Committee on Employment and Social Affairs
28.3.2013
DRAFT OPINION
of the Committee on Employment and Social Affairs
for the Committee on Employment and Social Affairs
on the proposal for a directive of the European Parliament and of the Council on improving the gender balance among non-executive directors of companies listed on stock exchanges and related measures
( COM(2012)0614 – C7‑0382/2012 – 2012/0299(COD) )
Rapporteur: Marije Cornelissen
PA_Legam
SHORT JUSTIFICATION
In October 2012, the Commission presented a legislative proposal to promote gender balance among non-executive Directors of companies listed on stock exchanges. In the year before that, listed companies in the EU were given a last chance to self-regulate for more women in board positions, when Commission Vice-President Reding called on them to sign the ‘Women on board pledge for Europe’ in March 2011. Only 24 companies throughout Europe signed. Considering the persistently low number of women on company boards and the obvious failure of self-regulation to significantly improve the situation in the past decades, the time has come to take legislative action.
Scope: executive - non executive Directors
Your rapporteur suggests that the entire Directive be applied to executive as well as non-executive Directors. The provisions of this Directive do not unduly interfere with day-to-day management, since companies maintain the freedom to select candidates on the basis of quality or other relevant considerations. The proportion of female executive Directors is particularly low (10% in 2013 compared to 17% among non-executives). Therefore the key articles of the Directive related to adjustment of the selection procedure should apply to all Directors.
Diversity of procedures
In the Commission proposal, the emphasis is on the specific manner in which candidates are selected for board positions. This should be transparent, neutral and based on individual qualifications. However, the way in which board members are selected or appointed does not always resemble a recruitment procedure for regular employees. In some Member States, for instance, board members are appointed or elected by workers or union members, as in the German system of ‘Mitbestimmung’. Furthermore, individual qualities are not always the sole relevant criterion. A balance among different skills, expertise, nationality or considerations of representation can be important or even decisive factors in the final choice of Directors. Unions and businesses have asked for more flexibility in the manner of appointment or selection.
Therefore, your rapporteur proposes in Article 4.1 to leave Member States and companies free as to how they adjust their selection or appointment procedure, while focusing on the outcome. Adjustments can take different forms and could apply to the appointment, recruitment and selection process, as long as they aim for the result of at least 40% women on the boards of listed companies.
Focus on the whole process of recruitment
The Commission proposal focuses solely on the individual selection of candidates for board positions. However, the recruitment of a board member does not start at the selection stage; it starts at the stage of building a pool of candidates to be selected. If this pool does not include enough able and suitable women, it is still unlikely that a woman will be chosen even if the selection criteria are fully gender neutral.
Your rapporteur therefore proposes to include the selection pool in the reporting obligations for companies that have not selected women while women are still under-represented, by requiring information on the number of women in the selection pool as well as on the criteria used to select a candidate, and the measures they will take to ensure sufficient qualified and suitable candidates of the under-represented sex in the next procedures.
Reporting and explaining obligations
The Directive should be aimed at those companies who do not make a sufficient effort or obtain sufficient results in promoting gender equality in their boards. Therefore, your rapporteur wants to distinguish between companies that do well and companies that do poorly. All companies will be required to annually provide data on the gender representation on their boards in their annual reports and to the competent national authorities. If companies have appointed someone of the over-represented sex, their disclosure, reporting and explaining obligations increase. They will have to disclose the gender composition of the selection pool and the reasons and criteria leading to the choice for the candidate of the over-represented sex, as well as present measures to ensure more gender balance in the selection pool and to increase the chances of appointing a director from the under-represented sex in future appointments.
Suspension clause
The Commission proposal aims to avoid interfering with existing national measures taken to increase gender diversity on boards. Your rapporteur suggests maintaining the possibility for Member States to suspend certain key articles of the Directive. If a Member State feels that voluntary or other measures will also lead to the fulfilment of the aims of the Directive, it should have the freedom to see if this is the case. However, she proposes to strengthen the safeguards that national policy is equally effective in reaching the 40% objective of the Directive. To this end, the suspension should be made conditional upon approval by the Commission. If, furthermore, by 2017 an intermediate goal of 30% women on boards has not been reached, the Directive will automatically come into force for that Member State.
Sanctions and incentives
Your rapporteur agrees with the Commission's approach to give Member States the key responsibility to put in place effective, proportionate and dissuasive sanctions. However, additional incentives can be put in place. Member States should be able to reward companies by using the achievement of the 40%-objective as an award criteria in public procurement. Additionally, the EU institutions should set the example by granting tenders to companies that have reached the 40% objective only. Compliance with the Directive (not to be confused with the ultimate objective) should be a condition for the reception of EU funds.
