Consistent with its European neighbors, the Netherlands has seen an increased focus on achieving greater gender diversity on corporate boards. Following Norway’s legislation in 2003 requiring 40% female board members by 2008, the Dutch Parliament similarly enacted legislation in 2013, mandating 30% of board seats to be filled by women. However, despite recent efforts to achieve gender parity on boards through legislation as well as the Dutch Corporate Governance Code, statistics reveal that progress has been slow, particularly in recent years.
Between 2010 and 2014, the percentage of women on boards gradually increased each year (although short of the 30% target), suggesting a trend toward increasing gender diversity on boards.1 However, this increase came to a halt when the percentage of women on boards dropped from 26.4% in 2014, to 26.2% in 2015 and to 26% in 2016.2 Moreover, when looking at the 85 Dutch companies listed on Euronext Amsterdam, women accounted for only 6.2% of directors on management boards as of August 31, 2017.3 This number was down from 7.1% in 2016 and 7.8% in 2015.4 Further, only 6 of the 85 Dutch companies listed on Euronext met the statutory quota discussed below of having at least 30% women on both the management and supervisory boards.5
Dutch companies typically have a two-tier board structure, comprising of a management board and a supervisory board. The management board consists of executives who are responsible for the management of the business and the affairs of the company. The supervisory board consists of non-executives who are responsible for monitoring and advising the management board.
On January 1, 2013, new legislation came into force in the Netherlands to increase the representation of women on both management and supervisory boards. The Dutch Parliament passed the Dutch Management and Supervisory Act (the “Act”) amending the rules on management and supervision within public limited liability companies (N.V.) and private limited liability companies (B.V.). Under the Act, Dutch N.V.s and B.V.s that qualify as “large companies” (as defined by the Act) set, on a temporary basis, a target of 30% of the seats of the company’s management and supervisory boards to be held by both women and men. The Act thus imposed for the first time a specific target for the participation of women on corporate boards.
Notably, this target was not made mandatory and was implemented on a “comply or explain” basis. Companies could either comply and meet the 30% target or, in the case of non-compliance, explain in its annual reports (i) the reasons why the composition of its boards is not in compliance with the gender diversity requirement; (ii) the measures that the company has taken to achieve compliance; and (iii) the measures which the company is planning to take to ensure future compliance.
These statutory provisions under the Act were expected to cease to be in force on January 1, 2016, but the Dutch Parliament extended them in early 2017 under the same terms. The government set a target for women to make up at least 30% of management and supervisory boards by 2020. The Parliament has stated that this is the last attempt to push for gender parity, and if the target is not met, it will implement a mandatory quota.6
In addition to the Act, listed Dutch companies are subject to the Dutch Corporate Governance Code (the “Code”), which was first released in 2003. The Code contains principles and best practices on a wide range of corporate governance topics within listed companies.
In 2008, the Code was updated to include Principle III.3.1, providing that a supervisory board must aim to achieve gender and age diversity, and disclose its approach and efforts in this regard. Principle III.3.1 did not mention any specific quotas and also did not contain any diversity requirements for the management boards of Dutch listed companies. Moreover, the provisions were non-binding in nature. Companies could either comply or, in case of non-compliance, include an explanation in their annual reports as to why they do not comply with those provisions of the Code. As further discussed below, an independent monitoring committee (the “Monitoring Committee”), appointed by the Dutch government to serve four-year terms, is charged with publishing annual reports on overall compliance in the marketplace.7
It was not until the Code was updated in 2016 that it stipulated that diversity (in terms of the male-to-female ratio and in terms of expertise, background, and competencies) must be taken into account in both the supervisory and management boards, not just the former. Best-practice provision 2.1.6 also provides that, if the composition of the management board and the supervisory board diverges from the targets stipulated in the company’s diversity policy and/or the statutory target, the current state of affairs should be outlined in the corporate governance statement, along with an explanation as to what is being done to attain the intended target and by when this is likely to be achieved.8
Therefore, like the Act, the provisions of the Code remain non-binding in nature. Companies can either comply or, in case of non-compliance, include an explanation in their annual reports as to why they do not comply with those provisions of the Code.
The Monitoring Committee has not yet issued a report on overall compliance with the Code since it was updated in 2016. However, according to a survey that the Monitoring Committee commissioned to establish the extent to which companies use diversity targets for management board members, approximately two-thirds of companies use diversity targets.9 Notably, of the companies that indicated that they do not use diversity targets for their management boards, only one-quarter indicated plans to set such targets in 2017.10 It is not yet clear how many of these companies have actually set such targets. Moreover, nearly 20% of companies reported during the survey that they are experiencing difficulties meeting diversity targets. Roughly half of these companies indicated that the biggest challenge in doing so was recruiting women with the requisite talent and experience.11
The Netherlands certainly has taken measures in recent years to increase the percentage of women represented on company boards. However, women continue to be underrepresented, and the large majority of companies have fallen short of meeting diversity targets. This may be attributable, in part, to the fact that such targets have been implemented on a “comply or explain” basis and without actual consequences for noncompliance. As noted above, the Dutch Parliament has indicated that if women do not comprise at least 30% of management and supervisory boards by 2020, then it will implement a mandatory quote. It remains to be seen whether Dutch companies will be successful in moving from 26% to 30% by 2020, and if not, whether the Parliament will make good on its promise.
1 The CS Gender 3000: The Reward for Change, Credit Suisse 8 (2016), https://glg.it/assets/docs/csri-gender-3000.pdf.
2 Id.; Women in the boardroom: A global perspective, Deloitte 61 (2017), https://www2.deloitte.com/content/dam/Deloitte/za/Documents/technology-media-telecommunications/za_Wome_in_the_boardroom_a_global_perspective_fifth_edition.pdf.
3 The Dutch Female Board Index 2017, TIAS School for Business and Society (2017), https://www.tias.edu/docs/default-source/Kennisartikelen/rapport-female-board-index-2017.pdf?Status=Temp&sfvrsn=2; Emma Portier Davis, Dutch company boards failing to meet female quotas, Board Agenda (Sept. 6, 2017), http://boardagenda.com/2017/09/06-dutch-company-boards-female-quotas/.
4 TIAS, supra note 3.
6 Deloitte, supra note 2.
7 Monitoring Committee Corporate Governance Code, The Dutch Corporate Governance Code (2008), https://www.mccg.nl/dutch-corporate-governance-code.
8 Monitoring Committee Corporate Governance Code, The Dutch Corporate Governance Code (Dec. 2016), https://www.mccg.nl/?page=4738.
9 Monitoring Committee Corporate Governance Code, Final Document (unofficial translation) 21 (Dec. 2017), https://www.mccg.nl/?page=5787.
10 Id. at 21-22.
11 Id. at 22.