Recital (13)

The requirement in Directive 2009/38/EC to take into account, where possible, the need for balanced representation of employees with regard to their gender when determining the composition of European Works Councils has proven insufficient to promote gender balance. Women remain underrepresented in most European Works Councils. Therefore, it is necessary to lay down more effective and specific objectives regarding gender balance, to be implemented by management and employees’ representatives when negotiating or renegotiating their agreements. To attain those objectives, it may in certain cases be necessary to give priority to the underrepresented sex in composing European Works Councils or their select committees. In accordance with the case-law of the Court of Justice of the European Union, such positive action is possible, in accordance with the principle of equal treatment of men and women, provided that the measures taken to achieve the gender balance objective do not automatically and unconditionally give priority to persons of a certain gender but allow to take into account other criteria, such as merits and qualifications and the procedure for election established by the relevant national laws. Parties to European Works Council agreements should therefore be allowed the flexibility necessary to respect the legal and factual limitations to the positive action. For similar considerations, it is also appropriate to strive to achieve gender balance in the composition of the special negotiating bodies, so that gender balance is already promoted during the negotiation phase.