AMENDMENTS
The Committee on Employment and Social Affairs calls on the Committee on Employment and Social Affairs, as the committee responsible, to incorporate the following amendments in its report:
Amendment 1
Proposal for a directive
Title 1
| |
Text proposed by the Commission | Amendment |
Proposal for a | Proposal for a |
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL | DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL |
on improving the gender balance among non-executive directors of companies listed on stock exchanges and related measures | on improving the gender balance among directors of companies listed on stock exchanges and related measures |
(Text with EEA relevance) | (Text with EEA relevance) |
Or. en
Amendment 2
Proposal for a directive
Citation 1
| |
Text proposed by the Commission | Amendment |
Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 157(3) thereof, | Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 8, 157(3) and (4) thereof, |
Or. en
Amendment 3
Proposal for a directive
Citation 1 a (new)
| |
Text proposed by the Commission | Amendment |
| Having regard to Articles 2 and 3(3) of the Treaty on European Union, |
Or. en
Amendment 4
Proposal for a directive
Citation 1 b (new)
| |
Text proposed by the Commission | Amendment |
| Having regard to Article 23 of the Charter of Fundamental Rights of the European Union, |
Or. en
Amendment 5
Proposal for a directive
Citation 1 c (new)
| |
Text proposed by the Commission | Amendment |
| Having regard to Article 4 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), |
Or. en
Amendment 6
Proposal for a directive
Recital 7
| |
Text proposed by the Commission | Amendment |
(7) The efficient use of human capital is the most important determinant of an economy's competitiveness and is key to addressing the EU's demographic challenges, to competing successfully in a globalised economy and to ensuring a comparative advantage vis-à-vis third countries. The pool of highly trained and qualified women is constantly growing as evidenced by the fact that 60 per cent of university graduates are female. A continued failure to draw on this pool in appointments to economic decision-making positions would amount to a failure to fully exploit skilled human capital. | (7) The efficient use of human capital is the most important determinant of an economy's competitiveness, to competing successfully in a globalised economy. There is a pool of highly trained and qualified women as evidenced among others by the fact that 60 per cent of university graduates are female. A continued failure to draw on this pool in appointments to economic decision-making positions would amount to a failure to fully exploit skilled human capital. |
Or. en
Amendment 7
Proposal for a directive
Recital 14
| |
Text proposed by the Commission | Amendment |
(14) While this Directive does not aim to harmonise national laws on the selection procedures and qualification criteria for board positions in detail, the introduction of certain minimum standards as regards the requirement for listed companies without balanced gender representation to take appointment decisions for non-executive directors on the basis of an objective comparative assessment of the qualifications of candidates in terms of suitability, competence and professional performance is necessary in order to attain gender balance among non-executives directors. Only an EU-level measure can effectively help to ensure a competitive level-playing field throughout the Union and avoid practical complications in business life. | (14) This Directive does not aim to harmonise national laws on the selection procedures and qualification criteria for board positions in detail, but requires listed companies without balanced gender representation to adjust their recruitment, selection and appointment procedures, amongst others by taking appointment decisions for directors so as to attain gender balance among directors. Only an EU-level measure can effectively help to ensure a competitive level-playing field throughout the Union and avoid practical complications in business life. |
Or. en
Amendment 8
Proposal for a directive
Recital 20
| |
Text proposed by the Commission | Amendment |
(20) All board systems distinguish between executive directors, who are involved in the daily management of the company, and non-executive directors who are not involved in the daily management, but do perform a supervisory function. The quantitative objectives provided for in this Directive should apply only to the non-executive directors in order to strike the right balance between the need to increase the gender diversity of boards and the need to minimise interference with the day-to-day management of a company. As the non-executive directors perform supervisory tasks, it is also easier to recruit qualified candidates from outside the company and to a large extent also from outside the specific sector in which a company operates – a consideration which is of importance for areas of the economy where members of a particular sex are especially under-represented in the workforce. | (20) All board systems distinguish between executive directors, who are involved in the daily management of the company, and non-executive directors who are not involved in the daily management, but do perform a supervisory function. The quantitative objectives provided for in this Directive should apply to non-executive directors and additional measures should apply to executive directors. |
Or. en
Amendment 9
Proposal for a directive
Recital 21
| |
Text proposed by the Commission | Amendment |
(21) In several Member States, a certain proportion of the non-executive directors can or must be appointed or elected by the company's workforce and/or organisations of workers pursuant to national law or practice. The quantitative objectives provided for in this Directive should apply to all non-executive directors including employee representatives. However, the practical procedures for ensuring that those objectives are attained, taking into account the fact that some non-executive Directors are employee representatives, should be defined by the Member States concerned. | (21) In several Member States, a certain proportion of the non-executive directors can or must be appointed or elected by the company's workforce and/or organisations of workers pursuant to national law or practice. The quantitative objectives provided for in this Directive should apply to all directors including employee representatives. This Directive should take account of the diversity of selection procedures that exists in Member States. |
