I. INTRODUCTION
In 2012, the European Commission presented a proposal of the Directive ‘on improving the gender balance among non-executive directors of companies listed on stock exchanges and related measures’ (‘Proposal’).Footnote 1 The Proposal is novel, interesting, and controversial for several reasons.Footnote 2 Firstly, although not prescribing a hard quota, it arguably adopts a results-oriented approach to equality, which opens the question of what understanding of equality can be said to inform it. Secondly, it enters into a complex field of corporate governance that challenges the harmonisation project due to the very varied national structures. Thirdly, it moves beyond the field of employment, which—considering its legal basis (Article 157 Treaty on the Functioning of the European Union (‘TFEU’))—raises constitutional questions of competence and subsidiarity. Finally, it comes against the background of the stalled proposal to extend the prohibition of discrimination on the basis of religion or belief, disability, age, or sexual orientation beyond the labour market,Footnote 3 which leads to the question of why the Commission went ahead with this Proposal.
The Proposal met with considerable opposition. By the deadline in January 2013, eleven domestic chambers sent reasoned opinions,Footnote 4 and a further five sent comments.Footnote 5 This falls short of the requirement of a third of national parliaments to express concerns over compliance with the principle of subsidiary, necessary for triggering the ‘yellow card’ mechanism under the Subsidiarity Protocol, but it shows a reasonable amount of push-back. The Proposal also lacked persuasive support in the Council.Footnote 6 Having been approved by the European Parliament at first reading, the Proposal is awaiting the first reading position of the Council.Footnote 7 Whether or not the Directive gets adopted, the discussion it has generated—on the interaction between, on the one hand, the EU's aims and values of gender equality, and on the other hand, the constitutional demands of the EU's multi-level system, in particular the principles of conferral, proportionality, and especially subsidiarity—is worth critically examining.
The article asks two questions. First, on what grounds did the Member States object to the Proposal? Were their objections about subsidiarity or were they substantive in nature, challenging specific aspects of the measure or even the project of gender equality more generally? Second, as far as subsidiarity is concerned, do the Member States’ objections indicate an in-built incompatibility between subsidiarity and non-cross-border, non-economic projects, such as that of gender equality?
Answering the first question, I note that different Member States had different emphases. The four new, post-socialist Central and Eastern European (‘CEE’) Member States whose national parliaments submitted reasoned opinions or comments—the Czech Republic, Poland, Estonia, and Romania—aside from raising other objections, appeared to prominently and emphatically disagree with some of the fundamental premises of EU anti-discrimination law, especially as far as the underlying social reality is concerned, as well as the measure's focus on results.Footnote 8 The five old Member States whose chambers submitted reasoned opinions or comments—Denmark, France, Netherlands, Sweden, and the UK—primarily focused on subsidiarity and challenged Commission evidence that action at domestic level was insufficient and EU-level action was required. In the new Member States’ understanding, there are not enough women who are good enough for company boards and inequality is a consequence of women's life choices—notably motherhood—and markets naturally push companies toward meritocracy. Any inequality is thus perceived as natural or justified, and law should therefore not do anything about itFootnote 9—neither domestically,Footnote 10 nor at EU level. The new Member States were also critical of any measure focusing on results, viewing it as discriminatory.
Most of the five old Member States raising objections accepted the existence of structural obstacles to the advancement of women and their injustice. These Member States did not challenge the assertion that an intervention might be appropriate. Rather, the disagreement between the Commission and these old Member States was rather mainly about the exact form that legislative action should take,Footnote 11 whether legislative action is necessary (or self-regulation suffices), and whether there is need for legislative action at the EU level.
It is perhaps worth noting from the get-go that my concern is not about the fact that the new Member States used the Subsidiarity Protocol for a political and policy debate rather than merely to address the ‘technical’ question of subsidiarity. This use of the Subsidiarity Protocol for contestation of legislative substance has been a wider trend.Footnote 12 Based on his analysis of the ‘yellow card’ procedures in other areas, Davor Jančić has noted that ‘subsidiarity appraisals have de facto evolved into wholesome probes of EU legislative proposals’.Footnote 13 This development is arguably welcome, since it allows national parliaments to use their ‘most central competences: the rendering of political judgement about the preferences and interests to be upheld by law’.Footnote 14
Instead, the point is that in relation to the debate around gender equality, the disagreement—coming from post-socialist Member States does not seem to be ‘within the practice’ but rather ‘about the practice’.Footnote 15 At least some of their objections pose a more fundamental challenge to the ‘common value’ and central aim of equality between men and women, in particular to a more substantive understanding of equality.Footnote 16 The Commission did not seem to realize that the Proposal might have needed two different conversations: one on corporate governance, mainly with the old Member States, and one on gender equality, mainly with the new ones.
In response to the second question, I note that rather than justify the measure first and foremost in terms of the EU's aims and values of equality of men and women, the Commission focused on providing economic rationales for the Proposal. It used this to justify regulatory intervention per se, by claiming that the measure will improve financial performance, as well as to justify regulatory intervention at the EU level, by using internal market logic to highlight cross-border difficulties caused by divergent rules. I observe that neither is a fit for the Proposal. The measure's aim is much better understood as value-based and principled, focusing on increasing women's participation in economic decision making. Furthermore, I argue that the Commission could have shown that the demands of subsidiarity could be met, even admitting that the measure primarily sets minimum domestic standards. I argue that while the wording of Article 5(3) Treaty on European Union (‘TEU’), notably ‘scale and effects’, might at first sight appear to favour cross-border and economic justifications, this is not the case.
Since the Proposal also falls within the EU's fundamental rights competence, I also tentatively assess whether there are specific subsidiarity considerations for such measures. I note that the international human rights law understanding of subsidiarity is not helpful in determining EU subsidiarity. The former only looks at the role of courts and a review of failure rather than standard-setting, which leads to a conclusion about a very limited role for action at the international level. The EU, on the other hand, was specifically given the power to act via legislation. Moreover, one of the reasons advanced for the limited role of the international level—democratic legitimacy of the domestic level—seems to be particularly weak when speaking about fundamental rights, which are counter-majoritarian in nature; and in particular equality and anti-discrimination rights, which specifically have as their aim the improvement of the situation of disadvantaged minorities.
