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Women on Company Boards: Equality Meets Subsidiarity

Published online by Cambridge University Press:  11 September 2019

University of Oxford


This article explores the justifications for, and objections to, the proposed European Union ‘women on company boards’ Directive. It notes that Member State opposition to the measure had different emphases. The new, post-socialist Member States that intervened prominently questioned the Commission's understanding of the underlying social reality of gender inequality and the measure's focus on results, while the old Member States that intervened raised mainly the issue of subsidiarity and challenged the need for legislative action, and/or particularly the need for legislative action at EU level. The article further argues that the Commission weakened its case by emphasising economic rationales for the measure, and submits that a principled justification fits the proposal better. Finally, the article argues that subsidiarity-related arguments are available also to justify non-cross-border, non-economic projects, such as that of gender equality.

Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge

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Shaw Foundation Fellow in Law, Lincoln College and Faculty of Law, University of Oxford. I would like to thank Cristina Chiva for a stimulating conversation at UACES conference in 2013, which originally sparked my interest in the role of subsidiarity in this area. I would like to thank the Jean Monnet and Hauser Global community at NYU for comments on the research project (September 2016), and the participants of the lunchtime seminar at the Cambridge Centre for European Legal Studies (November 2017) and the Oxford Socio-Legal Discussion Group (December 2017) for fruitful discussions of earlier versions of the article. I would also like to thank Sandra Fredman, Steve Weatherill, Kenneth Armstrong, Elena Brodeala, Mathias Möschel, and two anonymous reviewers for comments on earlier drafts, as well as Surabhi Shukla for research assistance, and Kalina Arabadjieva for careful editing at the final stage. The usual disclaimer applies. The article reflects the legal situation as of end of November 2018.


1 The full details of the Proposal and its journey through the legislative process can be found at

2 I thank Sandra Fredman for a useful conversation about the question of novelty.

3 COM (2008) 426 final, Proposal for a Council Directive on Implementing the Principle of Equal Treatment between Persons Irrespective of Religion or Belief, Disability, Age or Sexual Orientation, at A summary of the stage of adoption (stalled in Council) and the reasons for the objections to it are helpfully summarized by the European Parliament here:

4 In order to acknowledge the diverse domestic parliamentary structures, which are sometimes unicameral and sometimes bicameral, each Member State has two ‘votes’ in the process. Counted like this, out of the 56 votes available, 11 votes were ‘cast’ via a reasoned opinion: Czech Chamber of Deputies (1); the Danish Folketing (2); the Dutch Senate and House of Representatives (2); the Polish Sejm; and Senate (2); the Swedish Riksdag (2) and the UK's House of Commons and House of Lords (2). The communications are available on the website of IPEX (the platform for EU Interparliamentary Exchange), at

5 Czech Senate (1), Estonian Parliament (1), French Senate and National Assembly (2), Romanian Chamber of Deputies (1).

6 It has been reported that the proposal has been ‘blocked by Germany, the Netherlands and Sweden overs fears that Brussels was overreaching into domestic affairs. Hungary and Poland have opposed the move on ideological grounds’. D Boffey, ‘EU to Push for 40% Quota for Women on Company Boards’, The Guardian (20 November 2017), at

7 It was debated in the Council in June 2017. The legislative progress of the proposal can be tracked at For a more detailed analysis of the development, see eg Suk, J, Democratic Deficits and Gender Quotas: The Evolution of the Proposed EU Directive on Gender Balance on Corporate Boards (The Foundation for Law, Justice and Society 2014)Google Scholar.

8 I used the term ‘post-socialist’ to refer to the Central and Eastern European countries which emerged from state socialism in the last two decades of the twentieth century. When I speak of ‘post-socialist’ or ‘new’ Member States in this article, I refer to those whose parliaments expressed themselves on the Proposal (Czechia, Poland, Estonia, and Romania). The argument about the relative hostility of new, post-socialist Member States to gender equality, presented here, however, applies to them more widely. I do not elaborate here for reasons of space, but I have discussed this in greater detail elsewhere. See Havelková, B, Gender Equality in Law: Uncovering the Legacies of Czech State Socialism (Hart/Bloomsbury, 2017), esp pp 23Google Scholar and references therein.

