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

AuthorNiall O'Connor
PositionLL.B (ling. franc.) (Dubl.), LL.M (Bruges), Ph.D (Probationary) candidate, University of Cambridge
© Niall O’Connor and Dublin University Law Society
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.
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
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
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.
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].
Proposed Directive, at 2.
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.
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.
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.”
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.
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.
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.
Christopher McCrudden, “Rethinking Positive Action” (1986) 15 Industrial Law Journal
219, at 223-25
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.
The terms “gender” and “sex” are used interchangeably throughout this article.

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