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REFLEXIONES SOBRE LAS SOCIEDADES DE BENEFICIO E INTERÉS COMÚN ESPAÑOLAS DESDE UNA PERSPECTIVA COMPARADA: UN ANÁLISIS DE LAS SOCIEDADES CON PROPÓSITO HÍBRIDO FRANCESAS Y DE DELAWARE

La Ley 18/2022, de 28 de septiembre, de creación y crecimiento de empresas (en adelante, Ley 18/2022) introduce las sociedades con propósito híbrido con la denominación “sociedades de beneficio e interés común” (SBIC) en el Derecho de sociedades español. Aunque su regulación deberá esperar a su desarrollo por vía reglamentaria, la Ley 18/2022 adelanta que serán sociedades de capital que compaginarán la persecución del lucro con otros fines no lucrativos de tipo social o medioambiental y que, en consecuencia, deberán considerar los intereses de los stakeholders de la compañía sin dejar de lado la maximización de los intereses económicos de los socios. Ahora bien, las novedades que introduce el reconocimiento de las SBIC en el Derecho de sociedades shareholder value español plantea preguntas en torno a cómo el legislador societario abordará algunos problemas asociados con la figura de las sociedades con propósito híbrido: ¿son las SBIC compatibles con el modelo shareholder value? ¿qué mecanismos podrán asegurar el cumplimiento de sus fines no lucrativos para evitar el greenwashing? ¿a qué deberes deberán estar sometidos los administradores de las SBIC? Este artículo estudiará estas cuestiones desde una visión comparada. En particular, se analizarán las regulaciones de sociedades con propósito híbrido del estado de Delaware (en EE.UU.), las public benefit corporations (en adelante, PBC), y de Francia, las société à mission. Tras el estudio de las experiencias francesa y de Delaware, se expondrán los problemas que la regulación de las SBIC deberá resolver, así como algunas posibles soluciones y preguntas abiertas que quedan por resolver.

Delaware introdujo en su reconocido Derecho de sociedades shareholder value la figura de las sociedades con propósito híbrido como un tipo social al que denominó “PBC”, y, el legislador francés, reconoció la figura de las société à mission como un estatus cuya adopción depende de la adaptación de los estatutos de la sociedad mercantil a los requisitos del Código de Comercio. Esta es precisamente la principal diferencia entre la PBC y la société à mission: uno es un tipo social y la otra es un estatus. El estudio comparado de la figura, sin embargo, revela otros puntos en su régimen jurídico en los que optan por mecanismos distintos. Este es el caso de los fines no lucrativos, el estatuto jurídico de los administradores y el control de la sociedad en la consecución de los fines no lucrativos. La regulación de Delaware y la francesa difieren en cómo el fin no lucrativo será perseguido. Las PBC deben incluir en sus estatutos uno o más fines no lucrativos concretos o “específicos” (los specific public benefits) en el ámbito en el que la compañía opte por concentrar su acción. En cambio, en Francia las société à mission persiguen dos tipos de fines no lucrativos, uno difuso (raison d’être) y otros más concretos (los objetivos sociales y medioambientales). Los fines concretos limitan los grupos de intereses de los stakeholders que deberán ser considerados por la sociedad y, por tanto, facilitan la toma de decisiones de los administradores. Los fines no lucrativos difusos parecen tener el efecto contrario.

El estatuto jurídico de los administradores también presenta algunas diferencias entre ambas regulaciones. En Delaware los administradores de las PBC deben desempeñar su cargo conforme a la obligación de equilibrar los intereses de los socios, los stakeholders y el specific public benefit (la balancing obligation) y, en cambio, los administradores de las société à mission están sometidos a un deber genérico de gestionar la compañía conforme al interés social y teniendo en cuenta los problemas sociales y medioambientales derivados de su actividad (la consideration clause). Ninguna de las dos regulaciones identifica los grupos de stakeholders que deben considerar en su actuación ni prevén que otros stakeholders distintos de los socios tengan legitimación activa para hacer cumplir la balancing obligation o la consideration clause y los fines no lucrativos cuando sus decisiones sean contrarias a estos deberes o los fines.

Uno de los principales problemas asociados a las sociedades con propósito híbrido es la utilización de la figura con fines de greenwashing, por lo que ambas regulaciones prevén mecanismos para controlar la consecución de los fines no lucrativos. Las PBC deberán realizar (la propia sociedad o un tercero) un informe bienal a sus socios sobre la promoción de sus fines no lucrativos y de los intereses de sus stakeholders. Para las société à mission, sin embargo, el control es doble: uno anual por un comité de misión dentro de la compañía y otro bienal por un auditor independiente. Este mecanismo somete a las société à mission a niveles de transparencia más altos que el informe bienal de las PBC.

Finalmente, una vez señaladas las principales diferencias entre la regulación de sociedad con propósito híbrido de Delaware y Francia conviene retomar el caso español: las SBIC y su futura regulación en España. La primera pregunta que nos planteábamos es si es compatible con el modelo shareholder value español. El Derecho de sociedades español permite la adopción de fines distintos al lucrativo y, por tanto, no sólo es compatible el fin híbrido (lucrativo y no lucrativo) de las SBIC, sino también la consideración de los intereses de stakeholders distintos de los socios en la gestión de la compañía. Otra de las preguntas que señalábamos era qué mecanismos evitarían la utilización de las SBIC con fines de greenwashing. La Ley 18/2022 adelanta que las SBIC estarán sometidas a “mayores niveles de transparencia y rendición de cuentas”, por lo que el legislativo podría optar por un mecanismo de control parecido al de la société à mission francesa. Ahora bien, conviene apuntar que su adopción en bloque podría solapar las competencias de los administradores de gestión de la compañía conforme a la causa societatis con las del comité de misión.

La tercera cuestión que apuntábamos era sobre el estatuto jurídico de los administradores de las SBIC. La Ley 18/2022 prevé que estas sociedades considerarán los intereses de terceros distintos de los socios y que perseguirán objetivos sociales y medioambientales. Es decir, al igual que sucedía en Delaware y Francia, la regulación española no parece que vaya a facilitar a los administradores de las SBIC la adopción de decisiones: de momento, el legislador no identifica qué grupos de stakeholders deberán considerar en su actuación ni señala cómo deberán ser considerados estos intereses. Además, en el Derecho de sociedades español también se presenta el problema de la falta de legitimación activa de todos los stakeholders (y no sólo de los socios) para instar una acción de responsabilidad contra los administradores de las SBIC cuando adopten decisiones que impacten negativamente a la sociedad. Sin embargo, frente a este problema señalamos que algunos autores identifican entre los stakeholders y la sociedad y sus socios una relación de principal y agente, en la que los primeros (los stakeholders) son el principal y los segundos (la sociedad y sus socios) son el agente.

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Law 18/2022, of the 28th of September, on the creation and growth of companies introduces hybrid purpose companies under the name “sociedades de beneficio e interés común” (SBIC) in Spanish company law, though their regulation awaits a future legal instrument. Hybrid purpose companies aim to balance the traditional for-profit purpose with other non-profit purposes, that may have a social or environmental character. The introduction of SBIC in the shareholder value Spanish company law system, however, raises questions on how the legislator will approach their regulation. To provide some insights on the future SBIC regulation, this paper analyzes the Delaware and French hybrid purpose company regulations, and then delves into Spanish law to lay out the problems that the SBIC regulation will have to solve as well as some potential solutions and open questions that remained to be answered.

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Las sociedades que buscan un impacto social o medioambiental positivo, a la vez que repartir dividendos a sus socios o accionistas son una realidad empresarial internacional. Se las ha denominado cuarto sector y hasta el momento no han sido contempladas por la Ley 5/2011, de 2 de marzo, de Economía Social, ni por la normativa autonómica reguladora del sector social. Por su parte, la Ley 18/2022, de 28 de septiembre, de Creación y Crecimiento de Empresas sí ha reconocido en nuestro ordenamiento a las Sociedades de Beneficio e Interés Común, en su disposición adicional décima, sin calificarlas de empresas sociales y sin que su configuración se adapte totalmente a los principios propios de estas últimas. En este punto resulta muy acertada la regulación supranacional (Unión Europea, OIT y OCDE, fundamentalmente) que sí contempla en la actualidad a las empresas sociales como entidades sociales y flexibiliza los principios que les son de aplicación. Esta regulación internacional del cuarto sector resulta valiosísima para influir en la que será la Ley Integral del Impulso de la Economía Social, hoy Anteproyecto aprobado por el Consejo de Ministros de 11 de abril de 2023. La armonización entre la regulación societaria y de la Economía social resulta necesaria en este ámbito.

