3.4 Comparison – similarities and differences

The discussion of the quota in Belgium and the proposed quota in the Netherlands shows that there is considerable overlap between the two in terms of scope and application. The key characteristics of both quotas are summarized in Table 3.3.

With regard to the scope of the quota, both quotas apply to listed companies. In Belgium, the quota applies to the management board (two-tier board), and to the supervisory board (one-tier board). The Dutch proposed quota applies to the supervisory board only. However, in both systems it is argued that the quota does not impact the real positions of power because it neither extends to the executive committee in Belgium nor the Netherlands, nor to the management board in the Netherlands, as was discussed earlier.1

As regards application of the quota, the Dutch quota refers to one-third men and women, whereas the Belgian quota refers to the underrepresented gender; but both quotas aim for a similar percentage of women (one-third; 33 percent). However, in the Netherlands, the required number of women is rounded up, whereas in Belgium the number is rounded off to the nearest whole number. In practice this has consequences for the number of women on boards. For instance, if a Dutch board is composed of four members, two board members have to be appointed of the other gender (33 percent of four is 1.32, which has to be rounded up to 2), whereas in Belgium the appointment of one board member would suffice.2

Both quota laws provide for the sanction of voidness of the appointment of the board member who does not contribute to the meeting or maintaining of the quota. In practice there are, however, certain differences in executing the voidness. Under Dutch law, the voidness in the Belgium system would be called voidable (vernietigbaar) instead of void (nietig), since the voidness is not effective immediately and requires the involvement of the courts.3 This means that, although both the Belgian and Dutch quota provide for the voidness of board appointments, there is a slight difference in terms of enforcement. The voidness of the appointment has legal consequences for companies. The Belgian quota goes a few steps further than the Dutch by imposing a fine and suspending the financial and non-financial benefits of the management board, and thus also allows for consequences for individual board members. This sanction is not included in the proposed Dutch quota legislation.

In conclusion, the Belgian quota law is somewhat stricter when it comes to sanctions because it allows for sanctions for board members at an individual level. The Dutch quota law is stricter in terms of application of the one-third requirement as the number must be rounded up.