Advice from the Social and Economic Council (SER): potential diversity quota for supervisory boards of listed companies
According to the Dutch government, the increase in the proportion of women in top positions is lagging behind its objectives. In addition, the statutory gender diversity rule, whereby 'large' companies aim for at least 30% women and 30% men on their management and supervisory boards, will expire on 1 January 2020. The SER has now advised the Dutch government to take various measures, including a statutory gender diversity quota of at least 30% women and 30% men on the supervisory boards of listed companies.
Request for advice from the SER
On 28 June 2018, the Dutch government asked the SER for advice on which measures could enhance gender and cultural diversity in the top echelons of the business community.
Current gender diversity rule (30/30)
Under the current statutory gender diversity rule (section 2:166/267 of the Dutch Civil Code (DCC)), 'large' NVs and BVs[1] are required to strive for a balanced composition of their management and supervisory boards, to the effect that at least 30% of the positions on the boards are held by women and at least 30% by men. There is no legal sanction if the composition of a company's board is not balanced in accordance with the Act; an appointment contrary to these rules will therefore not be null and void. However, in such a case, the company must explain its non-compliance in its annual report. The explanation must include the reasons for non-compliance and the actions the company intends to take in order to comply in the future (section 2:391(7) DCC).
Statutory diversity quota
In its advice of 20 September 2019, the SER goes one step further and proposes a statutory diversity quota of at least 30% woman and 30% man in supervisory boards of listed companies[2]. Listed companies that have not yet achieved this 30% quota may only appoint a person of the under-represented gender in the event of a vacancy. If a new appointment does not make the male/female distribution more balanced, this appointment will be null and void, and the vacancy will remain open. The introduction of this nullity sanction means that from 2020 onwards, listed companies will have to take into account the proposed statutory diversity quota for each new appointment of a supervisory board member. No quota will be set for the management board and senior management.
Other measures of the SER
In addition to the statutory diversity quota, the SER proposes the following measures:
- Obligation for 'large' companies[3] to set 'ambitious' targets to promote gender diversity in the management and supervisory boards and senior management. These selfimposed targets are not without obligation: in the case of vacancies on a management or supervisory board without women, the SER states that, in principle, at least one woman must be appointed. In the event of deviations from the target figures, reasons must be given and accounted for. 'Large' companies should also draw up a plan for achieving this target, which is also reported on.
- The aforementioned gender diversity measures should also apply to the public and semipublic sectors.
- Attention to cultural diversity: companies should be more active in stimulating cooperation, improving the understanding of cultural diversity, increasing the visibility of culturally diverse, talent and improving transparency.
Government position
The Minister of Education, Culture and Science will respond to the advice of the SER and the Business Monitor (the Business Monitor Top Women 2019 was also published on 20 September 2019) during the course of this year. It is not yet known whether the Dutch government intends to introduce such a suggested statutory diversity quota.
Timing
The SER advises the government to introduce the 30% quota for supervisory boards of listed companies immediately, i.e. by 2020. At the moment it is not yet certain whether the legislator will introduce a quota. However, the entry into force of a new regulation on 1 January 2020 does not seem to be feasible in practice, now that the Minister has yet to respond to the advice of the SER. In any case, if a legal quota is introduced, we expect that it will not be implemented on 1 January 2020, but rather in the course of 2020.
We will keep you informed of the latest developments.
[1] A large NV or BV meets at least two of the three of the following requirements: a balance sheet total in excess of € 20 million; a net turnover in excess of € 40 million; an average number of employees during the financial year in excess of 250 or more (section 2:166/276(2) DCC).
[2] The SER follows the definition of a listed company under the Dutch Corporate Governance Code: i. all companies whose registered offices are in the Netherlands and whose shares, or depositary receipts for shares, have been admitted to trading on a regulated market or a comparable system; and ii. all large companies whose registered offices are in the Netherlands (balance sheet value > €500 million) and whose shares, or depositary receipts for shares, have been admitted to trading on a multilateral trading facility or a comparable system.
[3] See footnote 1.
