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CONSTITUTIONAL VALUES UNDERLYING GENDER EQUALITY ON THE BOARDS OF COMPANIES: HOW SHOULD THE EU PUT THESE VALUES INTO PRACTICE?

Published online by Cambridge University Press:  24 January 2014

Marek Szydło
Marek Szydło*
Affiliation:
Professor of Law, Wroclaw University, m.szydlo@prawo.uni.wroc.pl.
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Abstract

There is a large gap between the proportion of employed and well-educated women and those sitting on the boards of EU companies. However, the Commission's proposal for a Directive on improving the gender balance among non-executive directors of companies listed on stock exchanges does not constitute an appropriate legal solution for this problem. The Commission's reasoning underlying the draft Directive is so strongly pervaded by economic considerations that it gives the impression that women are merely instruments useful to attain economic objectives. By contrast, the need for enhancing women's representation in the boards of companies is justified by much more fundamental and incomparably higher-ranked values, and including equality between women and men and the need for democratic legitimization of the EU and of its economic governance. These fundamental values, however, must be achieved in accordance with the principles of proportionality and subsidiarity. The present article proposes some alternatives to compulsory gender quotas that might be used by EU institutions to promote more gender-balanced boards of EU companies.

Keywords

corporate governancedemocratic legitimizationeconomic governanceEU companiesgender equality
Type
Articles
Information
International & Comparative Law Quarterly , Volume 63 , Issue 1 , January 2014 , pp. 167 - 196
Copyright
Copyright © British Institute of International and Comparative Law 2014 

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References

1 See eg Commission's Women's Charter (COM (2010) 78 final); Commission's Strategy for Equality between Women and Men 2010–2015 (COM (2010) 491 final); Commission's report ‘More Women in Senior Positions’, January 2010; Commission Staff Working Paper ‘The Gender Balance in Business Leadership’, March 2011 (SEC(2011) 246 final); Commission's Progress Report ‘Women in Economic Decision-Making in the EU’, March 2012; Commission Staff Working Document ‘Progress on Equality between Women and Men in 2011’, April 2012 (SWD(2012) 85 final); the European Pact for Gender Equality 2011–2020, adopted by the Council on 7 March 2011; Resolution of the European Parliament of 6 July 2011 on women and business leadership (2010/2115(INI)); Resolution of the European Parliament of 13 March 2012 on equality between women and men in the European Union—2011 (2011/2244(INI)).

2 COM (2012) 614 final.

3 See art 4 of the draft Directive.

4 See eg De Groot, C, ‘Three Innovations in Corporate Law in the Netherlands: On Directors’ Employment Contracts, Limits to Non-Executive Directorships and Gender-Balanced Boards’ (2013) 10 European Company Law 147 ffGoogle Scholar; Zanardo, A, ‘Achieving Gender Balance in Corporate Boards: The Italian Experience’ (2013) 10 European Company Law 109 ffGoogle Scholar; see also the reasoned opinions of individual national parliaments submitted under Protocol No 2 to the Lisbon Treaty, available at <http://www.ipex.eu/IPEXL-WEB/dossier/dossier.do?code=COD&year=2012&number=0299&appLng=EN>.

5 European Commission: Women and men in leadership positions in the European Union 2013. A review of the situation and recent progress is available at <http://ec.europa.eu/justice/gender-equality/files/gender_balance_decision_making/131011_women_men_leadership_en.pdf> 6–12.

6 Eurostat, Labour Force Survey, data from 2012.

7 Eurostat, Tertiary students (ISCED 5-6) by field of education and sex [educ_enrl5], 2009.

8 See Progress Report of the European Commission, ‘Women in Economic Decision-Making in the EU’ (March 2012) 12, as well as other sources indicated therein.

