Einde inhoudsopgave
Female representation at the corporate top (IVOR nr. 126) 2022/3.1
3.1 Introduction
dr. mr. R.A. van ’t Foort-Diepeveen, datum 13-05-2022
- Datum
13-05-2022
- Auteur
dr. mr. R.A. van ’t Foort-Diepeveen
- JCDI
JCDI:ADS659238:1
- Vakgebied(en)
Ondernemingsrecht (V)
Ondernemingsrecht / Corporate governance
Voetnoten
Voetnoten
Van ‘t Foort-Diepeveen et al., Gender in Management: An International Journal, 2021, 36(4).
EIGE, ‘Women and men in decision making. Indicator: Largest listed companies: CEOs, Executives and Non-executives’, 2020b, eige.europa.eu.
For an overview of all EU countries that introduced soft and hard quota legislation, see Senden & Kruisinga, Gender-balanced company boards in Europe, 2018.
Burzynska & Contreras, PloS one, 2020, 15(8), p. 2; Senden & Kruisinga, Gender-balanced company boards in Europe, 2018, p. 9; V.E. Sojo et al., ‘Reporting requirements, targets, and quotas for women in leadership’, The Leadership Quarterly, 2016, 27(3), p. 519-536, p. 521.
Burzynska & Contreras, PloS one, 2020, 15(8), p. 2; H. Mensi-Klarbach & C. Seierstad, ‘Gender quotas on corporate boards: Similarities and differences in quota scenarios’, European Management Review, 2020, 17(3), p. 615-631, p. 615-616; Senden & Kruisinga, Gender-balanced company boards in Europe, 2018, p. 9.
The Database for Best Practices was introduced by the Belgian Institute for the Equality of Women and Men (Instituut voor de Gelijkheid van Vrouwen en Mannen) (Institute). As the name suggests, this is a database with best practices that have been implemented by private and public companies with a view to promoting gender equality in their companies. The database was initiated in 2006 and updated in 2014. The aim of the database, according to the Institute, is to inspire others when implementing best practices within their organizations. This initiative resulted in a database with over sixty best practices. See for the website of the database: Instituut voor de Gelijkheid van Mannen en vrouwen, ‘Waarom een databank met goede praktijken?’, n.d., www.igvm-action.be/.
The public program ‘Women to the Top’, is a collaboration between the Minister of ECS and the chair of the employers’ organization VNO-NCW. As part of the program, current supervisory board members were asked to propose women who are ‘board ready’. In December 2014, this resulted in the setup of a database with the names of potential candidates for board positions. In 2020 more than 2,500 women were included in the database. See www.sertopvrouwen.nl; SER, ‘Prominenten zetten zich in als ambassadeur voor meer diversiteit in bedrijfsleven’, 8 March 2021, www.ser.nl; Kamerstukken II, 2014/15, 30420, nr. 213, p. 2; Kamerstukken II, 2015/16, 34435, nr. 5, p. 1; Kamerstukken II, 2015/16, 30420, 227, p. 4; Boschma et al., Evaluatie Wet bestuur en toezicht, 2018a, p. 446; Senden & Kruisinga, Gender-balanced company boards in Europe, 2018, p. 57.
The private initiative ‘Charter Talent to the Top’, was initiated in 2008. Signatories to the Charter voluntarily committed themselves to getting more women on their company boards. The signatories to the Charter formulate their own targets. Of the 275 signatories to the Charter, 54.7 percent achieved a balanced distribution (30 percent) in the management board and 66.7 percent in the supervisory board by 2019. See https://talentnaardetop.nl/home; Commissie Monitoring Talent naar de Top, Succes verzekerd! Monitor Talent naar de Top 2019, 2019, p. 10; Perquin-Deelen, Ondernemingsrecht, 2021, 2021/13(2), p. 89-90; Perquin-Deelen, Biases in de boardroom en de raadkamer, 2020a, p. 112.
e.g. B. Choudhury, ‘New rationales for women on boards’, Oxford Journal of Legal Studies, 2014, 34(3), p. 511-542. A difference can be made between formal equality and substantive equality. See for instance Argyrou & Charitakis, International and Comparative Corporate Law Journal, 2017, 12(2), p. 47-48.
Council conclusions of 7 March 2011 on European Pact for Gender Equality (2011-2020), 2011/C C155/02, p. 1; European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the regions: A Union of Equality: Gender Equality Strategy 2020-2025, COM (2020) 152 final, p. 1.