9 Deborah Rhode has described the failure to recognize the seriousness of gender inequality as the ‘“no problem” problem’. She notices three patterns: (1) the denial of gender inequality; (2) the denial of injustice; and (3) the denial of responsibility. The latter two are prominent here. See Rhode, D, Speaking of Sex: Denial of Gender Inequality (Harvard University Press, 1997)Google Scholar. I have previously noted that all three are very prominently present in the Czech legal discourse: Havelková, Gender Equality, note 8 above, pp 113–16, 282–85.

10 In most post-socialist countries, there is no home-grown debate about tackling the gender imbalance. Initiatives have come neither from business nor from the government.

11 Some scepticism of legislative ‘quota’ was apparent also in a Report by the UK's House of Lords, which preferred a business-led model. It stated that they might ‘generate negative perceptions amongst women and business leaders and do not address the root causes of inequality’, but the Committee was very careful to stress that the perception that women on boards were not there by merit would be ‘entirely incorrect’. House of Lords, European Union Committee, Women on Boards, 5th Report of Session 2012–13 (HL Paper 58), pp 4, 27, at

12 See eg Fromage, D and Kreilinger, V, ‘National Parliaments’ Third Yellow Card and the Struggle over the Revision of the Posted Workers Directive’ (2017) 10 European Journal of Legal Studies 125Google Scholar; Wieczorek, I, ‘The EPPO Draft Regulation Passes the First Subsidiarity Test: An Analysis and Interpretation of the European Commission's Hasty Approach to National Parliaments’ Subsidiarity Arguments’ (2015) 16 German Law Journal 1247CrossRefGoogle Scholar.

13 Jančić, D, ‘The Game of Cards: National Parliaments in the EU and the Future of the Early Warning Mechanism and the Political Dialogue’ (2015) 52 Common Market Law Review 939, p 961Google Scholar.

14 Ibid, p 960.

15 To borrow Charles Beitz's terminology regarding human rights: Beitz, C, The Idea of Human Rights (Oxford University Press, 2009)CrossRefGoogle Scholar

16 Scholars of equality and anti-discrimination law often distinguish between ‘formal’ and ‘substantive’ equality. Formal equality emphasizes equal treatment, impartiality, and consistency and asks that decisions be made without regard to a specifically protected characteristic, such as sex. Substantive equality takes context into account, recognizing that the equal treatment of people unequally situated can lead to injustice. It includes measures that aim at equality of opportunity, resources or results. Havelková, Gender Equality, note 8 above, p 85 and references therein, esp Fredman, S, Discrimination Law (Oxford University Press, 2011), pp 2, 1419Google Scholar.

17 The fact that the question of competence in relation to the Proposal is contentious is exemplified not only by the reasoned opinions and comments submitted by national parliaments, but also by secondary literature which has examined it. For a view that the Proposal is in breach of conferral, subsidiarity and proportionality, see Szydlo, M, ‘Constitutional Values Underlying Gender Equality on the Boards of Companies: How Should the EU Put these Values into Practice?’ (2014) 63 International and Comparative Law Quarterly 167CrossRefGoogle Scholar. For a supportive stance, see Senden, L, ‘Getting Women on Company Boards in the EU: A Tale of Power-Balancing in Three Acts’ in Bodiroga-Vukobrat, N, Rodin, S, and Sander, G G (eds), New Europe - Old Values? (Springer International, 2016)Google Scholar.

18 Since all the documents are available on the IPEX website, note 4 above, I do not provide individual links when citing them below.

19 The Preamble makes clear its concern is with improving the representation of women, but the Articles of the Proposal use gender-neutral language.

20 See eg L Senden and M Visser, ‘Balancing a Tightrope: The EU Directive on Improving the Gender Balance among Non-Executive Directors of Boards of Listed Companies’ (2013) European Gender Equality Law Review 17, pp 18–20. Unsurprisingly, greatest gains world-wide have recently been made in Western Europe, in connection with various forms of regulation of women's representation. Egon Zehnder International, 2016 Global Board Diversity Analysis (2017), at

21 Small and medium-sized enterprises (SMEs) are determined by the combined criteria of staff headcount and either turnover or balance sheet total. The 2012 Proposal would only apply to companies with more than 250 employees with a turnover of over 50 million EUR and a balance sheet total over 43 million EUR. For the definition of SMEs, see Commission Recommendation of 6 May 2003 concerning the definition of micro-, small-, and medium-sized enterprises (Text with EEA relevance) (notified under document number C(2003) 1422).