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SOCIAL ECONOMY AND NEW CORPORATE SUBTYPES

Law 18/2022, of September 28th, on the Creation and Growth of Companies, introduced the Benefit and Common Interest Companies (SBIC). These companies constitute a new corporate subtype in Spain, within the category of capitalist companies. The tenth additional provision of the Law recognized the SBIC as profit-making capital companies that voluntarily include commitments to generate positive impact at the social and/or environmental level, higher levels of transparency and accountability, and the consideration of stakeholders in the decision-making process in their bylaws. The law established that the methodology for verification or auditing would be determined in a subsequent regulatory development. To date, this development has not yet occurred. However, the methodology for verifying these companies will be essential for measuring their impact objectives, since the SBICs are precisely distinguished by their reporting obligations on social and/or environmental objectives. These reports, possibly annual, and their verification through external audit, will be aspects that will allow the effective auditing of compliance with their social and/or environmental impact, something that is not always verifiable in traditional social entities.

The regulatory impulse that has materialised in the SBIC is not new in Spain, since a decade ago the regulation of social enterprises was proposed, although without success. Initiatives such as the Limited Liability Companies of General Interest were not recognized as a corporate subtype. More recent initiatives, such as the Green and White Books on Purposeful Companies, with the impetus of B Lab Spain and Gabeiras y Asociados/Fundación Gabeiras, have achieved the legal recognition of the SBIC. However, this regulatory recognition has been carried out in parallel with the regulation of the so-called Social Economy, despite the obvious typological connection.

As mentioned, Law 18/2022 recognized the SBIC in the second half of 2022. At that time, we had national and regional regulation of the social economy in Spain. Law 5/2011 is the current rule that regulates the social economy at the national level, although several regional rules have followed its scheme. Law 18/2022, which introduced the SBIC, did not modify Law 5/2011 when it was enacted, nor did it even refer to the SBIC as social enterprises and/or entities of the social economy.

More recently, in April 2023, the Integral Law on the Promotion of the Social Economy and the Spanish Social Economy Strategy 2023-2027 were approved, promoted by the Ministry of Labor and Social Economy. This Draft Law for the first time considers social enterprises as social entities, but without explicit reference to the SBIC, which already had legal recognition from the previous year. Therefore, the Integral Law on the Social Economy contemplates the concept of social enterprise but without explicit reference to the SBIC. Perhaps this is because the national order has only considered Labor Societies as social entities so far, and because the SBIC would not a priori comply with the features that Law 5/2011 requires of social entities regarding democratic and participatory principles.

Law 5/2011 states that the entities of the social economy must pursue the collective interest of their members, the general economic or social interest, or both, and also establishes four principles that social entities must comply with. These principles are: the primacy of persons over the social purpose (principle a), the application of the results obtained to the social goal (principle b), the social aim (principle c) and the independence of society from public authorities (principle d). SBICs comply with three of the four principles of the social economy entities of Law 5/2011 (principles b to d), but the principle (a), in its relation to capital participation and the right to vote, is only partially fulfilled due to the limitations imposed by the social regulation that binds decision-making power to the person and not to the capital contributed. This is incompatible with the structure of SBICs as capitalist societies, since in them the right to vote is related to the share of the shareholder in the share capital. It is therefore doubtful that SBICs can comply with the democratic and participatory principles without any nuances.

That is why we have turned to the analysis of the supranational regulation of the entities of the social economy. This regulation is more flexible and appropriate in terms of viewing social enterprises as entities of the social economy and moderating the demand for participatory and democratic management in societies. The regulation of relevant international organizations such as the European Union, the International Labour Organization and the Organization for Economic Cooperation and Development has included social enterprises as entities of the social economy and softened the democratic and participatory principles. At the European Union level, the Social Economy Action Plan (2021) hopes for the inclusion of social enterprises and SBICs among the entities of the social economy. For its part, the Acts of the International Labour Conference (2022) have specified that the social and solidarity economy includes social enterprises as well as traditional entities. For its part, the Organization for Economic Cooperation and Development Council Recommendation on the Social and Solidarity Economy and Social Innovation (2022) states that the social economy is also composed, recently, of social enterprises.

In short, Spanish legislation has introduced SBICs as a new corporate subtype, recognizing the peculiarity of their commitment to social and/or environmental objectives, as well as greater levels of transparency on this point. Although Law 5/2011 remains the main rule in the regulation of the social economy, the recognition of SBICs poses challenges and the need to harmonize regulation in order to promote an environment of legal certainty favourable to the development of the fourth sector and the so-called social enterprises.

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Las cooperativas de trabajo asociado son cooperativas que nacen para proporcionar trabajo a sus socias, quienes aportan el capital necesario para la constitución de la sociedad y su trabajo personal. Pero cuentan también con el trabajo asalariado de personas que no gozan de la doble cualidad de socias y trabajadoras. Este artículo se detiene en las opciones de participación, especialmente financiera, de estas últimas, con diferencias importantes en las distintas leyes de cooperativas de nuestro país. La participación en el capital se traduce en la incorporación a la cooperativa en calidad de persona socia, que llega a ser un derecho en algunas de las leyes y una mera expectativa en otras. Con la participación en los resultados positivos de la empresa sucede lo mismo. La normativa no es, en general, generosa con las personas trabajadoras no socias, podrían hacerse más efectivos los principios de libre adhesión, gobernanza democrática y participación económica.

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A GLOBAL VISION OF THE PARTICIPATION OF NON-MEMBER WORKERS IN ASSOCIATED WORKER COOPERATIVES

Associated worker cooperatives are cooperatives created to provide work to their members, who provide the capital necessary for the constitution of the company and their personal work. However, they can also include salaried work performed by people who do not have the dual status of members and workers. The legal regime applicable to both groups is different, one of a corporate nature and the other of a labor nature. This article focuses on the rules on participation, especially economic, of non-member workers, which are subject to significant differences in the different cooperative laws of our country. Participation in capital translates into incorporation into the cooperative, which becomes a right in some laws and is a mere expectation in others. The same goes for participation in the positive results of the company; It is mandatory according to some laws, and for some cases, and is left to the statutes or the general assembly, in others. In general, it can be said that the regulations are not generous towards non-member employees and that there is still a way to go to make the principles of free membership, democratic governance and economic participation more effective.

Spain has eighteen laws on cooperatives, seventeen at the regional level and one at the state level, which provide different answers to the questions raised by the regulation of this social form. This is also the case with the participation of non-member workers. Their role is very important in the operation of the cooperative company, because the limitations on their hiring have become more flexible. It has gone from a limitation established at 10% of worker partners to 50% in some regional laws. With several exclusions of groups of workers in the calculation of this limit (workers integrated into the cooperative by legal subrogation, those who replace workers on leave or temporary disability, those who provide their work in centers of a subordinate nature, those who have internship or training contracts, contracted under provisions promoting the employment of people with disabilities, etc.), which also vary depending on the applicable law.

Participation in the capital, or joining the cooperative, is not always a right of the workers. According to some laws, such a right arises when the legal limit of employees is exceeded. Thus, the state law, together with other regional laws, establishes that in cooperatives that exceed the limit of salaried work, the worker with an employment contract for an indefinite period and with more than two years of seniority, must be admitted as a working partner if he or she requests. There is no right of admission as long as the cooperative remains within the legal limits (today, between 30% and 50%, depending on the applicable law). In other cutonomic laws, the right is born when a seniority of between one (Foral Community of Navarra) and five years (Autonomous Community of La Rioja) is reached with an indefinite contract. And, in a third group, it is nothing more than an expectation whose materialization is in the hands of the members and directors of the cooperative. The statutes can configure the right of admission, and if they do not, the general regime established for all cooperatives will apply: workers may apply for membership and the governing council will have to admit or reject the application, expressing the reasons for their admission.

The same goes for participation in the positive results of the cooperative enterprise. According to some laws (those of the Autonomous Community of the Basque Country and Extremadura), it is mandatory for workers who do not have the option of joining or as long as they cannot exercise it (the law of Galicia recognizes the right for salaried personnel, without exception). In these cases, non-member workers receive at least 25% of the profit obtained by a member worker of the same category. However, for most laws, participation is an option that must be included in the statutes or a decision made by the general assembly.

