34 Amendments of Sari ESSAYAH related to 2012/0299(COD)
Amendment 69 #
Proposal for a directive
Recital 18
Recital 18
(18) This Directive should not apply to micro, small and medium-sized enterprises (SMEs), as defined by Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises, even if they are listed companies. Furthermore, this Directive should not apply to small- cap listed companies.
Amendment 78 #
Proposal for a directive
Recital 22
Recital 22
(22) Listed companies in the Union should be imposed obligations of means providing for appropriate procedures with a view of meeting specific objectives regarding the gender composition of their boards. Those listed companies in whose boards members of the under-represented sex hold less than 40 per cent of non-executive director positions should make the appointments to those positions on the basis of a comparative analysis of the qualifications of each candidate, by applying pre- established, clear, neutrally formulated and unambiguous criteria, in order to attain the said percentage at the latest by 1 January 2020. However, owing to the diversity of the company law system in the Member States, Member States may decide not to apply the procedural rules of Article 4(1) in cases where the shareholders meeting has proposed candidates for board election during the shareholders meeting where the election is carried out. Therefore, the Directive establishes the objective of at least 40 per cent of non- executive directors of the under- represented sex by that date. This objective in principle only concerns the overall gender diversity among the non-executive directors and does not interfere with the concrete choice of individual directors from a wide pool of male and female candidates in each individual case. In particular, it does not exclude any particular candidates for director positions, nor does it impose any individual directors on companies or shareholders. The decision on the appropriate board members thus remains with the companies and shareholders.
Amendment 87 #
Proposal for a directive
Recital 28
Recital 28
(28) This Directive aims to improve the gender balance among directors of companies listed on stock exchanges and thus to contribute to the realisation of the principle of equal treatment between men and women, recognised as a fundamental right of the Union. Listed companies should therefore be required to disclose, where possible, upon the request of an unsuccessful candidate, not only the qualification criteria upon which the selection was based, but also the objective comparative assessment of those criteria and, where relevant, the considerations tilting the balance in favour of a candidate who is not of the under-represented sex . This disclosure obligation does not apply where such disclosure would endanger trade secrets or would be impossible because the elected board member was proposed by the shareholders. These limitations to the right to respect for private life with regard to the processing of personal data, recognised by the Articles 7 and 8 of the Charter, and the obligation for listed companies to supply that information, upon request, to the unsuccessful candidate, are necessary and, in conformity with the principle of proportionality, genuinely meet recognised objectives of general interest. They are therefore in line with the requirements for such limitations laid down in Article 52(1) of the Charter and with the relevant case- law of the Court of Justice.
Amendment 90 #
Proposal for a directive
Recital 30
Recital 30
(30) Member States should provide for effective, proportionate and dissuasive sanctions for breaches of this Directive, which could include, inter alia, administrative fines andmay, however, not include nullity or annulment declared by a judicial body of the appointment or of the election of non- executive directors made contrary to the national provisions adopted pursuant to Article 4(1). A failure to reach the objective laid down in Article 4(1) or 4(7) shall not constitute an infringement of the national provisions adopted pursuant to this Directive and shall not be subject to sanctions.
Amendment 96 #
Proposal for a directive
Recital 18
Recital 18
(18) This Directive should not apply to micro, small and medium-sized enterprises (SMEs), as defined by Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises, even if they are listed companies. Furthermore, this Directive should not apply to small- cap listed companies.
Amendment 99 #
Proposal for a directive
Recital 35
Recital 35
(35) Member States may have already taken measures providing for means to ensure a more balanced representation of women and men in company boards before the entry into force of this Directive. Such Member States should have an opportunity to apply those measures in place of the procedural requirements relating to appointments where they can demonstrate that the measures taken are of equivalent efficacy in order to attain the objective of a presence of the under-represented sex of at least 40 per cent among non-executive directors of listed companies or the one third objective referred to in Article 4(7) of this Directive at the latest by 1 January 2020 or at the latest by 1 January 2018 in case of listed companies which are public undertakings. Also e.g. self-regulatory measures aiming to ensure a more balanced representation of women and men among the non-executive directors of listed companies must be considered as relevant measures in this regard.
