thing, the vast spiral along which the world spins brings him face to
face with new friends before he loses sight of the old. The
revolutionary of yesterday is the reactionary of to-day, and the
conservative finds himself hob-nobbing with men and women whom
he had thought remote as the Poles.
Two interesting examples are Madame Catherine Breshkovskaya
and Mr. Samuel Gompers. Time was, and not so many years ago,
when both condoned violence—the violence of the Russian Nihilist,
the violence of the American dynamiter—as a short road to justice.
Their attitude was not unlike that of the first Southern lynchers: “We
take the law into our own hands, because conditions are unbearable,
and the State affords no adequate relief.” But Madame
Breshkovskaya has seen the forces she helped to set in motion
sweeping in unanticipated and shattering currents. She has seen a
new terrorism arise and wield the weapons of the old to crush man’s
sacred freedom. The peasants she loved have been beyond the
reach of her help. The country for which she suffered thirty years of
exile repudiated her. Radicals in Europe and in the United States
mocked at her. The Grandmother of the Revolution has become a
conservative old lady, concerned, as good grandmothers ought to
be, with the welfare of little children, and pleading pitifully for order
and education.
As for Mr. Gompers, his unswerving loyalty to the cause of the
Allies, his unswerving rejection of Germany and all her works, will
never be forgiven by pacifists, by the men and women who had no
word of protest or of pity when Belgium was invaded, when the
Lusitania was sunk, when towns were burned, civilians butchered,
and girls deported; and who recovered their speech only to plead for
the nation that had disregarded human sufferings and human rights.
Mr. Gompers helped as much as any one man in the United States
to win the war, and winning a war is very distasteful to those who do
not want to fight. Therefore has he been relegated by international
Socialists, who held hands for four years with Pan-German
Socialists, to the ranks of the conservatives. When the “Nation,”
speaking ex cathedra, says, “The authority of the old machine-type
of labour leader like Mr. Gompers is impaired beyond help or hope,”
we hear the echo of the voices which babbled about capitalism and
profiteering in April, 1917. The Great War has made and unmade the
friendships of the world. If the radicals propose it as a test, as a test
the conservatives will accept it.
The successive revolutions which make the advance-guard of one
movement the rear-guard of the next are as expeditious and as
overwhelming in the field of art as in the fields of politics and
sociology. In the spring of 1877 an exhibition of two hundred and
forty pictures, the work of eighteen artists, was opened in the rue le
Peletier, Paris. For some reason, never sufficiently explained,
Parisians found in these canvases a source of infinite diversion.
They went to the exhibition in a mood of obvious hilarity. They began
to laugh while they were still in the street, they laughed as they
climbed the stairs, they were convulsed with laughter when they
looked at the pictures, they laughed every time they talked them over
with their friends.
Now what were these mirth-provoking works of art? Not cubist
diagrams, not geometrical charts of human anatomy, not reversible
landscapes, not rainbow-tinted pigs. Such exhilarants lay in wait for
another century and another generation. The pictures which so
abundantly amused Paris in 1877 were painted by Claude Monet,
Pissarro, Cézanne, Renoir,—men of genius, who, having devised a
new and brilliant technique, abandoned themselves with too little
reserve to the veracities of impressionism. They were not
doctrinaires. The peace they disturbed was only the peace of
immobility. But they were drunk with new wine. Their strength lay in
their courage and their candour; their weakness in the not unnatural
assumption that they were expressing the finalities of art.
Defenders they had in plenty. No pioneer can escape from the
hardship of vindication. Years before, Baudelaire had felt it
incumbent upon himself, as a professional mutineer, to support the
“fearless innovations” of Manet. Zola, always on the lookout for
somebody to attack or to defend, was equally enthusiastic and
equally choleric. Loud disputation rent the air while the world sped
on its way, and lesser artists discovered, to their joy, what a facile
thing it was to produce nerve-racking novelties. In 1892, John La
Farge, wandering disconsolately through the exhibitions of Paris,
wondered if there might not still be room for something simple in art.
Ever and always the reproach cast at the conservative is that he
has been blind in the beginning to the beauty he has been eventually
compelled to recognize; and ever and always he replies that, in the
final issue, he is the guardian of all beauty. His are the imperishable
standards, his is the love for a majestic past, his is the patience to
wait until the wheat has been sorted from the chaff, and gathered
into the granaries of the world. If he be hostile to the problematic,
which is his weakness, he is passionately loyal to the tried and
proven, which is his strength. He is as necessary to human sanity as
the progressive is necessary to human hope.
Civilization and culture are very old and very beautiful. They imply
refinement of humour, a disciplined taste, sensitiveness to noble
impressions, and a wise acceptance of the laws of evidence. These
things are not less valuable for being undervalued. “At the present
time,” says the most acute of American critics, Mr. Brownell, “it is
quite generally imagined that we should gain rather than lose by
having Raphael without the Church, and Rembrandt without the
Bible.” The same notion, less clearly defined, is prevalent concerning
Milton and Dante. We had grown weary of large and compelling
backgrounds until the Great War focussed our emotions. We are
impatient still of large and compelling traditions. The tendency is to
localization and analysis.
The new and facile experiments in verse, which have some
notable exponents, are interesting and indecisive. Midway between
the enthusiasm of the experimenters (which is not contagious) and
the ribald gibes of the disaffected (which are not convincing) the
conservative critic practises that watchful waiting, so safe in the
world of art, so hazardous in the world of action. He cannot do as he
has been bidden, and judge the novel product by its own standards,
for that would be to exempt it from judgment. Nothing—not even a
German—can be judged by his—or its—own standard. If there is to
be any standard at all, it must be based on comparison. Keen
thoughts and vivid words have their value, no matter in what form
they are presented; but unless that form be poetical, the presentation
is not poetry. There is a world of truth in Mr. Masters’s brief and bitter
lines:
“Beware of the man who rises to power
From one suspender.”
“lightly lose
Their all, yet feel no aching void.
Should aught annoy them, they refuse
To be annoyed.”