Here follows the article by Francesco Dagnino and Marco Stefanini published by Diritto24.
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The provisions of Law no. 160 of 27 December 2019 (“Budget Law“), which amended articles 147-ter and 148 of Legislative Decree no. 58/98 (“TUF”) on boardroom diversity whithin the boards of listed companies on regulated markets, came into force on 1 January 2020.
The new law, which extends the effects of Law no. 120/2011 (“Golfo-Mosca” law) following the expiry of the board three-year period mandate provided for therein (the so-called “sunset clause“), provides that a mandatory quota of at least two-fifths of the seats within the board of directors and statutory auditors (that is, members of the board of directors and the acting auditors (sindaci effettivi), in case the company opted for the “traditional” board structure) must belong to the under-represented sex.
The provision that mandates that at least one-fifth of the board seats must be reserved to the least represented gender at the first renewal following the date of the start of negotiations remains unprejudiced.
The new discipline applies starting from the first renewal of the corporate boards following the date of entry into force of the Budget Law (i.e., from the 2020 Shareholders’ Meeting season), and for the following six consecutive terms (compared to the previous three consecutive mandates).
Listed companies whose by-laws do not already comply with the new laws on gender representation in listed companies must, therefore, adapt them within the deadline for the convening of the shareholders’ meeting that has the renewal of the corporate bodies in its agenda. Given that this is a matter of compliance with legal provisions, unless otherwise provided for by the by-laws, the board of directors, without prejudice to the fact that the minutes must be drawn up by a public notary, shall be responsible for the amendment of the by-laws.
Following a brief consultation with the market which ended on January 28th 2020, Consob settled the interpretative conundrum that arose with regard to the corporate bodies made up of three members, within which the appointment of two-fifths of the corporate board seats for members of the under-represented gender cannot follow suit due to an arithmetical unattainability; with the Communication n. 1/20, Consob has in fact clarified that, in such cases, lowering the mandatory quota to one single unit (and therefore, 1 member out of 3) shall be in any case considered in compliance with the new laws, as an exception to the provisions of art. 144-undecies, paragraph 3, of Consob Regulation adopted with Resolution No. 11971 of 14 May 1999, as subsequently amended and supplemented (the “Issuers Regulation“). Moreover, as announced in the aforesaid Communication, Consob has begun a new consultation with the market to make the Issuer Regulation complaint with the terms of the Budget Law. Last call on the consultation is set for March 16, 2020.
The penalties for those who fail to comply with the new obligations remain unchanged.
