What does the Directive provide for?
Companies in scope
The Directive targets companies that have a particular economic importance, visibility and impact on the market. It applies to companies:
whose shares are admitted to trading on a regulated market in a Member State;
which have their registered office in a Member State; and
which are not micro, small or medium-sized enterprises (SMEs), defined as enterprises which employ less than 250 persons and have an annual turnover not exceeding EUR 50 million or an annual balance sheet total not exceeding EUR 43 million.
The Directive opts for the introduction of mandatory quotas to ensure a minimum representation of both genders on boards of listed companies.
Listed companies must be subject to one of the following objectives:
members of the underrepresented sex hold at least 40% of non-executive director positions; or
members of the underrepresented sex hold at least 33% of all (executive and non-executive) director positions.
If objective (a) is chosen, it must be accompanied by individual quantitative objectives with a view to also improving the gender balance among executive directors.
Listed companies which do not achieve the chosen objective must adjust their selection process. In addition, at the request of an unsuccessful candidate, they will have to inform him or her of the specific considerations tilting the balance in favour of the candidate of the overrepresented sex.
Listed companies must report annually on the gender representation on their boards, distinguishing between executive and non-executive director positions, the measures taken and, if applicable, the reasons for not achieving their objective.
Member States must provide effective, proportionate and dissuasive penalties, such as fines or the judicial annulment of an appointment decision contrary to the applicable provisions. The type of penalties is left to their discretion. Each Member State must also designate a body responsible for the promotion, analysis, monitoring and support of gender balance on boards.
Member States must transpose the Directive by 28 December 2024. Listed companies will have to reach the chosen objective by 30 June 2026. The Directive is then due to expire on 31 December 2038.
What is currently in place in Belgium?
Since the entry into force of the “quota” act of 28 July 2011 aimed at ensuring the presence of women on boards (the Quota Act), all Belgian listed companies are already subject to mandatory quotas, regardless of their size:
minimum one third of the members of the board of directors must be of different sex (one-tier system);
if the listed company has opted for a two-tier system with a supervisory board and a management board, minimum one third of the members of the supervisory board must be of different sex. No quota applies to the management board.
In their annual management report, listed companies must report on the efforts made to achieve the quota and more generally on their diversity policy applied to the members of the board of directors and the supervisory board but also to the management board, the other executives and the daily managers, as well as its results.
If the quota is not met, the next general meeting (or board of directors by co-optation) must remedy the situation. In the absence of remediation, two types of sanctions are provided:
nullity of subsequent appointments of directors of the overrepresented sex. The nullity must be declared by a court;
suspension of all (financial or other) benefits accruing to the directors (e.g. remuneration, stock options, benefits in kind, etc.) until the board composition is remedied.
What can Belgian listed companies expect from the Directive?
Reinforcement of quotas
The Belgian legislative landscape is already well advanced thanks to the Quota Act. It goes even further than the Directive in some respects, as it applies to all listed companies regardless of their size. Belgian listed companies have become familiar with mandatory quotas.
An important point of attention is that Belgian law makes no distinction between executive and non-executive director positions:
If Belgium chooses to target only non-executive directors when transposing the Directive, the one third (33%) quota will have to be raised to 40% and be accompanied by individual quantitative objectives to improve the gender balance among executive directors – at least for non-SMEs.
On the other hand, if Belgium wishes to maintain the one third (33%) quota, the latter will have to be extended to executive directors, and in particular the members of the management boards of non-SMEs.
On 8 September 2023, the Secretary of State for Gender Equality, Equal Opportunities and Diversity, Marie-Colline Leroy, announced her intention to both (i) tighten the rules to a minimum of 40% of each gender on boards and (ii) extend the quotas to executive committees of listed companies.
Regulated selection process
A second area for action should be the regulation of the process for selecting candidates for appointment to board positions, which is currently largely left to the discretion of the listed companies. In the future, this process will have to include the minimum steps set out in the Directive.
More effective sanctions?
Finally, Belgium could take advantage of the transposition of the Directive and the re-evaluation of the Quota Act scheduled for this year to review the sanctions applicable in the event of an invalid board composition. While statistics show that most listed companies comply with the current quotas, the application of the sanctions remains questionable. The remuneration reports included in the annual management reports of the few non-compliant companies generally make no mention of a suspension of the benefits granted to the directors. Moreover, the annulment of an appointment decision requires that legal proceedings be initiated. A greater role for the regulator could be envisaged in this respect, in addition to the body that Belgium will designate to monitor the gender balance on boards.
* Directive (EU) 2022/2381 of the European Parliament and of the Council of 23 November 2022 on improving the gender balance among directors of listed companies and related measures.