Participation of the workforce in the management of the company is not foreseen in all cooperative laws either. State law dictates that when the cooperative has more than 50 workers with an indefinite-term contract and the business committee is established, one of them, who will be elected by the committee, will be part of the governing council as a spokesperson. Basque law regulates the surveillance commission, a supervisory body, mandatory in cooperatives with 100 or more members. In those that have more than 50 people with an employment contract, a representative of these may be part of the supervisory board, if the statutes contemplate it. However, in most laws, the creation of consultative or advisory bodies that could introduce some form of participation is left in the hands of the statutes or their partners and directors. Also, theoretically, representatives of workers could form part of the governing councils as non-member advisors. But the expansion of the number of non-member advisors in the cooperative laws has been done with the aim of professionalizing management, so it does not seem that this way has much chance of becoming a reality. In the current situation, there is, therefore, the option for cooperative managers to opt for less vertical, more horizontal management systems, where there is room for participation in decision-making by all parties involved in the success of the business. This includes, without a doubt, both member and non-member workers. It is advisable to activate more mechanisms for the participation of all workers in work cooperatives; institutionally or informally, before decision-making and/or in the evaluation phase, on products and processes, on organizational forms and working conditions, at the workplace, team or workplace level.

In conclusion, there is clear room for improvement in our cooperative laws regarding the participation of non-member workers in all areas. The latest legal reforms have brought the cooperative regime closer to that of capital companies. It would be desirable that, as far as participation is concerned, cooperatives would be the ones to point the way to capital companies, with the participation of workers being, as it is, one of the challenges that all companies will have to take on if they want to. improve its competitiveness in a world subjected to continuous and intense transformations, which will require all the talent available in them to successfully face its future.

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En el presente trabajo se aborda la economía social desde su aspecto conceptual, tanto estatal y autonómico, prestando atención a las nuevas propuestas legislativas que configuran cambios conceptuales en la norma estatal. Para ello se atiende a la novedosa regulación de la Comunidad Autónoma Canaria, en tanto en cuanto, queda incorporada en el buscado ecosistema legislativo de la economía social, permitiendo confrontar el estado actual de la cuestión con la recogida en el anteproyecto de Ley integral de impulso a la economía social. El análisis comparativo permite constatar que las técnicas legislativas utilizadas son diversas, aunque comprobándose que se persigue la misma finalidad, que es la de mostrar una estructuración en la identificación de las empresas y entidades de economía social ajustada a las condiciones y necesidades de este modelo.

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THE REGULATORY FRAMEWORK FOR THE IDENTIFICATION OF COMPANIES AND ENTITIES OF THE SOCIAL ECONOMY: SPECIAL REFERENCE TO THE AUTONOMOUS COMMUNITY OF THE CANARY ISLANDS

In this work, the social economy is addressed from its conceptual aspect, both state and regional, paying attention to the new legislative proposals that configure conceptual changes in the state standard. To this end, the new regulation of the Canary Islands Autonomous Community is taken into account, as long as it is incorporated into the sought-after legislative ecosystem of the social economy, allowing the current state of the matter to be compared with what is included in the draft Comprehensive Promotion Law. to the social economy. The comparative analysis allows us to confirm that the legislative techniques used are diverse, although it is confirmed that the same purpose is pursued, which is to show a structuring in the identification of social economy companies and entities adjusted to the conditions and needs of this model.

The necessary examination process requires attention to the principles of the social economy included in the Social Economy Law, allowing important basic consequences to be scrutinized; i.- the principles included are guidelines without the possibility of establishing the minimum requirement for any of them to extract from the general principle that the lack of compliance with any of the statements does not denature the essence of the entities and companies. members of the social economy; ii.-it is worth talking about guiding principles whose presence in the development of the activity by social economy entities and companies, have an alternative nature and without their cumulative nature being a requirement to act in the market as such; iii.-but, what is more, the development of social purposes by the entities and companies of the social economy is not specified in a hierarchical order, the principles are specified in the standard without numbering; iv.- For its part, the list of guiding principles is compiled with an apparent desire for synthesis that has been included in European documents; v.- The Social Economy Law is perfectly aware that from the autonomous legislation it would be possible to specify the guiding principles more, in response to what appears to be the references indicated in the Social Economy Law and this is what happens in the Law of Social Economy of the Canary Islands; vi.- reading article 2 of the Social Economy Law and its explanatory statement allows us to maintain that it is not enough to seek or pursue the collective interest of its members or the general interest (whether economic or social) or both types of interest, since that the purpose sought or pursued must be achieved in a certain way: “in accordance with the principles set forth in article 4.” Thus, what the legislator calls “guiding principles” must be understood as guiding principles of the economic-social action of any entity that seeks to be included within the specific framework of the Social Economy, as long as it is cumulative and imperative with the rest of the elements that make up the conceptualization of social economy; vii.- It is also true that the principle referring to the primacy of people and social purpose over capital, by its essence, must inform the rest of the principles and constitutes a basic distinctive over other types of sectors and entities, mainly those of a capitalist nature. This principle also precisely determines the formula through which it is achieved: autonomous and transparent, democratic and participatory management; h.- finally delving into the Draft Social Economy Law approximates the legislator’s will to update said guiding principles with the character of numerus apertus but, through not the modification of article 4 of the Social Economy Law, but modified the precept that addresses the promotion and dissemination of the social economy, maintaining that the guiding principles are updated implicitly and indirectly.

The State Law of Social Economy establishes as a basic (non-exclusive) objective the configuration of a legal framework that, without attempting to replace the current regulations of each of the entities that make up the sector, implies the recognition and better visibility of the social economy, granting it greater legal certainty through actions to define the social economy, establishing the principles that must be contemplated by the different entities that form it. Starting from these principles, the set of various entities and companies contemplated by the social economy is collected, leaving the door open to include all those others that, due to the peculiarities of each Autonomous Community, allow it and are not necessarily coincident between the different ones. regions of the State.

What is new is that the Social Economy Law of the Canary Islands completes the concept of social economy by expressly clarifying it, from its legal and economic aspect of the activity, and therefore, it must be understood within the scope of its powers, which is what legitimizes it. in this matter. The conceptualization of social economy for the Canary Islands standard expresses the recognition of those non-profit voluntary entities that are producers of non-market services, allowing the inclusion, in this way, of entities from the Third Sector of social action, special action employment centers. companies, social action insertion companies, and even those that the Draft Law calls social companies, which produce social goods or services of undoubted social utility. Therefore, it can be stated that the legislative technique policy is more conceptual, in that it legally and economically establishes what is understood by social economy, in addition to being aligned with the principles that guide and govern the content of the social economy. the primacy of the person over economic benefit.

But, what’s more, the possibility of having established a numerus apertus of companies and entities that can obtain the qualification of social economy of the Autonomous Community of the Canary Islands, is a sign of legislative technique that allows the inclusion of new organizations, e.g. digital-based entities.

Then, the Autonomous Community of the Canary Islands, with its own Law, will see the opportunity for key financing reinforced, by placing the social economy at the center of efforts to restore sustainable growth and to care for social cohesion in our land. In some cases, the delimitation of financing, incentives and bonus policies will be within the scope of the Government of the Canary Islands and in others state policies will be addressed.

The work explores the differentiating aspects shown in the Draft Law to Promote the Social Economy, which allows us to point out; i.- the social economy entities with the expressly specified legal form must also be those that are governed by the guiding principles established in the text itself, ii.- add to said consideration and expressly the social initiative entities and the so-called social enterprises, iii.- delimits and extends said consideration to the profile of any entity, iv.- they are automatically considered entities providing Services of General Economic Interest in addition to the Special Employment Centers of social initiative and the Insertion Companies, these the latter classified as such according to their regulations, extending this declaration optionally to any other entities of the social economy that also have as their objective the labor insertion of groups at risk of exclusion, in accordance with what is established by regulation; and finally indirectly recognizes v.- that the social economy entities will also be those that appear in the catalogs of the autonomous communities.

