This article explores the justifications for, and objections to, the proposed European Union ‘women on company boards’ Directive. It notes that Member State opposition to the measure had different emphases. The new, post-socialist Member States that intervened prominently questioned the Commission's understanding of the underlying social reality of gender inequality and the measure's focus on results, while the old Member States that intervened raised mainly the issue of subsidiarity and challenged the need for legislative action, and/or particularly the need for legislative action at EU level. The article further argues that the Commission weakened its case by emphasising economic rationales for the measure, and submits that a principled justification fits the proposal better. Finally, the article argues that subsidiarity-related arguments are available also to justify non-cross-border, non-economic projects, such as that of gender equality.

Constitutionality of ethnic and racial statistics for research purposes – Principles of indivisibility and equality in Article 1 of the French Constitution – Visible minorities, discrimination and positive action measures – French republican conception of citizenship – Use of the word ‘race’ – Fear of misuse of ethnic and racial statistics – French alternative of territorial measures – Educational and fiscal advantages – Violation of the right to equal access to education – Ghettoisation – Problems in consideration of Directive 2000/43 (the Race Directive)