The article thus contributes to an existing literature on subsidiarity and the Proposal in two ways.Footnote 17 First, it offers a more detailed analysis of the content of the national parliaments’ objections, especially those coming from some of the post-socialist countries which question the EU's approach to gender equality. Second, it presents a more normative analysis of how to substantiate the subsidiarity of measures beyond cross-border situations.
The article's organisation follows the five types of objection raised by national parliaments,Footnote 18 relating to: equality (Part II); right to ownership and freedom of enterprise (Part III); legal basis (Part IV); proportionality (Part V); and subsidiarity (Part VI). The final Part (VII) considers what lessons can be learned about EU intervention in this field.
II. EQUALITY
A. The proposal
Although it refers to the ‘under-represented sex’,Footnote 19 the Proposal aims to increase the participation of women in economic decision making, which has seen almost no improvement in recent years.Footnote 20 The Proposal sets a minimum objective of a 40% presence of the under-represented sex among the non-executive directors in companies listed on stock exchanges which are not of small or medium size.Footnote 21 It requires the companies not fulfilling the 40% level to introduce pre-established, clear, neutrally formulated, and unambiguous selection criteria for these positions, in order to achieve the 40% level by 1 January 2020. According to the Commission, the Proposal thus creates an ‘obligation of means’ rather than of a ‘target to attain’.Footnote 22 In other words while an ultimate desired result is stated, the Directive does not create an obligation as to results. The sanctions for non-fulfilment are mostly left to Member States.Footnote 23 Following the Court of Justice of the European Union's (‘CJEU’) restrictive case law on positive action,Footnote 24 which only accepts ‘tipping point’ or ‘tie-break’ measures,Footnote 25 the Proposal only allows ‘priority [to be] given to the candidate of the under-represented sex if that candidate is equally qualified …, unless an objective assessment, taking account of all criteria specific to the individual candidates, tilts the balance in favour of the candidate of the other sex’.Footnote 26
The Proposal thus has limited scope in terms of companies covered, and presents a reasonably light-touch regulation, since much is left to companies and the Member States. And considering the emphasis on process over target, as well as the limited ‘tie-break’ preference it allows for, it is a very mild way of pushing for greater representation of women in economic decision making. Despite this, many post-socialist Member States objected to it, not primarily for reasons of subsidiarity, but mainly because of a more fundamental disagreement with such a gender equality project.
B. National parliaments’ objections
The new Member States whose parliamentary chambers intervened on the Proposal challenged both the problem—insufficient representation of women being unjust and discriminatory, rather than just a fact of life—as well as the solution—a results-oriented approach—and with it, certain facets of the EU's understanding of its avowed central value and aim of equality between men and women.Footnote 27
1. The problem
As for understanding the problem, in the views of some of the new Member States—exemplified below especially by the Czech position—there are not (yet) enough women who are good enough for company boards; the inequality is a consequence of women's life choices—notably motherhood—and, therefore, justified. Combined with a belief that merit is defined and applied gender-neutrally, this leads them to conclude that regulation is not needed—neither domestically, nor at EU level. Footnote 28 These points are now examined in detail.
In its reasoned opinion, the Czech Senate highlighted ‘the high age of supervisory board members’, which is then related to ‘the absence of women in those segments of senior management of companies, from which members of supervisory boards are generally recruited’. This comment is interesting coming from a post-socialist country where the numbers of women university graduates surpassed the 40% mark in the 1980s.Footnote 29 But the importance of this comment is conceptual. Taken together with the following observation, that because of motherhood, women ‘lag behind men in their career development’, it shows an easy acceptance of sex inequality as a fact of life. The Senate shows that it does not consider inequalities between the sexes an injustice. It also omits to consider the barriers women face irrespective of whether or not they are mothers.
When the Senate then says that ‘legislative initiatives of the European Commission should primarily focus on removing barriers that prevent women from realizing their full potential in our society’, they show a lack of understanding that, especially limited ‘tie-break’ positive measures, can do exactly that. Sheryl Sandberg's book Lean In Footnote 30 popularised a piece of research which showed that men apply for a job when they meet only 60% of the qualifications, but women apply only if they meet 100% of them.Footnote 31 Sandberg herself identified this as a lack of confidence. This has been criticized for not sufficiently recognizing that even when women overcome their lack of confidence, they can be punished for having it: research has shown that women who initiated negotiations for higher compensation were penalized more than men.Footnote 32 Others have pointed out that the low number of women is in part due to their lack of understanding of how hiring processes really work.Footnote 33 Women are socialized to believe that there is a need to respect rules and also to believe in the importance of formal qualifications over advocacy and networking.Footnote 34 Moreover, ‘men are often hired or promoted based on their potential, women for their experience and track record’, and research suggests that women's failures are remembered longer than men's.Footnote 35
This shows that the barriers consist of a combination of external factors—women are subject to a different standard—as well as their internal assessment of themselves and their chances. The latter is partly based on experience, partly on years of negative socialization as far as ambition and confidence is concerned. They are a systematic rather than an individual problem. Women's behaviour is thus not accidental and their perceptions are not irrational. This suggests that explicitly stating that women are expected to be present and that they are wanted, as the Proposal does, might go a long way to actually ‘removing barriers’ they face.
The lack of understanding of barriers to entry is also present in the reasoned opinion of the Polish Sejm. It chastises the Commission for failing to present any analysis which would help identify the causes of the underrepresentation of women. The Sejm suggests that ‘comparing the number of women who have applied for the highest company positions in the individual Member States versus the number of those who were finally appointed would be a more reliable method in this respect’. Sadly, for the reasons mentioned above, that is clearly not the case. Women do not apply even when equally or better qualified than men, and if discrimination is wide-spread enough, women will be smart enough not to engage in an application exercise they will know is futile. This is quite aside from the fact that many positions on boards (both executive and non-executive) are not filled through an application process, but often through invitations, based on informal networks which tend to be male.
