Transcript Licenciement économique

Corporate Governance
and Gender Diversity
Intervenant :
Dominique de La Garanderie
Juin 2010
I. Figures of the female representation
Goals of this document:
The main purpose of this document is to give precision on parity in the organs of societies
direction in an international context but also to explain in what the situation could be
ameliorated.
to give the key elements on the presence of women in these organs;
to identify the envisaged efforts to struggle against under female representation and to
reduce the gender gap
to indicate in what positive right and actual individual initiatives could be improved, on a
plan so European as international.
Juin 2010
2
According to a recent study of the Women’s European Professional network,
on 17 European countries,
women occupy in 2008 only 9,7% (8,6% en 2006), seats
directors of 300 bigger European companies
of the boards of
which count 15,1 members on average among whom 1,5 woman.
France arrives only in twelfth position with 7,6% of women (6,4% in2004).
Juin 2010
3
Two European States nevertheless chose to fight against this invisibility of the
women by a legislative system of quotae:
The case of Spain:
José Luis Zapatero made vote in March, 2007 for a law imposing from 2015 the
presence at least 40 % of women in the boards of directors of big companies.
The case of Norway:
Norway is the first State to have opted for the legislative way to impose parity.
Since February 1st, 2008, 500 highly-rated Norwegian companies have to count
40 % of women in their boards of directors.
The penalty for disrespect of these measures is radical: the dissolution.
Norway counted 7 % of women in boards of directors in 2003.
It counts henceforth 44 %.
Juin 2010
4
The importance of the place of the women in the authorities of decision in Europe
is very heterogeneous. Further to a study of the INSEE(NATIONAL INSTITUTE
FOR STATISTICS AND ECONOMIC STUDIES) and Capitalcom, the situation in
300 bigger European companies was the following one in 2009:
Norvège
44,2%
Suède
26,9%
Finlande
25,7%
Danemark
18%
Pays-Bas
12,3%
Royaume Uni
11,5%
Rép. D’Irlande
10,1%
Autriche
9,2%
Allemagne
7,8%
France
7,6%
Luxembourg
7,2%
Belgique
7%
Suisse
6,6%
Espagne
6,6%
Grèce
6%
Italy
2,1%
Portugal
0,8%
Juin 2010
5
The French position:
Further to a study of 2006 made by the French Institute of the Administrators (IFA) on the
first 100 French companies (classification established by Le Point), we obtain the
following distribution:
Total Number of seats in boards of directors, Management Boards and
supervisory boards: 1158
Number of executive administrators: 175 among whom 2,9 % of women
Number of not executive administrators: 900 among whom 5,5 % of women
Other (staff representatives,
19,3 % of women
salaried
Juin 2010
shareholders):
84
among
whom
6
A more recent study on the first 500 French listed companies (Report Grésy on
2008) show again under representation of the women in the governance of
company:

8 % of the women in the boards of directors and surveillance;

290 companies, that is 58 % have no women in their board of directors;
These figures is to study in comparison with that of women administrative and
commercial executives which is 41,2 %, women blocked by the glass ceiling.

13,53 % of women in executive committees and executive committees;

210 companies, that is 42 % have no woman in their executive or executive
committee.Total Number of seats in boards of directors, Management Boards
and supervisory boards: 1158
Juin 2010
7
A more detailed study of the companies of the CAC 40 leads to the same report in
spite of a light improvement these last four years.

2006: 44 women (8 % of the board of directors)

2007: 52 women (8,5 % of the board of directors)

2008: 57 women (10,2 % of the board of directors)

2009: 58 women (10,5 % of the board of directors)

2010: 65 women (11 % of the board of directors)
In the detail:

4 companies have no woman in their board of directors

23 companies have 1 woman in their board of directors

7 companies have 2 women in their board of directors

4 companies have 3 women in their board of directors

2 companies have 4 women in their board of directors
Juin 2010
8
Juin 2010
9
This lack of coeducation is blatant when we examine in detail these figures by
distinguishing in particular women's percentage in boards of directors and that in
Executive Boards.
Juin 2010
10
II. The current regulation and its short-term evolution
The legislative way:
Currently, there is no legislative requirement regarding gender representation in
the economic context.
The issue of the gender gap is not new and the attempts launched to fulfil this gap
are various and do not concerns only board of directors.
Juin 2010
11
We count essentially four laws joining this process:
 The law N 83-635 of 13 July on 1983:
It concern the implement of the equality treatment principle between women and men relating to
the employment access, in the training and in the professional promotion, and the working
conditions.
It creates the obligation to produce an annual report on the situation compared by the men and
the women in companies in employment and in training.
It also creates the power for the companies to sign with unions affirmative action plans
containing temporary measures of catching up in favour of the women, the plans presenting
exemplary actions being able to benefit from a grant.
 The law N 2001-397 of May 9th, 2001 – said law Génisson – plans:
The report of compared situation includes indicators resting on calculated elements defined by
decree.
It also creates an obligation to negotiate on the professional equality at the level of the company
and branches while making of this theme a transverse element of the compulsory negotiations
(implementation of the politics of the integrated approach).
 The law N 2001-1066 of November 16th, 2001 improves:
Protection of the employees face to face discriminations.
In particular by the arrangement of the burden of proof, obliging the employer to justify itself
when the employee presents elements letting suppose the existence of a discrimination.
 The last law in date N 2006-340 of March 23rd, 2006 is relative to the wage equality between
the women and the men strengthened the obligation to negotiate on the professional
equality by an obligation to negotiate measures of abolition of differences in compensation
before December 31st, 2010.
Juin 2010
12
Women in board
Concerning the law which imposed 20 % of women in board of director (2006).
The Constitutional Council however censored the completeness of this title III in a
decision n°2006-533 DC of March 16th, 2006:
In the motives: the article 3 of the Constitution modified by the constitutional law
of 1999 to facilitate the equal access of the men and the women to the electoral
mandates and the elective offices applied exclusively to the elections in
mandates and elective offices (that is to say the politic representation):
“Considering that, if the search for a well-balanced access of the women and the
men to the responsibilities others than the elective political functions is not
against the constitutional requirements reminded above, she would not know how
to, without underestimating them, making prevail the consideration of the sex
over that of the capacities and the common utility; that, from then on, the
Constitution does not allow that the composition of organs leaders or consultative
of the moral persons of public or private law is governed by binding rules based.
on the sex of the persons”.
No comment
Juin 2010
13
The constitutional revision of 2008 drew the conclusions of this decision:
The new 1st article of the Constitution plans henceforth that the law facilitates the
equal access of the men and the women to the electoral mandates and the elective
offices as well.
As in the professional and social responsibilities.
It concern without any doubt women representation in boards.
The next law will not be censor by the Constitutional Concil.
To assert the necessary search for an equal representation of the women and the
men in the authorities of companies, in consideration of the very low
representation of the women is henceforth an acquired principle.
At the moment parliament is discussing on a proposal for 40 % women on boards.
Juin 2010
14
The self-regulation:
In front of this situation, in April 2010, the MEDEF (employer’s representation) and
the French association of companies (AFEP, CAC40 representation) integrated in
their recommendations an enactment aimed at reinforce women presence in the
first 120 French companies quoted on the stock exchange. (SBF 120).
Each board will have to include 40% of administrators women within six years and
respect an intermediate obligation of 20 % of administrators women for the
deadline of two years.
Juin 2010
15
This new line of conduct is in the lineage of the report returned by Brigitte Grésy,
member of the General Inspectorate of social affairs (made at request of Brice
Hortefeux, home secretary).
However this “recommendation" is accompanied with no penalty in case that it
would not be respected. It is the rule “comply or explain” witch could be very
efficient in the heat years and has been immediately applied when general
assemblies and after this recommendations. It could be significant next year.
Furthermore, French Institute of the Administrators (IFA) voted in March, 2009 for a
resolution favorable to the institution of positive actions by the legislator.
Juin 2010
16
III. The questions of application
In spite of the willingness of the MEDEF and the Afep, France envisages the
institution of quotae by the legislative way.
There is a consensus on the objectives to respect,
Every actor of the economic life agreeing to improve the women representation
but not all agreeing to establish an obligation of 40 % of administrators women in
boards of surveillance and administration within six years.
Establish an intermediate obligation of 20 % of administrators women for the
deadline of two years.
Juin 2010
17
This proposition seems reasonable, the perfect parity being sharply too strict and
unsuitable and the deadlines of 2 and 6 years being reasonable or even essential.
However this proposition will be limited by several criteria:

The size of the company: the private bill aims at the companies of more than
1000 employees

The necessity of operating a distinction between board of directors or
surveillance on one hand and executive committee or direction on the other
hand

The first ones are organs defined by the law and governed by the corporate
law, obeying an institutional logic and containing a shutter of general interest.

The second obey a contractual logic and containing a shutter of general
interest. The second obey a contractual logic and it is not by the
recommendation or law in discussion, but by law concerning equality treatment.
Juin 2010
18
Penalty
We shall also note the concern to find the most adequate penalty.
For reminder, Norway, which acts as model in the respect for the parity, had
chosen the way of the autoregulation before any legislative approach. The
autoregulation had ended in no result.
It thus seems necessary to impose by the law of the measures of positive actions
matched by penalty in case of breach to break the system of sociological
complicity.
Juin 2010
19
A panel of penalties is possible:

The nullity of the deliberations of the badly consisted councils (major legal risk
of insecurity)

The nullity of the appointments made in defiance of the requirement of
coeducation (following the example of that sanctioning the non compliance
with the rule of limitation of the multiple office-holding L.225-21 of the
commercial law). That is the French legislative proposition.

The dissolution of the company (solution adopted by Norway but which radical
and hardly enforceable).
Attention on the perverse effects which the law could engender as for example a multiple
office-holding important for the men as for the women thus not reflecting a real social
coeducation.The size of the company: the private bill aims at the companies of more than
1000 employees
Juin 2010
20
IV. How to add it a capital gain on European plan
For countries having adopted the recommendations, would not it should create an
European observatory of the presence of the women in all the representative authorities
in particular the boards of directors?
An annual report would not only allow to measure the efforts by country but also to
classify companies having their head office in the countries of the European Union:

By fixing a threshold of size of company either by the number of employee,
Or by turnover, or by capitalisation ?

Or by holding only listed companies ?
Hopping tone at the top.
The European authorities could decide that the rule of “the most facilitated European
woman” applies.
So as regards the representation in boards of directors, the rule equals of the most
favorable application in a country of the Union should be resumed in the other countries.
« Utopia is the ambition that anticipates on a reality of justice. »
Don’t you think so, you European Women lawyers ?
Juin 2010
21
Addendum
After the setting up of this conference, results in France for the shareholders assembly
concerning 2009 results have been published.
Among the CAC 40's companies, 20 % of women in 12 groups (which means 30 % of
CAC 40's groups).
All in all, 18 groups have offered positions of board members directors to women, 5 times
more than in 2009, 30 women have been accepted by cooptation.

Only 3 women had already an ongoing mandate, they have been accepted by
cooptation for the 2010's Boards.

12 women hold concurrently many mandates, the one who holds concurrently the
most mandates holds 3 mandates.

3 CAC 40's companies have not women yet.
Therefore, there were 10.5 % of women in 2009 in Boards of CAC 40, there are 15 % in
2010. Among 576 positions, 88 are held by women.
Juin 2010
22