22 This is language employed by the European Commission in its letter to Denmark's Folketing from 17 July 2013, in reaction to its reasoned opinion.

23 Under the Commission version of the Proposal, this was entirely the case. The EP added a requirement of transparent and open procedures and obliged the Member States to react to the failure to implement them, by at least excluding them from public calls for tenders and partial exclusion from the funding from Union's Structural Funds. See Suk, note 7 above, p 7.

24 See esp Marschall v Land Nordrhein-Westfalen, C-409/95, EU:C:1997:533; since the Proposal is based on Art 157, which allows action to be taken in the areas of employment and occupation, it had to abide by the case law of the CJEU on positive action in the area employment.

25 For how a ‘tie-break’ fits in with other types of positive action, see McCrudden, C, ‘A Comparative Taxonomy of “Positive Action” and “Affirmative Action” Policies’ in Schulze, R (ed), Non-Discrimination in European Private Law (Mohr Siebeck, 2011)Google Scholar.

26 Art 4(3) Commission Proposal; Art 4(1) EP Proposal.

27 Contained in Arts 2–3 TEU.

28 In most post-socialist countries, there is no home-grown debate about tackling the gender imbalance. Initiatives have come neither from business nor from the government.

29 The percentage of women among university graduates rose from 20% in 1950 to 34% in 1960 and to 44% in 1987. Wolchik, S L, ‘Ideology and Equality’ (1981) 13 Comparative Political Studies 445, p 449CrossRefGoogle Scholar. For a more general discussion of the situation of Czechoslovak women during state socialism, see Havelková, Gender Equality, note 8 above.

30 Arguably, her book only came after the deadline for national parliament's reasoned opinions, but the research which informed the debate on barriers to women's entry had existed for years before then. Sandberg, S, Lean In: Women, Work, and the Will to Lead (Alfred A Knopf, 2013)Google Scholar.

31 A helpful summary and links to the original research are presented in T S Mohr, ‘Why Women Don't Apply for Jobs Unless They're 100% Qualified’, Harvard Business Review (25 August 2014), at

32 A good summary of the research by Hannah Riley Bowles is available in M Konnikova, ‘Lean Out: The Dangers for Women Who Negotiate’, The New Yorker (20 June 2014), at

33 Mohr, note 31 above.

36 The text, somewhat confusingly, uses both the word exekutivní (which is more apt for executive boards) and dozorčí (which is the name for non-executive boards).

37 Czech Chamber of Deputies, p 7.

38 Managerial experience in the governmental or non-governmental sector, over for-profit, might be an example.

39 I thank Elena Brodeala for the translation of this text from Romanian.

40 Estonian Parliament.

41 Czech Chamber of Deputies, p 7.

42 The ‘taste-based’ economic model of labour market discrimination, first introduced by Gary Becker, suggests that employers are willing to pay a financial penalty to discriminate. Becker himself, however, believed that markets can eventually eliminate these distortions to create an equilibrium. Newer research shows that this only partially explains inequalities in the labour market, but confirms that markets can operate without eliminating irrational discriminatory practices. International Encyclopedia of the Social Sciences, ‘Discrimination, Taste For’, at

43 Czech Chamber of Deputies, p 7.

44 Estonian Parliament.

45 Oxford Living Dictionaries, ‘Quota’, at

46 McCrudden, note 25 above, pp 164–65.

47 Nor were/are the provisions of the other equality directives.

48 Decision of the Constitutional Court of the Slovak Republic of 18 October 2005, Ref No Pl.ÚS 8/04-202, published as No 539/2005 Coll. For a discussion, see Havelková, B, ‘Burden of Proof and Positive Action in Decisions of the Czech and the Slovak Constitutional Courts – Milestones or Mill-Stones for Implementation of EC Equality Law?’ (2007) 32 European Law Review 686Google Scholar. Slovakia is not the only country where the compatibility of positive action was challenged as incompatible with the constitutional principle of equality. The French Constitution needed to be amended for that purpose and in Germany, concerns were raised about the compatibility of quota with not just the right to equality, but the right to property and freedom of association. See Senden, note 17 above, p 85 and references therein.

49 Using the concept of gender—and promoting the fight against gender stereotypes—could get rid of the problem of choosing one sex as addressee or pretending both are equally disadvantaged. But that is not the current state of the text.