The question of criteria for selection brings with it the question of merit. The objecting domestic chambers assume that the current set-up is actually based on merit and/or that the definition of merit is gender-neutral. In the words of the Czech Chamber of Deputies:
A general objection of the critics of positive measure especially in the form of quotas (sic!) in companies, is the negation of the principle of meritocracy as the fundamental criterion for the selection of the best candidates for executive supervisory (‘exekutivní dozorčí’Footnote 36) position.Footnote 37
This shows a lack of awareness of a cultural environment which has long defined merit based on typically male qualities, and, in turn, fostered male qualities that fulfilled this understanding of merit. There is no acknowledgement of the existence of gender stereotypes and biases, which leads to the overlooking of qualified women as well as to overlooking different qualifications connected more often to women's rather than men's careers.Footnote 38 One way of understanding these numerical targets is to see them as measures reversing a pre-existing, pro-male bias, rather than creating an ‘artificial’, pro-female one. This eludes the Czech Deputies. And they are not alone—a similar position was presented by the Romanian Chamber of Deputies, which stated that board members should be ‘determined by professional competency, regardless of gender’,Footnote 39 as well as by the Estonian Parliament, which stated:
[C]ompulsory quotas might create a situation where women are elected into leadership teams of companies to fill a quota and not on the strength of their abilities or prior achievements.Footnote 40
This merit-optimism is propped up by a belief in the gender-neutrality of the markets and a belief that business decision making is always rational. The Czech Chamber of Deputies stated:
Private companies, because they are exposed to competition in the market, reduce the criteria for candidates to such intellectual and personal characteristics, which will enable them to best succeed on the market. Other criteria bring the risk of the lowering of the professional standard, which lowers the competitive ability of a company.Footnote 41
Again, this is an unduly optimistic perspective, which ignores the fact that some employers are willing to pay more and take efficiency hits just to be able to discriminate.Footnote 42
2. The solution and the underlying understanding of equality
As for the solution, some objections were based on a misunderstanding of the nature of the measure. The Czech Chamber of Deputies called it a ‘quota’.Footnote 43 The Estonian Parliament too, called it a ‘compulsory quota’ and stated that ‘[u]nfair treatment should not be combated with discriminatory measures, however temporary in scope’.Footnote 44 Both labels are incorrect. First, as for ‘quota’, the Oxford English Dictionary defines it as ‘a fixed share of something that a person or group is entitled to receive or is bound to contribute’.Footnote 45 The legal understanding of that term varies somewhat by jurisdiction, but it is commonly understood as preferential treatment of candidates from under-represented groups even when they are less qualified.Footnote 46 In this sense, the numerical expression of the aim of 40% suggests a quota, but all the other characteristics of the Proposal distinguish it: the provisions of the Proposal follow the CJEU's requirement of equal qualifications of candidates, thus not allowing just any candidate to fill the numbers; and the ‘quota’ is not mandatory, since the Proposal does not set up a clear sanction mechanism.
It is worth noting that the Proposal does push the envelope on ‘mandatory’ in one sense. Positive action under Article 157(4) TFEU is not obligatory.Footnote 47 While it allows Member States to adopt positive measures, it certainly does not require or even encourage them. This means that in some Member States, positive action is domestically not allowed. In Slovakia, for example, the Constitutional Court in 2005 invalidated a provision of the Anti-discrimination Act on the basis of it being incompatible with the Slovak Constitution's equality provision.Footnote 48 Under EU law, this is a possible outcome. The fact that the Proposal does require Member States to come up with programmes to reach the stated target, introduces, for the first time, an EU requirement to positively act to promote greater equality and a particular result. This aspect clearly causes particular discomfort in some post-socialist Central and Eastern European states and is likely at the root of the label ‘quota’ for the measure.
Second, the accusation of discrimination is also wrong, because of the already mentioned requirement of equal qualifications of candidates. Moreover, the Proposal is a symmetrical measure—it speaks about the ‘under-represented sex’ rather than about representation of women. This is in line with the Treaty provision on positive action, Article 157(4) TFEU:
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 underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.
The Treaty-makers, as well as the Commission, thus combined an asymmetrical with a symmetrical approach to equality. They accepted the need for asymmetric measures to combat inequality, but then pretended this inequality falls symmetrically on both sexes. This is unfortunate since we do care about the criterion of sex because it creates asymmetry not randomly, case-by-case, but it systematically hierarchizes the male over the female.Footnote 49 Sex is an axis of disadvantage in society that negatively affects women more than men, especially when it comes to access to power and decision making. Not so long ago, in many European countries, this disadvantage was explicitly enshrined in the law (eg depriving women of property rights or suffrage, or limiting their access to certain employment, divorce, etc) and today continues to be socially and culturally, if no longer legally, pervasive. To put this bluntly, we are suspicious of the criterion of sex because of how it has disadvantaged women, not men. By speaking about under-represented sex, both the Treaty and the Proposal explicitly preclude situations where the criterion of sex is directly or indirectly used to compensate this disadvantage (eg women-only workplaces or companies). Moreover, this attempt at even-handedness did not persuade the sceptical Member States about the acceptability of the measure.Footnote 50
I have argued elsewhere that post-socialist Member States have never truly experienced a bottom-up debate about why anti-discrimination law was needed. When their parliaments adopted anti-discrimination legislation, it was to fulfil EU membership obligations, not because they subscribed to its aims or even its understanding of what discrimination is and how it comes about.Footnote 51 And while the EU anti-discrimination acquis was—reluctantly—transposed, it is far from being effectively implemented.Footnote 52 Moreover, the more substantive or asymmetrical a measure, the less it is typically accepted. Because some post-socialist Member States’ political representation and judges tend to be sceptical or dismissive of the pervasive asymmetry of social reality, they would tend not to accept asymmetrical solutions to address it. One example of this was the Slovak Constitutional Court ruling on positive action.Footnote 53 Another was a challenge brought by an ordinary court to the Czech Constitutional Court, where the provision on the shift of burden of proof from plaintiffs to defendants in anti-discrimination cases was argued to be incompatible with the constitutional requirement of procedural equality of the parties.Footnote 54 The objections to the Proposal are rooted in this formal understanding of equality which only permits equal treatment—equality means symmetry—and under which any positive measures are discriminatory.
These objections show that the Commission might have underestimated the different views on the social reality of inequality and anti-discrimination law prevalent in some of the old and new Member States. It did not seem to realize that the Proposal needed two different conversations: one focused primarily on corporate governance with the old Member States, and one examining and, where necessary, enlightening on gender equality with the new ones. My previous research and my observations above demonstrate that some of the new Member States might be very resistant to these arguments.Footnote 55 Without them, however, substantive equality measures will continue to face fierce opposition.
