The composition of the council of an association of municipalities must be assessed as a separate unit (TAS 78/2022, issued on 7 December 2022)
A statement was requested from the Ombudsman for Equality on whether the composition of the council of an association of seven municipalities was in accordance with the Act on Equality between Women and Men. The council of the association of municipalities has 21 members. The memberships are divided so that each member municipality has three representatives along with their deputy representatives. The actual members of the council of the association of municipalities include 7 women and 14 men, and their personal deputies include 8 women and 13 men.
According to section 4, subsection 1 of the Equality Act, authorities have an obligation to promote equality purposefully and systematically and create and consolidate administrative and operating practices that ensure the advancement of gender equality in the preparatory work undertaken on different matters and in decision-making. In particular, circumstances which prevent the attainment of gender equality must be changed.
According to section 4a, subsection 1 of the Equality Act, the proportion of both women and men in municipal bodies and bodies established for the purpose of inter-municipal cooperation, but excluding municipal councils, must be at least 40 per cent, unless there are special reasons to the contrary. Therefore, the so-called quota requirement applies to the councils and executive boards of associations of municipalities as well as other joint bodies of municipalities, such as boards, commissions and advisory councils for regional cooperation. The requirement on the representation of different genders also applies to municipal decisions, in which the municipality selects its representatives for the bodies of an association of municipalities (KHO 1990 A 31).
Assessment of the case
In the statement, the Ombudsman for Equality emphasised the responsibility of the preparatory authority. Attention should be paid to the binding force of the quota requirement already when bodies are being established. The preparatory authority must ensure that the legality of the final composition is ensured through negotiations between the municipalities. Even when the selection is based on relative political strength or otherwise on negotiations between different groups, the quota requirement must be taken into account in the negotiations.
After the candidates have been named, the authority must prepare a composition proposal that meets the quota requirement. An exception to the quota requirement can be made for special reasons. An exception is always a special circumstance, and its necessity must be considered carefully and justified in advance. The special reason must exist already when the body is appointed.
The Ombudsman for Equality requested clarification from the association of municipalities and its seven member municipalities on how the requirements of the Equality Act have been taken into account in selecting the council of the association of municipalities. Some of the member municipalities considered it sufficient that the appointment decision of an individual municipality for the council of the association of municipalities met the requirements of the Equality Act.
In the statement, the Ombudsman for Equality found that even though the different parties ensure the even distribution of genders in appointing their own representation, the composition of the final body must be examined as a separate unit. When calculating whether the requirement is met, it must first be calculated how many members 40 per cent of the number of members of the body constitutes. If the result is not a whole number, it is always rounded up to the next whole number, which then indicates the minimum number of women or men in the body. For both actual and deputy members, the number of both women and men in a group of 21 persons must be at least nine.
The Ombudsman for Equality found that the gender distribution of actual and deputy members of the council of the association of municipalities is not compliant with the requirements of the Equality Act, and that the an association of municipalities and its member municipalities should endeavour to correct the membership so that it is compliant with the law.