50 By ‘indirect’ I mean a situation where the predominance of women is not the consequence of using the criterion of sex directly, but it is a result of application of other criteria or even self-selection. While the direct use of sex would be precluded in all situations, its indirect use—where there are in effect more or only women—can be justified. The latter has been termed ‘indirect affirmative action’, see eg Sabbagh, D, ‘The Rise of Indirect Affirmative Action. Converging Strategies for Promoting “Diversity” in Selective Institutions of Higher Education in the United States and France’ (2011) 63 World Politics 470, p 472CrossRefGoogle Scholar.

51 I detail this on the example of the Czech Republic in Havelková, Gender Equality, note 8 above, pp 225–38.

52 Ibid, pp 243–67.

53 See note 48 above; for a discussion, see ibid, pp 268–71.

54 CCC Decision of 26 April 2006, Ref No Pl.ÚS 37/04, published as No 419/2006 Coll. Unlike in the Slovak case, the provision was not invalidated. I have argued elsewhere, that this was more for reasons of the binding nature of the relevant EU directive rather than because of a more substantive understanding of equality. See Havelková, ‘Burden of Proof and Positive Action’, note 48 above.

55 I have shown elsewhere that gender equality law in Czechia faces serious intellectual and conceptual difficulties, which are at least partly path-dependent on state socialism. These include an essentialist understanding of the differences between men and women (which socialist states never challenged), a notion that equality and anti-discrimination law is incompatible with freedom (a strong, absolutist, neo-liberal narrative of freedom having emerged in reaction to state socialism), and a perception that existing laws are objective and neutral, while any new gender-progressive regulation of social relations is an interference with the ‘natural social order’ (a critical, constructivist, post-structuralist, paradigmatic turn not having happened in social sciences in the region) and an unacceptable ‘social engineering’ (transformative use of law being rejected as ‘communist’). See Havelková, Gender Equality, note 8 above.

56 Aside from Art 157(4) TFEU, positive action has also been recognized in Art 23(2) Charter.

57 Halberstam, D, ‘Comparative Federalism and the Role of the Judiciary’ in Caldeira, G A, Kelemen, R Daniel, and Whittington, K E (eds), The Oxford Handbook of Law and Politics (Oxford University Press, 2008), p 153Google Scholar. See also Irene Wieczorek who identifies three criteria for the allocation of power: performance, normative, and political values. Wieczorek, I, ‘The Principle of Subsidiarity in EU Criminal Law’ in Brière, C and Weyembergh, A (eds), The Needed Balances in EU Criminal Law. Past, Present and Future (Hart Publishing, 2017)Google Scholar.

58 Halberstam, note 57 above, p 154.

59 Ibid, p 154.

60 Ibid. This is supported by the examination of the travaux préparatoires, carried out by Irene Wieczorek. She notes that the subsidiarity principle has always been understood as a ‘comparative efficiency test’. Wieczorek, ‘The Principle of Subsidiarity in EU Criminal Law’, note 57 above, p 79.

61 Halberstam, note 57 above, p 154.

62 It is perhaps worth adding that since this is an area of shared competence, the concrete aims of the EU and the Member States can be different. Beyond what the EU requires, the objecting Member States can pursue their own understanding of gender equality. But having that different domestic understanding does not negate or undermine the EU's own.

63 Czech Senate.

64 Deutsches Weintor v Land Rheinland-Pfalz, C-544/10, ECLI:EU:C:2012:526, para 54 (emphasis mine). See also Lidl v Freistaat Sachsen, C-134/15, ECLI:EU:C:2016:498, relating to the protection of health and consumer protection respectively.

65 Art 4 (1, 3, 4, 5).

66 Author's translation.

67 Emphasis mine.

68 For example, the first ever Council Directive, 75/117/EEC on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women [1975] OJ L045/19, was based on then Art 100 EEC, now Art 115 TFEU.

69 Eg Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions [1976] OJ L039/40.

70 See, similarly, Senden, note 17 above, p 88.

71 Ibid, p 90. Moreover, as she points out, and as the Commission noted in its response to the Polish Sejm, the CJEU has not excluded the possibility that board members might be ‘workers’. See Danosa v LKB Līzings SIA, C-232/09, ECLI:EU:C:2010:674.

