Over the past few years in the Netherlands the percentage of women on company boards has increased.  However, women are still underrepresented in company boards.  These are the measures being taken in the Netherlands in order to enhance the number of women in company boards:

  • Positive discrimination – under the Dutch Civil Code an employer may not discriminate on ground of gender when entering into an employment agreement, providing training to an employee, fixing the terms and conditions of the employment agreement, granting promotion or giving notice of termination of the employment agreement.  However, it is possible to deviate from this principle.  Positive discrimination is also possible, in order to end or reduce existing inequalities but subject to the condition that the positive discrimination is proportionate in comparison with its purpose.

    According to judgments of the Dutch Institute for Human Rights (DIHR), three requirements apply to positive discrimination under the Code:

    • a comparison must be made between the actual number of women in a specific position and the number of potential women for this position in the labour market.  Then the actual disadvantage to women should be calculated
    • there must be a decision on what level of positive action would be suitable.
    • the open vacancy must mention the intended positive action.

The judgments of the DIHR are not binding, but are worth mentioning, because they are often considered as recommendations to, and are often followed by, judges in Court proceedings.

  • The Dutch Corporate Governance Code.  The Dutch Corporate Governance Code is a code established for listed companies.  Dutch listed companies are obliged to comply with the provisions in the Corporate Governance Code, or, in case of non-compliance, explain the reasons for not following it in their annual reports ("comply or explain").  The present Corporate Governance Code stipulates that the Supervisory Board should aim for a diverse composition of the Supervisory Board, in terms of (among other things) gender.  Consequently, the gender of each Supervisory Board member should be mentioned in the annual reports.
  • 30% quota for women as well as for men.  On 1 January 2013 new legislation came into force in the Netherlands, in order to improve the underrepresentation of women on company boards.  Companies have to strive to have at least 30% of the seats in their executive board and in their supervisory board held by women, and at least 30% of the seats by men.  Companies should take this into account when nominating and appointing board members; (in case of a two tier board) nominating and appointing supervisory board members and drawing up a supervisory board profile; and (in case of a one tier board) drawing up a profile for non-executive board members.
    • the value of the assets, according to the balance sheet, amounts to more than €17,500
    • the net turnover in the financial year amounts to more than €35,000
    • the average number of employees during the financial year is more than 250.
    • The legislation applies to "large" companies that satisfy at least two of the following criteria:

If a large company does not meet the quota requirements, it is (only) obliged to provide an explanation in its annual reports on why the quota has not been met and to mention future measures to meet the quota (again, "comply or explain").

This legislation will stop automatically on 1 January 2016.  The Dutch government will then decide whether to extend the regulation.

The Dutch Female Board Index 2013 is an annual publication which provides an overview of the presence of women in Executive Boards and Supervisory Boards of 85 Dutch companies listed at Euronext Amsterdam.  It appears that in 2013 none of the companies met the 30% quota: 

  • 32 of the companies (38%) have no women in their Executive Board, nor in their Supervisory Board 
  • 53 of the companies (62,4%) have one of more women in their Executive Board or Supervisory Board
  • 13 companies comply with the 30% quota in either the Executive Board or the Supervisory Board.

The 2013 law sets a minimum target of 30% of women and of 30% of men in company boards of "large" companies.  Although the Dutch Civil Code does not seem to exclude the possibility of positive discrimination, the percentage of 30% women in company boards is already ambitious for several reasons.  First, in 2013 only 13.7% of all directors were female.  Moreover, the legislator has not set a penalty for infringement of this new piece of legislation.  If the company does not meet the new targets it will suffice to explain why those targets have not been met.  Finally, the legislation will cease by operation of law after three years, whereas board members of listed companies are in principle appointed for a period of four years.