9 Fagan, C, González Menéndez, MC and Gómez Ansón, S (eds), ‘Introduction’ in Women on Corporate Boards and in Top Management: European Trends and Policy (Palgrave Macmillan 2012) 2 ffCrossRefGoogle Scholar; Terjesen, S, Sealy, R and Singh, V, ‘Women Directors on Corporate Boards: A Review and Research Agenda’ 17 Corporate Governance: An International Review (2009) 321 ffGoogle Scholar; Terjesen, S and Singh, V, ‘Female Presence on Corporate Boards: A Multi-Country Study of Environmental Context’ 83 Journal of Business Ethics (2008) 56 ffCrossRefGoogle Scholar.

10 González Menéndez, Fagan and Gómez Ansón ibid 3.

11 Pesonen, S, Tienari, J and Vanhala, S, ‘The Boardroom Gender Paradox’ 24 Gender in Management: An International Journal (2009) 327 ffCrossRefGoogle Scholar; Singh, V and Vinnicombe, S, ‘Why So Few Women Directors in Top UK Boardrooms? Evidence and Theoretical Explanations’ 12 Corporate Governance: An International Review (2004) 479 ffCrossRefGoogle Scholar.

12 See Halford, S and Leonard, P, Gender, Power, and Organisations (Palgrave MacMillan 2001)CrossRefGoogle Scholar; Wajcman, J, Managing Like a Man: Women and Men in Corporate Management (Pennsylvania State University Press 1998)Google Scholar.

13 González Menéndez, Fagan and Gómez Ansón (n 9) 4.

14 R Sealy, E Doldor and S Vinnicombe, Increasing Diversity on Public and Private Sector Boards: Part 1—How Diverse Are Boards and Why?, International Centre for Women Leaders, Cranfield School of Management, (October 2009) 30 available at <http://www.som.cranfield.ac.uk/som/media/images/research/wbl/geo1.pdf>.

15 Terjesen and Singh (n 9) 56–8; Engelstad, F and Teigen, M (eds), ‘Introduction: Gender and Varieties of Economic Power: The Significance of Family and State’ in Firms, Boards and Gender Quotas: Comparative Perspectives (Emerald Group Publishing Limited 2012) xvCrossRefGoogle Scholar; Terjesen, Sealy and Singh (n 9) 327–8.

16 In France, the relevant rules were introduced by Law 2011-103 of 27 January 2011 (published in Official Journal of 28 January 2011). In Italy, the rules in question were established by Act No 120 of 12 July 2011 (published in Official Journal No 174 of 28 July 2011). In Belgium, the relevant rules were set by the Act of 28 July 2011 (published in Moniteur Belge/Belgisch Staatsblad of 14 September 2011, 59600).

17 In the Netherlands, the discussed rules were adopted by means of a law amending the Civil Code (Law of 6 June 2011, published in the Staatsblad 2011, 275). In Spain, the relevant provisions are included in Organic Law 3/2007 of 22 March 2007 on effective equality between men and women.

18 Danish Gender Equality Act of 1990, Consolidation Act No 1095 of 19 September 2007.

19 Act 609/1986 on Equality between Women and Men.

20 Gender Equality Act, Law 2839/2000 of 12 September 2000.

21 In Austria, the Council of Ministers issued an administrative decision in March 2011 (No GZ BKA- 140.200/0048-II/1/2011, 93/23). In Slovenia, the government adopted Regulation No 103/04 on Criteria for Respecting the Principle of Gender Balanced Representation.

22 For an extensive overview of all of the voluntary initiatives in individual Member States, see Progress Report of the European Commission, ‘Women in Economic Decision-Making in the EU’ (March 2012) 13–14, 21–2.

23 For statistics showing their recent effects, see ibid 11, as well as ‘Women and Men in Leadership Positions in the European Union 2013: A review of the Situation and Recent Progress’ (by EU Commission) 6–12.

24 Joy, L, ‘Women Board Directors in the United States: An Eleven Year Retrospective’ in Vinnicombe, S, Singh, V, Burke, RJ and Bilimoria, D (eds), Women on Corporate Boards of Directors: International Research and Practice (Edward Elgar Publishing 2008) 22Google Scholar.