It is also clear that at least some of the new Member States’ objections pose a fundamental challenge to the ‘common value’ and central aim of equality between men and women, as stated in Articles 2 and 3 TEU. In particular, they pose a challenge to a more substantive understanding of equality, apparent in concepts such as indirect discrimination, shift of burden of proof or positive action, the latter of which has arguably been evolving through the case law of the CJEU as well as through the secondary legislation, and the Treaty itself.Footnote 56
So, what if some of the new Member States are actually challenging the Commission's interpretation of what aims and subsequently what types of measure are permissible at EU level? Is this a question of allocation of power between the EU and Member States and can it be understood in terms of subsidiarity?
C. Is a disagreement about the aims which can be pursued part of a subsidiarity assessment?
Daniel Halberstam distinguishes between ‘substantive subsidiarity’ and ‘instrumental subsidiarity’.Footnote 57 Substantive subsidiarity, ‘seeks to determine which level of governance is best suited to determine whether a particular objective should be considered a policy goal at all’.Footnote 58 Answering the question, ‘involves a morally and politically complex assessment of relative substantive claims of authority’.Footnote 59 Once this authority is established, one asks the instrumental question—who is going to be better suited to achieve a given goal. This ‘involves a technically complex empirical investigation into the relative capacities and incentives of the various levels of government in tackling a given problem’.Footnote 60 For Halberstam, Article 5(3) TFEU only addresses the instrumental question: ‘the provision presupposes that the central government has the authority to determine “the objectives of the proposed action” and then asks who can best achieve the centrally specified goal of governance’.Footnote 61
This would mean that any ‘substantive’ questions are extraneous to subsidiarity in the sense of the EU Treaties. Does that mean they are outside any contestation? One could argue that this objection is really about ‘legal basis’; if the EU interpreted the EU aim wrongly, then they should not have acted at all for lack of competence. Despite the textually narrow focus of the EU's Early Warning System (‘EWS’) on subsidiarity, it has become accepted practice to have a wider conversation on EU legislative proposals between the national parliaments and the Commission. Whether or not the new Member States are right in their challenge in this instance is another matter. Considering the fact that when joining the EU in 2004, they were signing up to well-developed system of sex equality law, it should not be a surprise that it is overall a substantive understanding of equality which the EU subscribes to.Footnote 62
III. RIGHT TO OWNERSHIP AND FREEDOM OF ENTERPRISE
Before looking at conferral, subsidiarity, and proportionality, it ought to be mentioned that several national parliaments raised another set of more policy-based objections, having to do mainly with private enterprise and business freedom. Even here, there was some difference between old and new Member States. Comments coming from post-socialist countries seemed to take as understood that there is an inevitable clash between the aim of gender equality, on one hand, and entrepreneurial freedom and private ownership on the other. The Czech Senate emphasised the clash with ownership rights: ‘in essence, [the proposed measure] limits the exercise of ownership rights by shareholders in their decision-making regarding the composition of senior management of companies which they own’.Footnote 63 For this reason, the Czech Senate felt the private sector should not fall under legal obligations relating to gender equality:
the efforts for a political solution of the issue of gender imbalance should primarily focus on the question of equal representation in political institutions, public authorities, public law bodies and publicly-owned companies.
Similarly, following its comments that conceptualized the measure as unacceptable discrimination, the Estonian Parliament observed that they are even less justified ‘if the planned measures have the potential of restricting business freedom or if they ignore the functioning logic of the business environment’. These comments show that, rather than objecting to the adoption of the measure at EU level only, new Member States are more fundamentally opposed to value-based regulation in this area.
The CJEU has made clear that the freedom to choose an occupation and the freedom to conduct a business ‘is not an absolute right but must be considered in relation to its social function’.Footnote 64 Restrictions on the exercise of freedoms are permitted:
… provided that those restrictions in fact correspond to objectives of general interest pursued by the European Union and do not constitute, with regard to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of those rights.
The objections of the national parliaments do not seem to acknowledge the limited nature of the right or weigh it against other values. Both the French Senate and the Swedish Riksdag also expressed concerns. Both related more concretely to the specifics of the Proposal rather than putting gender equality in opposition to other rights in general. The French Senate was sceptical about the rules addressing the process of appointment,Footnote 65 which they saw as intruding into the organization of private companies and being contrary to the constitutional principles of entrepreneurial freedom (la liberté d'entreprendre).Footnote 66 The Riksdag expressed a concern about limiting the rights of owners to choose their managers and company supervisors.
IV. LEGAL BASIS
The Commission used Article 157(3) TFEU as the legal basis for the Proposal. The provision stipulates that ordinary legislative procedure can be used to ‘adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation’.Footnote 67 This competence, as well as the wider competence in Article 19 TFEU which allows the EU to counteract discrimination beyond the ground of sex and beyond employment and occupation, were added by the Amsterdam Treaty. Before then, EU action was based either on the internal market provision (what is now Articles 114 or 115 TFEU),Footnote 68 or the ‘residual’ powers provision (now Article 532 TFEU).Footnote 69 In justifying the measure, the Commission focused very much on internal market rationales, concentrating on cross-border impact. This might be an overhang from the past, but was certainly no longer necessary given the new legal basis.Footnote 70
The legal basis of the Proposal was questioned by two national parliaments only: the Czech Chamber of Deputies and the Polish Sejm. Both chambers expressed doubts that Article 157(3) TFEU was the correct legal basis considering its scope is limited to ‘employment and occupation’. The Polish Sejm tied Article 157(3) TFEU to the term ‘worker’ employed in Article 157(1) TFEU, pointing out that ‘holding the supervisory position in a joint stock company is not always tantamount to employment (within the meaning of TFEU) … . In some cases the direction or even the remuneration component is missing’. This, however, ignores both the fact that ‘worker’ is not mentioned in paragraph 3, and that the provision explicitly goes beyond employment by speaking of ‘occupation’. As Linda Senden persuasively pointed out:
[E]quating ‘occupation’ with ‘employment’ … would entail that ‘occupation’ would be devoid of any proper meaning. … A more logical interpretation would be that its added value lies precisely in covering those situations of professional activity that are not captured by the notions of (self-)employment …, including also the professional activity of non-executive board membership.Footnote 71
An interesting challenge to the use of Article 157(3) TFEU was raised by the Czech Chamber of Deputies. The MPs suggested that Article 157(4) TFEU, which explicitly allows for positive action at the Member States level, is lex specialis to the preceding paragraph. This would lead to the conclusion that positive action was meant to be left to the Member States. But since the fourth paragraph is formulated in enabling terms (vis-à-vis Member States) rather than restrictive terms (vis-à-vis the Union), and there is nothing in Article 157(3) TFEU to indicate positive action is excluded, this argument appears invalid.
