Implementation of Spain’s organic law for gender equality and its comparison with the EU directive (update)

At a glance

• Spain have transposed the EU directive on better gender balance among directors of listed companies and related measures (Directive).
• The new Spanish law goes beyond the Directive, as it is applicable to more public and private entities, and establishes additional requirements

Update: 5 August 2024

The organic law, was published in the official gazette on 1 August 2024. 

Despite the Senate's veto, Congress has approved the organic law on equal representation and balanced presence of women and men. This law is Spain’s effort to meet the requirements of the Directive. Issued by the European Parliament and Council on 23 November 2022, this Directive aims to improve gender balance among the board of directors of listed companies, among other measures.

The Directive is based on two fundamental premises: (i) in 2021 women represented only 30% of board members in the largest listed companies and only 8% of chairs; and (ii) increasing the representation of women on boards of directors contributes to attracting female talent and ensures greater gender balance at all levels of companies.

The organic law approved by Spain goes beyond the Directive in several ways. Some of the most significant aspects of this fall within its application:

• it will apply to the three branches of state: the executive, legislative and judicial powers;
• it will also apply to the constitutional bodies: the Constitutional Court, the General Council of the Judiciary, the Council of State, the Court of Auditors and the Fiscal Council;
• at government level, it will apply from the highest spheres (vice-presidencies, ministers, secretaries of state) to each and every one of the areas of the general administration of the State and the public sector;
• listed companies, but also unlisted public interest companies, due to the nature of their activity, their size or the number of workers;
• to professional associations and general councils, political parties, trade unions and business associations;
• to the electoral law, by establishing the so-called zipper lists for all elections, with very limited exceptions; and
• the requirement of a minimum of 40% female representation in the governing bodies and in the senior management of each of the entities. 

It is, therefore, an ambitious regulation that, despite being much more demanding than the mere transposition of Directive, whose levels of requirement and application to other sectors of the administration and the public sector have been expanded during the parliamentary process.

We should expect this organic law to be challenged by right wing parties before the Constitutional Court, once it is published in the official gazette. However, if that is the case, the law will remain in force until the Constitutional Court publishes its ruling.