25 Rosenblum, D, ‘Feminizing Capital: A Corporate Imperative’ (2009) 6 Berkeley Business Law Journal 92Google Scholar.

26 For example, as Norway's Minister of Children and Equality has stated, legislation mandating gender equality on the boards of companies leads to ‘the creation of economic prosperity and wealth in society’: Experiences from Norway Concerning Representation of Women in Company Boards, 7 October 2006, available at <http://www.regjeringen.no/nb/dep/bld/aktuelt/taler_artikler/ministeren/barne_og_likestillingsminister_bekkemell/2006/experiences-from-norway-concerning-repre.html?id=437481>.

27 Fondas, N and Sassalos, S, ‘A Different Voice in the Boardroom: How the Presence of Women Directors Affects Board Influence over Management’ (2000) 12 Global Focus 13 ffGoogle Scholar; Kang, H, Cheng, M and Gray, SJ, ‘Corporate Governance and Board Composition: Diversity and Independence of Australian Boards’ (2007) 15 Corporate Governance 194 ffCrossRefGoogle Scholar.

28 M Lückerath-Rovers, ‘Women on Board and Firm Performance’ (April 2010) 6, available at <http://ssrn.com/abstract=1586832>; Burgess, Z and Tharenou, P, ‘Women Board Directors: Characteristics of the Few’ (2002) 37 Journal of Business Ethics 39 ffCrossRefGoogle Scholar; Singh, V and Vinnicombe, S, ‘Why So Few Women Directors in Top UK Boardrooms? Evidence and Theoretical Explanations’ (2004) 12 Corporate Governance 479 ffCrossRefGoogle Scholar; Carter, DA, Simkins, BJ and Simpson, WG, ‘Corporate Governance, Board Diversity and Firm Value’ (2003) 38 The Financial Review 44 ffCrossRefGoogle Scholar.

29 Terjesen, Sealy and Singh (n 9) 329.

30 Joy (n 24) 22; ‘Diversity and Gender Balance in Britain plc’: a study by TCAM in conjunction with The Observer and as part of the Good Companies Guide, London, UK: TCAM, 2009.

31 See eg Smith, N, Smith, V and Verner, M, ‘Do Women in Top Management Affect Firm Performance? A Panel Study of 2,500 Danish Firms’ (2006) 55 International Journal of Productivity and Performance Management 569 ffCrossRefGoogle Scholar; ‘Women Matter’, McKinsey (2007, 2008, 2010); ‘The Bottom Line: Connecting Corporate Performance and Gender Diversity’, Catalyst (2007); ‘Female Leadership and Firm Profitability’, Finnish Business and Policy Forum (EVA), 2007; ‘Groundbreakers, Using the Strength of Women to Rebuild the World Economy’, Ernst & Young and Deutsche Bank Research (2010) <www.dbresearch.com>; ‘Women on Boards’ Lord Davies of Abersoch Report UK (2011).

32 Explanatory memorandum, 3; points 7–8 in the preamble to the draft Directive.

33 Notably, the draft Directive does not give women candidates for boards unconditional priority over male candidates, even before the 40 per cent quota is achieved. According to the draft Directive, such a priority should be given only if the woman candidate (ie the candidate of the under-represented sex) is equally qualified as a male candidate (ie the candidate of the other sex) in terms of suitability, competence and professional performance (see art 4(3) of the draft Directive). This means that even the EU Commission is far from the conclusion that selecting women candidates will guarantee the selection of the most appropriate candidates. The provision of the draft Directive excluding the unconditional priority of women candidates (even before the 40 per cent quota is achieved) is obviously welcomed, but it challenges the Commission's own claims that admitting more women to corporate boards will ensure the efficient use of all human resources (see explanatory memorandum, 3; point 7 in the preamble to the draft Directive). The greater participation of women in the boards of companies is required for various reasons, but not because it will, in itself, guarantee the optimal (or at least better than current) use of human resources in the economy. If the women remaining outside of the boards are equally, but not better, qualified than the current male members of the boards (and it would be unfounded to claim that women remaining outside are indeed generally better qualified), then one may deem such a situation unfair, but the use of human resources is not suboptimal.