A related point, not raised by the national parliaments but identified by Lisa Senden,Footnote 72 is that ‘equality of opportunity’, mentioned in Article 157(3) TFEU, is different from ‘equality of results’. She herself rebuts this point with two observations. First, the numerical target in the Proposal is ‘aspirational’—the measure sets an ‘obligation of effort’Footnote 73 rather than one of result. Second, as was also discussed in Part II.B above, positive action, especially of the ‘tie-break’ type, can be seen as merely neutralising existing barriers. Given what we know about male-centred understandings of merit and gender biases, setting a target for getting more women is one way in which equal opportunity is finally fostered where it previously would not have existed.
One might wonder why the Commission did not use the much wider competence provided for in Article 19 TFEU as there might have been advantages to its use. First, a greater consistency could have been achieved between the actual aim of the measure and the legal basis. Arguably, the Proposal was put forward primarily to achieve greater gender equality in economic decision making, rather than to improve the occupational opportunities of relatively few women at the top.Footnote 74 Second, one could ask whether the restrictive case law of the CJEU on positive action, developed in the area of employment, would apply if the measure was adopted with a non-employment justification. On the other hand, while Article 157(3) TFEU speaks of ‘equal opportunities’, Article 19 TFEU foresees ‘action to combat discrimination’. And although it is not impossible to justify positive action as a measure that combats discrimination, it would require some added elaboration. The use of Article 157 TFEU is probably quite pragmatic: while Article 157 TFEU only requires a qualified majority in the Council, Article 19 TFEU requires unanimity.
V. PROPORTIONALITY
The question of proportionality was raised rarely and not very persuasively. These objections were not only fewer, but also arguably dealt with more easily. The strongest point relating to proportionality was a challenge to using hard law. The Czech Chamber of Deputies and Senate raised the point that the Commission should have tried soft-law measures first. The response to this point is reasonably at hand: Linda Senden notes that ‘the EU has already pursued a soft law course of action for the past 30 years’, without noticeable results.Footnote 75
Other proportionality challenges were pre-empted by the limited scope of the Proposal and by leaving much of the detail, including sanctions, to the Member State (as discussed in Part I.A above). Moreover, the Commission did quite a thorough job of assessing possible alternatives. The Explanatory Memorandum presented five possible options: (1) no action; (2) a recommendation; (3) a directive on non-executive boards; (4) a directive also containing flexible objectives for executive boards; and (5) a directive setting a binding objective for both non-executive as well as executive boards. Since the Commission chose the middle option, and the mildest of the hard-law alternatives, it was difficult to argue that the action was disproportionate.
So mild was the choice that the Czech Senate noted that since the Proposal only concerned non-executive boards, this ‘significantly limit[ed] its real impact on equal opportunities for women and men, and raise[d] doubts about the effectiveness and meaningfulness of this proposal with regard to its intended objective’. This is an interesting observation that indicates a clash within proportionality. Namely, choosing the absolutely least-intrusive option to fulfil the criterion of necessity can compromise suitability—a measure might be so limited as to no longer be suitable.Footnote 76 The claim of lack of suitability is, however, weak. While some of the benefits of the Proposal as presented by the Commission (especially in relation to economic performance of companies) are somewhat controversial, the fact that the measure would directly increase the percentage of women on non-executive boards, as well as indirectly benefit career development of women at lower levels of an organization, has not been seriously put in doubt.
VI. SUBSIDIARITY
The principle of subsidiarity states that:
[T]he Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.Footnote 77
Several member states noted that neither the requirement that the objectives ‘cannot be sufficiently achieved by the Member States’ nor the requirement that they be ‘better achieved at Union level’ were fulfilled. The lack of evidence for these—as well as for the business case for numerical targets—were a red thread running through the objections. The UK House of Commons noted that not only were the two substantive conditions not fulfilled, but that due to lack of evidence, the Commission failed to fulfil its ‘duty to give reasons’.Footnote 78
In the following, the Commission's use of economic rationales to justify the measure in general is examined (Part VI.A). The sufficiency of Member State-level action (Part VI.B) and the better ability of the EU to achieve the aims of the proposed action (Part VI.C) are discussed.
A. Potential rationales
Three possible rationales can be identified for positive measures to increase the presence of women on company boards.Footnote 79 The first is economic. It takes the perspective of the enterprise or the economy as a whole and views positive measures instrumentally. There are, however, also value-based, principled reasons. The second possible rationale focuses on democracy and the third on individual rights, both from a perspective of gender equality.
