Cross-post: The Commission gets the point – but not necessarily the instruments (Jan-Werner Müller)

Many readers may have already seen this post by network member Jan-Werner Müller at Verfassungsblog and EUtopialaw – if not, we’re happy to alert you to it here.  It continues Jan's exploration of the ways in which European integration can serve as a check on the failings of democracy on the national level, with particular focus on the Hungarian case (see, e.g., here, here, here, and here).  The first paragraph of the post is reproduced below and the remainder can be read here.  Jan thanks Gábor Halmai as well as network members Dan Kelemen and Kim Lane Scheppele for comments on a draft of this post.  

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This week the European Commission issued a Communication about a new framework for protecting the rule of law within EU Member States.  Is this the long hoped for mechanism that allows the EU to deal with internal threats to liberal democracy (the democratic deficits within Member States, so to speak) effectively?  The clear-cut answer is: yes and no.  The Commission has evidently understood that attempts systematically to undermine rule of law principles require a different response than individual infringement proceedings.  Depending on the circumstances, a structured process of naming and shaming which is now available to the Commission might work.  But if it doesn’t, then the Commission will remain just as helpless as before: no new sanction mechanisms are envisaged (and, to be fair, none might be feasible without treaty change).  In that sense, the new framework formalizes — or, in the words of Commission President Barroso, “consolidates” – the Commission’s de facto approach in recent years.  This is not a trivial achievement; and it’s probably the most the Commission could do on the basis of existing law and with available institutions such as the Fundamental Rights Agency.  It may well deter some governments.  But for illiberal national politicians determined to go head to head with the Commission, there is in the end still only Article 7 TEU – and that remains as difficult to put into effect as before. [continued reading here]

Gender Quotas on Corporate Boards

This week, the European Commission unveiled its proposal for an EU directive on gender balance on corporate boards.  Gender balance means that women must constitute at least 40 percent, and not more than 60 percent, of the board to which the requirement applies.  Over the last few years, there has been a robust debate about the importance of women’s participation in economic decisionmaking, catalyzed in part by Norway’s success in requiring gender balance on the corporate boards of its publicly traded companies.  Supporters of measures to achieve gender balance have focused on the importance of gender equality to the good governance of well-functioning legitimate institutions, including corporations.  Studies cited by the Commission in its proposal claim that women’s participation in leadership improves companies’ economic performance and growth. 

Several member states have passed legislation imposing gender quotas on corporate boards in the last several years (Spain, Italy, Belgium, the Netherlands, and France), or are in the process of doing so (Germany).  However, some of these countries have joined the UK in opposing EU action in this field.  The sticking point is sanctions:  The recently adopted gender quotas laws in various jurisdictions impose a range of sanctions for boards that fail to comply.  None of the EU member states have followed the Norwegian model of dissolving companies by court order should they fail to reach gender parity.  In France, the law provides for the invalidation of any nomination of a board director if appointing the candidate would cause the board to exceed 60 percent of one gender.