34 Lückerath-Rovers (n 28) 6; Rose, C, ‘Does Female Board Representation Influence Firm Performance? The Danish Evidence’ (2007) 15 Corporate Governance 404 ffCrossRefGoogle Scholar.

35 Dwyer, S, Richard, OC and Chadwick, K, ‘Gender Diversity in Management and Firm Performance: The Influence of Growth Orientation and Organizational Culture’ (2003) 56 Journal of Business Research 1009 ffCrossRefGoogle Scholar; Lückerath-Rovers (n 28) 6.

36 As the Commission argues, see explanatory memorandum, 4; point 8 in the preamble to the draft Directive.

37 The Commission suggests that the fact that the board members are often recruited through an ‘old boys’ network’ from among business and personal contacts of the current board members leads to the persistent under-representation of women on boards (explanatory memorandum, 4). It must be noted, however, that the aforementioned networks and contacts may encompass women as well. As a result, male board members and other stakeholders faced with the legal obligation to comply with a gender quota might select women candidates who they know very well (through an ‘old boys’ network’) and who represent similar thinking and business attitudes as the current board members. This will not lead to the desired growth of board diversity, apart from simple sex diversity.

38 Statistics from Norway—the country in which the obligatory 40 per cent gender quota in boards of companies was introduced in 2003—show that many of the most qualified women, known as the ‘Golden Skirts’, now sit on several boards. There is an example of one Norwegian executive who now sits on 179 boards and chairs three Norwegian companies and one Danish company. Even if this example is extreme, it must be admitted that the Norwegian legislation has led to a much smaller than predicted increase in the overall number of women on corporate boards nationwide: Sweigart, A, ‘Women on Board for Change: The Norway Model of Boardroom Quotas As a Tool for Progress in the United States and Canada’ (2012) 32 Northwestern Journal of International Law & Business 83A.Google Scholar

39 D Rosenblum (n 25) 92.

40 On the methodological weaknesses and flaws of all the empirical studies discussed here, see eg R Adams, S Gray and J Nowland, ‘Does Gender Matter in the Boardroom? Evidence from the Market Reaction to Mandatory New Director Announcements’ (November 2011) 8 ff, available at <http://ssrn.com/abstract=1953152>; Lückerath-Rovers (n 28) 11 ff; H Dale-Olsen, P Schøne and M Verner, ‘Women on Boards of Directors and Firm Performance: Evidence from Denmark and Norway’ in Engelstad and Teigen (n 15) 211 ff.

41 See eg ‘The Bottom Line: Corporate Performance and Women's Representation on Boards’ (Catalyst 2007) fn 2, available at <http://www.catalyst.org/knowledge/bottom-line-corporate-performance-and-womens-representation-boards>.

42 Lückerath-Rovers (n 28) 18; Krishnan, HA and Park, D, ‘A Few Good Women—on Top Management Teams’ (2005) 58 Journal of Business Research 1712 ffCrossRefGoogle Scholar.

43 Adams, Gray and Nowland (n 40) 7.

44 Many commentators argue that these effects are in fact negative, such as Ahern, KR and Dittmar, AK, ‘The Changing of the Boards: The Impact on Firm Valuation of Mandated Female Board Representation’ (2012) 127 Quarterly Journal of Economics 137 ffCrossRefGoogle Scholar; DA Matsa and AR Miller, ‘A Female Style in Corporate Leadership? Evidence from Quotas’ American Economic Journal: Applied Economics, forthcoming, available at <http://ssrn.com/abstract=1636047>.