Or. en
Amendment 10
Proposal for a directive
Recital 22
| |
Text proposed by the Commission | Amendment |
(22) Listed companies in the Union should be imposed obligations of means providing for appropriate procedures with a view of meeting specific objectives regarding the gender composition of their boards. Those listed companies in whose boards members of the under-represented sex hold less than 40 per cent of non-executive director positions should make the appointments to those positions on the basis of a comparative analysis of the qualifications of each candidate, by applying pre-established, clear, neutrally formulated and unambiguous criteria, in order to attain the said percentage at the latest by 1 January 2020. Therefore, the Directive establishes the objective of at least 40 per cent of non-executive directors of the under-represented sex by that date. This objective in principle only concerns the overall gender diversity among the non-executive directors and does not interfere with the concrete choice of individual directors from a wide pool of male and female candidates in each individual case. In particular, it does not exclude any particular candidates for director positions, nor does it impose any individual directors on companies or shareholders. The decision on the appropriate board members thus remains with the companies and shareholders. | (22) Listed companies in the Union should be imposed obligations of means providing for appropriate procedures with a view of meeting specific objectives regarding the gender composition of their boards. Those listed companies in whose boards members of the under-represented sex hold less than 40 per cent of director positions should adjust their recruitment, selection and appointment procedures in order to attain the said percentage at the latest by 1 January 2020. Therefore, the Directive establishes the objective of at least 40 per cent of non-executive directors of the under-represented sex by that date. This objective in principle only concerns the overall gender diversity among the executive and non-executive directors and does not interfere with the concrete choice of individual directors from a wide pool of male and female candidates in each individual case. In particular, it does not exclude any particular candidates for director positions, nor does it impose any individual directors on companies or shareholders. The decision on the appropriate board members thus remains with the companies and shareholders. |
Or. en
Amendment 11
Proposal for a directive
Recital 23
| |
Text proposed by the Commission | Amendment |
(23) Member States exercise a dominant influence over listed companies which are public undertakings within the meaning of Article 2(b) of Commission Directive 2006/111/EC of 16 November 2006 on the transparency of financial relations between Member States and public undertakings, as well as on financial transparency within certain undertakings.32 Due to that dominant influence, they have the instruments at their disposal to bring about the necessary change more rapidly. Therefore, in such companies the objective of least 40 per cent of non-executive directors of the under-represented sex should be set at an earlier date. | (23) Member States exercise a dominant influence over listed companies which are public undertakings within the meaning of Article 2(b) of Commission Directive 2006/111/EC of 16 November 2006 on the transparency of financial relations between Member States and public undertakings, as well as on financial transparency within certain undertakings.32 Due to that dominant influence, they have the instruments at their disposal to bring about the necessary change more rapidly. Therefore, in such companies the objective of least 40 per cent of directors of the under-represented sex should be set at an earlier date. |
Or. en
Amendment 12
Proposal for a directive
Recital 24
| |
Text proposed by the Commission | Amendment |
(24) Determining the number of non-executive director positions necessary to meet the objective requires further specification since for most board sizes it is mathematically possible only to go beyond or remain below the exact share of 40 per cent. Therefore, the number of board positions necessary to meet the objective should be the number closest to 40 per cent. At the same time, in order to avoid discrimination of the initially over-represented sex, listed companies should not be obliged to appoint members of the under-represented sex to half or more of the non-executive board positions. Thus, for example, members of the under-represented sex should hold at least one position on boards with three or four non-executive directors, at least two positions on boards with five or six non-executive directors, and at least three positions on boards with seven or eight non-executive directors. | (24) Determining the number of non-executive director positions necessary to meet the objective requires further specification since for most board sizes it is mathematically possible only to go beyond or remain below the exact share of 40 per cent. Therefore, the number of board positions necessary to meet the objective should be the number closest to 40 per cent. At the same time, in order to avoid discrimination of the initially over-represented sex, listed companies should not be obliged to appoint members of the under-represented sex to more than half of the non-executive board positions. Thus, for example, members of the under-represented sex should hold at least one position on boards with three non-executive directors, at least two positions on boards with four, five or six non-executive directors, and at least three positions on boards with seven or eight non-executive directors. |
Or. en
Amendment 13
Proposal for a directive
Recital 26
| |
Text proposed by the Commission | Amendment |