The legislative technique of modification in the Draft Law to Promote the Social Economy in the delimitation of the entities and companies of the social economy is not conceptual, it is casuistry since it is referred to, i.- to maintaining the legal form declared in the Law in conjunction with the development of specified activities in compliance with the guiding principles, ii.- but also opt for the delimitation of the activities that allow it to be classified as a social enterprise (based on compliance with the requirements defined in the Law), with a desire to excessively restricting the scope of action, in which its social purposes not only refer to the necessary performance of activities, but also the possibility that, regardless of the social and/or environmental purpose, they are carried out in unpopulated areas; adding that iii.- you can be a social economy entity and also a social company, therefore, every social company is a social economy entity, with the addition iv.- that if that entity or company is a social initiative, it is automatically provider of services of general economic interest that requires for its full and complete attribution the confluence of those specified with the character of numerus clausus by the Social Economy Law.

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El sector público ha recurrido tradicionalmente al sector privado con el objetivo de realizar proyectos de interés general, articulando dichas colaboraciones a través de distintos instrumentos jurídicos. En concreto, la colaboración público-privada de tipo contractual ha sido objeto de una notable evolución desde sus orígenes, positivizada en las distintas disposiciones de carácter normativo. En la actualidad, la contratación pública se concibe como una herramienta al servicio del sector público para el cumplimiento efectivo de sus fines.

El presente artículo tiene como objetivo realizar un análisis sobre la viabilidad jurídica de utilizar la contabilidad social como herramienta para evaluar el retorno social generado por las empresas –el sector privado– en el desarrollo de los contratos del sector público. Esta herramienta, de igual manera, pretende visibilizar el valor generado por las empresas de economía social, en coherencia con el fomento que pretende la propia Ley de Contratos del Sector Público.

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TOWARDS AN ANALYSIS OF THE SOCIAL RETURN OF PUBLIC PROCUREMENT THROUGH STAKEHOLDER ACCOUNTING

Public-private partnerships are an established but evolving reality. There are numerous forms of collaboration, articulated through different legal instruments, but due to its relevance, this article focuses on contractual collaboration, on public procurement. Nowadays, public procurement represents a crucial instrument for the public sector to deliver, in collaboration with the private sector, the work, goods and services necessary for the development of its competences, but also a means for the development of public policies in the social field, among others. It plays a key role, so the regulation of the subject is of paramount importance in order to adapt to the new needs of society.

In Spain, the earliest historical references to public procurement, dating back to 1852, refer to contracts being awarded to the cheapest bidder, based on price alone. In the 19th century, legislators, as representatives of the taxpayers, were primarily concerned with avoiding unnecessary or wasteful spending. However, Spain’s accession to the then European Economic Community in 1986 led to the adaptation of the national laws to the Community Directives. Since then, due to the strong European influence, the consideration of other aspects in addition to price, such as social aspects, has been strongly encouraged. Moreover, in addition to the regulation itself, case law has also played a key role in the evolution of public procurement. It must be noted that the Spanish Supreme Court, in its judgement of 23 May 1997, already ruled that the administration is not obliged to accept the best price, but only the offer that is most favourable to the public interest.

The most significant advancement in sustainable and socially responsible public procurement can be attributed to the current Law 9/2017, of 8 November, on public sector contracts, which transposes European Directive 2014/23/UE and Directive 2014/24/UE. The current legislation provides a flexible legal framework for the inclusion and development of social issues, with the objective of achieving the best price/quality ratio. This is reflected in the entire procurement process: in the solvency criteria, in the award criteria and in the special conditions of execution. In particular, the use of award criteria has a direct influence on the awards that are finally made by the public sector; nevertheless, in practice, the excessive weighting usually given to the price, as an award criterion, undermines the general precept of awarding contracts on the basis of the best value for money. Consequently, it is imperative to incorporate impact and value measurements.

The regulation of public procurement should not be understood solely in terms of budget-saving policies. The optimal tender is the one that generates the most value for the available budget. The formalisation of a contract that minimises cost does not necessarily lead to an optimisation of the value generated for the citizens, the society. In fact, inappropriate cost-saving policies could harm the purpose of the contracting system, the relationship between outputs (social return) and inputs (costs).

Stakeholder accounting is a tool that aims to extend the scope of financial accounting. It quantifies the social value generated by a company through its activities in monetary units. Previous research has primarily focused on an economic perspective, evaluating the efficiency of public resources from the perspective of tenders. At this juncture, it would be prudent to pursue the legal feasibility of incorporating them into the specific administrative clauses.

Thus, based on the methodological basis of previous studies, a new tender was selected to rewrite the specific administrative clauses, by adding an award criterion based on social value or social return, as a case study. It corresponds to a service contract and the following criterion has been included: the value generated by the bidding company through employment, purchases from suppliers and contribution to the Public Administration in the development of the contract activity. In addition, weighting ratios can also be used to ensure a homogeneous comparison of the value generated. Calculations should be made for each of the bidding companies. In this way, quality would be examined when awarding the contract, in terms of social return, and in balance with the price.

In summary, from a legal point of view, the award criteria of a public contract must always fulfil four conditions: (i) they must be linked to the subject matter of the contract, (ii) they must be published in advance, (iii) they must be specific and objectively quantifiable, and (iv) they must comply with European law, in particular the principle of non-discrimination, as well as the freedom to provide services and the freedom of establishment. In this way, the main difficulty in considering social value as an award criterion lies in the interpretative parameters, in particular as regards the link with the subject matter of the contract and the prohibition of territorial clauses.

On the one hand, with regard to the first of these, it should be noted that Law 9/2017, of 8 November, on public contracts, contains an important innovation with respect to the previous regulations. Previously, a direct link to the subject matter of the contract was required, which led to the invalidation of many award criteria. However, the current law avoids specifying that the link must be direct, which to some extent means that the concept is more flexible. Likewise, the current legislation focuses on the so-called “life cycle”, and this view of products, goods or services from their origin also leads to a relaxation of the requirement of the link to the subject matter of the contract. In the light of the above, as regards the link with the subject of the contract, this condition does not appear to be an obstacle to the inclusion of a calculation of the value returned to the community, especially when the score awarded on the basis of this criterion is directly linked to the development of the contract itself.

On the other hand, with regard to the prohibition of incorporating territorial clauses, it should be noted that, to date, clauses related to criteria on taxation in a specific territory have been considered discriminatory. This is because they imply a limitation to the principle of competition that all procedures must respect. It is also pertinent to consider the circumstances in which the Spanish Supreme Court permits proximity award criteria to be incorporated into the specifications of a service contract. In this case, proximity implies a reduction in emissions, consequently leading to a decrease in pollution. This example shows that the principle of free competition is not an absolute principle, but a guiding principle of public procurement that needs to be balanced with others to make procurement truly strategic and sustainable. Although it is an environmental criterion, it could be extrapolated to the social perspective.

Although it is clear from the current Law 9/2017, of 8 November, on public sector contracts that, for both EU and national legislators, the social perspective and the principle of free competition are not incompatible concepts, we still encounter practical and interpretative difficulties that make it difficult to strike a balance between the two – mainly due to a strict and somewhat outdated hermeneutic regarding the link with the subject matter of the contract and territorial clauses -. The regulatory framework for public procurement considers quality as a new paradigm that needs to be properly assessed, and stakeholder accounting can contribute to this. It must therefore continue to be legally scrutinised and even be subject to interpretation by the courts.

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En el presente trabajo examinamos la repercusión que tienen en las entidades de la economía social los principales cambios y tendencias de reforma que se observan en la fiscalidad del mecenazgo y de la financiación colectiva. En particular, nos centramos en las propuestas que se efectúan al respecto en el Libro Blanco sobre la Reforma Tributaria, así como en las medidas implantadas en la reciente reforma de la Ley 49/2002, de 23 de diciembre, de Régimen Fiscal de las Entidades sin Fines lucrativos y de los Incentivos Fiscales al Mecenazgo. Además, dado que una apropiada fiscalidad del mecenazgo y de la financiación colectiva puede ser clave para las entidades de la economía social, señalamos aquellas medidas que deberían ser consideradas en futuras reformas. Concretamente, apuntamos la posibilidad de ampliar las entidades beneficiarias del mecenazgo a ciertas familias de la economía social, abordamos la conveniencia de establecer mecanismos que protejan a los mecenas en caso de pérdida sobrevenida de la condición de entidad sin fines lucrativos, y nos planteamos qué incentivos fiscales son los más adecuados para impulsar la financiación colectiva de las entidades objeto de estudio. Igualmente, reflexionamos sobre la necesidad de encontrar nuevos beneficios tributarios en estos ámbitos, así como sobre las medidas más apropiadas para garantizar un seguimiento periódico y un continuo estudio sobre la materia.