45 In this regard, ‘affirmative action’ can be defined as ‘a generic term for programs which take some kind of initiative, either voluntarily or under the compulsion of law, to increase, maintain or rearrange the number or status of certain group members usually defined by race or gender, within a larger group’: Johnson, RA, ‘Affirmative Action Policy in the United States: Its Impact on Women’ 18 Policy & Politics (1990) 77CrossRefGoogle Scholar; De Lange, SE, ‘Toward Gender Equality: Affirmative Action, Comparable Worth, and the Women's Movement’ (2007) 31 New York University Review of Law & Social Change 315Google Scholar.

46 These prerequisites are as follows: 1) the candidate of the under-represented sex is equally qualified as the competitor of the other sex in terms of suitability, competence and professional performance; 2) the priority is not automatic and unconditional but may be overridden if reasons specific to an individual candidate of the other sex tilt the balance in that candidate's favour; and 3) the application of each candidate is subject to an objective assessment that takes into account all criteria specific to the individual candidates; see cases C-450/93, Eckhard Kalanke v Freie Hansestadt Bremen, [1995] ECR I-3051, paras 16–24; C-409/95, Hellmut Marschall v Land Nordrhein-Westfalen, [1997] ECR I-6363, paras 23–35; C-158/97, Georg Badeck and Others, [2000] ECR I-1875, paras 17–23; C-407/98, Katarina Abrahamsson and Leif Anderson v Elisabet Fogelqvist, [2000] ECR I-5539, paras 43–62.

47 Explanatory memorandum, 6; points 1–2 and 36 in the preamble to the draft Directive.

48 It is correctly argued that Member States, which are bound by the equality rights embodied in their national constitutions, could transfer some powers to the EU only on the condition that the latter would exercise the conferred powers in accordance with these equality rights. In this way, the equality rights guaranteed in the EU legal order play an important role in legitimizing all actions of the EU in the eyes of EU citizens (supranational legitimacy); see Kingreen, T, Gleichheitsgrundrechte und soziale Rechte in Ehlers, D (ed), Europäische Grundrechte und Grundfreiheiten (De Gruyter Recht 2005) 479Google Scholar.

49 On revisiting the public/private dichotomy that is the unavoidable corollary of imposing obligatory gender quotas on companies, see D Rosenblum (n 25) 68 ff.

50 With regard to the legal concepts elaborated in the jurisprudence and doctrine of some Member States that explain how fundamental rights bind the actions of private parties, see Buxton, R, ‘The Human Rights Act and Private Law’ 116 LQR (2000) 48 ffGoogle Scholar; Wade, HWR, ‘Horizons of Horizontality’ (2000) 116 LQR 217 ffGoogle Scholar; Morgan, J, ‘Privacy, Confidence and Horizontal Effect: “Hello” Trouble’ (2003) 62 CLJ 444 ffCrossRefGoogle Scholar; Lester, A and Pannick, D, ‘The Impact of the Human Rights Act on Private Law: The Knight's Move’ (2000) 116 LQR 380 ffGoogle Scholar; Leigh, I, ‘Horizontal Rights, the Human Rights Act and Privacy: Lessons from the Commonwealth?’ (1999) 48 ICLQ 57 ffCrossRefGoogle Scholar (Great Britain); Alexy, R, Theorie der Grundrechte (Nomos 1994) 475 ffGoogle Scholar; Canaris, C-W, Grundrechte und Privatrecht (Walter de Gruyter 1999)CrossRefGoogle Scholar; Oeter, S, ‘Drittwirkung der Grundrechte und die Autonomie des Privatrechts’ (1994) 119 Archiv des öffentlichen Rechts 529 ffGoogle Scholar; Classen, CD, ‘Drittwirkung der Grundrechte in der Rechtsprechung des Bundesverfassungsgerichts’ (1997) 122 Archiv des öffentlichen Rechts 65 ffGoogle Scholar (Germany); Boesjes, J, ‘De horizontale werking van grondrechten’ (1973) 48 Nederlandse Juristenblad 905 ffGoogle Scholar; Koekkoek, AK, ‘De betekenis van grondrechten voor het privaatrecht’ (1985) 116 Weekblad voor privaatrecht, notariaat en registratie 385 ffGoogle Scholar; Verhey, LFM, Horizontale werking van grondrechten, in het bijzonder van het recht op privacy (Zwolle 1992)Google Scholarpassim (Netherlands); for an extensive overview of many different jurisdictions and various fields of private law see the contributions in Friedmann, D and Barak-Erez, D (eds), Human Rights in Private Law (Hart Publishing 2002)Google Scholar.

