“WOMEN ON BOARDS” A COMPARISON BETWEEN THE EU DIRECTIVE 2022/2381 AND THE ITALIAN LAW ON THE PRESENCE OF THE LEAST REPRESENTED GENDER ON THE BOARDS OF DIRECTORS OF LISTED COMPANIES
- EU Directive 2022/2381 “Women on boards”
1.1 1.1 Women on boards Directive: purpose, contents, field of application.
The Women on boards Directive (EU Directive No. 2381/2022), published in the Official Gazette of the European Union on December 7, 2022 and entered into force on December 27, 2022 (“Directive“) aims to improve the application of the principle of equal opportunities between women and men on boards of directors by establishing, according to transparency and meritocracy, the requirements for the selection process of candidates for appointment to director positions.
Indeed, in the “Recitals,” it is recognized that the presence of women on boards “improves corporate governance, as team performance and the quality of decision-making process are enhanced by a more diverse and more collective mindset, absorbing a broader range of perspectives” (see Recital 16); emphasis is also placed on “the effort to eliminate the gender pay gap by intensifying efforts to address all barriers to women’s participation in the labor market” (see Recital 10).
While the European Legislator establishes effective measures directed at achieving a more balanced representation of women and men among directors of listed companies, both with and without executive positions, on the other side, having opted for the instrument of a directive rather than a regulation of direct application in domestic laws, it does not aim to harmonize in detail national regulations on the selection process and quantification criteria to director positions but it intends to introduce minimum requirements for listed companies for the candidates’ selection for nomination or election of directors based on a transparent, objective and meritocratic selection process.
Article 2 of the Directive rules out from its field of application listed companies in the PMI[1] segment (i.e., micro, small and medium-sized enterprises employing fewer than 250 employees, whose annual turnover does not exceed 50 million euros or whose annual balance sheet total does not exceed 43 million euros).
No later than June 30, 2026, all large listed companies in EU regulated markets will have to take measures to increase the presence of women to their leadership.
To achieve the Directive’s goals, Article 5 specifies two alternative thresholds, the achievement of which member States may aim for.
In the first case, members of the under-represented gender will have to occupy at least 40% of non-executive directorships positions (art. 5.1(a)); in the second case, i.e., if Member States choose, instead, to apply the new rules to both non-executive and executive directors, the percentage drops to 33% of all director positions in a listed company (art. 5.1(b)).
Member States that choose the first hypothesis and, therefore, to apply the Directive only to non-executive directors will still be required to set minimum individual targets for listed companies in order to improve gender balance among executive directors as well (art. 5.2).
In order to prevent the under-represented gender from outperforming the other gender, again leading to an unbalance, whichever hypothesis the Member States choose, the less represented gender shall not exceed a percentage greater than 49%.
Article 6 identifies tools that Member States will have to require listed companies in order to achieve the goals of the Directive, focusing mainly on the candidate selection procedure, as well as the preparation of vacancy post notices, the pre-selection phase, the phase of objective evaluation of candidates (for suitability, competence and professional performance) and the following and possible motivation phase of the choice.
Member States will also have to provide their national legal systems with rules that impose on the listed company the burden of proving the accuracy of the selection process adopted for the event that a candidate of the under-represented gender who is not selected cites evidence before the court supporting the equal qualifications of that candidate compared to those of the candidate selected for appointment as a director.
As for the cogency of the regulation, the Directive requires Member States to provide for sanctioning measures towards listed companies that do not conform to the new regulation (in particular for violations of articles 5, section 2, and articles 6 and 7 of the Directive) giving deadline by December 28, 2024 in order that the regulations and sanctioning measures adopted by individual Member States are communicated to the European Commission.
The above deadline is in line with the deadline for the transposition of the Directive, which, in fact, requires member States to adopt and publish legal, regulatory and administrative provisions necessary to comply with the directive by December 28, 2024 (art. 11); while listed companies addressed to the new regulation will have to achieve the purposes identified by the directive – based on legislations that will be gradually adopted by individual member states – by June 30, 2026 (art. 5).
- The background of the Directive and the Golfo-Mosca Law
The path to reach the approval of the Directive was long and troubled.