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SOCIAL ECONOMY, PHILANTHROPY AND CROWDFUNDING: SOME THOUGHTS ON MAJOR CHANGES AND REFORM TRENDS IN THE FIELD OF TAXATION

This paper analyzes the recent changes and the major reform trends in the taxation of philanthropy and crowdfunding, and the repercussions they may have on social economy organisations. In particular, this paper focuses on understanding how these recent changes and major reform trends may influence the development and sustainability of these organisations, taking into account that they harmonize business efficiency with social responsibility, the funding difficulties they face due to their particularities and legal status, as well as the potential of patronage and crowdfunding to overcome them.

The analysis begins with the White Paper on Tax Reform, which proposes several measures to improve the taxation of patronage and crowdfunding. The proposals include the maintenance of tax incentives for donations to non-profit organisations, although it is recommended to evaluate its effectiveness and its current configuration. Furthermore, it suggests the admission of quid pro quo contributions and highlights the need for a thorough review of the tax incentive associated with support programmes for events of exceptional public interest, as in the latter case it is considered necessary to rethink the efficiency of their design and the degree to which the objectives pursued with their introduction have been achieved. Moreover, the aforementioned White Paper advocates analysing and implementing tax incentive measures for the microfinance of emerging small and medium-sized enterprises, in line with the comparative experience. Thus, although this last proposal does not expressly mention social economy entities, it could benefit them significantly, potentially improving their access to essential financial resources, provided that they are not excluded for reasons linked to their legal form. This inclusive approach could lead to a more robust and resilient social economy sector, enhancing its ability to contribute meaningfully to broader societal goals.

The analysis continues with the important novelties introduced in the taxation of patronage by Royal Decree-Law 6/2023, of 19 December, approving urgent measures for the implementation of the Recovery, Transformation and Resilience Plan in the areas of public service of justice, civil service, local government and patronage. In this regard, the deduction percentages for donations and contributions to non-profit organisations have been increased by between five and ten percentage points, and so-called micro-patronage has been boosted, which has been achieved thanks to a significant increase in the deduction base, specifically in one hundred euros. The concept of tax-deductible donations has also been clarified and broadened. Thus, the regulations now expressly allow the temporary transfer of the use of movable and immovable assets without consideration, and permit so-called recognition or reward patronage, although there are quantitative limits that reasonably restrict the consideration that patrons can receive for their contributions. Finally, the scope of application of the business collaboration agreement for activities of general interest has been extended, which is mainly due to the possibility of being able to instrument economic aid to non-profit organisations as pro-bono services. In addition, greater versatility has been given to this legal form, since it is expressly stated in the law that the public diffusion of the collaboration can be carried out indistinctly by the collaborator and by the non-profit entity, a very relevant aspect that generated interpretation problems in the past. All these measures are, in short, a recognition of the indispensable contribution of non-profit organisations in Spain, although it should be noted that other modifications could have been adopted to further strengthen patronage, as well as to benefit the social economy as a whole.

Then, several proposals are made in the paper to broaden the impact of future tax reforms in this area. Among the proposals made, it is worth highlighting the extension of entities benefiting from patronage to include more families of the social economy, such as non-profit cooperatives of social initiative or integration, special employment centres and insertion companies, provided that certain circumstances are met. Something similar is proposed regarding associations that do not have a certificate of public utility, although what is really appropriate in this case would be to modify the procedure for granting such a certificate, given the complications that currently exist. It is also recommended introducing mechanisms to protect patrons in the event of a sudden loss of non-profit status, a circumstance that could be particularly harmful to the development of philanthropy in our country if patrons perceive excessive problems in this respect. Likewise, in the interests of boosting this type of alternative source of funding, it is advisable to improve and incorporate tax benefits for crowdfunding, especially those carried out through digital platforms, as this can help social economy organisations to alleviate the difficulties they face in this area. Lastly, in addition to suggesting the need to incorporate tax benefits in the autonomous region’s personal income tax bracket in a more balanced way, it is suggested that new tax incentives should be found in these areas, such as those linked to non-distributable endowment funds, and advocates the interest in reflecting on the most appropriate measures to ensure regular monitoring and continuous study of the matter.

Finally, the paper concludes that, although the recent reforms and proposals represent significant progress in this area, there is still much to be done in the field of taxation to enable social economy organisations to finance more effectively. In this sense, despite the commendable efforts made thus far, the White Paper on Tax Reform does not address relevant issues for social economy organisations, which are related to the taxation of philanthropy and other forms of alternative financing. A similar assessment can be made of the reform of Act 49/2002, of 23 December 2002, on the Tax System for Non-Profit Organisations and Tax Incentives for Patronage, insofar as, while this reform is positive in general terms, it omits certain aspects that it would have ideally been desirable for it to have addressed. For all these reasons, the need to continue working to adequately promote social economy entities is pointed out, which will result in a more responsible, mature and cohesive civil society, and in the satisfaction of essential objectives in our Welfare State, which are of general interest.

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El presente trabajo analiza la experiencia de Coop57, cooperativa de servicios financieros éticos y solidarios, y su sección territorial de Andalucía. La labor de la cooperativa es la financiación de proyectos de economía social y solidaria a través de la intermediación financiera. Partiendo del modelo organizativo y de crecimiento en red de Coop57, modelo que se articula a través de secciones territoriales, analiza la implantación y desarrollo de la actividad de la cooperativa en Andalucía desde 2008, año de creación de la sección territorial de Coop57-Andalucía, hasta 2022. Este análisis considera la evolución de la base social y de los servicios financieros. El objetivo de este artículo es conocer la implementación, evaluación y desarrollo de Coop57-Andalucía como alternativa financiera real a la banca convencional, tras quince años de trayectoria en territorio andaluz.

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COOP57, AN ETHICAL FINANCE COOPERATIVE FOR THE SOCIAL ECONOMY. IMPLEMENTATION AND DEVELOPMENT IN ANDALUSIA (2008-2022)

Ethical banking and finance have aroused growing interest among citizens in recent years, as can be seen from the data provided by the distinct annual editions of the Ethical Finance Barometer. This interest increased due to the global financial crisis that began in 2008, and which generated an increase in distrust of traditional banking.

Scientific work has focused on an approach to the conceptualisation of ethical banking and ethical finance, explaining their origins, characteristics, case studies, comparative studies among ethical banking, conventional banking and cooperative banking. There is a long way to go in the study of ethical banking and finance, exploring certain cases and specific territories.

This paper reviews the experience of Coop57-Andalucía, its implementation and development between 2008 and 2022.

In 2023, Coop57-Andalucía will celebrate fifteen years of activity providing a financial intermediation service for Andalusian social economy organisations. After this time, it is necessary to analyse the evolution of Coop57-Andalucía’s activity between 2008, the year it was set up, and 2022, when it entered a context marked by global economic and financial uncertainty, aggravated by the recent world pandemic situation and the consequences of Covid-19.

This analysis is carried out taking into consideration two fundamental aspects of their activity: the social base, contributions and the financial services provided.

The objective is to study the possibility that Coop57 can be conceived as a financial alternative to conventional banking in Andalusia, at a time characterized by global economic and financial uncertainty.

The study has been carried out with secondary information obtained through Coop57 newsletters, its website, and documentation provided by Coop57.

The paper is divided into four sections. Firstly, a brief conceptualisation of ethical banking and finance is given. Then, it contextualises Coop57 in the ethical finance system and describes its organisational functioning, with a special emphasis on its networked growth model. It then analyses the implementation, development and evolution of Coop57-Andalucía in the context of the cooperative. It ends with the main conclusions of the study.

Ethical banking is understood as entities with a banking licence, banks and credit cooperatives, and therefore regulated by the central bank and subject to banking legislation, which carry out financial intermediation activities, investing in and financing projects that combine profit with a positive social impact based on social and environmental criteria (Sanchís Palacio, 2016, Sanchís Palacio and Pascual García, 2017; Blanco Sánchez, 2022). Ethical finance is also made up of non-bank entities (associations, financial services cooperatives, insurance companies) that carry out financial intermediation work, in which social performance is also more important than economic performance, but without being subject to banking legislation or central bank regulation.

Coop57 is a cooperative of ethical and solidarity-based financial services. It is formally constituted as a cooperative society, of first degree, of services and non-profit.

Coop57’s framework for action is that of cooperativism, social economy and ethical finance. In addition to cooperative principles, Coop57 works on the basis of the principles of ethical finance: applied ethics, coherence, involvement, compatibility, participation and transparency.