The Commission based its Proposal mainly on the first of these aims, which are discussed and critiqued below. In terms of the second and third possible rationales—democracy and human rights arguments—over the years of existence of the European Economic Community (‘EEC’)/EU there has arguably been a shift from economic rationales to these value-based justifications. This has been the case for EU equality law more generally,Footnote 80 as well as specifically for the Proposal. This shift has tended to be welcomed by scholars of equality law.Footnote 81 As far as the principle of democracy is concerned,Footnote 82 Julie Suk has noted that in the process of adoption of the Proposal, it was the European Parliament's amendments which shifted the orientation from economic advantages to a ‘comprehensive vision of gender equality’.Footnote 83 Most importantly, she notes the added language of ‘democratic deficit’Footnote 84 in relation to participation and representation of women in decision making. As for individual rights, the fundamental right of ‘equality between women and men …, one of the Union's founding values and core aims’Footnote 85 is recognized as underpinning the Proposal in the first sentence of the first recital of the Preamble.Footnote 86
Nonetheless, it was the economic rationale which was emphasised most strongly. In the Preamble to the Proposal, the Commission stated that ‘gender equality policies are vital to economic growth, prosperity and competitiveness’. It then presented three main economic advantages:Footnote 87 (1) greater efficiency in the use of human resources: ‘make full use of all available talent, knowledge and ideas, thus enriching diversity of human resources and improving business prospects’;Footnote 88 (2) ‘improve corporate governance, because team performance and the quality of decision-making are enhanced due to a more diverse and collective mind-set’;Footnote 89 and (3) ‘financial performance and profitability’.Footnote 90
There are several issues with the economic rationale. Because it relies on instrumentality, should the results not transpire, the whole project can be normatively undermined.Footnote 91 This is particularly troubling in a situation where the research on the benefits for companies is inconclusive.Footnote 92 Indeed, research suggests that most regimes will have a combination of positive and negativeFootnote 93 outcomes, depending on the particular national regulation and context, as well as the criterion used to assess outcomes. Nina Smith's meta-report identified several positives of company board ‘quota’:
(1) Quotas increase the number of women on boards of directors; (2) The decision-making process improves with greater gender diversity on boards, (3) Having female board members seems to improve board attendance, (4) Having female top executives may have positive effects on the career development of women at lower levels of an organization; and (5) Boards with more female members tend to be tougher monitors of company executives.Footnote 94
She also identified negatives:
(1) Boards with diverse members or members who differ from the company's senior management may experience communication problems internally and with management; (2) Quotas imply that less experienced women will join boards because the supply of qualified women in senior executive positions is thin [this would not apply to the EU's Proposal, as equal qualification is required]; (3) Quotas seem to have little positive effect on increasing the pool of women with senior executive experience; (4) Despite some positive outcomes, the short-term performance effects of female board members are insignificant or negative, and it is too soon to establish the long-term effects.Footnote 95
Similarly, in a more US-centred meta-study, Deborah Rhode and Amanda Packel conclude that while ‘the relationship between diversity and financial performance has not been convincingly established’, there is ‘some theoretical and empirical basis for believing that when diversity is well managed, it can improve decision making and can enhance a corporation's public image by conveying commitments to equal opportunity and inclusion’.Footnote 96 On Norway, the trail-blazing country which first adopted legal quota in 2003, Julie Suk summarizes, there is both: (1) ‘research showing that the speed of change led to an ‘“exogenous shock”, which had a substantially negative impact on the value of these firms’ and that the quota led ‘to increased labour costs and reduced short-term profits in the affected firms’; as well as (2) research suggesting ‘that having a critical mass of women on boards enhances the level of firm innovation’.Footnote 97 In an interview-based study of the French quota, Darren Rosenblum and Daria Roithmayer found indications that ‘adding women to a board may well have a substantive impact on decision making, not because of the sex of newly added member but because they are more likely to be outsiders …, more likely to be foreign, to be expert in a wider range of areas, and to be drawn from non-elite networks than their male counterparts’.Footnote 98
To summarize, while there might be benefits in relation to reputation, governance, or board decision making, it has been disputed that increasing women's representation improves corporate financial performance.Footnote 99 And the ‘success’Footnote 100 might depend on the details of the domestic regulation (eg soft versus hard quota or size of companies to which it applies), existing corporate structures, as well as wider context (both material, such as existing levels of participation of women in the workforce and management more specifically, as well as cultural, such as the understanding and support of gender equality).
Given the inconclusiveness of the evidence, the quality and neutrality of the Commission's Impact Assessment and its presentation of the evidence has been questioned and criticised by academics.Footnote 101 And it has been noted and denounced by national parliaments.Footnote 102 The national parliaments’ complaint of insufficient evidentiary basis for the Proposal was a strong and recurrent one. While it mainly focused on the question of the (in)ability of Member States to achieve progress, and the benefits on EU-level action, the fact that the Commission's credibility on evidence on targets for company boards per se was weakened from the beginning certainly did not help matters.
Anna Elomäki has observed that a market-oriented gender equality discourse has escalated in recent years and the shift from a rights-based to the market-oriented economic case has been intentional on the part of EU institutions.Footnote 103 She notes that the ‘stated goal behind developing the economic case was to sell gender equality to decision-makers with persuasive arguments about costs and benefits’ has not been achieved, however.Footnote 104 The analysis of this Proposal confirms her observations.
B. Can the objectives be achieved by Member States?
The argument that the Commission failed to prove that ‘the objectives of the proposed action cannot be sufficiently achieved by the Member States’ came in particular from Member States that themselves have taken some action towards redressing the imbalance of gender representation. This is both surprising and unsurprising. It is surprising, since one would expect that these states would be the closest to fulfilling the eventual Directive's provisions. This would be the case had they chosen similar rules and criteria. However, several Member States, such as Sweden and the UK, as well as eventually Denmark,Footnote 105 chose a business-led model of self-regulation. And several others chose a lower percentage as an aim—the Netherlands thus introduced a target figure of 30%.Footnote 106 As a consequence, their domestic measures would have likely proven insufficient under the Directive. The possible negative impact on domestic measures was thus raised by a number of national parliaments.Footnote 107 It is unsurprising mainly because the countries that adopted some measures had the strongest case to argue that action could be taken domestically.
The main objections coming from the national parliaments were about lack of evidence and timing. Both the Danish Folketing and the Polish Senate noted that it was for the Commission to prove that action could not be taken domestically. As for timing, both UK Houses of Parliament, and both chambers of the Netherlands legislature in their joint letter, pointed out that it was too soon to know the results of domestic measures. For example, the House of Commons noted that ‘many national measures have been introduced within the last year or two’ and considered it ‘too soon to write them off as ineffective’.Footnote 108
The national parliaments were making the point that the fact that Member States have not yet achieved the aims, does not mean that they cannot. This is an interesting theoretical problem. I would argue that it would be not just too difficult to require the Commission to prove that something cannot happen, but actually methodologically impossible (if nothing else, one can at best assess trends for the future, but it is impossible to predict with certainty that something will never happen). This is what the Commission meant by saying that ‘subsidiarity is not about the hypothetical possibility of reaching a certain policy objective’.Footnote 109 Thus, at best, the Commission can infer the ‘cannot’ from past developments and make conclusions about future trends. Here, the Commission noted that (as of 2013):
EU-wide, 85% of non-executive board members and 91.1% of executive board members are men. Despite the intense public debate and some voluntary initiatives at a national and European level, the situation has not changed significantly in the past few years.Footnote 110
Its projection was that without EU-wide action, ‘the EU as a whole is not expected to even achieve 40% of women on boards by 2040’.Footnote 111 The Commission's assessment here is persuasive. It noted that
In principle, Member States can improve the male/female balance in boards of directors of their own volition. However, in reality, either the majority of EU Member States do not avail themselves of this opportunity, or the measures they do take are of such different nature that their results vary significantly.Footnote 112
To put this problem another way, it is essential to decide whether clear unwillingness of at least some Member States should be understood as an inability (‘cannot’) that the EU can remedy.Footnote 113 In our case, it has been clear that the CEE countries, with the notable exceptions of Slovenia and to some extent Poland, have not been addressing the problem at all and are not planning to do so in the foreseeable future. In this case, I would argue that the question of comparative effectiveness should be answered in favour of the EU, since some action is always more effective than no action (even if just in a proportion of the Member States).Footnote 114
