ESG and CSR as information vacuum cleaners – and why third parties can legally get their hands on part of the “vacuum cleaner bag contents”

In the course of CSR (Corporate Social Responsibility) and ESG (Environmental Social Governance), it is necessary to adapt corporate processes. In the process, a large number of very different facts are documented and (raw) information is obtained within the company. The reports to be prepared on the basis of ESG and CSR are therefore – to put it bluntly – true information vacuum cleaners. You know it yourself from home: sometimes you suck up more things than you would actually like. The resulting challenges for compliance management are obvious.

So far, not all companies have become aware of the fact that – to use a metaphor – the contents of a bag can be legally accessed by third parties, especially with regard to environmental aspects. Namely, if this information is also available to the authorities or has to be submitted.

Thus, the environmental information laws of the Länder grant every person a right to free access to environ­mental information held by public authorities. According to the definition of the law, the term environmental information is broad. In addition to information on the state of environmental components (air, water, soil, landscape, etc.), it also includes all data on factors that affect environmental components (such as substances, energy, noise and radiation, waste of all kinds, as well as emissions, discharges and other releases of substances into the environment). However, cost-benefit analyses or other economic analyses used to prepare or implement environmental measures may also fall within the scope of the environmental information laws.

It is obvious that such information can also be used to prepare claims for damages or liability suits.

These claims to the provision of information are flanked by the Environmental Remedies Act (Umwelt-Rechtsbehelfsgesetz). The law promotes – according to the idea of the federal government at the time – the “active participation of citizens and environmental associations” in order to “effectively counteract problems in the implementation and application of national and European environmental law”.

Finally, the authorities' obligation to disclose environmentally relevant information is reinforced by the current line of case law of the European Court of Justice (ECJ). In its ruling of November 08, 2022, the ECJ significantly expanded the rights of environmental associations to take legal action compared to previous German practice.

The case in question involved a lawsuit by Deutsche Umwelthilfe against the Federal Motor Transport Authority because of its approval of software used in diesel vehicles (keyword “thermal window”). This was despite the fact that the German legislature had attempted to prevent such a lawsuit by environmental organizations when it amended the Environmental Remedies Act. The ECJ makes use of the Aarhus Convention and the EU Charter of Fundamental Rights for its ruling. In doing so, it emphasizes that environmental associations should not be deprived by national law of the possibility to have the compliance with the legal provisions arising from EU environmental law reviewed.

In light of ESG and CSR measures, this ECJ decision is likely to have far-reaching consequences: Companies will have to “take their word for it” when it comes to their environmental and climate protection efforts. Irrespective of the fact that it is always worthwhile for those affected to check whether a third party's environ­mental information claim can be effectively countered, one thing is certain in any case: “Green­washing” measures will sooner or later blow the whistle and – like an open dust bag – kick up a lot of dust. This must be avoided.

Rödl & Partner advises companies, municipalities and energy suppliers on all relevant issues around ESG and CSR. In addition to support in the revision of corporate processes, we offer legal advice in all relevant areas. Our interdisciplinary teams are at your disposal for questions regarding reporting obligations, but are also happy to support you in making your own contribution to climate protection, for example in the field of renewable energies.