See for instance Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) (OJ 2006, L 204); Directive 2010/41/EU of the European Parliament and of the Council of 7 July 2010 on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Council Directive 86/613/EEC (OJ 2010, L 180); Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the Annual Financial Statements, Consolidated Financial Statements and Related Reports of Certain Types of Undertakings, Amending Directive 2006/43/EC of the European Parliament and of the Council and Repealing Council Directives 78/660/EEC and 83/349/EEC (EU Directive 2013/34) (OJ 2013, L 182). See for an overview of the European legislation: Diepeveen et al., International and Comparative Corporate Law Journal, 2017, 12(2).
Throughout the years several EU policies have been published with regard to gender equality on corporate boards, such as the Roadmap for equality between women and men (2006-2010), the Women’s Charter, European Pact for Gender Equality in 2006 and (2011-2020), the European Commission’s strategy for equality between women and men 2010-2015, the Strategic Engagement for Gender Equality 2016-2019, and most recently the Gender Equality Strategy 2020-2025. See Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions - A Roadmap for equality between women and men 2006-2010, COM(2006) 92 final (OJ 2006, C 318); European Commission, Communication from the Commission: A Strengthened Commitment to Equality between Women and Men: A Women’s Charter Declaration by the European Commission on the occasion of the 2010 International Women’s Day in commemoration of the 15th anniversary of the adoption of a Declaration and Platform for Action at the Beijing UN World Conference on Women and of the 30th anniversary of the UN Convention on the Elimination of All Forms of Discrimination against Women, COM/2010/0078 final; Council of the European Union, Presidency Conclusions, 2006, 7775/1/06 REV 1; Council conclusions of 7 March 2011 on European Pact for Gender Equality (2011-2020), 2011/C C155/02; European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions of 21 September 2010 - Strategy for equality between women and men 2010-2015, COM(2010) 491 final (OJ 2011, C 155); European Commission, Commission Staff Working Document: Strategic engagement for gender equality 2016-2019, SWD(2015) 278 final; European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the regions: A Union of Equality: Gender Equality Strategy 2020-2025, COM (2020) 152 final.
European Commission, Proposal for a Directive of the European Parliament and of the Council on improving the gender balance among directors of companies listed on stock exchanges and related measures, COM(2012) 614 final. See also Council of the European Union, Proposal for a Directive of the European Parliament and of the Council on improving the gender balance among directors of companies listed on stock exchanges and related measures - Progress Report, ST 9496 2017 INIT - 2012/0299 (OLP), p. 6 and further, for amendments to the proposal for a Directive that was redrafted by the Maltese presidency.
European Commission, Proposal for a Directive of the European Parliament and of the Council on improving the gender balance among directors of companies listed on stock exchanges and related measures, COM(2012) 614 final, art. 4; European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the regions: A Union of Equality: Gender Equality Strategy 2020-2025, COM (2020) 152 final, p. 13.
Kamerstukken II, 2012/13, 33483, nr. 2; Kamerstukken II, 2020/21, 35628, nr. 3, p. 4; Council of the European Union, Proposal for a Directive of the European Parliament and of the Council on improving the gender balance among directors of companies listed on stock exchanges and related measures - Progress Report, ST 9496 2017 INIT - 2012/0299 (OLP), p. 2, 4 and 5; Senden & Kruisinga, Gender-balanced company boards in Europe, 2018, p. 88; Kruisinga et al., Nederlands Juristenblad, 2016, 21, p. 1479; Perquin-Deelen, Ondernemingsrecht, 2020b, 2020/6(1), p. 35.
The Civil Codes of Belgium and the Netherlands both derive from the Code Napoleon. See for instance J.H.A. Lokin & W.J.A. Zwalve, Hoofdstukken uit de Europese codificatiegeschiedenis, Den Haag: Boom Juridische uitgevers 2006; M. Vromans, Het Belgisch Burgerlijk Wetboek: van Juridische Provincie van Frankrijk naar Common Law?, Mr-online.nl, 12 October 2015; J.H.A. Lokin, ‘Die Rezeption des Code Civil in den nördlichen Niederlanden’, Zeitschrift fur Europaisches Privatrecht, Verlag C.H. Beck, 2004, 4, p. 932 - 946.
Senden, Utrecht Law Review, 2014, 10(5), p. 62-63.