Noted that boards of European companies were characterized by persistent gender inequality and that in 2012 in the boards of the largest listed companies in European stock exchanges, the women’s presence did not exceed the measure of 13.7 % (15 % in the case of non-executive positions)[2], in November 2012 the European Commission presented the proposal for a Directive, “COM (2012) 614 final,” concerning the improvement of gender balance among non-executive directors of listed companies and related measures (“Proposal for a Directive“).
The Proposal for a Directive took place in a context that it had already seen the European institutions speak out at various levels on the issues of promoting gender equality and equal opportunities (including remuneration) between women and men, as well as on the important economic growth that would result from the mobilization of all human resources, especially highly qualified women.
Within the European institutions themselves, an initial consultation was, therefore, started as early as 2010 on the possibility of the European Union taking measures aimed at imposing gender shares within the framework of governing bodies of private companies, soliciting the dialogue of Member States and social partners regarding the advisability of introducing a specific discipline, whether or not it should be mandatory, the field of application and the size of the share to be reserved for the less represented gender (from 20% to 60%).
In particular, the European Commission reiterated its support for a higher proportion of women in positions of responsibility with the 2010 Women’s Charter[3],which recognized ” the commitment to pursue the goal of a more equal representation of women and men in positions of power in public life and the economy” thanks to affirmative action “including Union incentive measures, to promote an increase in the share of women in positions of responsibility,” a commitment that was also renewed in the policy document “European Commission Strategy for equality between women and men 2010-2015”[4] adopted by the Commission on September 21, 2010.
For its part, the Council, too, in the European Pact for Gender Equality 2011-2020 adopted on March 7, 2011, had recognized that the centrality of policies to promote gender equality under the profiles of economic growth, prosperity and competitiveness, consequently urging promotion actions for the equal participation of women and men in decision-making processes at all levels and in all sectors, in order to fully use all available talents.
Lastly, the European Parliament has repeatedly called on companies and Member States to increase women’s representation in decision-making bodies and it invited the Commission to propose through legislation shares in order to reach the fundamental threshold of 30%.
While continuing to be declared several times as one of the priorities on the European agenda, the Proposal for a Directive remained stranded for a number of years and 10 years later, in November 2022, the text of the Directive was approved.
Within this framework, marked by the afterthoughts of the European legislature and deep inequalities between the national legislations of the European Union Member States, Italy ranks among the countries that have voluntarily and autonomously prepared their own domestic regulations to pursue gender equality policies in the boards of directors and board of statutory auditors of companies of listed shares on the stock exchange and publicly controlled companies. The Italian legislator has, in fact, intervened with Law No. 120 of July 12, 2011 so called Golfo-Mosca Law (“Golfo-Mosca Law”), duly implemented – in terms of content and duration – by the Budget Decree 2020 (Law No. 160/2019), which has enhanced its impact (see below § 3.1).
With the introduction of rules intended to affect the mechanisms for recruiting members of the boards of directors and supervisory of listed companies in regulated markets and publicly controlled companies, the Golfo-Mosca Law, as amended, today represents an exemplary case of regulation of gender representation in the economic field.
The “Women on Boards” directive, aimed at establishing a common strategy for all Member States of the European Union, wants, therefore, to take a step ahead in ensuring uniform conditions in terms of corporate governance for European listed companies, in order to complement the efforts already made by individual national legislators, first and foremost the Italian one.
- Women on boards directive: what changes for Italy.
3.1 Italy precursor to the EU: the so-called Golfo-Mosca Law (Law No. 120 of July 12, 2011).
As mentioned, in Italy, gender balance on the boards of listed companies and publicly controlled companies has been mandatory since 2011.
In fact, the European Commission itself, in the aftermath of the adoption of the Directive, cited precisely the Golfo-Mosca law as the law to follow on corporate gender equality in Europe.
This is a relevant fact because Italy, for the first time compared to a regulation of European source, has been ahead of its time by providing before the European Legislator for obligatory shares in the governance bodies of listed and companies with public participation.
The Golfo-Mosca Law by making significant amendments to Articles 147 ter, 147 quater and 148 of T.U. No. 58 of 1998 prescribed, in its first formulation, minimum shares of the under-represented gender equal to one-third of the members of the administrative and supervisory bodies of companies with listed shares and state-owned companies [5], to be applied from the date of the law’s entry into force for three consecutive terms of these bodies.