72 Senden, note 17 above, pp 89–90.

73 Ibid, p 90.

74 See also Suk, note 7 above, p 7. This would require finding an anchor competence elsewhere in the Treaty. The EU is active in the area of corporate governance, mainly in order to facilitate freedom of establishment (see esp Art 50(2) TFEU). It is worth noting that this might not mean the reintroduction of internal market logic into the Proposal, since the question of ‘scope’ of competence and the subsequent use of Art 19 TFEU are separate.

75 Ibid, p 92 and references therein.

76 This is a known problem for anti-discrimination law: in order to only do what is necessary, or to ‘narrowly tailor’ in the terminology of the United States, institutions minimize the use of a protected characteristic. This can also minimize the effects of the measure, which can then lead to the measure being considered ineffective and thus unjustified. Discussing the US desegregation case Parents Involved in Community Schools v Seattle School District No 1, 551 US 701 (2007), especially Justice Roberts's speech, Sumi Cho noted that this constitutes a catch-22, ‘where a narrowly tailored remedy is invalidated because compliance thereto will almost always fail to be the most effective remedy, while a failure to narrowly tailor is always invalidated’. Cho, S, ‘Post-Racialism’ (2009) 94 Iowa Law Review 1589, p 1619Google Scholar. I thank Mathias Möschel for a helpful discussion on this topic.

77 Art 5(3) TEU.

78 ‘[W]e do not consider that the Commission has provided sufficient qualitative and quantitative substantiation of the necessity for action at EU level, given that a number of Member States have already taken measures to increase the presence of women on corporate boards. This omission, the House of Commons submits, is a failure on behalf of the Commission to comply with essential procedural requirements in Article 5 of Protocol (No 2)’.

79 I am, of course, not the first person to classify the normative aims underlying either positive action more generally, or measures targeting gender inequality on company boards specifically. For the former, positive action more generally, Chris McCrudden identified six aims used in different jurisdictions: (1) helping to prevent current discrimination and stereotyping; (2) compensation for past discrimination; (3) egalitarian/redistributive argument; (4) identity and recognition; (5) diversity; and (6) social cohesion. McCrudden, note 25 above, pp 166–69. Linda Senden and Goran Selanec, drawing on reports by EU Member States, identify three goals of positive measures at the domestic level: (1) to improve the ability of the disadvantaged group to compete for the available opportunities; (2) to limit the negative effects on women's position in the labour market of the unequal distribution of responsibilities in the family; and (3) to ensure the balanced representation of men and women in bodies with significant decision-making powers. Selanec, G and Senden, L, Positive Action Measures to Ensure Full Equality in Practice between Men and Women, including on Company Boards (European Commission, 2011), pp 6-7Google Scholar. For the latter, the Proposal itself, three aims are typically identified: (1) a business case; (2) a democratic rationale; and (3) an individual human rights rationale. See eg Senden, note 17 above, p 83.

80 On a shift to democracy, see Rubio-Marin, R, ‘A New European Parity-Democracy Sex Equality Model and Why It Won't Fly in the United States’ (2012) 60 The American Journal of Comparative Law 99CrossRefGoogle Scholar. As for a shift from an economic to social to fundamental-rights understanding, the story is well-known. Equality and anti-discrimination law began with market-making aims, with the original requirement of equal pay being introduced to level the playing field for France, which already had such a provision, as documented and discussed in Barnard, C, ‘The Economic Objectives of Article 119’ in Hervey, T and O'Keeffe, D (eds), Sex Equality Law in the European Union (Wiley, 1996), pp 321–34Google Scholar; More, G, ‘The Principle of Equal Treatment: From Market Unifier to Fundamental Right’ in Craig, P and de Burca, G (eds), The Evolution of EU Law (Oxford University Press, 1999)Google Scholar. The social aims of the provision were recognized in the mid-1970s by the Court in Defrenne v Société anonyme belge de navigation aérienne Sabena (Defrenne II), C-43/75, EU:C:1976:56. Two decades later they were unambiguously identified as primary in Deutsche Telekom AG v Schröder, C-50/96, EU:C:2000:72, para 57. The right to equality and non-discrimination has also been recognized as a fundamental right, both judicially in Defrenne III, C-149/77, EU:C:1978:130, para 26 and at the constitutional/Treaty level through the adoption of Arts 20, 21, and 23 Charter of Fundamental Rights of the European Union.

