Women on boards
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Women on boards Leyre Maiso Fontecha
© ERA 2013
1 Legal Framework Equality between women and men is one of the fundamental principles of EU law. It has been part of Union law since the signing of the Treaty of Rome in 1957. Since then, a considerable number of Directives have been adopted on matters such as equal treatment in employment and occupation, including self employment, health protection in the maternity context, parental leave or access to goods and services. EU equality law recognises the principle of positive action in Article 157(4) of the TFEU, which reads: “With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.” Similarly, Article 23 of the EU Charter of Fundamental Rights states: “Equality between women and men must be ensured in all areas, including employment, work and pay. The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex.”
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L. Maiso Fontecha ( ) Deputy Head of Section, European Private Law section, ERA Academy of European Law, Metzer Allee 4, 54295 Trier, Germany e-mail: [email protected]
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L. Maiso Fontecha
The aim of positive action is to achieve substantive, rather than formal, equality by reducing de facto inequalities which may arise in society and, thus, to prevent or compensate for disadvantages in the professional career of the persons concerned.1 Positive action measures can include equal opportunities plans, targets and quotas for promotion or recruitment, measures tending to facilitate vocational training for women, financial incentives, good practices rewards, etc. The Court of Justice of the European Union in its jurisprudence has dealt with different positive action measures and their compatibility with EU law. Although it is not easy to extract clear guiding principles from the case law, it is safe to say that one of the key rulings is that national laws which guarantee women absolute and unconditional priority in respect of appointments or promotion in sectors in which they are under-represented go beyond the limits of the exception allowed by EU law.2 The Court further explained in its Badeck judgment3 the conditions under which national quota systems are permissible: (a) they apply only when male and female candidates have equal qualifications; (b) they must contain a saving clause that allows to take account of specific personal situations of candidates from the “dominant group” and; (c) they must have a temporally limited application.
2 The Commission Proposal The debate on gender quotas has become increasingly present at European level4 as a means to address the lack of female participation in economic decision-making. According to EU
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