The term “greenwashing” has been widespread for years and
partially addressed in EU and national law from a consumer law perspective.
However, the adoption of the EU sustainable finance framework has fuelled the
discussion about greenwashing from an investment point of view and financial
regulation’s perspective, also supported by the recent mandate assigned in this
regard to the ESAs. The present contribution aims at shedding light on greenwashing
from a financial regulation point of view, providing a first legal
classification of the potentially relevant behaviours and addressing the most
important legal issues surrounding it, also making reference to recent
practical cases. While the scope of the analysis is in principle gigantic (e.g.
banking, investment, insurance segments; considering as potential defendants
issuers, fund managers, advisors, ESG rating agencies, etc.), for the sake of
time and accuracy, this paper will focus on the investment field and, in
particular, on greenwashing realised through investment intermediaries,
specifically investment fund managers and investment advisors. These have been
traditionally assigned a role as gatekeepers and relevant duties to protect
investors’ financial interests (as well as targeted by the first sustainable
finance frameworks: the Sustainable Finance Disclosure Regulation – SFDR – and
review of MiFID II delegated acts). In this regard, the paper will assess, also
in a comparative law perspective and through reference to practical cases,
whether private enforcement by investors of traditional and sustainable finance
legislation can represent an effective tool to address greenwashing or whether
other tools – including public enforcement – are preferable.