(26) In line with that case-law, Member States should ensure that the selection of the best qualified candidates for non-executive directors is based on a comparative analysis of the qualifications of each candidate on the basis of pre-established, clear, neutrally formulated and unambiguous criteria. Examples of types of selection criteria that companies could apply include professional experience in managerial and/or supervisory tasks, knowledge in specific relevant areas such as finance, controlling or human resources management, leadership and communication skills and networking abilities. Priority should be given to the candidate of the under-represented sex if that candidate is equally qualified as the candidate of the other sex in terms of suitability, competence and professional performance, and if an objective assessment taking account of all criteria specific to the individual candidates does not tilt the balance in favour of a candidate of the other sex. | (26) In line with Article 23 of the Charter of Fundamental Rights of the European Union and where applicable related case-law, Member States should ensure transparency in their recruitment, selection and appointment procedures while respecting private life with regard to the processing of personal data, recognised by the Articles 7 and 8 of the Charter. Examples of types of selection criteria that companies could apply include professional experience in managerial and/or supervisory tasks, knowledge in specific relevant areas such as finance, controlling or human resources management, leadership and communication skills and networking abilities. Priority should be given to the candidate of the under-represented sex if that candidate is at least equally qualified as the candidate of the other. Member States should ensure that companies that have not achieved the Directive's key objective disclose additional information on their recruitment, selection and appointment policies, and in particular deliver concrete plans to improve gender balance on their boards. |
Or. en
Amendment 14
Proposal for a directive
Recital 27
| |
Text proposed by the Commission | Amendment |
(27) The methods of recruiting and appointing directors differ from one Member State to another and from one company to another. They may involve the pre-selection of candidates to be presented to the shareholders' assembly, for example by a nomination committee, the direct appointment of directors by individual shareholders or a vote in the shareholders' assembly on individual candidates or lists of candidates. The requirements concerning the selection of candidates should be met at the appropriate stage of the selection process in accordance with national law and the articles of association of the listed companies concerned. In this respect, this Directive only establishes a minimum harmonisation of selection procedures, making it possible to apply the conditions provided for by the case-law of the Court of Justice with a view to attaining the objective of a more balanced gender representation in the boards of listed companies. | (27) The methods of recruiting and appointing directors differ from one Member State to another and from one company to another. They may involve the pre-selection of candidates to be presented to the shareholders' assembly, for example by a nomination committee, the direct appointment of directors by individual shareholders or a vote in the shareholders' assembly on individual candidates or lists of candidates. This legislative instrument therefore respects the diversity of selection procedure while insisting that the aim of increasing women's participation on boards is attained. The requirements concerning the selection of candidates should be met at the appropriate stage of the selection process in accordance with national law and the articles of association of the listed companies concerned. In this respect, this Directive allows for a diversity of selection procedure with a view to attaining the objective of a more balanced gender representation in the boards of listed companies. |
Or. en
Amendment 15
Proposal for a directive
Recital 28
| |
Text proposed by the Commission | Amendment |
(28) This Directive aims to improve the gender balance among directors of companies listed on stock exchanges and thus to contribute to the realisation of the principle of equal treatment between men and women, recognised as a fundamental right of the Union. Listed companies should therefore be required to disclose, upon the request of an unsuccessful candidate, not only the qualification criteria upon which the selection was based, but also the objective comparative assessment of those criteria and, where relevant, the considerations tilting the balance in favour of a candidate who is not of the under-represented sex . These limitations to the right to respect for private life with regard to the processing of personal data, recognised by the Articles 7 and 8 of the Charter, and the obligation for listed companies to supply that information, upon request, to the unsuccessful candidate, are necessary and, in conformity with the principle of proportionality, genuinely meet recognised objectives of general interest. They are therefore in line with the requirements for such limitations laid down in Article 52(1) of the Charter and with the relevant case-law of the Court of Justice. | (28) This Directive aims to improve the gender balance among directors of companies listed on stock exchanges and thus to contribute to the realisation of the principle of equal treatment between men and women, recognised as a fundamental right of the Union. Listed companies should therefore be required to disclose to an unsuccessful candidate, not only the qualification criteria upon which the selection was based, but also the objective comparative assessment of those criteria and, where relevant, the considerations tilting the balance in favour of a candidate who is not of the under-represented sex. These limitations to the right to respect for private life with regard to the processing of personal data, recognised by the Articles 7 and 8 of the Charter, and the obligation for listed companies to supply that information to the unsuccessful candidate, are necessary and, in conformity with the principle of proportionality, genuinely meet recognised objectives of general interest. They are therefore in line with the requirements for such limitations laid down in Article 52(1) of the Charter and with the relevant case-law of the Court of Justice. |