Amendment 104 #
Proposal for a directive
Recital 22
Recital 22
(22) Listed companies in the Union should be imposed obligations of means providing for appropriate procedures with a view of meeting specific objectives regarding the gender composition of their boards. Those listed companies in whose boards members of the under-represented sex hold less than 40 per cent of non-executive director positions should make the appointments to those positions on the basis of a comparative analysis of the qualifications of each candidate, by applying pre- established, clear, neutrally formulated and unambiguous criteria, in order to attain the said percentage at the latest by 1 January 2020. However, owing to the diversity of the company law system in the Member States, Member States may decide not to apply the procedural rules of Article 4(1) in cases where the shareholders meeting has proposed candidates for board election during the shareholders meeting where the election is carried out. Therefore, the Directive establishes the objective of at least 40 per cent of non- executive directors of the under- represented sex by that date. This objective in principle only concerns the overall gender diversity among the non-executive directors and does not interfere with the concrete choice of individual directors from a wide pool of male and female candidates in each individual case. In particular, it does not exclude any particular candidates for director positions, nor does it impose any individual directors on companies or shareholders. The decision on the appropriate board members thus remains with the companies and shareholders.
Amendment 110 #
Proposal for a directive
Article 2 – point 8 a (new)
Article 2 – point 8 a (new)
(8a) 'a SmallCap listed company' means company with a market capitalisation of less than EUR 150 million;
Amendment 114 #
Proposal for a directive
Article 3
Article 3
This Directive shall not apply to small and medium-sized enterprises (‘'SMEs’') or to SmallCap listed companies as defined in Article 2(8a).
Amendment 119 #
Proposal for a directive
Article 4 – paragraph 1
Article 4 – paragraph 1
1. Member States shall ensure that listed companies in whose boards members of the under-represented sex hold less than 40 per cent of the non-executive director positions make the appointments to those positions on the basis of a comparative analysis of the qualifications of each candidate, by applying pre-established, clear, neutrally formulated and unambiguous criteria, in order towith the aim of attaining the said percentage at the latest by 1 January 2020 or at the latest by 1 January 2018 in case of listed companies which are public undertakings.
Amendment 121 #
Proposal for a directive
Article 4 – paragraph 1 a (new)
Article 4 – paragraph 1 a (new)
1a. Member States may decide not to apply paragraph 1 in cases where the shareholders' meeting proposes candidates for board election during the shareholders' meeting where the election is carried out.
Amendment 124 #
Proposal for a directive
Recital 28
Recital 28
(28) This Directive aims to improve the gender balance among directors of companies listed on stock exchanges and thus to contribute to the realisation of the principle of equal treatment between men and women, recognised as a fundamental right of the Union. Listed companies should therefore be required to disclose, where possible, upon the request of an unsuccessful candidate, not only the qualification criteria upon which the selection was based, but also the objective comparative assessment of those criteria and, where relevant, the considerations tilting the balance in favour of a candidate who is not of the under-represented sex . This disclosure obligation does not apply where such disclosure would endanger trade secrets or would be impossible because the elected board member was proposed by the shareholders. These limitations to the right to respect for private life with regard to the processing of personal data, recognised by the Articles 7 and 8 of the Charter, and the obligation for listed companies to supply that information, upon request, to the unsuccessful candidate, are necessary and, in conformity with the principle of proportionality, genuinely meet recognised objectives of general interest. They are therefore in line with the requirements for such limitations laid down in Article 52(1) of the Charter and with the relevant case- law of the Court of Justice.
Amendment 128 #
Proposal for a directive
Article 4 – paragraph 4
Article 4 – paragraph 4
4. Member States shall ensure that listed companies are obliged to disclose, on the request of an unsuccessful candidate, the qualification criteria upon which the selection was based, the objective comparative assessment of those criteria and, where relevant, the considerations tilting the balance in favour of a candidate of the other sex. The obligation to disclose shall not apply where disclosure would endanger trade secrets or where the elected board member was proposed by the shareholders, thereby rendering disclosure impossible.
Amendment 129 #
Proposal for a directive
Recital 30
Recital 30
(30) Member States should provide for effective, proportionate and dissuasive sanctions for breaches of this Directive, which could include, inter alia, administrative fines andmay, however, not include nullity or annulment declared by a judicial body of the appointment or of the election of non- executive directors made contrary to the national provisions adopted pursuant to Article 4(1). A failure to reach the objective laid down in Article 4(1) or 4(7) shall not constitute an infringement of the national provisions adopted pursuant to this Directive and shall not be subject to sanctions.
