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Economic news of the past few weeks has reported that Cassa Depositi e Prestiti, a joint stock company controlled by the Italian Ministry of the Treasury, has encountered difficulties in forming a new board of directors due to the need to respect gender quotas. Ultimately, it has been reported more recently that Cassa Depositi e Prestiti has finally appointed the new corporate bodies, amending the statutes to meet the gender parity requirements[1] .
Beyond the political debate and journalistic simplifications, the case nevertheless remains of interest, for having brought to attention the long road of the Italian regulation on gender representation, which since 2011 (with Law No. 120 of 12 July 2011, the so-called ‘Golfo-Mosca’) has imposed, by amending the text of the Consolidated Law on Financial Intermediation (“TUF”), constraints on governing bodies (as well as on supervisory bodies) of listed companies, which after Law 160 of 2019 have come to provide for a minimum quota of the least represented gender equal to 2/5 of the members.
The gender representation principle – as an appropriate policy for ensuring and promoting a plurality of positions and viewpoints on boards – has progressively permeated the legal system.
The gender-based constraints for public companies in the composition of corporate bodies, already provided for in general terms by the Golfo-Mosca Law, were first specified by Presidential Decree No. 251 of 30 November 2012, which, in implementation of Article 3, paragraph 2, of Law No. 120 of 12 July 2011, established the obligation to ensure that at least one third of the members of the corporate bodies of companies controlled by public entities are assigned to the “under-represented” gender. This principle has also been confirmed by Article 11 of the Consolidated Law on Public Owned Companies, Legislative Decree 175 of 2016[2] .
Lastly, Article 6 of Law No. 162 of 5 November 2021 provided that the provisions set forth in Paragraph 1-ter of Article 147-ter of the Consolidated Law on Finance shall also apply to companies, incorporated in Italy, controlled by public administrations that are not listed on regulated markets, delegating to a regulation to be adopted within two months from the date of entry into force of Law 162/2021 to make the necessary amendments to the regulation contained in the aforementioned Presidential Decree 251/2012 to implement the alignment with the Consolidated Law on Finance.
Although characterised by the temporality of their effects (currently intended to be effective only for 6 mandates, equal to eighteen years), the legislative innovations that started with the Gulf-Moscow Law have marked an evolutionary trend in our legal system, which has gone as far as secondary level regulations (see, for example, Bank of Italy Supervisory Circular no. 285/2013 of 30 June 2021, IVASS Order No. 142 of 5 March 2024, which amended IVASS Regulation No. 38 of 2018) and to the so-called soft law, first and foremost the Corporate Governance Code of Borsa Italiana S.p.a..
On the other hand, one effect of the impact produced by the regulatory provisions under review is confirmed by the unusual circumstance whereby on this specific issue it was Italy that anticipated the regulatory initiative of the European Union, which had only passed the ‘Women on boards‘ directive (EU Directive No. 2381/2022) in 2022 and after a ten-year gestation period. On this aspect, for more details, we refer to a recent contribution of the Study ‘Women on boards: a comparison between the EU Directive 2022/2381 and the Italian law on the presence of the least represented gender in the boards of directors of listed companies‘.
The Cassa Depositi e Prestiti affair, therefore, although positively ended, raised several issues (both positive and critical) that have arisen in these more than ten years of applying the Italian legislation on gender representation, and in particular that relating to the temporary nature of the rule (temporary nature foreseen by the Golfo-Mosca law as a legislative instrument to temper the strongly preceptive nature of the rule, in light of the constitutional value of the aims pursued)[3] .
In particular, Cassa Depositi e Prestiti had already voluntarily provided for the two-fifths quotas in its bylaws, anticipating the implementing decree of Law 162 of 2021, which has not yet been approved to date, although the two-month deadline provided for in Article 6 of the same law has expired.
In recent weeks, quotas have led to political wrangling over appointments between members of the under-represented gender, which, according to the press, has led to a deadlock in the AGMs ahead of the 15 July meeting.
The press reported that the shareholders of Cassa Depositi e Prestiti, among the solutions envisaged, would have also considered amending the bylaws to lower the “gender” quota from two-fifths to one-third, applying the lowest quota, according to the latest regulatory reference applicable pending approval of the implementing decree.
The Shareholders’ Meeting of 15 July 2024 – first an extraordinary one to ratify the increase in the size of the Board, and then an ordinary one to make the appointments – finally approved the increase from nine to eleven members, thus allowing the political parties to reach an agreement on the appointment of directors, and also ensuring compliance with the “gender quotas”, which in fact increased from four to five members of the Board in order to comply with the 40% quota.
Beyond the solution adopted by the public company, and any evaluation of the solutions examined, including that of initiating a statutory amendment of CDP’s bylaws – still-pending the implementing regulation of Law 162 of 2021 – it remains to be seen what lessons can be drawn from this episode in the economic news for legal and business practitioners.
In the first place, there emerges the great diffusion at the cultural level of the added value guaranteed by gender pluralism in boards of directors (as evidenced by the attention paid to this and similar affairs, such as that relating to Atlantia – Mundys[4] ); on the other hand, the Cassa Depositi e Prestiti affair testifies to the difficulty – surprisingly, especially in the public sphere – of fully valorising gender equality, which is in fact one of the fundamental cornerstones, even in our legal system, of the so-called corporate social responsibility, which is now more than ever at the heart of corporate law at national and EU level.
Despite the diffusion of gender pluralism values in corporate bodies seems to be more and more widespread in first and second tier regulations, especially for larger companies, the tendency of companies to try to free themselves from the Gulf-Moscow constraints as soon as the legal obligation expires seems to lead to an extension of this discipline at through hard law measures and, in particular, to its full enforcement through the approval of the long-awaited implementing decree of Law 162 of 2021.
It also seems to us that this economic news could underline the need for a step towards the full maturation of the culture of gender balance in a direction other than a mere legal obligation, in particular by encouraging academia, professional categories and professional associations to promote more and more job applications from the under-represented gender exponents, or even by codifying good practices (of communication, recruitment, invitation to apply) when a deadlock situation arises in the event of insufficient applications.
In this respect, it is desirable that legal professionals, in their relationship with their clients, become more involved in promoting gender balance in corporate bodies, demonstrating the positive effects in the medium term, even if they are not subject to legal obligations.
Adequate information from professionals to companies on the evolution of the regulatory system can be a determining factor in the establishment of the gender equality culture in companies of all sizes and sectors.