51 An important aspect of the concept of social market economy is that of social democracy, which advocates participatory democracy, civil society, and other non-hierarchical forms of cooperation in the field of economy there: Meyer, T and Hinchman, L, The Theory of Social Democracy (Polity Press 2007) 45Google Scholar.

52 On OMC in the EU in general, see De la Porte, C and Pochet, P (eds), Building Social Europe through the Open Method of Coordination (Peter Lang 2002)Google Scholar; Hodson, D and Maher, I, ‘The Open Method As a New Mode of Governance: The Case of Soft Economic Policy Coordination’ (2001) 39 Journal of Common Market Studies 719 ffCrossRefGoogle Scholar; Zeitlin, J and Pochet, P (eds), The Open Method of Coordination in Action: The European Employment and Social Inclusion Strategies (Peter Lang 2005)CrossRefGoogle Scholar; Dehousse, R (ed), L'Europe sans Bruxelles? Une analyse de la Methode Ouverte de Coordination (L'Harmattan 2004)Google Scholar; Szyszczak, E, ‘Experimental Governance: The Open Method of Coordination’ (2006) 12 European Law Journal 486 ffCrossRefGoogle Scholar; de Búrca, G, ‘The Constitutional Challenge of New Governance in the EU’ (2003) 28 European Law Review 814 ffGoogle Scholar; Zeitlin, J, ‘Towards a Stronger OMC in a More Social Europe 2020: A New Governance Architecture for EU Policy Coordination’ in Marlier, E and Natali, D (eds), Europe 2020: Towards a More Social EU? (Peter Lang 2010) 253 ffGoogle Scholar; Hatzopoulos, V, ‘Why the Open Method of Coordination Is Bad For You: A Letter to the EU’ (2007) 13 ELJ 309 ffCrossRefGoogle Scholar.

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55 See eg arts 1 and 2 of Italian Constitution; art 1 of French Constitution; art 20(1) of German Constitution; art 1(1) of Spanish Constitution; arts 1 and 2 of Portuguese Constitution; art 2 of Swedish Constitution; arts 2 and 20 of Polish Constitution.

56 See eg Casey, B and Gold, M, Social Partnership and Economic Performance: The Case of Europe (Edward Elgar Publishing 2000) 9 ffGoogle Scholar

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59 Rodríguez Ruiz, B and Rubio-Marín, R, ‘The Gender of Representation: On Democracy, Equality, and Parity’ (2008) 6 International Journal of Constitutional Law 289Google Scholar.

60 Rodríguez Ruiz and Rubio-Marín (n 59) 302.

61 Suk, JC, ‘Gender Parity and State Legitimacy: From Public Office to Corporate Boards’ (2012) 10 International Journal of Constitutional Law 456CrossRefGoogle Scholar.

62 For an overview of such electoral gender quotas in Europe, see the study titled ‘Electoral Gender Quota Systems and their implementation in Europe’, elaborated by D Dahlerup and L Freidenvall (with the assistance of E Johansson, E Stolt, K Bivald and L Persson-Weiss) for the request of the European Parliament's Committee on Gender Equality, 2011, available at <http://www.europarl.europa.eu/committees/fr/studiesdownload.html?languageDocument=EN&file=60648>.

63 See Assemblée Nationale Rapport fait au nom de la commission des lois constitutionnelles, de la législation et de l'administration générale de la république sur le projet de loi constitutionnelle relative à l’égalité entre les femmes et les hommes, No 1377 (10 February 1999) 11–12; Suk (n 61) 455.

