15.11.2022
c.
EN
Official Journal of the European Union
C 433/33
Definitions (Article 3)
16.
In the compromise text, the main definitions have been aligned with the Council’s general approach.
In particular, the definition of ‘a listed company’ refers to a company having its registered office in a Member State, and whose shares are admitted to trading on a regulated market.
d.
Objectives (Article 5)
17.
Two alternative objectives were already contained in the European Commission’s proposal: 40 % for non-executive directors or 33 % for all directors, although the latter option was given less visibility.
The Council reformulated the two objectives, making both equally explicit, with a view to clarifying the scope and the alternatives foreseen.
The European Parliament had not seen a need for such a change and expressed the concern that it might appear to reduce the level of ambition.
As a compromise, Article 5 was slightly reworded, so that it no longer uses the phrase ‘aim to attain’ but instead refers to the obligation of Member States to ensure that listed companies are ‘subject to’ one of the two objectives.
However, the objectives themselves have been left unchanged.
e.
Public vs private companies, and companies in which members of the under-represented sex represent less than 10 % of employees
18.
The Council wished to delete the provision that made a distinction between public and private companies, the former being subject to an earlier target date.
For its part, the Parliament wished to delete the provision that allowed Member States to exempt from the key provisions those companies in which members of the under-represented sex represent less than 10 % of employees.
As a compromise, both provisions were deleted.
C.
Selection procedures
a.
Positive action (Article 6)
19.
The Parliament’s position contained several provisions applicable to the pre-selection phase.
As a compromise, the co-legislators agreed on a wording that spells out clearly that positive action applies to the entire selection process.
In line with this approach and in the light of the established case law on the subject, the compromise text specifies that the objective of improving gender equality should govern the whole process, including pre-selection, and that priority should be given to the under-represented sex provided that the candidate possesses equal qualifications to those of the candidate of the other sex, but not automatically or unconditionally.
b.
Information requirements (Article 6(3))
20.
The Parliament’s position extended the list of information that companies would be required to provide to unsuccessful candidates.
However, as part of the overall compromise, the relevant provisions were retained in a form close to what was originally proposed by the Commission.
D.
Suspension clause (Article 12)
21.
In its general approach, in a spirit of subsidiarity, the Council further developed and fine-tuned the suspension clause contained in the Commission’s proposal, in order to provide essential flexibility to the Member States that had already taken equally effective measures to improve the gender balance on company boards and should therefore be allowed to suspend the procedural requirements set out in the Directive.
However, the Parliament considered that the suspension clause contained in the Council’s text was potentially too open-ended, and also unclear in parts, thus giving the impression of a loophole.
As a compromise, the co-legislators agreed to specify that the suspension clause would only be available to Member States that had adopted national measures that were demonstrably ‘equally effective’, meaning that either binding quantitative measures in national legislation or actual results in terms of a specific percentage achieved should be required.
Moreover, according to the compromise text, for a Member State to be able to avail itself of the suspension clause, the conditions must be fulfilled by the date of entry into force of the Directive.