The scope of the law was then extended, regarding only listed companies, by Budget Law 2020, No. 160 of December 27, 2019[6], which raised the share reserved for the under-represented gender (from one-third as originally stipulated in the rule) to two-fifths of the members and expanded the operation of the new provisions to an additional six terms, starting from the first renewal of the management and control bodies after January 1, 2020, when the law came into force.
This law, which has already crossed three terms of the boards of directors of the receiving companies, according to the latest Consob report has produced a result of female presence on the boards of listed companies of 42.8 %[7].
The rules dictated for publicly controlled companies, in their turn, were enriched by Legislative Decree no. 175 of 2016, “Testo Unico sulle società a partecipazione pubblica” (T.U.S.P.), which introduced in art. 11, comma 4 some provisions that strengthen, by extending their duration, those originally dictated by Golfo-Mosca Law[8].
3.2 Comparison and elements of divergence of the Women on boards Directive from the Golfo-Mosca Law, as subsequently modified
Whatever the choices of our national legislation will be at the time of the transposition of the Directive, it goes without saying that these cannot be separated from a comparison with the national regulations currently in force.
An innovative element that seems to have guided the European legislator compared to the national legislator is the meritocratic aspect, which is found in article 6 of the Directive in the forecast about integrated safeguard measures able to ensure that there is no automatic and unconditional promotion of the under-represented gender, an aspect that is not addressed by the provisions of articles 147 ter, 147 quater and 148 of the T U.F. nor even less by article 11, comma 4° of the T.U.S.P, which merely impose shares to be guaranteed without dictating key principles of transparency and meritocracy for their achievement.
Another element of divergence is found in the tool adopted to achieve the goals of equal gender representation.
In fact, the Golfo-Mosca Law sets forth that listed companies must resort to the revision of their By-laws with provisions requiring compliance with gender shares in the composition of their management and control bodies. In contrast, as we have seen, the Directive, in its article 6, sets forth that the measures must affect the recruitment mechanism without specifically indicating the statutory revision as a necessary tool for the implementation of the threshold.
That said, another relevant element of divergence of the Directive compared to the Golfo-Mosca Law consists in the narrower field of application of the first one compared to the second one. In addition, unlike the national rule, the Directive in fact does not apply to public companies, that is, companies over which the public authorities can directly or indirectly exercise a dominant influence[9], nor, as we have seen, to PMI (art. 2 of the Directive).
Another difference is with respect to the subjective field of application of the thresholds.
Under Directive, by June 30, 2026, only large listed companies will have to achieve one of the targets contemplated therein.
According to the first target, members of the under-represented sex will have to fill at least 40% of non-executive director positions; however, in the event that member States choose to apply the new rules to both executive and non-executive directors, the goal drops to 33% of all director positions in a listed company.
The Golfo-Mosca Law does not provide for the gender share to be applied only to the members of the control bodies, not even a mitigation of the percentage to be achieved, requiring that both management and control bodies of listed companies must guarantee the under-represented gender a share of 40% of positions.
It should, however, be noted the temporal nature of the provisions of the Golfo-Mosca Law. In the belief that upon the expiration of the legislative bonds, companies, after having experienced the benefits, will spontaneously continue to maintain a balanced and diversified composition of their bodies, the law’s operability has been planned only for a limited number of terms (as seen, three in the Golfo-Mosca Law and six in the 2020 Budget Law), a significant divergence from the Directive, which, on the other hand, does not provide for a deadline for the measures to be taken. Hence eventual effects when transposing the Directive into our national law.
Finally, in this regard, it should be noted that the Directive also admits that Member States that have already independently adopted a discipline in-line with the aims set by the European Legislator may suspend its application in their national legal systems.