C. Can the aim be better achieved at EU level?
One of the dangers of relying on economic rationales is that when they do not turn out as expected, the legitimacy of a measure might be undermined. Relying on economic rationales entails yet another pitfall. Showing that companies would benefit from more women on company boards, but that they themselves completely fail to behave accordingly, would be an example of market failure. This is one of the reasons states would step up to regulate. Showing that companies benefit from more women on company boards, on the other hand, supports an argument for leaving the matter to the market or to self-regulation.Footnote 115 This logic extends to the legitimacy of EU intervention. If the measure was adopted on the assumption that the economic benefits were uncertain or negative, one would have a stronger case for central action. Expecting a trans-border flight of capital, from the countries that adopted some measures to those that have not, the EU could say that a harmonising policy was necessary at the EU level. There is even a precedent for this in the area of gender equality: the historic decision to include an equal pay provision in the Rome Treaty was meant to protect France, which already had this legislation, from comparative disadvantage.Footnote 116 The UK's House of Commons indeed noticed this, saying that:
much of the analysis underpinning the Commission's proposal rests on the strength of the business case for introducing more diverse boards as a means of improving corporate governance and performance. There would therefore appear to be more, rather than less, reason for Member States to take action individually to promote greater gender balance on corporate boards as a means of securing competitive advantage.Footnote 117
By insisting on the business case for the measure, the Commission thus weakened its subsidiarity case.
Aside from the business case as a basis for the measure in general, the Commission also framed the subsidiarity rationale very much in cross-border, internal market terms, focusing on the divergence or absence of domestic rules creating barriers to the internal market or to its proper functioning in the form of divergent corporate governance requirements.Footnote 118 This sounds like the justification of an internal market measure based on Article 114 TFEU, not a gender equality one under Article 157 TFEU. And it is not surprising that the national parliaments were markedly sceptical.Footnote 119 The Polish Sejm, for example, used the a fortiori argument, that ‘basic issues’ of ‘company management structure’ vary greatly (eg between monistic and dualisticFootnote 120 set-up of boards). Thus ‘if such a fundamental matter as appointing non-executive company directors or supervisory board does not pose a barrier to internal market growth, then neither do regulations pertaining to the participation of women in such boards’.Footnote 121
The Commission's emphasis on cross-border effects rings false. The measure is clearly concerned with domestic minimum standards. It is the question of whether and how the Commission could have presented a more convincing case, to which attention now turns.
VI. NON-ECONOMIC, NON-CROSS-BORDER SUBSIDIARITY?
If the subsidiarity provisions of the Treaty only fit an internal market logic focused on the economic sphere and cross-border situations, one would be left with two unsatisfactory options. One could, first, resign oneself to the discrepancy between what a measure, such as the current Proposal actually aims to achieve—setting minimum standards or improving individual rights domestically, without a clear cross-border benefit—and to what it has to pay lip service—a cross-border dimension. This was the path the Commission chose. And, despite its internal inconsistency, this option is made possible by the fact that subsidiarity is legally an extremely weak principle,Footnote 122 achieving the thresholds of the ‘yellow cards’ has proven difficult,Footnote 123 and the Commission has been rather defiant about accepting the Member States’ arguments.Footnote 124 Having said this, a discrepancy between the stated benefit of transnational efficiency and actual expected impacts of the Proposal did give national parliaments unnecessary ammunition. If only internal market rationales were permissible, the second alternative would be to amend the Treaty and give the subsidiarity provision wording that would explicitly allow for non-cross-border, non-economic situations. This is, however, extremely unlikely.
There is a third alternative: arguing that given the current wording of the provision and content of the norm, the provision can already justify action in non-economic, non-cross-border situations. I believe this to be the case and I substantiate it below. In the following section, after offering a typology of EU measures with respect to transnationality (Part VI.A), I discuss subsidiarity in non-cross border situations, focusing on how the ‘scale and effects’ requirement can be fulfilled (Part VI.B), and then offer a few tentative observations on the specificity of fundamental rights measures (Part VI.C).
A. A typology of measures
There are three types of measures, from the perspective of the existence of a ‘cross-border’ element: (1) measures with a cross-border dimension; (2) ‘federal’ measures; and (3) measures addressing domestic situations. First, the creation and improvement of the internal market, with which much of EU action is concerned, has an obvious cross-border element. This goes, of course, especially for measures under Article 114 TFEU. Much of the litigation on the question of subsidiarity, and consequently the academic debate, has focused on internal market situations.Footnote 125 An example of such a measure was the proposal for a new posted workers directive, which led to the third ‘yellow card’ issued so far.Footnote 126 In these situations, the cross-border element exists and the contentious subsidiarity issue tends to be whether differences in regulation between the Member States constitute barriers to the internal market. The predominance of the cross-border logic in subsidiarity reasoning has led some authors, even beyond the sphere of economic integration, such as in criminal law, to argue that a cross-border element is central and necessary to the delimitation of EU action.Footnote 127 One could certainly argue that the ‘presence of transnational aspects sets a presumption in favour of the supranational level’.Footnote 128 But it does not mean that it is a necessary quality of a measure for the principle of subsidiarity to be fulfilled.
The second type of action is ‘federal’ in nature. An example here is the proposal for the creation of the European Public Prosecutor's Office (‘EPPO’)Footnote 129 or the Council Regulation on the Societas Europea. Footnote 130 If one is establishing an institution which will operate on the European plane and fight against offences affecting EU financial interests, as was the case with the former measure, or when one's aim is to facilitate the creation and functioning of multinational companies whose operation will be at the European level, as was the case with the latter, it is not too hard to see how a Member States action might prove insufficient and the EU level would be better.Footnote 131 The presumption was the supranational level is even stronger here.
Finally, there are measures which primarily apply domestically, often setting a minimum standard of protection. This is the true nature of the current Proposal.
