MAKING GENDER BALANCE IN THE BOARDROOM A REALITY: BELGIUM APPROVES THE WOMEN ON BOARDS DIRECTIVE

Over the past decades, growing attention was paid to ensuring that gender equality is reflected in key roles in the business sphere. The European Union (the EU) initially sought to steer companies through soft law instruments encouraging gender diversity. Although some Member States made efforts to implement these, it became apparent that the representation of women remained insufficient. With more than half of current university graduates being female, failing to reflect this in leadership positions amounts to a significant underuse of available talent.

Addressing this is important not only because gender equality is a fundamental human right, but also because research indicates that women on boards improve companies' financial performance and profitability. It is against this backdrop that Directive (EU) 2022/2381 (the Directive) was adopted.

Although Belgium has missed the deadline for transposition of the Directive, which was set for 28 December 2024, it has already made significant efforts in the past. The law of 28 July 2011 requires listed companies and certain autonomous public enterprises to ensure at least one-third representation of the underrepresented sex on their boards. While this initiative already showed strong results, it was limited to boards of directors, and women remained underrepresented in executive positions. The Directive now goes further by introducing more robust safeguards with a wider scope and stricter enforcement.

The legislative process for transposition of the Directive in Belgium is currently ongoing. Following approval at second reading by the Council of Ministers on 18 July 2026, the government formally submitted the draft law to the Chamber of Representatives on 22 September 2026. The text must now be debated and voted on in Parliament before it can enter into force.

The Directive focuses on listed companies and does not apply to SMEs. The Member State of the registered office of the listed company is the competent Member State to regulate the matters covered by this Directive.

3.1 Thresholds

The Directive set a clear target to be reached by 30 June 2026, under which listed companies must meet one of the following two thresholds:

• the company is to ensure that at least 40% of the non-executive directors are of the underrepresented sex, or
• the company is to ensure that at least 33% of all director positions are held by the underrepresented sex.

3.2 Selection criteria for directors

As long as a company does not meet the applicable threshold, it is required to adjust its selection process for director appointments. To work towards meeting the threshold, the selection process should include a comparative assessment of the different candidates. Criteria for the assessment should be clear, neutrally formulated, unambiguous, and applied in a non-discriminatory manner.

Moreover, where two candidates are equally qualified, the candidate of the underrepresented sex should be given priority for the position. Departing from this specific priority rule requires a specific justification. To ensure compliance, candidates may request transparency about the selection criteria and the comparative assessment applied. Where legal proceedings arise from the selection procedure, the burden of proof is shifted in favour of an unsuccessful candidate of the underrepresented sex who provides facts establishing they were equally qualified.

3.3 Reporting obligations and sanctions

Companies should be conscious of the reporting obligations that come with this Directive. The obligations are fourfold:

• Annual reporting to the competent authority of the relevant Member State on the gender composition of their board
• Publication of that information on the company's website
• Where the quota is not met, an explanation of the reasons why, together with a description of the measures taken or planned to achieve it
• Where applicable, inclusion of a statement in the corporate governance report, in accordance with the provisions of Directive 2013/34/EU.

Additionally, Member States will lay down penalties that are effective, proportionate and dissuasive, to prevent companies from infringing the law. These penalties may include fines or the annulment of a director’s appointment or election.

Companies can take concrete steps to keep up with these legal requirements:

• Monitor the transposition of the Directive into Belgian law;
• Conduct an audit of the current gender composition of their Board of Directors;
• Document the current selection criteria and, where necessary, review the selection process;
• Prepare for the upcoming annual reporting obligations.