81 Eg Ruth Rubio-Marin, looking at the EU and the domestic level of Member States, shows and commends the shift from a narrower anti-discrimination law frame of sex/gender equality to one focusing on disempowerment—the ‘parity democracy sex equality model’. Rubio-Marin, R, ‘A New European Parity-Democracy’ (2012) 60 The American Journal of Comparative Law 99Google Scholar.

82 Art 2 TEU, among others. Arguably, another EU fundamental value which could be used to normatively underpin the Directive was ‘social market economy’, Art 3(3) TEU. Marek Szydlo makes this point, emphasising in particular that it is democratic governance and stakeholder participation in corporate decision making which could be emphasised under this rubric. Szydlo, note 17 above, pp 181–84.

83 Suk, note 7 above, p 5.

84 Rec 10. Suk interestingly notes that the greater democratic legitimacy of big European corporation would indirectly promote greater democratic legitimacy of the EU itself, because of their involvement as social partners in EU's own decision making. Suk, note 7 above, pp 5–8.

85 Citing Arts 2, 3(3) TEU.

86 Considering the Commission then spent at least twelve recitals on documenting economic arguments (Recs 4–16), the fundamental rights sections of the Preamble can feel somewhat anaemic by comparison.

87 This typology is also identified in Szydlo, note 17 above, pp 173–75.

88 Rec 5. From ‘knowledge’ onwards, the text was added by the EP. See also Rec 7.

89 Rec 8.

90 Rec 8. See also Rec 9.

91 For a similar point, in the US context and in relation to race, see L M Fairfax, ‘The Bottom Line on Board Diversity: A Cost-Benefit Analysis of the Business Rationales for Diversity on Corporate Boards’ (2005) Wisconsin Law Review 795.

92 This was noted by several national parliaments, most comprehensively by the House of Lords. European Union Committee, ‘Women on Boards’, note 11 above.

93 Some research has shown that quota might have not just negative results but also other possible, unintended negative effects. Monika Leszczynska offered a survey of experimental social-psychology literature which indicates that quota can have both a negative effect on perception by colleagues as well as self-perception of female beneficiaries. Leszczynska, M, ‘Mandatory Quotas for Women on Boards of Directors in the European Union: Harmful to or Good for Company Performance?’ (2017) 19 European Business Organization Law Review 35, p 44Google Scholar.

94 N Smith, ‘Gender Quotas on Boards of Directors. Little Evidence that Gender Quotas for Women on Boards of Directors Improve Firm Performance’ (May 2014), p 1, at

95 Ibid, p 1.

96 Rhode, D and Packel, A, ‘Diversity on Corporate Boards: How Much Difference Does Difference Make?’ (2014–2015) 39 Delaware Journal of Corporate Law 377, p 377Google Scholar.

97 Suk, note 7 above, p 3 and references therein.

98 Rosenblum, D and Roithmayer, D, ‘More than a Woman: Insights into Corporate Governance after the French Sex Quota’ (2015) 48 Indiana Law Review 889, p 889CrossRefGoogle Scholar.

99 These four different criteria were put forward by Rhode and Packel, note 96 above.

100 The definition of ‘success’ itself can vary by country and by research question of the individual studies.

101 Leszczynska, note 93 above. For a sceptical view of the Commission's aims, see also Szydlo, note 17 above.

102 Notably in the House of Lords. European Union Committee, ‘Women on Boards’, note 11 above. This report was not part of the House of Commons’ submission under the Subsidiarity Protocol, but the overall findings were reiterated in its reasoned opinion.

103 Elomäki, A, ‘The Economic Case for Gender Equality in the European Union: Selling Gender Equality to Decision-Makers and Neoliberalism to Women's Organizations’ (2015) 22 European Journal of Women's Studies 288, passim, esp p 294Google Scholar.

104 Ibid, p 295 ff.

105 In 2013, Helle Thorning-Schmidt's government adopted a law which required approximately 1,400 of Denmark's largest companies to set targets for the percentage of women on boards. In 2017, 26% of board-members in Denmark were female. B Hamilton, ‘Danish Female Board Member Numbers Soar without the Need for Quotas’, CPH Post Online (19 January 2917), at

106 Thirty percent is often cited in literature as the ‘critical mass’ when an organizational culture starts to shift. See discussion in House of Lords. European Union Committee, ‘Women on Boards’, note 11 above, pp 17–19.