64 Suk (n 61) 455.

65 This has been proven by empirical research; see Gilley, B, ‘The Determinants of State Legitimacy: Results for 72 Countries’ (2006) 27 International Political Science Review 48, 53–7CrossRefGoogle Scholar. The author provides the empirical data showing how great of an influence the materialization of gender equality in a state has on that state's legitimacy in the eyes of its citizens.

66 On these national identities within the meaning of art 4(2) TEU, see eg von Bogdandy, A and Schill, S, ‘Overcoming Absolute Primacy: Respect for National Identity under the Lisbon Treaty’ (2011) 48 CMLR 1417 ffGoogle Scholar; Chalmers, D, Davies, G and Monti, G, European Union Law: Cases and Materials (CUP 2010) 219 ffCrossRefGoogle Scholar; Besselink, LFM, ‘National and Constitutional Identity before and after Lisbon’ (2010) 6 Utrecht Law Review 36 ffCrossRefGoogle Scholar.

67 Suk (n 61) 460.

68 See KE Øie (Norwegian State Secretary in Ministry for Children and Equality), ‘Gender Equality: A Key Component of a Modern Growth Strategy’ (27 April 2007) available at <http://www.regjeringen.no/nb/dep/bld/aktuelt/taler_artikler/politisk_ledelse/tidligere_statssekretaer_oeie/2007/gender-equality-a-key-component-of-a-mod.html?id=465563>.

69 This argument is similar to the concept that is sometimes advocated in the case of the fundamental freedoms of an EU internal market. Namely, it is argued that the EU's fundamental internal market freedoms should bind private parties only insofar as they include prohibitions on discrimination on the grounds of nationality or origin (see case C-281/98 Roman Angonese v Cassa di Risparmio di Bolzano SpA [2000] ECR I-4139, paras 30–36). By contrast, the fundamental freedoms should not obligate private parties to action insofar as these freedoms imply prohibitions of non-discriminatory restrictions (see eg Gebauer, J, Die Grundfreiheiten des EG- Vertrags als Gemeinschaftsgrundrechte (Duncker & Humblot 2004) 141–2CrossRefGoogle Scholar, and the literature indicated therein). An analogous concept might be applied in the case of the EU fundamental right that is provided for in art 23 of the Charter, with a reservation that this is not about the issue of whether art 23 of the Charter directly binds private parties (it does not, either in its negative or in its positive dimension, with the exception of equal pay for male and female workers—see case 43/75 Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena [1976] ECR 455, paras 38–40). Instead, it involves the issue of whether it is legally admissible for EU institutions to obligate private parties by means of acts of secondary law to such behaviours that realize the fundamental right of other private parties stemming from art 23 of the Charter. It is argued that such acts of secondary law are, as a rule, admissible; however, if they obligate private parties to some affirmative actions in that regard (as opposed to the simple prohibition of discrimination on the grounds of sex), it is much more difficult for them to pass the test of proportionality.

70 González Menéndez, Fagan and Gómez Ansón (n 9) 3–4, with further references.

71 See above (n 17).

72 See Matland, RE, ‘Electoral Quotas: Frequency and Effectiveness’ in Dahlerup, D (ed), Women, Quotas and Politics (Routledge 2006) 286Google Scholar.

73 See the study ‘Electoral Gender Quota Systems and Their Implementation in Europe’ (n 62) 21–2.

74 See eg cases C-243/01 Piergiorgio Gambelli and Others [2003] ECR I-13031, para 67; C-46/08 Carmen Media Group Ltd v Land Schleswig-Holstein, Innenminister des Landes Schleswig-Holstein [2010] ECR I-8149, para 55; see also Mathisen, G, ‘Consistency and Coherence as Conditions for Justification of Member State Measures Restricting Free Movement’ (2010) 47 CMLR 1021 ffGoogle Scholar.

