For years there has been a cross-party discussion of a
gender-equitable representation on the supervisory boards and
management boards of listed and co-determined enterprises. In this
connection the SPD Bundestag faction presented in due time for
International Women's Day on 6 March 2012 the draft bill of an
act to promote equal opportunities for men and women in commercial
enterprises. No date has yet been set for a discussion of the
draft. The most important proposals can briefly be summarised as
follows:
The draft bill envisages for the management board of a stock
corporation initially (2013) a minimum quota of 20% women and later
(2015) 40%. In case of a failure to observe the minimum quota, the
positions on the management board shall remain vacant and, after
the expiry of 12 months, this will lead to representation by the
supervisory board.
A minimum quota of 30% women is demanded for the supervisory board.
The legal consequence of a failure to observe the quota will, after
12 months, be that the supervisory board lacks a quorum.
The proposed amendments will affect the German Stock Corporation
Act [Aktiengesetz, AktG]. However, through corresponding
references, these could inter alia also have consequences for the
German Co-Determination Act [Mitbestimmungsgesetz,
MitbestG], the German One-Third Employee Participation Act
[Drittelbeteiligungsgesetz, DrittelbG], the German SE Employee
Participation Act [SE-Beteiligungsgesetz, SEBG] as well as
the German SE Implementation Act [SE-Ausführungsgesetz,
SEAG]. Whether the current form of the draft bill will
withstand examination pursuant to constitutional law is doubtful.
It also leaves legal questions open, for example, what happens in
the absence of a quorum? Since the draft is also highly disputed in
the various political camps, as was to be expected, it remains to
be seen whether and, if so, in which form this project is actually
implemented and therewith becomes law.
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