Coop57’s organisational model responds to a networked, horizontal growth model based on territorial criteria, proximity and mutual trust. The basis of this model are the territorial sections, each with their own structures of participation.

The network growth model was implemented in 2005 as a result of the interest awakened in other territories beyond Catalonia, the first territorial section and origin of Coop57. The idea was to take advantage of the cooperative model and structure, but to deploy a model that would allow for self-management in each territory.

Coop57 has seven territorial sections, as the Catalan section has been joined by the following ones: Aragon in 2005, Madrid in 2007, Andalusia in 2008, Galicia in 2009, Euskal Herria in 2015 and, finally, in 2019 in Asturias. The territorial sections follow the same principles and ethical and social criteria, making decisions by developing a decentralised model, where each territory has the autonomy to generate its own debates and decisions, always within the general framework of the co-operative.

Coop57-Andalucía was constituted as a territorial section of Coop57 on 27 September 2008, by means of a Constituent Assembly in which thirty Andalusian social economy organisations and a hundred people participated.

The analysis of Coop57-Andalucía’s activity includes the evolution of its social base, both its contributions and lending activity. Both dimensions of the analysis are included in Coop57 as a whole.

The social base of Coop57-Andalusia is made up of 469 members in 2022, according to the data published in Coop57’s Bulletin No. 43. The 469 members are divided between 87 service partner organisations and 382 people or collaborating partner organisations.

Coop57-Andalucía’s social base grew by 13.0% in 2022 compared to the previous year. Between 2088 and 2022, growth was 1,102.6%, which represents an average annual rate of 18.7%. The social figures for Coop57 as a whole show that the number of people and collaborating members was 5,241, while the number of service members was 1,107 entities, resulting in a total of 6,348 members, data for 2022.

Coop57-Andalusia represents 7.4% of Coop57’s members, with 7.9% of its service members and 7.3% of its collaborating members. Andalusia is the fourth territorial section of Coop57 in terms of the volume of its social base, surpassed by Catalonia with 62.1%, Madrid with 9.0% and Aragon with 8.6%.

The increase in Coop57-Andalucía’s social base has been accompanied by an increase in contributions from collaborating members and service partners. These contributions will be used as economic resources for the provision of financial services.

Coop57-Andalucía reached the figure of 2.4 million euros in total contributions in 2022, which represents a growth of 19.5% compared to 2021. The evolution between 2010 and 2022 experienced a growth of 728.4%, from €293,283 in 2010 to €2.4 million in 2022, representing an average annual growth rate of 18.0%.

In terms of lending activity, the balance of loans granted by Coop57-Andalucía during 2022 reached 1.9 million euros. This volume represents a slight growth of 0.5% compared to the previous year, and confirms the stabilisation of the balance of loans close to two million euros in Andalusia. The loan balance for Coop57-Andalucía grew by 831.4% between 2010 and 2022, representing an average annual growth of 19.3%, from 213,023 euros in loan balance in 2010 to 1.9 million euros in 2022.

For Coop57, the balance of contributions for the period 2010-2022 grew by 607.1%, representing an average annual growth for the period of 16.2%, from EUR 8 million in 2010 to EUR 56.9 million in 2022. Lending activity increased by 476.8% in the period analysed, representing an average annual growth of 13.9%. In absolute terms, this represents an increase from an outstanding loan balance of 6.4 million euros in 2010 to 37.3 million euros in 2022.

Coop57-Andalusia is the second territorial section in terms of volume of loans granted, representing 5.3% of all Coop57 loans in 2022, only surpassed by the Catalonia section. In terms of contributions, Coop57-Andalusia represents 4.3% of Coop57’s contributions.

The results, characterised by growth despite successive periods of economic crisis (the first from 2008, and the second after the Covid-19 pandemic in 2020), prove the consolidation of a useful instrument for the social economy in Andalusia and in Spain as a whole. It can be concluded that citizens are increasingly interested in the philosophy and practice of this institution for depositing their savings as a way of linking them to projects with ethical and social criteria and, additionally, that social economy organisations see Coop57 as a useful tool that responds to their financial needs.

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La modificación a la Ley 4179 emitida el 22 de agosto de 1968, ratificada el lunes 22 de abril de 2024, representa un importante paso evolutivo, singular y adaptativo, en la emisión de legislación pública costarricense atinente al sector cooperativo. Parte de la justificación de la aprobación de esta ley se sustenta en que esto abrirá la puerta para la creación de nuevas cooperativas, abriendo oportunidades en sectores deprimidos de la sociedad, así como a jóvenes. En este trabajo analizamos y argumentamos que, si bien la modificación de esa ley es un paso positivo, es sólo el primero en un cambio de enfoque que es necesario para dinamizar el sector cooperativo y para mejorar las posibilidades de éxito de las nuevas empresas que se formen. Analizamos las oportunidades de crecimiento que podría tener el sector dentro del marco del comportamiento del crecimiento económico del país.

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STIMULUS FOR THE SUSTAINABILITY OF THE COOPERATIVE MOVEMENT IN COSTA RICA: APPROVAL OF A LAW REFORM TO REDUCE THE NUMBER OF MEMBERS TO FORM A COOPERATIVE TO 8

On March 27, 2023, the United Nations General Assembly passed resolution A/77/L.60, highlighting the crucial role of the social and solidarity economy (SSE) in sustainable development. This resolution recognizes that the SSE can significantly contribute to achieving the Sustainable Development Goals (SDGs), adapting to local contexts. The SSE positively impacts employment, decent work, social services (healthcare, education, vocational training), environmental protection through sustainable economic practices, gender equality, women’s empowerment, access to affordable financing, and local economic development.

The SSE also strengthens the productive capacities of vulnerable people, fosters social dialogue, promotes labor rights, social protection, and inclusive and sustainable growth. Furthermore, it fosters the creation of alliances and networks at local, national, regional, and international levels, and promotes governance and participatory policies and human rights.

The importance of this resolution is evident, considering that there are 3 million cooperatives worldwide, providing employment to 280 million people, equivalent to 10% of the global employed population. This social enterprise model has demonstrated its ability to generate significant business volume, with the 300 largest cooperatives and mutuals in the world reaching a total of $2.4 trillion in business.

In Costa Rica, cooperatives cover various sectors of the economy: savings and credit, self-management, agricultural-industrial, marketing, school, multiple services, supplies, production, transport, and housing. According to INFOCOOP statistics (2019), the Costa Rican cooperative movement comprises 594 cooperatives with 887,335 members, representing 21% of the national population. These cooperatives are present in all economic sectors, contributing significantly to exports, public transport, electrification, coffee production, and job creation.

The economic impact of cooperatives is notable: ¢132 billion in exports (approximately $250 million), 33,357,850 people benefiting from public transport, 708,000 people with electrification services, 36.7% of national coffee production, and the generation of 21,632 direct jobs. Coffee cooperatives employ approximately 20,000 migrant workers, mainly from Nicaragua and the Ngöbe Buglé indigenous community of Panama, who work in temporary harvesting. This social commitment of coffee cooperatives is exemplary. Cooperatives like Coopetarrazú R.L. and Coopeagri R.L. offer childcare services to the children of pickers, allowing both parents to work with the assurance that their children are well cared for and fed. This model maximizes family earnings and demonstrates a focus on human well-being.

Electric cooperatives also reflect a strong environmental commitment. Cooperatives like Coopelesca R.L. and Coopesantos R.L. implement forest protection and water source conservation measures, funded by additional contributions from their members in their electricity consumption bills. These actions contribute to biodiversity protection and business sustainability.

In 2016, 60 new cooperatives were created in Costa Rica, including indigenous such as Coopebrita R.L., Coopetayni R.L., Coopeorganic R.L. and women’s cooperatives, Coopeparcaribe R.L., Coopechilamate R.L., Coopemujer Maná R.L., and Coopegama Mujer R.L. This growth indicates the importance of the cooperative model in promoting employability, economic development, and social equity, especially in rural and economically depressed areas.

The cooperative movement in Costa Rica is diverse and robust, with large, medium, and small cooperatives occupying an important niche in the country’s business network. They are an engine of employment and a social stabilizer in a world with increasing inequality and the need for new development opportunities.

Despite its potential, the growth of cooperatives in Costa Rica has been hampered by two key factors: the need for a minimum of 20 members to create a traditional cooperative (12 for a self-managed one) and the duration of the process, which can extend up to 18 months or more. This system has been a drag on the sector, limiting opportunities especially for small businesses that prefer associativity as a business model. Many processes are aborted due to the impossibility of waiting so long to start productive activities.

