Per un approccio sostanziale alla finanza sostenibile: il greenwashing sotto la lente del rischio di condotta

The European regulatory framework opened on ESG does not provide, at least to date, tools that guarantee a substantial and not merely formal approach to the transition towards sustainable financial markets. In fact, there are no remedies for reacting to the risks of apparent, simulated or in any case ineffective implementation of the regulatory requirements of sustainable disclosure or governance. The same legal qualification of such risks, generally known as greenwashing risks, also remains a controversial issue, despite some attempts to provide responses by the European supervisory authorities and the case law. Based on these premises, this note proposes the consideration of greenwashing risks under the lenses of the category of conduct risks. In light of a systemic reading of the regulatory framework on sustainable finance as new rules of conduct for financial institutions, the analysis suggests the relevance of the category of conduct risk as a tool for forecasting, preventing and correcting misconduct cases in the management of sustainability factors. As will be shown, far from having a purely theoretical significance, such a classification of greenwashing risks has a direct operational significance at the prudential level and on the duties of financial entities’ directors. These practical findings support the thesis, here advanced, of the relevance of the category of conduct risk in guiding the transition towards a sustainable finance model from the level of procedural fairness to results of substantial fairness.