Amendment 133 #
Proposal for a directive
Article 4 – paragraph 7
Article 4 – paragraph 7
7. Member States may provide that the objective laid down in paragraph 1 is met where listed companies can show that members of the under-represented sex hold at least one third of all director positions, irrespective of whether they are executive or non-executive. The number necessary for meeting this one third objective shall be the number closest to the proportion of one third.
Amendment 142 #
Proposal for a directive
Article 6 – paragraph 2 – introductory part
Article 6 – paragraph 2 – introductory part
2. The sanctions must be effective, proportionate and dissuasive andbut may not include the following measures:
Amendment 145 #
Proposal for a directive
Article 6 – paragraph 2 – point a
Article 6 – paragraph 2 – point a
Amendment 148 #
Proposal for a directive
Article 6 – paragraph 2 a (new)
Article 6 – paragraph 2 a (new)
Amendment 151 #
Proposal for a directive
Recital 35
Recital 35
(35) Member States may have already taken measures providing for means to ensure a more balanced representation of women and men in company boards before the entry into force of this Directive. Such Member States should have an opportunity to apply those measures in place of the procedural requirements relating to appointments where they can demonstrate that the measures taken are of equivalent efficacy in order to attain the objective of a presence of the under-represented sex of at least 40 per cent among non-executive directors of listed companies or the one third objective referred to in Article 4(7) of this Directive at the latest by 1 January 2020 or at the latest by 1 January 2018 in case of listed companies which are public undertakings. Also e.g. self-regulatory measures aiming to ensure a more balanced representation of women and men among the non-executive directors of listed companies must be considered as relevant measures in this regard.
Amendment 154 #
Proposal for a directive
Article 8 – paragraph 3 – subparagraph 1
Article 8 – paragraph 3 – subparagraph 1
Without prejudice to Article 4(6) and (7), Member States which before the entry into force of this Directive have already taken measures to ensure a more balanced representation of women and men among the non-executive directors of listed companies or Member States where other e.g. self-regulatory measures aiming to ensure a more balanced representation of women and men among the non-executive directors of listed companies exist may suspend the application of the procedural requirements relating to appointments contained in Article 4(1), (3), (4) and (5) and the application of Article 5(1), provided that it can be shown that those measures enable members of the under-represented sex to hold either at least 40 per cent of the non- executive director positions of listed companies or the one-third objective referred to in Article 4(7) by at the latest 1 January 2020, or at the latest 1 January 2018 for listed companies which are public undertakings. The Member State in question shall notify this information to the Commission.
Amendment 157 #
Proposal for a directive
Article 9 – paragraph 2 – subparagraph 1
Article 9 – paragraph 2 – subparagraph 1
Member States having suspended pursuant to Article 8(3) the application of the procedural requirements relating to appointments contained in Article 4(1), (3), (4) and (5) shall include information in the reports mentioned in paragraph 1 demonstrating the concrete results obtained by the national or self-regulatory measures referred to in Article 8(3). The Commission shall then issue a specific report ascertaining whether those measures effectively enable members of the under- represented sex to hold at least 40 per cent of the non-executive director positions by 1 January 2018 for listed companies which are public undertakings, and by 1 January 2020 for listed companies which are not public undertakings. The first such report shall be issued by the Commission by 1 July 2017, and subsequent reports shall be issued within six months after notification of the respective national reports under paragraph 1.
Amendment 160 #
Proposal for a directive
Article 9 – paragraph 2 – subparagraph 2
Article 9 – paragraph 2 – subparagraph 2
Member States in question shall ensure that listed companies, which by applying the national or self-regulatory measures referred to in Article 8(3) have not appointed or elected members of the under- represented sex for at least 40 per cent of the non-executive director positions of their boards by 1 January 2018, where they are public undertakings, or by 1 January 2020, where they are not public undertakings, apply the procedural requirements relating to appointments contained in Article 4(1), (3), (4) and (5) with effect respectively from those dates.
Amendment 163 #
Proposal for a directive
Article 2 – paragraph 1 – point 8 a (new)
Article 2 – paragraph 1 – point 8 a (new)
(8a) ‘a small cap listed company’ means company with a market capitalization of less than 150 million Euros.
Amendment 165 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
This Directive shall not apply to small and medium-sized enterprises (‘'SMEs’)') or to small-cap listed companies as defined in Article 2(8b) of this Directive.