107 Notably, NL, UK, Sweden, and Poland. Interestingly, this included France. Their domestic measures conformed to the Proposal's requirements (statutory target of 40%), but the French Senate expressed worries about the procedural obligations under the Proposal.

108 A very similar point was made by the Netherlands legislatures.

109 This was reiterated in several response letters to the national parliaments, including the one to the Danish Folketing, from which I cite.

110 Response letters to the Danish Folketing.

111 COM(2012) 614 final, Proposal for a Directive of the EP and of the Council on Improving the Gender Balance among Non-executive Directors of Companies Listed on Stock Exchanges and Related Measures, p 9.

112 Commission's response to the Houses of Parliament of the Netherlands.

113 Willingness as a consideration is mentioned by eg G De Burca, ‘Reappraising Subsidiarity's Significance after Amsterdam’ (Harvard Jean Monnet, 1999) Working Paper 4, at

114 See, similarly, Wieczorek, ‘The Principle of Subsidiarity in EU Criminal Law’, note 57 above, p 87.

115 Especially since one can point to burgeoning self-regulation in some Member States, one can challenge the narrative of market failure and of the need for regulation.

116 Barnard, note 80 above, pp 321–34.

117 House of Commons. European Scrutiny Committee, Thirty-Third Report of Session 2012–13 (23 February 2013), at A similar, but briefer, point was incorporated into its reasoned opinion.

118 Commission's Explanatory Memorandum to the Proposal.

119 The Senate and House of Representatives of the Netherlands in their joint statement, the Swedish Riksdag, both UK Houses of Parliament.

120 Some countries do and some do not distinguish between an executive and non-executive board. This variety in domestic corporate structure was for some, eg the Czech Chamber of Deputies, in itself a subsidiarity argument against the measure.

121 At the same time, it could be argued that this minimal intrusion goes some way to fulfil the requirement of proportionality.

122 The CJEU has yet to invalidate a measure on its basis.

123 Only three have been issued so far.

124 For a summary of the three yellow card cases, see Fromage and Kreilinger, note 12 above.

125 For a critical look at the case law, see eg Weatherill, S, ‘The Limits of Legislative Harmonisation Ten Years after Tobacco Advertising: How the Court's Case Law Has Become a “Drafting Guide”’ (2011) 12 German Law Journal 827CrossRefGoogle Scholar.

126 The proposal was based on the specific competence within right to establishment (Art 53(1) TFEU). COM(2016) 0128 final, Proposal for a Directive of the EP and Council Amending Directive 96/71/EC Concerning the Posting of Workers in the Framework of the Provision of Services, at For a discussion, see Fromage and Kreilinger, note 12 above.

127 Öberg, J, ‘Subsidiarity and EU Procedural Criminal Law’ (2015) 5 European Criminal Law Review 19CrossRefGoogle Scholar.

128 Wieczorek, ‘The Principle of Subsidiarity in EU Criminal Law’, note 57 above, p 80.

129 COM (2013) 534 final, Proposal for a Council Regulation on the establishment of the European Public Prosecutor's Office, at

130 Council Regulation (EC) No 2157/2001 of 8 October 2001 on the Statute for a European company (SE) [2001] OJ L294/1.

131 Arguably, the yellow card troubles with the EPPO were down to very poor effort by the Commission to make the case for subsidiarity, rather than the case being a difficult one to make. Fromage and Kreilinger, note 12 above, p 132. For a detailed analysis, see Wieczorek, ‘The EPPO Draft Regulation’, note 12 above.

132 Besson, S, ‘Subsidiarity in International Human Rights Law—What is Subsidiary about Human Rights?’ (2016) 61 The American Journal of Jurisprudence 69, p 69CrossRefGoogle Scholar.

133 Ibid, pp 79–83.

134 Ibid, p 94.

135 Ibid.

136 Nine out of 28 Commissioners are women, ie 32%. The EU average is currently around 30%. While some countries, such as France, have legally mandated 50% parity, in many countries, the proportion of women is considerably lower (Hungary is currently at only 7%). As for the European Parliament, 36% of MEPs were women in 2018, while the national average is around 30% here too. See charts available at European Institute for Gender Equality, Gender Statistics Database, Women and Men in Decision Making (Politics), at

137 For a discussion, relating to the Czech case, see eg Havelková, Gender Equality, note 8 above, pp 277–78.

138 Ibid, pp 225–76.