Thesis title: Le quote di genere nelle società italiane: profili giuridici e prospettive europee alla luce della Direttiva Women on Boards
The issue of gender representation in corporate bodies has gained increasing relevance in public debate, also in light of the international focus on the topic through instruments such as the United Nations’ 2030 Agenda for Sustainable Development. In particular, the objective of promoting women’s empowerment and ensuring their full and effective participation in decision-making processes has become a key pillar of gender equality policies. In this context, gender quotas represent a corrective measure aimed at fostering gender balance within companies, directly contributing to the achievement of substantive equality.
The purpose of this research is to analyze the legal framework surrounding gender quotas introduced at the national level, with a particular focus on listed companies and those with public participation (Chapter 2), without neglecting the extension of such measures to other regulated sectors, such as the banking industry (Chapter 3). The analysis also includes a critical comparison with Directive (EU) 2022/2381 ("Women on Board") to highlight key differences.
To this end, the study begins with a systematic overview of national and European provisions aimed at promoting gender equality, focusing in particular on the conditions of legitimacy that, according to constitutional and European case law, justify the introduction of strong positive actions such as gender quotas. These conditions include: (i) the neutrality of the legal wording; (ii) the temporary nature of the measures; and (iii) the non-automatic and non-unconditional nature of preferential treatment, which must also take into account other relevant criteria such as merit.
Following a brief overview of several legislative tools aimed at promoting gender equality, the research focuses on the first positive action introduced in the corporate sphere, which extends beyond the goal of fairness to include a utilitarian rationale: Law No. 120/2011 (the so-called Golfo-Mosca Law), which temporarily imposed the obligation to reserve at least 33% (later raised to 40%) of the seats on boards of directors and boards of auditors in listed and state-controlled companies to the less represented gender. The analysis highlights several critical issues in relation to the law’s objectives, the main one being the failure to extend gender balance provisions to executive roles. Empirical data show a still limited female presence in such positions, suggesting that compliance with the law may often be formal rather than substantive, thereby undermining the intended utilitarian rationale.
Another critical aspect emerges from the comparison with the Women on Boards Directive, particularly regarding the rigid and unconditional nature of the national gender quota, which lacks an assessment of individual merit. The Directive, in contrast, combines quantitative targets with a transparent and clearly defined selection process, incorporating objective comparative evaluations of qualifications based on suitability, competence, and professional performance. The analysis discusses Italy’s failure to incorporate these principles, justified by the assumption that the objectives of the Directive had already been achieved. However, a brief comparative analysis with Spain shows that this is only true in quantitative terms and only partially aligns with the spirit of the reform.
Chapter 3 focuses on the banking sector, first framed within the prudential regulatory framework that defines its operational context, within which the measures introduced by the Bank of Italy must be interpreted. In this sector, the introduction of a hard quota takes place in a context where diversity—understood broadly—is already a relevant factor, though it does not override individual suitability, in ensuring appropriate composition of bank corporate bodies. The analysis points out that the gender quota (as introduced in Circular No. 285) faces certain challenges, primarily concerning the difficulty of reconciling the objective of gender balance with the suitability requirements set forth in Article 26 of the Consolidated Law on Banking (TUB) and outlined in Ministerial Decree No. 169/2020. This issue is particularly pronounced in the current context, marked by the emergence of new risks—including cyber risk—and the introduction of regulations such as the DORA Regulation, which require robust governance with specialized technical skills, statistically less prevalent among female candidates. The emphasis on individual suitability of corporate officers has also made it possible to show that, in the banking sector, merit—a dimension entirely absent in the Golfo-Mosca Law—is given value through the mandatory possession of professionalism and competence requirements under Article 26 TUB. However, this does not strictly imply that such suitability coincides with the selection of the most meritorious candidates in the sense promoted by the Women on Boards Directive.
The analysis then extends its scope to other intermediaries under the supervision of the Bank of Italy, with brief references to the insurance sector, aiming to identify, from a strictly regulatory standpoint, the entities for which the introduction of similar measures could hypothetically be considered.
The final analysis addresses the limits imposed on corporate autonomy and shareholder sovereignty by the gender quota, raising doubts about its proportionality, especially when compared with the Women on Boards Directive, where the quota is viewed as a target to be achieved through transparent and non-discriminatory selection processes.
The research ultimately highlights that the Golfo-Mosca Law alone is insufficient to ensure the full achievement of gender equality, and that the absence of an integrated and effective public policy has reduced this measure to a mere formal compliance requirement.