Article 12 of the Directive states, in fact, that member States may suspend towards their listed companies the discipline in art. 6 (which establishes the tools with which listed companies must equip themselves in order to achieve gender balance on their boards) and, where appropriate, that in article 5 paragraph 2 (which determines the thresholds whose attainment constitutes the objective of the Directive), provided that as of December 27, 2022 (and therefore, autonomously, already before the deadline for the transposition of the Directive) the listed target companies satisfy the following conditions.:
- a) members of the under-represented gender occupy at least 30% of the non-executive director positions or at least 25% of the total director positions of listed companies, but without directors belonging to the under-represented gender exceeding 39%;
- b) the national law of the Member State (i) imposes on its listed companies the thresholds referred to in the previous item, (ii) provides effective implementing measures, proportionate and dissuasive for the reaching of the thresholds of the above item (i), (iii) requires listed companies that may not be subject to the national regulations referred to in items (i) and (ii) above, to set individual quantitative targets for all director positions.
As mentioned above, thanks to the Golfo-Mosca Law, Italy is already in line with the goals of the Directive, and the aforementioned thresholds under lett. a) have already been reached by our country and, moreover, it seems already achieved also the condition under lett. b) whereby, compared to Italy, the Directive will be able to affect internal legislation but we will have to ask ourselves what will be the choice of our national Legislator regarding the faculty, provided for in article 12, to suspend the application of the discipline in articles 5 and 6, it being understood that paragraph 2 of article 12 establishes a barrage of 39% which, in the light of a concrete verification of the percentages reached as of December 27, 2022, could deprive our country from the possibility of implementing the suspension mechanism.
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In conclusion, beyond the value of the significant efforts of our national Legislator, who has fueled a cultural change that is finally bearing fruit, innovating in the field even before the European Legislator and – in certain aspects, such as the field of application – with more courage, the approval of the Directive reinforces the efforts already made and promotes them, in the pathway that still seems to be at its starting point.
Such reflection is confirmed by a number verification on the boards of directors of unlisted companies, which, not being the target of the regulation, still, today, they do not see a take-off of women’s presence.
In accordance with the Union’s gender equality strategy that should be realized by 2026, however, we discern an important first step towards the awareness of considering, today, increasingly, investment in gender equality for corporate governance as an important driver of companies, this also in the context of the widest trend to look for ESG and CSR principles as allies in business growth.
[1] In Article 3 No. 8) of the Directive, is defined as “micro, small and medium-sized enterprise” or “PMI“: “a company employing less than 250 people, whose annual turnover does not exceed 50 million ERU or whose annual balance sheet total does not exceed 43 million EUR or, for a PMI having its registered office in a member state whose currency is not the euro, the equivalent amounts in the currency of that Member State.”
[2] See the “Progress Report on “Women in economic decision-making in the EU,” March 2012 data (http://ec.europa.eu/justice/gender-equality/files/women-onboards_en.pdf).
[3] See “Declaration of the European Commission on the occasion of International Women’s Day 2010,” COM (2010) 78 final, March 5, 2010, see https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0078:FIN:IT:PDF;
[4] See “COM (2010) 491 final,” https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0491:FIN:it:PDF; in this vein, see also the Communication from the Commission to the Parliament for the five-year period 2020-2025 (see COM/2020/152 final) in which, once again highlighting the centrality of the Directive as one of the main tools for implementing gender equality among EU citizens “to help break the glass ceiling,” it is noted that “the Commission will push for the adoption of the proposal for a directive, presented in 2012, concerning the improvement of gender balance on boards, which set a minimum target of 40% presence of the under-represented sex among non-executive members on boards of directors […]”(https://eur-lex.europa.eu/legal-content/IT/TXT/HTML/?uri=CELEX:52020DC0152); see also the Commission Report acknowledging the adoption of the Directive (https://commission.europa.eu/strategy-and-policy/policies/justice-and-fundamental-rights/gender-equality/gender-equality-strategy_it);
[5] Specifically, Article 1 of the Golfo-Mosca Law introduced:
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comma 1-ter article 147-ter of the T.U.F., which requires that the articles of association of listed companies provide for an allocation of directors to be elected to be made according to a criterion that ensures gender balance, with the least represented gender having to obtain at least one-third (i.e., 30 %) of the elected directors. The 2020 Budget Law raised this threshold to 40 %;
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comma 1-bis article 147-quater of the T.U.F., which extends the above share to the management board as well, where it consists of at least three members;
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comma 1-bis article 148 of the T.U.F., which entrusts to the company’s deed of partnership the task of regulating the distribution of the members of the board of auditors according to the already commented protection criteria of the less represented gender.
