NETHERLANDS Law and Practice Contributed by: Guido Koop, Jan de Heer and Nanne Kusters, Loyens & Loeff
These exceptions include that the disclosure of this information would: • release confidential business and manufacturing data; • infringe the private lives of one or more individuals; or • result in the disproportionate favouring of certain involved parties. With respect to environmental information, the WOO applies a specific regime that ensures a wider dis- closure regime compared to other information con- cerning administrative matters (following from the Aarhus Convention). The WOO contains restrictions for environmental information in terms of applying the statutory grounds for refusal, including that absolute and relative grounds for exception do not apply to emissions data. 16.3 Corporate Disclosure Requirement Article 2:391 of the Dutch Civil Code states that cor- porations should include an analysis of their non- financial performance in their annual report, such as their performance regarding the environment. This obligation is further regulated in the decree on the publication of non-financial information ( Besluit bekendmaking niet-financiële informatie ). This decree states, amongst other things, that legal entities that meet certain conditions (such as having more than 500 employees) are required to publish a non-financial clarification, which includes information on the policy, the applied due care procedures and the results thereof concerning, for example, environ- mental matters. If the corporation involved does not have any poli- cies with respect to the environment, its annual report should state the reason for not having such policies. Please also see 6.5 ESG Requirements . 16.4 Green Finance There are no mandatory green financing arrangements or monitoring thereof for commercial transactions, but the majority of Dutch banks now offer green and sus- tainability-linked loans to borrowers looking to finance
a green project or make their operations more sustain- able. This increased offering has been facilitated by the publication of principles and guidelines for green and sustainability-linked loans by the Loan Markets Association (LMA), particularly its recent publication of model provisions for sustainability-linked loans in leveraged acquisition finance transactions, which has helped to standardise the drafting and use of green provisions in standard loan documentation. It is worth noting, however, that these LMA principles and guide- lines are a form of self-regulation, intended only as recommendations and leaving it to finance parties to freely choose whether and to what extent to adopt these recommendations. Green loans and sustainability-linked loans are the main types of green loan products. Green loans are any type of loan instrument made exclusively available to finance new and/or existing eligible green projects. No uniform definition exists for what can be consid- ered an eligible green project, but the LMA offers a non-exhaustive list in its Green Loan Principles that are considered to qualify for a green loan. The “use of proceeds” in a green loan is the fundamental char- acteristic of this loan product, and contrasts with sustainability-linked loans, which focus instead on a borrower’s performance. A sustainability-linked loan is any kind of loan instru- ment that incentivises a borrower’s achievement of ambitious, predetermined sustainability performance targets (SPTs), measured according to predefined key performance indicators that measure improvements in the borrower’s sustainability profile. Incentivising bet- ter sustainability performance comes from aligning the loan terms with the borrower’s performance on meet- ing its SPTs, often through decreases (or increases) in the margin.
17. Transactions 17.1 Environmental Due Diligence
In transactions where shares or assets in real estate and companies are transferred, vendor due diligence is usually performed.
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