Women are underrepresented in corporate top positions such as boards and management. This phenomenon is pervasive in Europe and also globally.1 For example, the average percentage of female executives (management board members) in the largest companies in the EU was a mere 20.1 percent in November 2020, with Romania having the highest percentage (32.8 percent) and Luxembourg the lowest (4.2 percent).2
Several EU Member States have adopted legislation, i.e., affirmative action measures in the form of gender quota, to enhance the number of women on corporate boards. These measures range from soft quota approaches to hard quota approaches with a variety of sanctions.3 Two of the EU Member States that have introduced quota legislation or are currently in the process of doing so, are Belgium and the Netherlands. In Belgium, a mandatory quota was introduced in 2011. In the Netherlands, a target figure (streefcijfer) was in force from 2013-2020. The difference between target figures and quotas is that target figures aim at achieving a defined percentage, but without sanctions for non-compliance. Quotas, on the other hand, impose sanctions on companies for non-compliance.4 Target figures are also referred to as soft law and soft approaches,5 which seems to imply that target figures are not binding, but for the Netherlands the target figure was included in legislation and was, therefore, binding. The Netherlands is currently in the process of introducing mandatory gender quota because the target figure did not yield the desired result of increasing the number of women on boards to the required level. This chapter discusses and compares the Belgian quota legislation with the proposed Dutch quota legislation. Besides quota legislation, a number of policy initiatives that aim to increase the number of women in the corporate top are in place in Belgium and the Netherlands, namely the Database for Best Practices in Belgium,6 the Program ‘Women to the top’7 and the ‘Charter Talent to the Top’.8 However, these policy initiatives will not be discussed further as the study in this chapter focuses on legislation introduced as part of corporate law, rather than on policy analysis.
Belgium and the Netherlands are both EU Member States. Consequently, the broader European context needs to be considered before elaborating on the countries’ respective approaches to increasing the representation of women on corporate boards. The representation of women in corporate top positions is considered a matter of achieving gender equality.9 Gender equality is one of the ‘fundamental values’ of the EU10 and is part of EU primary law.11 Indeed, the EU has legislation in place that prohibits discrimination on the basis of, among other things, gender,12 and that advocate gender equality between men and women as well as policies.13 More specifically on the topic of women on corporate boards, the Directive on improving the gender balance among directors of companies listed on stock exchanges and related measures14 (Gender Balance Directive) was proposed in 2012, which proposal requires a quota of 40 percent of the underrepresented sex for non-executive board members.15 The discussions about the proposal for the Gender Balance Directive have been put on hold, however, because some Member States, including the Netherlands, feel that adopting the Gender Balance Directive, requiring the implementation of a quota at the level of the Member States, is not in accordance with the subsidiarity principle. These countries, therefore, claim that the quota is not a matter for the EU to decide upon, but that it should be left to the Member States.16 At this point in time, the adoption of the proposed Gender Balance Directive does not seem attainable.
This chapter considers and compares the key legislative features of the Belgian mandatory quota and of the Dutch target figure and proposed mandatory quota. It discusses when the quotas were introduced, what the quotas entail, what progress has been made since their adoption, and whether the quotas are effective, i.e., whether they contribute to more women on boards. In this chapter, when a reference is made to ‘effectiveness’, the term refers to the effectiveness of the legislation in increasing the number of female board members. The Belgian quota and the Dutch proposed quota are compared on their scope, application, implementation deadlines and sanctions. These topics were selected because it is necessary to understand the legislative history of introducing these quotas and to understand how the quotas work in practice in order to answer the research question. This chapter addresses the following research question:
What are the differences between the Belgian quota legislation and the Dutch proposed quota legislation, and what can the Dutch legislator learn from the Belgian gender quota legislation in order to succeed in increasing the number of women on corporate boards in the Netherlands?
In this chapter, Belgium and the Netherlands were selected for comparative purposes because of the two countries’ shared language, and because of the countries’ shared history in legislation.17 Furthermore, the comparison is also relevant because of the mandatory gender quota adopted in Belgium. In the Netherlands, the target figure did not yield the desired result in terms of increasing the number of women on corporate boards. This can perhaps be attributed to the lack of sanctions for non-compliance therewith. Research shows that mandatory quotas seem to be more effective in increasing the number of women on corporate boards.18 Given that Belgium has had mandatory quota in place since 2011, it is relevant to examine the Belgian mandatory gender quota, the progress that has been made since Belgium adopted the mandatory quota legislation, and subsequently to compare this mandatory approach to that of the Netherlands; all with a view to examining whether the adopted Belgian mandatory approach to gender quota could be predictive of the anticipated effectiveness of the proposed quota legislation in the Netherlands.
The structure of this chapter is as follows. Section 3.2 analyzes the Belgian quota regime. In Section 3.3 the former Dutch target figure and the proposed quota are introduced and discussed. Section 3.4 compares the Belgian quota legislation with the Dutch proposed quota legislation. This section also contains the discussion about whether the Belgian quota was effective, and whether the effect of the Belgian quota in terms of progress could be predictive of expected results in the Netherlands. This chapter will end with a conclusion in Section 3.5.