Or. en
Amendment 16
Proposal for a directive
Recital 30
| |
Text proposed by the Commission | Amendment |
(30) Member States should provide for effective, proportionate and dissuasive sanctions for breaches of this Directive, which could include, inter alia, administrative fines and nullity or annulment declared by a judicial body of the appointment or of the election of non-executive directors made contrary to the national provisions adopted pursuant to Article 4(1). | (30) Member States should provide for effective, proportionate and dissuasive sanctions for breaches of this Directive, which could include, inter alia, administrative fines, restricted access to or exclusion from EU funding and nullity or annulment declared by a judicial body of the appointment or of the election of non-executive directors made contrary to the national provisions adopted pursuant to Article 4(1). Eligibility of companies for tenders by an EU institution is dependent on achievement of the target set in Article 4.1. Member States may make the achievement of the target set in Article 4.1 conditional upon award criteria for public procurement. |
Or. en
Amendment 17
Proposal for a directive
Recital 31
| |
Text proposed by the Commission | Amendment |
(31) Since the gender composition of the workforce has a direct impact on the availability of candidates of the under-represented sex, Member States may provide that where the members of the under-represented sex make up less than 10 per cent of the workforce the company concerned should not be required to meet the objective laid down in this Directive. | deleted |
Or. en
Amendment 18
Proposal for a directive
Recital 32
| |
Text proposed by the Commission | Amendment |
(32) Since listed companies should aim to increase the proportion of the under-represented sex in all decision-making positions, Member States may provide that the objective laid down in this Directive should be considered to be met where listed companies can show that members of the under-represented sex hold at least one third of all director positions, irrespective of whether they are executive or non-executive. | (32) Since the percentage of women among executive directors is even lower, an additional incentive should be created to increase the number of female executive directors. Member States may provide that the objective laid down in this Directive should be considered to be met where listed companies can show that directors of the underrepresented sex hold at least one third of all director positions under the condition that at least one of the executive directors is of the under-represented sex. |
Or. en
Amendment 19
Proposal for a directive
Recital 33
| |
Text proposed by the Commission | Amendment |
(33) In addition to the measures relating to non-executive directors, and with a view also to improving the gender balance among directors involved in daily management tasks, listed companies should be required to make individual commitments regarding the representation of both sexes among executive directors, to be achieved at the latest by 1 January 2020. These commitments should aim to achieve tangible progress from the individual company's current position towards better gender balance. | (33) In addition to the measures relating to non-executive directors, and with a view also to improving the gender balance among directors involved in daily management tasks, listed companies should be required to make individual commitments regarding a more balanced representation of both sexes among executive directors, to be achieved at the latest by 1 January 2020, or, in case of listed companies which are public undertakings, by 1 January 2018. These commitments should aim to achieve tangible progress from the individual company's current position towards better gender balance. |
Or. en
Amendment 20
Proposal for a directive
Recital 35
| |
Text proposed by the Commission | Amendment |
(35) Member States may have already taken measures providing for means to ensure a more balanced representation of women and men in company boards before the entry into force of this Directive. Such Member States should have an opportunity to apply those measures in place of the procedural requirements relating to appointments where they can demonstrate that the measures taken are of equivalent efficacy in order to attain the objective of a presence of the under-represented sex of at least 40 per cent among non-executive directors of listed companies at the latest by 1 January 2020 or at the latest by 1 January 2018 in case of listed companies which are public undertakings. | (35) Member States may have already taken measures providing for means to ensure a more balanced representation of women and men in company boards before the entry into force of this Directive. Such Member States should have an opportunity to apply those measures in place of the procedural requirements relating to appointments where they can demonstrate that the measures taken are of equivalent efficacy in order to attain the objective of a presence of the under-represented sex of at least 40 per cent among non-executive directors of listed companies at the latest by 1 January 2020 or at the latest by 1 January 2018 in case of listed companies which are public undertakings. The Commission should assess whether the Member States' measures are sufficient to achieve the desired outcome and based on this decide whether relevant articles of the directive can be suspended in order to avoid interference with national measures. |
Or. en
Amendment 21
Proposal for a directive
Article 1 – paragraph 1
| |
Text proposed by the Commission | Amendment |
This Directive lays down measures to ensure a more balanced representation of men and women among the non-executive directors of listed companies by establishing measures aimed at accelerated progress towards gender balance while allowing companies sufficient time to make the necessary arrangements. | This Directive lays down measures to ensure a more balanced representation of men and women among the directors of listed companies by establishing measures aimed at accelerated progress towards gender balance while allowing companies sufficient time to make the necessary arrangements. |