Comparatively, other countries have more flexible requirements: Jamaica requires 10 members, Australia 5, Canada 3, Italy sets no minimum, and Spain varies from 2 to 10 depending on the type of cooperative. The difference is notable and reflects a need for modernization in Costa Rican legislation.

The modification of Law 4179 in April 2024, which reduces the number of members required to form a cooperative from 20 to 8, represents a significant advance. However, it is also crucial to reduce the process time to no more than one month so that the reduction in the number of members has a real impact on the growth of the cooperative sector, as well as preparing those interested in forming a new cooperative and ensuring they have adopted the cooperative principles and values as the guiding axis of that new enterprise. Additionally, literacy in key areas such as business models, sustainability, innovation, and management is essential for new cooperatives to be viable and sustainable.

Moreover, adequate credit lines must be provided to overcome the early mortality period that many businesses face. The recent law facilitating the creation of cooperatives is a positive step ahead, but it must be complemented by support and credit policies to maximize the impact and ensure long-term success. Moreover, the cooperative sector must focus on creating successful cooperatives, not just increasing their number. This requires a process of accompaniment and training to ensure solid governance and business viability.

For example, the cooperative creation process in the United States emphasizes business viability from the start. According to the National Association of Cooperative Businesses, the steps include developing the idea, finding interested people, conducting feasibility and market studies, constituting the cooperative, creating a business plan, and acquiring capital. This approach ensures that cooperatives are not only formed but are also successful. The U.S. guide highlights the importance of thoroughly evaluating the viability of the venture, offering recommendations for future associates. This includes preliminary analysis, market studies, and the creation of a robust business plan, ensuring that cooperatives are competitive and sustainable.

Analyzing Costa Rica’s economic context shows that it presents favorable opportunities for the potential growth of the cooperative sector. In 2023, tourism generated $4.1 billion in revenue, and Costa Rica is a world leader in environmental policies. Additionally, the designation of Costa Rica as a strategic ally by the United States under the 2022 Chips and Science Act opens new opportunities in the semiconductor sector. The Costa Rican government has presented a strategy to boost the sector in collaboration with the United States, positioning the country as a potential new Silicon Valley of America.

Costa Rica’s robust economic growth and strategic international support provide a favorable ground that the cooperative sector should explore for the promotion of more just and human-centered socioeconomic development. The key to success lies in an integrated approach that combines facilitating the creation of cooperatives with strong support in training, financing, and governance, thus ensuring a positive and sustainable impact on the Costa Rican economy and society.

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En Costa Rica, la base mínima de asociados para constituir una cooperativa era de 12 asociados para las cooperativas de autogestión y de 20 asociados para las demás. Sin embargo, recientemente se aprobó una reforma a la ley para que las cooperativas puedan constituirse con, al menos, 8 asociados. A pesar de que esta reforma constituye un gran avance en la actualización de la legislación cooperativa, conviene analizar si existen otras alternativas que puedan incentivar la constitución de cooperativas.

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LEGAL ANALYSIS OF THE REQUIREMENTS FOR THE INCORPORATION OF COOPERATIVES IN COSTA RICA

In order to constitute a cooperative, several essential requirements must be met. One of the most important requirements is to have a certain number of people willing to form a cooperative and to carry out a social purpose. The number of individuals or members required to form a cooperative will depend on the law of each country. In Costa Rica, it was previously necessary to have 12 individuals to form a self-management cooperative and 20 individuals to incorporate any other type of cooperative. However, a recent reform to the law of cooperative associations modified the requirements and now 8 people are necessary to form any cooperative.

The impact that this reform may have on the formation of new cooperatives is uncertain. However, its main objective is to eliminate requirements for the incorporation of cooperatives and to encourage the integration of new people into the cooperative movement. The reform also seeks to give cooperatives a more prominent role in the economy of Costa Rican society and to promote their use over other forms of association, such as capital companies.

For several years, corporations and limited liability companies have been used as the ideal vehicles to develop a productive idea. Most businesses and lucrative activities in the country are developed through a corporation. This is due in part to the ease of the incorporation process. Generally, a company can be incorporated in approximately 10 working days. In addition, only 2 persons are required to incorporate. This is certainly a comparative advantage of corporations.

In contrast, the situation of cooperatives is very different from the legal status of corporations. In addition to needing more than 2 persons, it is necessary to comply with a large number of requirements to incorporate a cooperative. According to the law, it is necessary to have feasibility studies, certifications and documents that, in a society, are not necessary. In addition, it is necessary to add the supervision of cooperative entities that will review the strict compliance of such requirements, which will delay the registration process by approximately 8 months.

It is for these reasons that the law reform seeks to start with the reduction of the number of people required for the constitution of cooperatives as a first step to encourage the cooperative movement. However, other reforms must also be approved in order to achieve a recurrent use of cooperatives.

For example, one proposal that should be discussed and approved is to move the registration process for cooperatives to Costa Rica’s National Registry.  Currently, cooperatives are registered with the Department of Social Organizations of the Ministry of Labor and Social Security. However, all other legal entities (corporations, foundations, associations) are incorporated before the National Registry. All except for cooperatives. This circumstance is historically based on the Labor Code, which regulated the legal framework of cooperatives, as they are classified as instruments of social economy. For this reason, the creation of cooperatives was maintained within the framework of the Ministry of Labor, even though the chapter on cooperatives was eliminated and an autonomous law on cooperatives was created.

Modifying the law so that cooperatives are incorporated before the National Registry, would help to improve the time to incorporate a valid cooperative. Instead of lasting, approximately 8 months, the process may take 1 month, at least. In addition, trained personnel would be available to review and unify the criteria for incorporating cooperatives. However, this modification has not yet been approved or discussed, despite being a simple alternative to improve the creation of new cooperatives.

Facilitating the creation of new cooperatives should be one of the main objectives of the cooperative movement. Even though the approval of new forms of association, such as simplified societies, are being discussed in Congress. However, they should also be viewed with caution, in order to avoid encouraging fraudulent cooperatives.

Fraudulent cooperatives are formed for the purpose of providing an image of compliance and thus obtaining tax and social benefits. However, in reality they do not operate as true cooperatives and mask the development of productive activities as if they were companies or independent persons. The decrease in the minimum number of members may become an incentive for the creation of fraudulent cooperatives, since fewer people will be required to agree to form a cooperative even if they do not meet all the requirements.

Although the risk exists, the search for new forms that allow the creation of new cooperatives must be taken into consideration. Therefore, a comparative experience that can be taken into consideration is the Spanish case, together with the use of technology. In Spain, for example, there is a legal figure called “micro-cooperative”, composed of a minimum of two members and a maximum of ten. Its objective is to adapt cooperative legislation to small companies that wish to form part of the cooperative movement, “simplifying its regulation and adapting it to the needs of their small size, so that no business project, however small it may be, is left without legal coverage of a cooperative nature.

Also, in Spain, the Single Electronic Document (“DUE” by its acronym in spanish) was created, which allows the creation of cooperative companies by electronic means and in a single procedure. This is electronic in nature and can include all the data relating to the cooperative company, which, in accordance with the applicable legislation, must be sent to the legal registries and the Public Administration for incorporation and compliance with tax and social security obligations. With this measure, the Spanish Government seeks to promote the creation of new companies and to establish the creation of simple corporate formulas, which will help in the reactivation of the economy and the creation of employment.

Reducing the minimum number of individuals required to constitute a cooperative in Costa Rica is a very important step. However, more actions must be taken to generate a strong and extensive cooperative movement. These modifications are not difficult to adopt because they seek uniformity in the constitution of new cooperatives, which generate a great number of advantages and benefits for Costa Rican society.

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Desde la promulgación de la Ley de Regulación de la Actividad de Intermediación Financiera de las Cooperativas de Ahorro y Crédito en Costa Rica Ley Nº7391, estas organizaciones se han transformado en forma acelerada, procurando insertarse de modo significativo en el mercado financiero local con una mayor oferta de servicios, para asociados actuales y potenciales. Para poder competir en el sector financiero con más y mejores servicios, tales cooperativas deben ser creativas y utilizar la legislación que regula al sector, adaptándola de modo que los principios y valores cooperativos no sean erosionados. Es claro que, al surgir a la vida jurídica una ley especial para su regulación, estas organizaciones se revisten de una naturaleza particular, que tiene a la intermediación financiera especializada y la oferta de servicios conexos como el propósito fundamental de la gestión cooperativa, por lo que la interpretación de las normas que regulan su actividad, debe adecuarse a esa especial característica de tales organizaciones.

