France

Aline Poncelet, Partner
Paul Hastings (Paris)

Talya Hutchison, Associate
Paul Hastings (Washington, DC)

Empowerment and sufficient participation in decision-making and governance at all levels for women in Europe remains a long-standing topic. Depending on the country, different approaches have been adopted to promote boardroom diversity and to increase the number of women serving on corporate boards—from voluntary initiatives and non-mandatory corporate governance codes to legal requirements imposing specific gender quotas.

In 2010, the proportion of women serving on corporate boards in France’s CAC 40 listed companies was 15 percent, while there was only 9.5 percent female participation on the boards in a sample of 103 listed companies. Further, there were few indications that this trend would change. However, as shown below, that number has significantly increased with women now comprising 42% of board members in France’s 40 largest companies as of March 2017. What created the change?

In light of the stagnation of progress under the voluntary approach, the French Parliament decided to implement a mandatory regulatory approach in order to give France’s largest companies a serious and immediate incentive to change their behavior.  After passing gender quota legislation in 2011, the proportion of female non-executive directors at France’s top listed companies rose to 42% in 2017.

The French Constitution

In July 2008, the French Constitution was modified to enable the introduction of gender quotas for corporate boards.  This was in response to a 2006 proposal regarding equal pay between men and women that was rejected by the French Constitutional Council on the rationale that such a quota violated the French Constitution as a kind of discrimination. Article 3 of the Constitution provides for equality between men and women only for political and electoral functions and does not address the private sector.  Expanding the scope of Article 3 was thus necessary in order to enable a larger introduction of gender quotas into French law.  In 2008, Article 3 of the Constitution was modified and the new Article 1 now states that “French law favors equal access for men and women to elective functions and political mandates as well as to social and business functions.”1 Therefore, equality between men and women is now constitutionally required in both public and private sectors and can be guaranteed through the implementation of quotas.

Voluntary approach: Corporate Governance Code

After the revision of the French Constitution, a new law was proposed in 2009 by two French deputies, Jean-François Copé and Marie-Jo Zimmerman, aimed at establishing quotas for women on corporate boards.  One of the main French employer’s organizations, AFEP-MEDEF, anticipated this legislative move and advocated for a voluntary approach. In 2010, the AFEP-MEDEF amended its voluntary corporate governance code applicable to companies whose securities are traded on a regulated market. Pursuant to the revised Article 6-3 of the Code, “Each Board should consider what would be the desirable balance within its membership…in particular as regards the representation of men and women.”2 To reach this goal, the AFEP-MEDEF Code states that each board should “reach and maintain a percentage of at least 20 of women within a period of three years and at least 40 of women within a period six years, from the date of publication of this recommendation or from the date of the listing of the company’s shares on a regulated market, whichever is later.”3  Boards of directors that are elected are not included in the quotas.

The AFEP-­MEDEF Code also states that corporate boards that do not include any women as of the date of its publication should appoint one female director no later than the next general meeting of shareholders, either by appointing a new female board member or by replacing a male board member whose mandate is expiring.4  Six years from the date of publication of the Code, for boards that have fewer than nine administrators, the difference between the number of male and female board members should not be greater than two.

The AFEP-MEDEF Code also requires that one-half or one-third of the members of the board of widely held and controlled companies, respectively, must be independent.  In establishing criteria to assess “independence”, the Code states that, in order to remain independent, a director must “not … have been a director of the corporation for more than twelve years.”5  As such, this tenure restriction should facilitate further turn over in board seats.

Compliance with corporate codes is voluntary for French companies. However, based on 2011 figures, it did not appear that such voluntary approaches were producing effective results. According to the fundamental corporate governance principle “comply or explain,” the reasons for non-compliance only have to be explained in the companies’ annual reports. Hence, as long as the companies explain it, they are not subject to any sanctions. Considering that self-regulation had not been effective, in January 2011, France adopted a new law implementing gender quotas on corporate boards.

New Law Implements Gender Quotas

On January 27, 2011, after more than a year of discussions, the French national assembly (“Assemblée nationale”) and the French Congress (Sénat) passed legislation aimed at improving the representation of women on corporate boards, the Copé -Zimmermann Law.  Copé -Zimmermann covers both listed companies whose shares are admitted to trading on a regulated market, and non-listed companies with revenues or total assets over 50 million euros or employing at least 500 persons for the last three years.

During the transition period, which ran for three years beginning in 2011, corporate boards that did not include any women should have appointed a female board member when replacing a male board member whose mandate was expiring on the date of the next general assembly of shareholders.  Additionally, by the end of these first three years, the percentage of directors of each gender could not be less than 20%.  After the transition period, the law is similar to the AFEP-MEDEF Code, except that it is accompanied with effective sanctions.

Under Copé -Zimmermann, the percentage of female and male directors should not be below 40 percent in both listed and non-listed companies beginning in January 2017.  In addition, when there are no more than eight directors on a corporate board, the difference between the number of directors of each gender should not be greater than two. It is important to note that Copé -Zimmermann imposes absolute gender quotas. This means that quotas must be reached regardless of available talent, although it is stated that the appointments should be done in accordance with the social interest of the company.