Or. en
Amendment 22
Proposal for a directive
Article 4 – title
| |
Text proposed by the Commission | Amendment |
Objectives with regard to non-executive directors | Objectives with regard to directors |
Or. en
Amendment 23
Proposal for a directive
Article 4 – paragraph 1
| |
Text proposed by the Commission | Amendment |
1. Member States shall ensure that listed companies in whose boards members of the under-represented sex hold less than 40 per cent of the non-executive director positions make the appointments to those positions on the basis of a comparative analysis of the qualifications of each candidate, by applying pre-established, clear, neutrally formulated and unambiguous criteria, in order to attain the said percentage at the latest by 1 January 2020 or at the latest by 1 January 2018 in case of listed companies which are public undertakings. | 1. Member States shall ensure that listed companies in whose boards members of the under-represented sex hold less than 40 per cent of the director positions adjust their recruitment, selection or appointment procedures, in order to attain the said percentage at the latest by 1 January 2020 or at the latest by 1 January 2018 in case of listed companies which are public undertakings. |
| These procedures may include among others selecting on the basis of a comparative analysis of the qualifications of each candidate, by applying pre-established, clear, neutrally formulated and unambiguous criteria. |
| Whatever the procedure chosen, the adjustment shall aim at attaining the said percentage at the latest by 1 January 2020 or at the latest by 1 January 2018 in case of listed companies which are public undertakings. |
Or. en
Justification
Company boards are not only selected on the basis of comparative analysis. Practices in the EU Member States vary and address, among qualifications, issues such as representation. Procedures vary including recruitment, pre-selection by selection committees or elections such as in the case of workers representatives. The Directive has to respect and respond to this diversity in procedures while focusing on the desired outcome.
Amendment 24
Proposal for a directive
Article 4 – paragraph 2
| |
Text proposed by the Commission | Amendment |
2. The number of non-executive director positions necessary to meet the objective laid down in paragraph 1 shall be the number closest to the proportion of 40 per cent, but not exceeding 49 per cent. | 2. The number of director positions necessary to meet the objective laid down in paragraph 1 shall be the number closest to the proportion of 40 per cent, but not exceeding 49 per cent. |
Or. en
Amendment 25
Proposal for a directive
Article 4 – paragraph 3
| |
Text proposed by the Commission | Amendment |
3. In order to attain the objective laid down in paragraph 1, Member States shall ensure that, in the selection of non-executive directors, priority shall be given to the candidate of the under-represented sex if that candidate is equally qualified as a candidate of the other sex in terms of suitability, competence and professional performance, unless an objective assessment taking account of all criteria specific to the individual candidates tilts the balance in favour of the candidate of the other sex. | 3. In order to attain the objective laid down in paragraph 1, and in accordance with Article 23(2) of the Charter of Fundamental Rights of the European Union, Member States shall ensure that, in the recruitment, selection and appointment of directors, priority shall be given to the candidate of the under-represented sex, unless an objective assessment taking account of all criteria tilts the balance in favour of the candidate of the other sex. |
| In the case of a competence-based selection procedure, priority shall be given to the candidate of the under-represented sex in cases where that candidate is at least equally qualified as a candidate of the other sex in terms of suitability, competence or professional performance. |
Or. en
Amendment 26
Proposal for a directive
Article 4 – paragraph 4
| |
Text proposed by the Commission | Amendment |
4. Member States shall ensure that listed companies are obliged to disclose, on the request of an unsuccessful candidate, the qualification criteria upon which the selection was based, the objective comparative assessment of those criteria and, where relevant, the considerations tilting the balance in favour of a candidate of the other sex. | 4. Member States shall ensure that listed companies are obliged to disclose to an unsuccessful candidate, the number and gender of the candidates in the selection pool while respecting their anonymity in accordance with EU law on data protection, the qualification criteria upon which the selection or appointment was based, the objective comparative assessment of those criteria and, where relevant, the considerations tilting the balance in favour of a candidate of the other sex. |
Or. en
Amendment 27
Proposal for a directive
Article 4 – paragraph 4 a (new)
| |
Text proposed by the Commission | Amendment |
| 4 a. Member States shall ensure that the requirements concerning the selection of candidates should be met at the appropriate stage of the selection process in accordance with national law and the articles of association of the listed companies concerned. |
Or. en
Amendment 28
Proposal for a directive
Article 4 – paragraph 6
| |
Text proposed by the Commission | Amendment |
6. Member States may provide that listed companies where the members of the under-represented sex represent less than 10 per cent of the workforce are not subject to the objective laid down in paragraph 1. | deleted |
Or. en
Amendment 29
Proposal for a directive
Article 4 – paragraph 7
| |
Text proposed by the Commission | Amendment |
7. Member States may provide that the objective laid down in paragraph 1 is met where listed companies can show that members of the under-represented sex hold at least one third of all director positions, irrespective of whether they are executive or non-executive. | 7. Member States may provide that the objective laid down in paragraph 1 is met where listed companies can show that members of the under-represented sex hold at least one third of all director positions, provided that at least one of these director positions is executive. |