75 Explanatory memorandum, 3; point 7 in the preamble to the draft Directive.

76 See above n 46.

77 In such a situation, a company will not be authorized to invoke the justifying reasons referred to in art 4(3) of the draft Directive because these reasons can be invoked only when a company compares women and men ‘candidates’ to the board (then, a company is indeed entitled to reject a woman candidate if she is less qualified than a male candidate), not when the comparison between ‘candidates’ to the board and the current board members is at stake.

78 On regulatory competition and regulatory arbitrage in the field of company law, see eg Lombardo, S, Regulatory Competition in Company Law in the European Community: Prerequisites and Limits (Peter Lang 2002)Google Scholar; Deakin, SF, Regulatory Competition Versus Harmonisation in European Company Law (University of Cambridge 2000)Google Scholar; Woertge, T, The Political Economy of Competition on Corporate Charters in Europe (GRIN Verlag 2012)Google Scholar; Bebchuk, LA, ‘Federalism and the Corporation: The Desirable Limits on State Competition in Corporate Law’ (1992) 105 HarvLRev 1435 ffGoogle Scholar; Romano, R, ‘Law as a Product: Some Pieces of the Incorporation Puzzle’ (1985) 1 Journal of Law, Economics and Organization 225 ffGoogle Scholar; Heine, K and Kerber, W, ‘European Corporate Laws, Regulatory Competition, and Path Dependence’ (2002) 13 European Journal of Law and Economics 43 ffCrossRefGoogle Scholar; Heine, K, Regulierungswettbewerb im Gesellschaftsrecht: Zur Funktionsfähigkeit eines Wettbewerbs der Rechtsordnungen im europäischen Gesellschaftsrecht (Duncker & Humblot 2003)Google Scholar.

79 Case C-256/01 Debra Allonby v Accrington & Rossendale College, Education Lecturing Services, and Secretary of State for Education and Employment [2004] ECR I-873, paras 66–71.

80 See 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 L 180, 15.7.2010, 1.

81 COM (2011) 164 final.

82 Green Paper of the European Commission, 7.

83 Point 8 in the preamble to the draft Directive.

84 Green Paper of the European Commission, 7.

85 Commission Action Plan: European Company Law and Corporate Governance: A Modern Legal Framework for More Engaged Shareholders and Sustainable Companies, COM (2012) 740/2.

86 Green Paper of the European Commission, 5–6; Commission Action Plan, 5–6.

87 See Council Regulation (EC) No 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights, OJ L 53, 22.2.2007, 1.

88 Commission Regulation (EC) No 800/2008 of 6 August 2008 declaring certain categories of aid compatible with the common market in the application of arts 87 and 88 of the Treaty (General Block Exemption Regulation), OJ L 214, 9.8.2008, 3.

89 See art 16 of Regulation (EC) No 800/2008.

90 This is admissible on the grounds of art 7(4) of Council Regulation (EC) No 659/1999 of 22 March 1999, which establishes detailed rules for the application of art 93 of the EC Treaty, OJ L 83, 27.3.1999, 1.

91 Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors, OJ L 134, 30.4.2004, 1; Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts, and public service contracts, OJ L 134, 30.4.2004, 114.

92 See Communication of the Commission on the Community law applicable to public procurement and the possibilities for integrating social considerations into public procurement, COM (2001) 566 final, 5, 11, 17, 19, 22; European Commission: Buying Social: A Guide to Taking Account of Social Considerations in Public Procurement (October 2010 7, 8, 10, 11, 15, 21, 35, 38, 48.

93 COM (2011) 15 final; see point 4 of the Green Paper.

94 See Proposal for a Directive of the European Parliament and of the Council on procurement by entities operating in the water, energy, transport and postal services sectors, COM (2011) 895 final; Proposal for a Directive of the European Parliament and of the Council on public procurement, COM (2011) 896 final.

95 Trepte, P, Regulating Procurement: Understanding the Ends and Means of Public Procurement Regulation (OUP 2006) 173Google Scholar.