The Impact of Positive Action on Private Law Freedoms- Proposed EU Directive on Gender Imbalance in the Boardroom

• Author: Niall O'Connor
• Position: LL.B (ling. franc.) (Dubl.), LL.M (Bruges), Ph.D (Probationary) candidate, University of Cambridge
• Pages: 128-153

© Niall O’Connor and Dublin University Law Society

THE IMPACT OF POSITIVE ACTION ON

PRIVATE LAW FREEDOMS - PROPOSED

EU DIRECTIVE ON GENDER BALANCE IN

THE BOARDROOM

NIALL O’CONNOR

Introduction

This article will seek to analyse the impact of EU positive discrimination

measures on the private rights of employers, notably their freedom to

contract. A brief outline of the background to EU positive action measures

will be provided alongside a discussion of the outer limits placed on such

measures by the courts. Particular attention will be paid to the proposed EU

Directive on gender balance in the boardroom.

1

The impact of this proposal

will be assessed in light of the principles of contractual and commercial

autonomy. Alternatives to the Proposed Directive will also be discussed in

order to determine whether it is indeed the approach which most

appropriately balances the freedom of contract with the desire to achieve a

valuable social goal. There can be little doubt that at present, there is a

critical lack of women in decision making-positions in European

companies.

2

However, the purpose of the paper is not to assess the merits of

the goals the Directive seeks to achieve, but rather, to focus on whether the

proposal is the correct and legitimate approach for achieving such aims in

light of the competing fundamental private freedoms. Recent attention in

Ireland has centred on the implications of gender quotas in the political

sphere.

3

Much less discussion has been directed towards the consequences

of positive action for private actors.

 Niall O'Connor LL.B (ling. franc.) (Dubl.), LL.M (Bruges), Ph.D (Probationary) candidate,

University of Cambridge. The author would like to thank Dr. Síofra O'Leary for her supervision

of an earlier version of this article and his colleagues at the College of Europe, Bruges for their

stimulating discussion. Any errors or omissions remain the author's own.

1

Proposal for a Directive of the European Parliament and of the Council on Improving the

Gender Balance Among Non-Executive Directors of Companies Listed on Stock Exchanges

and Related Measures, Brussels, 14 November 2012 COM (2012) 614 final [hereinafter

Proposed Directive].

2

Proposed Directive, at 2.

3

Largely due to the adoption of the Electoral (Amendment) (Political Funding) Act 2012.

129 Trinity College Law Review [vol 18

I. The Concept of Positive Action

The potential forms of positive action are numerous and an in-depth

discussion of their possible impact and ideological underpinnings is beyond

the scope of this article. The complexity of the concept of positive action is

underscored by the debate surrounding the use of the term itself.

Terminology has been described as “the perennial problem that besets any

discussion of positive action,” with a multitude of alternative labels,

including reverse discrimination and positive discrimination, being used.

4

However, very little turns on such distinctions and a wide variety of

initiatives may come within the term positive action. Such initiatives include

preferential treatment for minorities, eradicating prohibited discrimination,

outreach programmes or even a redefinition of merit.

5

The difficulty with

positive action is that for every person benefiting from such action, another

party necessarily loses out. Therefore, positive action is normally treated

differently to other forms of gender-related preferences, as it “is a zero - sum

game in which the allotment of the good to one person means taking it away

from another.”

6

Naturally, there are implications for other actors, including

the State, industry and individual companies. The effect of positive action

measures on private enterprises is particularly problematic given the fact it

has implications for the allocation of their resources.

II. The Legislative Approach to Positive Action

Under EU law, Member States are permitted to implement positive action

measures which compensate for gender imbalance in the professional

sphere. Thus, a number of legislative measures have been adopted to

facilitate positive action.

7

As a starting point, it is important to note that

positive action is a departure from formal equality principles. Equality is a

fundamental principle of EU law and it is also protected by Article 40.1 of

the Irish Constitution, providing that all citizens are equal before the law.

4

Lisa Waddington and Mark Bell, “Exploring the Boundaries of Positive Action under EU

Law: A Search for Conceptual Clarity” (2011) 48(5) CMLRev 1503, at 1507.

5

Christopher McCrudden, “Rethinking Positive Action” (1986) 15 Industrial Law Journal

219, at 223-25

6

Anne Peters, Women, Quotas and Constitutions, a Comparative Study of Affirmative Action

for Women Under American, German, European Community and International Law (Kluwer

Law International, 1999), at 22.

7

The terms “gender” and “sex” are used interchangeably throughout this article.