3.3.1 Legislative history of introducing a target figure and gender quota

In November 2008, a legislative proposal1 was initiated allowing for the possibility of structuring Dutch boards in the form of a one-tier board. In such a form, the management board and the supervisory board form a collective board in which the board members are divided into executive and non-executive board members. Although this proposal initially did not include provisions concerning a gender target figure, an amendment to the proposal was submitted at a later stage of the parliamentary deliberations which did include a gender target figure.2 The proposal for a target figure not only concerned companies with a one-tier board but also companies with a two-tier board consisting of a management board and a supervisory board.

In April 2008, a motion was filed by the Dutch Labor Party to include quota in the Code. The aim was to attain 25-30 percent women in the management board and the supervisory board and to do that by or during the course of 2015.3 The motion was adopted by Parliament,4 however, the Minister of Finance did not implement it. The reason for not implementing the motion was that requesting the Monitoring Committee Corporate Governance to include a target in the DCGC would violate the self-regulatory character of the DCGC. The Minister of Finance suggested that the initiators of the motion ‘should decide on legislation if they believed that self-regulation was not having the desired effect’.5 In 2008, when the DCGC was presented with no specific gender targets included (only general provisions about gender diversity), an amendment to the legislative proposal was submitted that provided for the introduction, in October 2009, of a target figure in the Dutch Company Code (DCC), i.e. Book 2 of the Dutch Civil Code (Burgerlijk Wetboek).6 The aim of the introduction of the target figure was to attain a more gender balanced representation in management and supervisory boards, and one-tier boards.7 The reasons given by the initiators of the amendment for proposing such a target figure were the following:

The legislative proposal, including the amendment, was passed by Dutch Parliament on 31 May 201169 and entered into force on 1 January 2013.10 The target figure provisions were introduced as so-called ‘sunset provisions’, which were enacted for a limited period of time (a period of three years) and lapsed automatically on 1 January 2016.11 The temporary character of the target figure was also included in the amendment proposing that it be enshrined in the law.12 The legislative history does not reveal why this legislation was enacted for a limited period of time only.13 However, quotas are considered temporary special measures and are only allowed to be in force until the objectives are achieved. Quotas are, therefore, not intended to be in force permanently.14 From a policy perspective, the government argued that the target figure could be achieved by means of temporary legislation.15 Moreover, the government considered it a company’s own responsibility to realize a balanced representation of men and women in top positions.16 Although the provisions were meant to be enacted for a temporary period of three years, the Minister of Employment, Culture and Science (Minister of ECS) decided to prolong the applicability of the law for another four years, until January 2020.17 The motivation was that little progress had been made between 2013 and 2015 and that companies had not come anywhere near to meeting the required percentage of women on boards.18 The law prolonging the applicability of the target figure was adopted by Parliament on 7 February 201719 and entered into force on 13 April 2017,20 which resulted in a period of more than a year in which no legislation was in place.