Or. en
Amendment 30
Proposal for a directive
Article 5 – paragraph 1
| |
Text proposed by the Commission | Amendment |
1. Member States shall ensure that listed companies undertake individual commitments regarding gender-balanced representation of both sexes among executive directors to be achieved at the latest by 1 January 2020, or, in case of listed companies which are public undertakings, by 1 January 2018. | 1. Member States shall ensure that listed companies undertake individual commitments regarding gender-balanced representation of both sexes among executive directors to be achieved at the latest by 1 January 2020, or, in case of listed companies which are public undertakings, by 1 January 2018. |
| These commitments shall aim to achieve tangible progress towards better gender balance. |
Or. en
Amendment 31
Proposal for a directive
Article 5 – paragraph 2
| |
Text proposed by the Commission | Amendment |
2. Member States shall require listed companies to provide information to the competent national authorities, once a year as from [two years after adoption], about the gender representation on their boards, distinguishing between non-executive and executive directors and about the measures taken in view of the objectives laid down in Article 4(1) and in paragraph 1 of this Article, and to publish that information in an appropriate and accessible manner on their website. | 2. 2. Member States shall require listed companies to provide information to the competent national authorities and in their annual reports once a year as from [two years after adoption], about the gender representation on their boards, distinguishing between non-executive and executive directors and about the progress made and the measures taken in view of the objectives laid down in Article 4(1) and in paragraph 1 of this Article, and where applicable, about the gender of all appointed directors during the reference period, and to publish that information in an appropriate and publicly accessible manner on their website. |
Or. en
Amendment 32
Proposal for a directive
Article 5 – paragraph 3
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Text proposed by the Commission | Amendment |
3. Where a listed company does not meet the objectives laid down in Article 4(1) or its own individual commitments taken pursuant to paragraph 1 of this Article, the information referred to in paragraph 2 of this Article shall include the reasons for not reaching the objectives or commitments and a description of the measures which the company has adopted or intends to adopt in order to meet the objectives or commitments. | 3. Where a listed company does not meet the objectives laid down in Article 4(1), 4(7) and its own individual commitments taken pursuant to paragraph 1 of this Article, the information referred to in paragraph 2 of this Article shall include the reasons for not reaching the objectives and commitments and a description of the measures which the company has adopted or intends to adopt in order to meet the objectives or commitments. |
| Specifically, where a listed company covered by Article 5(3) does not include at least 33% of the under-represented sex in its selection pool for a board position, it shall, in its annual report, present the measures taken to remedy this for any future selection procedures. |
| In case a listed company covered by Article 5(3) has chosen a candidate of the over-represented sex during the reporting year, it shall disclose this in its annual report, including the considerations tilting the balance in favour of this candidate. This shall be accompanied by a description of the measures taken to ensure that future appointments will contribute to achieving the target of Article 4(1). |
Or. en
Amendment 33
Proposal for a directive
Article 5 – paragraph 4
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Text proposed by the Commission | Amendment |
4. Member States shall take the necessary measures to ensure that the body or bodies designated in accordance with Article 20 of 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)35 are also competent for the promotion, analysis, monitoring and support of gender balance on the boards of listed companies. | 4. Member States shall take the necessary measures to ensure that the body or bodies designated in accordance with Article 20 of 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)35 are also competent and equipped with sufficient resources to promote, analyse, monitor and support gender balance on the boards of listed companies. |
Or. en
Amendment 34
Proposal for a directive
Article 6 – paragraph 2 – point b a (new)
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Text proposed by the Commission | Amendment |
| (b a) Member States may use the achievement of the objective in Article 4.1 as an award criteria in public procurement; |
Or. en
Amendment 35
Proposal for a directive
Article 6 – paragraph 2 a (new)
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Text proposed by the Commission | Amendment |
| 2 a. The EU institutions may put in place additional incentives for compliance with this Directive, for example: using the achievement of the objective in Article 4(1) as award criteria in procurement procedures of EU institutions. |
Or. en
Amendment 36
Proposal for a directive
Article 6 – paragraph 2 b (new)
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Text proposed by the Commission | Amendment |
| 2 b. So as to ensure cross-compliance with other EU instruments, where obligations under this directive are breached, EU funding may be suspended. |
Or. en
Amendment 37
Proposal for a directive
Article 6 – paragraph 2 c (new)
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Text proposed by the Commission | Amendment |
| 2 c. Member States shall report on the sanctions that are in place to comply with the provisions of this Directive. |
Or. en
Amendment 38
Proposal for a directive
Article 7 – paragraph 1
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Text proposed by the Commission | Amendment |