Amendment 171 #
Proposal for a directive
Article 4 – paragraph 1
Article 4 – paragraph 1
1. Member States shall ensure that listed companies in whose boards members of the under-represented sex hold less than 40 per cent of the non-executive director positions make the appointments to those positions on the basis of a comparative analysis of the qualifications of each candidate, by applying pre-established, clear, neutrally formulated and unambiguous criteria, in order to try to attain the said percentage at the latest by 1 January 2020 or at the latest by 1 January 2018 in case of listed companies which are public undertakings.
Amendment 175 #
Proposal for a directive
Article 4 – paragraph 1 a (new)
Article 4 – paragraph 1 a (new)
1a. Member States may decide not to apply the procedural rules of paragraph 1 in cases where the shareholders meeting has proposed candidates for board election during the shareholders' meeting where the election is carried out.
Amendment 189 #
Proposal for a directive
Article 4 – paragraph 4
Article 4 – paragraph 4
4. Member States shall ensure that listed companies are obliged to disclose, on the request of an unsuccessful candidate, the qualification criteria upon which the selection was based, the objective comparative assessment of those criteria and, where relevant, the considerations tilting the balance in favour of a candidate of the other sex. This obligation does not apply where such disclosure would endanger trade secrets or would be impossible because the elected board member was proposed by the shareholders.
Amendment 205 #
Proposal for a directive
Article 4 – paragraph 7
Article 4 – paragraph 7
7. Member States may provide that the objective laid down in paragraph 1 is met where listed companies can show that members of the under-represented sex hold at least one third of all director positions, irrespective of whether they are executive or non-executive. The number necessary for meeting this one third -objective shall be the number closest to the proportion of one third.
Amendment 221 #
Proposal for a directive
Article 6 – paragraph 2 – introductory part
Article 6 – paragraph 2 – introductory part
2. The sanctions must be effective, proportionate and dissuasive andbut may not include the following measures:
Amendment 224 #
Proposal for a directive
Article 6 – paragraph 2 – point a
Article 6 – paragraph 2 – point a
Amendment 232 #
Proposal for a directive
Article 6 – paragraph 2 c (new)
Article 6 – paragraph 2 c (new)
2c. A failure to reach the objective laid down in Article 4(1) or 4(7) shall not constitute an infringement of the national provisions adopted pursuant to this Directive and shall not be subject to sanctions.
Amendment 238 #
Proposal for a directive
Article 8 – paragraph 3 – subparagraph 1
Article 8 – paragraph 3 – subparagraph 1
Without prejudice to Article 4(6) and (7), Member States which before the entry into force of this Directive have already taken measures to ensure a more balanced representation of women and men among the non-executive directors of listed companies or Member States where other e.g. self-regulatory measures aiming to ensure a more balanced representation of women and men among the non-executive directors of listed companies exist may suspend the application of the procedural requirements relating to appointments contained in Article 4(1), (3), (4) and (5) and the application of Article 5(1), provided that it can be shown that those measures enable members of the under-represented sex to hold either at least 40 per cent of the non- executive director positions of listed companies or the one-third objective referred to in Article 4(7) by at the latest 1 January 2020, or at the latest 1 January 2018 for listed companies which are public undertakings. The Member State in question shall notify this information to the Commission.
Amendment 246 #
Proposal for a directive
Article 9 – paragraph 2 – subparagraph 1
Article 9 – paragraph 2 – subparagraph 1
Member States having suspended pursuant to Article 8(3) the application of the procedural requirements relating to appointments contained in Article 4(1), (3), (4) and (5) shall include information in the reports mentioned in paragraph 1 demonstrating the concrete results obtained by the national or self-regulatory measures referred to in Article 8(3). The Commission shall then issue a specific report ascertaining whether those measures effectively enable members of the under- represented sex to hold at least 40 per cent of the non-executive director positions by 1 January 2018 for listed companies which are public undertakings, and by 1 January 2020 for listed companies which are not public undertakings. The first such report shall be issued by the Commission by 1 July 2017, and subsequent reports shall be issued within six months after notification of the respective national reports under paragraph 1.
Amendment 250 #
Proposal for a directive
Article 9 – paragraph 2 – subparagraph 2
Article 9 – paragraph 2 – subparagraph 2
Member States in question shall ensure that listed companies, which by applying the national or self-regulatory measures referred to in Article 8(3) have not appointed or elected members of the under- represented sex for at least 40 per cent of the non-executive director positions of their boards by 1 January 2018, where they are public undertakings, or by 1 January 2020, where they are not public undertakings, apply the procedural requirements relating to appointments contained in Article 4(1), (3), (4) and (5) with effect respectively from those dates.