In imposing sanctions for non-compliance, the French legislature chose not to adopt any pecuniary sanctions, identifying them as being too easy to bypass for top-listed companies. One main sanction when breaching the law is the nullity of the non-compliant appointment.6  Any company that does not have the requisite 40 percent must only make changes that positively contribute toward getting the company to that goal.7  A second sanction that may be imposed is that compensation for directors in the form of attendance fees are suspended until the board is compliant with the law.8 

Two laws were built on to the scope of the Copé -Zimmermann law.  In 2012, the Sauvadet law extended the percentage requirement to government bodies.9   Two years later, the Vallaud Belkacem law further extended the scope of the laws into other governmental institutions and the cultural arena.10

Progress

The Law has an anecdotally important effect on this progress: the rate of women on boards in countries with binding legislation rose by almost triple the rate of countries without such binding legislation.11 France is making tremendous progress. 

Data from October 2016 demonstrates that France leads the European Union in gender balance among board members, chairs, and CEOs of large, listed companies; women comprised 41.2% of these roles at the time of the European Commission study.12  As of March 2017, women comprised 42% of board members in France’s 40 largest companies by market capitalization (CAC 40).13

French companies worked hard to meet the statutorily required goal.  Within the first three months of 2016, women accounted for 28 out of 44 CAC 40 board.14  As companies sought to comply with the 40 percent requirement now in place, the women on France’s boards are becoming more diverse themselves.  As of March 2016, approximately 30 percent of all board members in some of France’s biggest companies are not French natives.15  Women are now, on average, six years younger than their male counterparts and have more international experience.16

Although the numbers are vastly improved, data shows that there is still more compliance needed.  As of January 2017 – the effective date of Copé-Zimmerman – many companies still had not yet hit the threshold.  In fact, only 65% of the companies comprising the CAC 40 had a board of at least 40% women.17   Yet gender equality has recently found a spotlight in France as President Emanuel Macron declared it the “grande cause nationale” of his presidency.18  President Macron, who has vowed to end the gender pay gap, has appointed a Minister of Gender Equality, Marlène Schiappa, who has spoken of creating gender equality in corporate leadership.19  With a President dedicated to eradicating gender inequality and a Minister of Gender Equality whose new tenure has already included participation in the Women in Corporate Leadership Initiative, the number of companies in compliance, and those who promote women in leadership, are expected to increase.

Conclusion

In recent years, the French government has adopted increasingly stringent measures to achieve gender parity on corporate boards. While certain organizations have advocated for self-regulation, the French government enacted more stringent legislation imposing quotas after it appeared that a voluntary approach did not significantly increase gender diversity on corporate boards. The legislation’s requirements were implemented over a multiyear period ending in 2017 and may be enforced by nullification of board appointments for companies that are not in compliance.

France is the European Member State that has had the most dramatic increase since the new law was enacted in 2011.  Additionally, there has been progress in cultivating women for board positions.  In 2012, the European PWN-Paris published a guide entitled Administrateur(e) Au Feminin, written by Miriam Garnier, Co-Vice President of Women on Board & Executive Forum to assist women in becoming board-ready.20  The purpose of the guide is to “help others get an idea of what [is] ahead when joining a board” in order to be better prepared and to be effective board members.

The effect of the Copé -Zimmermann Law is substantial.  Whereas women only accounted for 8% of board members in 2006, a dozen years and one law imposing mandatory quotas later, that number has skyrocketed.  With the significant progress made in France in the past five years, all eyes continue to watch to see whether the tide in France will ripple across other European Member States who currently lag behind.

1 The formal text reads: “la loi favorise l’égal accès des femmes et des hommes aux mandats électoraux et fonctions électives ainsi qu’aux responsabilités sociales et professionnelles.”

2 See Corporate Governance Code of Listed Corporations, AFEP-MEDEF (Amended Apr. 2010) (English language version can be found at www.ecgi.org/code (last visited Apr. 9, 2018)).

3 See Code, Section 6.3.

4 Id.

5 See Code, Section 8.4.

6 Board-Level Gender Quotas in the UK, France, and Germany, Hegeler Mueller, Partnerschaft von Rechtsanwälten mbB 8 (Aug. 2016), https://www.hengeler.com/fileadmin/news/BF_Letter/14_Board-LevelGenderQuotas_2016-08.PDF.

7 Id.

8 Id.

9 Women in the boardroom: A global perspective, Deloitte 52 (2017), https://www2.deloitte.com/content/dam/Deloitte/global/Documents/Risk/Women%20in%20the%20boardroom%20a%20global%20perspective%20fifth%20edition.pdf.

10 Id.

11 2017 Report on Equality Between Women and Men in the EU, European Union 28 (2017), https://eeas.europa.eu/sites/eeas/files/2017_report_equality_women_men_in_the_eu_en.pdf.

12 Id. at 29.

13 Deloitte, supra note 9.

14 Adam Thomson, French Boards Rush to Meet Quotas for Female Membership, Fin. Times (Mar. 22, 2016), https://www.ft.com/content/5b542782-ee9e-11e5-aff5-19b4e253664a.

15 Id.

16 Deloitte, supra note 9.

17 Institut du Capitalisme Responsable, L’Indice Zimmermann et les Grands Prix de la Mixité, http://www.capitalisme-responsable.com/indice-de-la-mixite/ (last visited Apr. 9, 2018).

18 See Anne-Sylvaine Chassany, Macron Prepares to Act on France’s Gender Pay Gap, Fin. Times (Mar. 7. 2018), https://www.ft.com/content/7644706a-06ac-11e8-9e12-af73e8db3c71.

19 Marlène Schiappa, Minister of Gender Equality, Address at the New York Stock Exchange (Jan. 31, 2018).

20 Miriam Garnier, Administrateur(e) Au Feminin (European PWN-Paris 2012), http://www.votre-administrateur.com/wp-content/uploads/2012/07/EPWN-book.pdf  (last visited Apr. 10, 2018).