Article 21 of the EU Charter of Fundamental Rights, which is legally binding on all Member States under Article 6 of the TEU states that “[A]ny discrimination on the basis of sex…shall be prohibited.”  Recently, European Union institutions have had an opportunity to demonstrate their thoughts regarding the limits of Article 21 through the discussion of legislation proposed by the European Commission that would require gender quotas for all boards of publicly held companies in the European Union.  Viviane Reding, European Commission Vice President and Commissioner for Justice and Fundamental Rights initially proposed legislation that would require 40% of all publicly listed boards to be made up of women by 2020.

This goal of Reding’s proposal is to address the implied problem with regard to gender diversity in decision-making positions in the EU.  Currently in the EU, women make up only 12% of the boards of publicly traded companies even though 60% of university graduates are women. The implication that arises from these statistics is that gender discrimination is taking place in companies that promote significantly more men to top positions than women, in spite of the large body of women who are qualified.  Such gender discrimination is prohibited under Article 6 of the TEU, and under Reding’s rationale gender quotas would serve to level the playing field for women to gain access to decision- making positions.

While one may be tempted to think that support for this legislation would be divided down gender lines, there has not necessarily been such gender stratification regarding support for this bill.  For instance, Jose Manuel Barrosso, the head of the European Commission, made the decision to postpone a vote on the legislation that, if he had not postponed the vote until November, would have effectively doomed the passage of the bill.  Reding stated that she had support of the main finance commissioners themselves, including Barrosso, Joaquin Almunia, Laszlo Andor, Michel Barnier, Andris Piebalgs, Olli Rehn and Antonio Tajani, who all backed “an ambitious directive.”

On the opposing side, a number of female commissioners opposed the bill. Additionally, Luxembourg MEP Astrid Lulling explained that she was opposed because she thought candidates should be judged based on competency, not gender. She said that many countries, particularly in the Nordic region, had had problems with the quota system.  She cited instances of abuse, circumvention of national gender quota laws, and the fact that in decades past, many women did not study subjects such as economics, business administration or mathematics, which explains why there are fewer women in high-level business positions today.

An equally noteworthy debate was present in the European Parliament’s vote on the European Central Bank’s board nominee, Yves Mensch.  The European Parliament voted against Mensch’s nomination 325 to 300, on the grounds that that a woman should hold a post on what is currently an all-male board.  The European Parliament does not have the power to block Mensch from being appointed, but his rejection by the only EU institution that is elected by popular vote sends a strong message of disapproval to the European Council, the body that is ultimately in charge of filling the post.  Both the European Central Bank nomination rejection and the Commission’s gender quota bill indicate that there is a clear concern in European institutions for women to be part of decision-making bodies in Europe.  The question remains, however, as to how to best achieve this goal.

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