Albert Tan (University of Groningen, Faculty of Law) has posted The Law in the Reference on SSRN. Here is the abstract:
Article 18 of the EU Taxonomy Regulation is a small provision with an unusually large jurisprudential burden. It makes minimum safeguards a cumulative condition of taxonomy alignment, but describes those safeguards through procedures intended to secure alignment with responsible-business standards produced outside the Union legislative process. The difficulty is not simply that the standards are non-binding in their original setting. It is that they change over time, speak in evaluative terms, and operate at the level of an undertaking while the Taxonomy ultimately classifies economic activities. This article argues that Article 18 is best understood as bounded operative incorporation. Union law supplies the source of authority and fixes the legal consequence; selected external standards supply content that the legal inquiry cannot ignore; and Union institutions retain control over scope, temporal reach and authoritative meaning. The temporal dimension of that relationship is a bounded ambulatory reference. A later revision should affect taxonomy classification only after a staged continuity-and-control inquiry asks whether the enacted form of reference permits updating, whether the revision remains continuous with the selected subject matter and legislative settlement, whether it was accessible and fairly applicable to the reporting period, and whether its Union-law effect remains publicly reviewable. This account supports qualified use of the 2023 OECD Guidelines, creates a strong presumption against automatically replacing Article 18’s eight fundamental ILO Conventions with ten, and exposes the fragility of Article 18(2) if the pending SFDR revision removes the provision to which it refers. The article also develops a functional-nexus doctrine that connects undertaking-level procedures to activity-level claims. On that basis, compliance with the Corporate Sustainability Due Diligence Directive is powerful but rebuttable evidence, not a statutory safe harbour. The result is a source-based account of law that takes evaluative content seriously without surrendering legal authority to the institutions that drafted it.
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Lawrence Solum