European company law as an instrument for gender equality? Comments on the qualifications of the company board members and EU legislation policy
Artykuł nierecenzowany w wydawnictwie zbiorowymMiejsce: Brno
Rok wydania: 2013
Tytuł publikacji: Dny práva 2012 – Days of Law 2012
Redaktorzy: J. Kotásek, J. Bejček, V. Kratochvíl, N. Rozehnalová, P. Mrkývka, J. Hurdík, R. Polčák, J. Šabata
Tom: 442
Strony od-do: 1862-1866
Streszczenie: European company law as an instrument for gender equality? Comments on the qualifications of the company board members and EU legislation policy. The Document of the European Commission of 5 April 2011 "Green Paper on corporate governance" among a number of recommendations for Member States with regard to corporate governance, also recommends introduction of regulations supposed to provide greater percentage of women in membership of the decision-making bodies of stock market companies. A similar initiative was also undertaken by the European Parliament, which, on 6 July 2011, passed a resolution demanding from Member States that by 2015 30% and by 2020 - 40% of places in decision-making bodies of companies were reserved for women. These documents are included to the category of soft law however, a regulation including the above recommendations was accepted in 2003 by Norway, while France and Spain are awaiting its effective date – respectively in 2017 and 2015 Thus, it is a current problem. The above recommendations relate to stock market companies, however, they are not significant for assessment of purposefulness and justified character of regulation ordering to ensure appropriate representation of women in decision-making bodies of companies. A company whose shares were approved to public trading continues to be a private-legal corporation – is an entity of private law. The issue of qualifications of corporations members should not be meaningless for a legislator. Due to safety of turnover it is purposeful that commercial law regulations predicted even minimum requirements for candidates for members of boards of directors and supervisory boards. In particular, they should be people with full capacity to conclude legal acts. It would also be purposeful if they had other features at the same time, e.g. not being punished for crime causing damage to the company, against credibility of documents, etc. However, the catalogue of such qualifications is understandable and possible restrictions, although they interfere in freedom of shareholders to select specified individuals, seem justified but not to the interest of shareholders themselves but rather safety considerations of turnover (public interest). Rights of accomplices (shareholders) of corporations are an element of a broader category being the right to share. Although passive voting right is not connected structurally with the member law, i.e. it is possessed by any person with only qualifications required by legislation of EU Member States, however active voting rights is granted, as a principle, only to accomplices (shareholders) directly or indirectly. The essence of this right is competence to freely choose a member of a body who is most often a person enjoying trust of the shareholder. In corporations, it is a principle that partners do not run any company's matters, nor do they represent it. However, they bear the economic risk of the company's functioning so they should have free influence on selection of people who, on their behalf, will perform these competences. Active voting rights to bodies of corporations is an instrument of execution of the right to affect management and supervision over the company. Introduction of the gender criterion with respect to selection of members would excessively interfere in this right. Such regulation at the level of domestic law would damage the autonomy of shareholders' will which is, after all, the foundation of private law, without justification the need to protect public interest. Standardization of this issue at the community level would be even more groundless. It would be in conflict with the principle of proportionality and subsidiarity of the European Union law. So far there is no evidence that provision of gender equality in bodies of companies is justified by an important public interest as also Member States are not able to independently and effectively solve this problem on their own.
Słowa kluczowe: gender equality, company board members
Dostęp WWW: http://www.dnyprava.cz/dokumenty/24270
Cytowanie w formacie Bibtex:
@article{1,
author = "Paweł Zdanikowski",
title = "European company law as an instrument for gender equality? Comments on the qualifications of the company board members and EU legislation policy",
journal = "",
year = "2013",
pages = "1862-1866"
}
Cytowanie w formacie APA:
Zdanikowski, P. (2013). European company law as an instrument for gender equality? Comments on the qualifications of the company board members and EU legislation policy. , 1862-1866.