Member States may introduce or maintain provisions which are more favourable than those laid down in this Directive to ensure a more balanced representation of men and women in respect of companies incorporated in their national territory, provided those provisions do not create unjustified discrimination, nor hinder the proper functioning of the internal market. | Member States are invited to introduce or maintain provisions which are more favourable than those laid down in this Directive with a view to achieve the aim of Article 23 of the Charter of Fundamental Rights of the European Union and ensure a more balanced representation of men and women in respect of companies incorporated in their national territory, provided those provisions are geared towards the aim of this Directive and do not go beyond what is necessary to achieve this aim. |
Or. en
Amendment 39
Proposal for a directive
Article 8 – paragraph 3 – subparagraph 1
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Text proposed by the Commission | Amendment |
Without prejudice to Article 4(6) and (7), Member States which before the entry into force of this Directive have already taken measures to ensure a more balanced representation of women and men among the non-executive directors of listed companies may suspend the application of the procedural requirements relating to appointments contained in Article 4(1), (3), (4) and (5), provided that it can be shown that those measures enable members of the under-represented sex to hold at least 40 per cent of the non-executive director positions of listed companies by at the latest 1 January 2020, or at the latest 1 January 2018 for listed companies which are public undertakings. | Without prejudice to Article 4(6) and (7), Member States which before the entry into force of this Directive have already taken measures to ensure a more balanced representation of women and men among the non-executive directors of listed companies may suspend the application of the procedural requirements relating to appointments contained in Article 4(1), (3), (4) and (5), provided that an assessment by the European Commission indicates that those measures enable members of the under-represented sex to hold at least 40 per cent of the director positions of listed companies by at the latest 1 January 2020, or at the latest 1 January 2018 for listed companies which are public undertakings. |
Or. en
Amendment 40
Proposal for a directive
Article 8 – paragraph 3 – subparagraph 2
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Text proposed by the Commission | Amendment |
The Member State in question shall notify this information to the Commission. | The Member State in question shall notify this information to the Commission and shall request the Commission to grant suspension of the relevant provisions on the basis of the information provided. The Commission shall inform the European Parliament and Council of the Member State's request and the Commission's assessment. The Commission suspension shall be automatically revoked if insufficient progress is made towards the aim of this Directive which is deemed the case if the percentage of the under-represented sex is lower than 30% by 2017 or by 2015 where listed companies are public undertakings. |
Or. en
Amendment 41
Proposal for a directive
Article 9 – paragraph 2 – subparagraph 1
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Text proposed by the Commission | Amendment |
Member States having suspended pursuant to Article 8(3) the application of the procedural requirements relating to appointments contained in Article 4(1), (3), (4) and (5) shall include information in the reports mentioned in paragraph 1 demonstrating the concrete results obtained by the national measures referred to in Article 8(3). The Commission shall then issue a specific report ascertaining whether those measures effectively enable members of the under-represented sex to hold at least 40 per cent of the non-executive director positions by 1 January 2018 for listed companies which are public undertakings, and by 1 January 2020 for listed companies which are not public undertakings. The first such report shall be issued by the Commission by 1 July 2017, and subsequent reports shall be issued within six months after notification of the respective national reports under paragraph 1. | Member States having suspended pursuant to Article 8(3) the application of the procedural requirements relating to appointments contained in Article 4(1), (3), (4) and (5) shall include information in the reports mentioned in paragraph 1 demonstrating the concrete results obtained by the national measures referred to in Article 8(3). The Commission shall then publish a specific report ascertaining whether those measures effectively enable members of the under-represented sex to hold at least 40 per cent of the non-executive director positions by 1 January 2018 for listed companies which are public undertakings, and by 1 January 2020 for listed companies which are not public undertakings. The first such report shall be published by the Commission by 1 July 2017, and subsequent reports shall be published within six months after notification of the respective national reports under paragraph 1. |
Or. en
Amendment 42
Proposal for a directive
Article 9 – paragraph 4
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Text proposed by the Commission | Amendment |
4. In its report, the Commission shall assess whether, in the light of developments in the representation of men and women in the boards of listed companies and at different levels of decision-making throughout the economy and taking into account whether the progress made is sufficiently sustainable, there is a need to extend the duration of this Directive beyond the date specified in Article 10(2) or to amend it. | 4. In its report, the Commission shall, after consulting the European Parliament and the Council, assess whether, in the light of developments in the representation of men and women in the boards of listed companies and at different levels of decision-making throughout the economy and taking into account whether the progress made is sufficiently sustainable, there is a need to extend the duration of this Directive beyond the date specified in Article 10(2) or to amend it. |
Or. en