On 1 January 2018, the Act banning discrimination of women and men on supervisory boards (GFMA-G) entered into force. It is the first act to stipulate a legally binding minimum number of women and of men on supervisory boards in the private sector. The new provisions apply to elections and appointments after 31 December 2017 to the supervisory boards of listed companies and companies (including limited liability companies) of more than 1,000 employees.
Supervisory boards in such enterprises need to be made up of at least 30 % female and 30 % male members, provided that the board consists of at least six members (shareholders' representatives) and the female/male employees make up at least 20 % of the workforce. Any contravention of the new minimum numbers makes such election or appointment null and void.
The minimum numbers need to be observed with regard to the shareholders' representatives as much as the workers' representatives when at least three workers' representatives must be appointed to the supervisory board. As a rule, the minimum numbers need to be filled by both sides jointly, but if the majority of the shareholders' or workers' representatives objects to this overall view, the two groups need to comply with their respective minimum numbers separately.
The minimum numbers' rule also applies when a substitute replaces a member elected before 1 January 2018. As a consequence, substitute members who were effectually elected prior to 1 January 2018 cannot afterwards join the supervisory board if this results in contravening the minimum numbers. Supervisory board mandates existing prior to 1 January 2018, however, are not affected and remain effective until the end of their respective terms.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