B. Comparative effectiveness in (purely) domestic situations
In order to satisfy the requirements of subsidiarity, it should be the case that Member States cannot sufficiently achieve the aim, and ‘for reasons of the scale or effects of the proposed action’ EU intervention is to be preferred. The formulation ‘scale or effects’ is perhaps the one which most strongly appears to point to an internal market rationale. ‘Scale’, in particular, makes one think of the ‘economies of scale’—the benefits businesses reap from access to a bigger, integrated market without barriers. But one can understand scale differently, as identifying the seriousness of the problem. It would be the fact that while women make up more than half the population, they—across the EU—constitute only roughly 15% of non-executive board members in the year the Proposal was presented. Bringing this proportion even to just 40% is a big task. The term could be understood as referring to the scale of the necessary change the measure aims to engender.
‘Effects’ are perhaps less immediately connected to a notion of the internal market. Even here, however, transnational regulation more clearly brings effects for the whole of the EU. But a similar argument can be made for domestic regulation. When left to their own devices, some Member States might reach the 40%, some will go some way towards it, but many will not even try. In order to have effects in all of EU, one might need to regulate even domestic situations. The reference to ‘effects’ also brings to mind effectiveness in the sense of being successful in producing a desired result. If the projections for the impact of the eventual Directive show marked increase in women's representation, especially compared to ‘natural’ development, they would fulfil the criterion of ‘effect’.
A more fundamental issue is that the concept of effectiveness points to an empirical assessment of outcome rather than considerations of principle. Especially in the human rights field, one might be tempted to say that it is often right to adopt protections irrespective of the on-the-ground effect this will bring. This might be a strong argument for adoption of international treaties or indeed for giving an organisation like the EU the competence to act. But that is a question solved at the moment of creation of a legal basis. In the context of deciding whether the EU should legislate on that basis, the requirement of showing it will have ‘effect’ is perhaps not an illegitimate one.
C. Subsidiarity and human rights
A final question one might ask is whether there are specific subsidiarity considerations for fundamental rights measures. International human rights literature on subsidiarity has been quite careful about accepting the shifting of competence upward. Samantha Besson noted that it is a truism that ‘states hav[e] the primary responsibility to secure human rights and international human rights institutions hav[e] only a supervisory function’.Footnote 132 In international human rights law, these concerns are expressed in several doctrines: procedurally by the principle of ‘exhaustion of domestic remedies’; substantively, for example, by the doctrine of ‘margin of appreciation’; and remedially by mainly providing declaratory relief.Footnote 133 Her observations reflect the role of international human rights courts, however. They focus on ‘negative’ competence—the review of failure of a state to uphold a promised standard—rather than discuss the ‘positive’ competence of standard setting through legislation. In the case of the Proposal, we are not dealing with protecting infringed rights, but with positively ensuring their protection, via the use of legislative competence. It is partly because of the sui generis supranational nature of the EU that the latter question is unique to it. One way of looking at the issue is to say that if one is sceptical of giving too much power to courts providing external review of minimum standards, one should a fortiori be sceptical of shifting human rights competence to the centre. The counterargument is that the EU has created, or rather the Member States have created for it, certain specific competences to act in the sphere of fundamental rights. This would support an argument of a differently configured subsidiarity than in general international human rights law.
It is then fruitful to look at the arguments why international public lawyers believe that action at the domestic level is generally more appropriate. Besson identifies two main reasons: (1) a democratic one, having to do with superior participation and representation at lower levels; and (2) epistemic, having to do with the lower level being close to the ground and thus better placed to evaluate.Footnote 134 However, leaving regulation to the domestic level raises a problem of ‘internalities’: ‘majoritarian oppression, corruption, or minority capture that skew or undermine the democratic legitimacy of the political process of the constituent units’.Footnote 135 The possible failure of the domestic level to protect sub-groups is a well-known justification for having international human rights. And it is particularly salient for equality and discrimination rights, which specifically address the marginalisation of certain groups. Thus the protection and promotion of equality between men and women at the EU level can be a shield again domestic abuses—in the case of prohibition of discrimination—and even a sword that can demolish long-standing obstacles for the ‘sub-group’ of women in the case of positive action.
The problem at hand can be seen as involving a two-fold majoritarian failure: marginalisation of women in democratic, political decision making, as well as in economic decision making. If domestic political processes do not address wide-spread gender inequality, this allows also the underrepresentation of women in the management and supervision of companies. This shows that Member States, some more than others, suffer from an ‘internality’ problem. It could then be argued that they ‘cannot’ achieve the aim themselves and the EU would be better placed to do so. In theory, the EU could be victim to the same ‘male’ majoritarian capture as the Member States. However, due to a long-standing pro-active approach to gender equality, it has achieved earlier and greater parity than most Member States.Footnote 136 And it has also overcome the majoritarian capture in substance, by including substantive equality measures, mentioned above, aiming to limit the disadvantage faced by minorities.
VII. LESSONS?
There appear to be two competing narratives relating to gender equality in the EU: one based on values, be they individual rights or democracy, another emphasizing the economic benefits of gender equality. Making a business case for women's representation in economic decision making—aside from its uncertain substantiation—paradoxically undermines the case for legislative intervention, irrespective of whether it is at the domestic or at EU level. It has also been observed that the use of internal market language and emphasis on cross-border issues rang false as a subsidiarity justification for the Proposal. The Commission should have been able to demonstrate that the ‘objectives of the proposed action’—namely critical-mass representation of women in economic decision making—‘cannot be sufficiently achieved by the Member States’ because of the unwillingness of several of the Member States to act. Moreover, that ‘the scale’ of the problem and the hoped-for ‘effects’ of an EU-wide 40% representation on non-executive company boards, would be ‘better achieved at Union level’. Domestic standard-setting aiming at the implementation of a fundamental right can be justified without resorting to economic, cross-border language and rationales.
Considering the focus of national parliaments’ reasoned opinions and comments, it appears that two different conversations were necessary in presenting the Proposal: one on corporate governance and subsidiarity—mainly with some of the old Member States—and one on gender equality—with some of the new ones. It is doubtful, however, that making a principled gender-equality argument, rather than emphasising the economic benefits, would have aided the Proposal's reception in some of the new Member States. Given the strong neoliberal policy discourses in many CEE countries,Footnote 137 combined with marked scepticism towards gender equality and anti-discrimination law,Footnote 138 one would expect a business case to have a better chance of succeeding than a rights-based justification. Nonetheless, without a conversation about the social reality of gender inequality, about existing barriers to women's advancement, and about how substantive equality and positive measures in particular can actually counteract them, this Proposal, as well as other equality measures, might continue to cause bemusement and face opposition from post-socialist members of the EU.