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DESTINATION OF THE SURPLUS OF THE COMPANIES THAT ARE PART OF A COOPERATIVE FINANCIAL GROUP IN COSTA RICA

Since the enactment of the Law for the Regulation of Financial Intermediation Activity of Savings and Credit Cooperatives in Costa Rica Law No. 7391, these organizations have transformed rapidly, seeking to insert themselves significantly into the local financial market with a greater offer of services, for current and potential associates. In order to compete in the financial sector with more and better services, such cooperatives must be creative and use the legislation that regulates the sector, adapting it so that cooperative principles and values ​​are not eroded. It is clear that, when a special law arises in legal life for its regulation, these organizations take on a particular nature, which has specialized financial intermediation and the offer of related services as the fundamental purpose of cooperative management, therefore that the interpretation of the rules that regulate their activity must be adapted to this special characteristic of such organizations.

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En el 2020 se modificó la Ley de Promoción de la competencia y defensa efectiva del consumidor con efectos en las operaciones de crédito en las cooperativas porque se pusieron límites a las deducciones voluntarias del salario como forma de pago. Varias normas constitucionales entraron en un aparente conflicto al momento de considerar los derechos del consumidor, los derechos del trabajador y los derechos y deberes de los trabajadores afiliados a una cooperativa. Frente a esa situación toma importancia revisar si existe una conexión de esa problemática con los Valores y Principios Cooperativos, así como el estudio de la influencia y posible vinculación de los Estados con la Recomendación 193 como fuente de interpretación de la legislación cooperativa.

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COOPERATIVE VALUES AND PRINCIPLES AGAINST CONSUMER PROTECTIVE LEGISLATION IN COSTA RICA

In 2020, the Law on the Promotion of Competition and Effective Consumer Defense was modified with effects on credit operations in cooperatives because limits were placed on voluntary deductions from salary as a form of payment. Several constitutional norms came into apparent conflict when considering consumer rights, worker rights, and the rights and duties of workers affiliated with a cooperative. Faced with this situation, the review of the existence of a connection of this problem with the Cooperative Values ​and Principles became important, as well as the study of the influence and possible connection of the States with Recommendation 193 as a source of interpretation of the cooperative legislation. especially the position of Costa Rica.

Since the Political Constitution of Costa Rica of 1871, the promotion of the creation of cooperatives was included as part of state policies aimed at promoting worker organizations. Thanks to the reform of Law No. 24 of July 2, 1943, a chapter of social guarantees was incorporated, inspired especially by the social doctrine contained in the Encyclicals Rerum Novarum of Leo XIII, the Quadragesimo Anno of Pius XI and the Social Code of Mechelen, opening the possibility for the constituent deputies who formulated the Political Constitution of 1949 to maintain that political decision embodied in article 64, without any variation in the text of the current constitutional body, the aforementioned Code was enriched with a special chapter for cooperatives, legal body where the Cooperative Principles were not taken into account. It took 35 years to achieve the promulgation of the current Law of Cooperative Associations (LAC) of 1968, in whose text are the principles adopted by the International Cooperative Alliance in 1966. The legal framework for the promotion of cooperatives at the constitutional level was modified two years after the promulgation of the Law for the Promotion of Competition and Effective Consumer Defense (1994). A paragraph was added to article 46 to include the rights of consumers and users to the protection of their health, environment, safety and economic interests; to receive adequate and truthful information; to freedom of choice, and equitable treatment.

This reform derived from Costa Rica’s obligations assumed when subscribing to the American Convention on Human Rights on November 22, 1969, ratified on August 4, 1970, which oblige the signatory states to prohibit usury as part of the framework for the protection of people in their human rights. As far as article 21, paragraph 3, is concerned, it regulates the right to private property and prohibits usury like any other form of exploitation of man by man. Article 46 of the Political Constitution was chosen to introduce the reforms derived from that Convention, and is in a totally different position within the Political Constitution, in relation to the Chapter of Social Guarantees referring to the promotion of cooperatives. The existence of article 64 mentioned together with the analysis of the cooperative relationship made it mandatory and for the purposes of this communication, to consider the position of a worker who belongs to a cooperative to distinguish his employment relationship and his cooperative relationship, one based on a contract of work, the other in a cooperative contract whose rights and obligations are reflected in the LAC, the statutes of the corresponding cooperative and the agreements of its Assembly. Given the exposed problem of the double condition of the debtor and cooperative worker, it is important to consider the role of Cooperative Values​and Principles as part of the routes to clarify the joint application of articles 46 and 64 of the Political Constitution, labor regulations and the reforms to the Consumer Protection Law, without going into an extensive analysis of its concept and applications at the international level, given that it obliges all cooperatives in the country to strictly follow such principles and standards. The study emphasizes the absence of the cooperative value of solidarity that should be taken into account by an associate who exceeds his credit capacity and forces his cooperative to execute a forced payment, to the detriment of the economic rights of the community’s associates. your cooperative.

Despite the lack of updating of Costa Rican cooperative legislation through the Declaration of Cooperative Identity with its Cooperative Values ​​and Principles as well as the content of ILO Recommendation 193, the aforementioned contradiction of constitutional norms, the participation of two groups of workers in which, according to set theory, there is a segment that incorporates them, led to the review of the Constitutional Chamber in 2021 whose result was to better define the nature of cooperative organizations through their distinction, according to the following characteristics:

1-The non-profit nature of financial activity. The results of the savings and credit activities of its members generate surpluses that are the property of the participants in this intermediation process. 2-.These surpluses are also reflected socially, since cooperatives promote special aid programs, medical subsidies, donations, training in topics of interest, entrepreneurship, education, values, among others. The purpose of these, unlike other entities, is to provide a service at a fair cost to the associated people, which satisfies their needs, not to generate profits. 3-.As the associates are co-owners of the cooperative, they issue the main guidelines for the development of their association and promote, under a system of democratic representation, their participation in the management, administration and supervision bodies. 4-.According to the legislator of 1968, according to article 21 LAC, savings and credit cooperatives have as their primary purpose the promotion of the habit of saving in their members and the discreet use of personal solidarity credit, their purpose is to solve urgent needs in members’ homes and facilitate the solution of their economic problems. With such objectives there is no doubt that the Cooperative Values ​​of mutuality, solidarity and responsibility with their neighbors are widely developed. Even more, there is another type of cooperative that is a savings and credit cooperative, which by law extends the benefits granted by law allowing its members to obtain loans and guarantee services to help them better develop their activities on agricultural, livestock or industrial farms. . The cooperative values ​​of mutual aid and solidarity were the basis of the legislator’s thinking to offer this benefit. On the part of the authors, such approaches from the Constitutional Chamber have been complemented with the cooperative Principles existing in the current LAC.

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En esta sentencia se analizan las consecuencias derivadas de un supuesto de una cooperativa de trabajo asociado de transportes en fraude de ley o falsa cooperativa, desde una perspectiva jurídico penal. El presidente de la cooperativa es acusado y así lo confirma la Sala de lo Penal del Tribunal Supremo, tras la inadmisión del recurso de casación planteado, de dos delitos: un delito contra las personas trabajadoras y otro delito de estafa agravada por ser el trabajo un bien de primera necesidad, así como por la gravedad de la conducta y por la cuantía defraudada. Al margen de la condena penal, es de gran interés, revisar el supuesto fraude cooperativo y laboral que se ha producido en el presente caso.

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WORKER COOPERATIVE IN FRAUD OF THE LAW

COMMENTARY OF JUGMENT 543/2023, OR JULY 5, 2023, CRIMINAL CHAMBER OT THE SUPREME COURT

This judgement analyses the consequences of a case of a transport worker cooperative in fraud of law or false cooperative, from a criminal law perspective. The president of the cooperative is accused, as confirmed by the Criminal Division of the Supreme Court, following the rejection of the appeal in cassation, of two crimes: a crime against workers and another crime of fraud, aggravated by the fact that the work is a basic necessity, as well as by the seriousness of the conduct and the amount defrauded. Apart from the criminal conviction, it is of great interest to review the alleged cooperative and labour fraud that has occurred in this case.