08/11/2021 11:03 PM
Clarín.com
Politics
Updated 08/11/2021 11:03 PM
The Commercial Appeals Chamber
annulled
a resolution of the General Inspection of Justice (IGJ) of last year that
requires the integration of boards of directors and supervisory bodies of private companies with an equal number of men and women.
The decision was made on Monday by
room C of that court made up of judges Eduardo Machin and Julia Villanueva
before a complaint against that resolution of the government body managed by Cristinista Ricardo Nissen.
Anyway, it is discounted that Nissen
will appeal
to the Supreme Court of Justice, which will have the last word on this administrative decision on private companies.
The appeal of the company Línea Expreso Liniers was to determine if the Nissen resolutions
are the appropriate mechanism
to protect women by setting quotas that guarantee their participation or if it should be decided by a law of Congress.
That quota “was not only important to impose an obligation on those who did not have it before, but also to
discard other applicants
for the sole fact of not belonging to the protected group, postponing -where appropriate- other groups that could find themselves in a similar degree of vulnerability , all of which shows that we are dealing with matters that
do not fit within the notion of “regulation”
that the Inspector in charge of the IGJ invoked, ”says the ruling that
Clarín
agreed to
in judicial sources.
After a long analysis and citation of national and international doctrine, the ruling says that “in substance,
the corporate regulation
that interests here has as its north, not the care of the rights of those who administer or supervise an entity of this kind -in in our case, the rights of the women who were to be appointed,
but rather those of the society receiving the management, those of its partners and those of third parties
”.
“These rights are protected by imposing on the members of these bodies media obligations, which, as based on the trust that is had in them and on the standards of loyalty and diligence that are imposed on them (art. 59, 274 and cc LGS ), should be considered intuitu personae, all of which, at least,
raises the question of whether we are truly in a field in which the sex or sexual orientation
of those named should or should not be relevant, "he added.
He stressed that "the so-called" gender perspective "
does not always impose deciding in favor of women,
but rather to prevent her from being postponed for being one; and, although it seems indubitable that the “positive actions” already seen are temperaments that are directed towards this objective on the basis of “preferring” the group under whose guardianship they are ordered,
this preference cannot be carried out at the expense of the rights of other subjects
who they also have constitutional protection ”.
Later, the ruling said that “what has been said is clear
in terms of health
, an area in which no one would think of demanding that someone who is sick, instead of worrying about finding the appropriate medical services for their problem, treats to the rights that the respective professional may correspond
according to their sexual orientation
”.
“If this seems clear, it could not be less that this criterion cannot be followed to impose a lawyer on a client,
nor a painter who hires an artistic painting
, nor, finally, an administrator, the owner of the property to be managed: In these cases - as in so many others based on intuitu personae relationships - the decisive factor cannot be the sex or sexual orientation of the provider,
but rather the right of the patient, the client or the manager
or whoever acts as his substitute, to hire the person you trust, who makes the "end cause" of what you hire, "he said.
In August of last year, Nissen ordered by an administrative resolution, not by a congressional law, that companies and associations that register with the General Inspection of Justice (IGJ) should include in their administrative body
"a composition that respects the gender diversity "between men and women.
Nissen is the same official who
“shielded” the Instituto Patria so that it does not report, like other institutions, on its partners and financing and on the companies Hotesur and Los Sauces de los Kirchner
.
Before this position, he was an operator for the Kirchners.
It was ordered by the IGJ through Resolution 34/2020, which was published in the Official Gazette.
In the text, the institution indicates that "civil associations in the process of constitution; simple associations that request their registration in the voluntary registry", public limited companies (with some exceptions), foundations with a temporary integration board of directors and Elective and State Societies must have a board of directors with these characteristics ".
He specified with respect to public limited companies, it includes "those that are constituted as soon as they are or remain included in article 299, of Law No. 19,550, except those covered by paragraphs 1, 2 and 7".
