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Revista Nº 38 Junio 2021
La armonización del derecho cooperativo español y nuevos retos para las sociedades cooperativas (I)

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La armonización del derecho cooperativo español y nuevos retos para las sociedades cooperativas (I)

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Las cooperativas de trabajo asociado: una alternativa de trabajo digno, sostenible e inclusivo

Dulce Soriano Cortés

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Este trabajo presenta una reflexión sobre el singular estatuto jurídico de las personas socias trabajadoras en las cooperativas de trabajo asociado. La naturaleza societaria que la ley otorga al vínculo contractual, no impide reconocer la inexorable conexión que tales socios trabajadores guardan con el ámbito de las relaciones laborales. El marco competencial constitucional y la diversificada regulación autonómica no favorecen la configuración de un adecuado estatuto jurídico para ellos. Es necesario aprovechar las sinergias de impulso internacional y comunitario en favor de las cooperativas como alternativas que generan trabajo decente y contribuyen al desarrollo sostenible, con empleos estables, seguros e inclusivos. Los poderes públicos han de contribuir a tales objetivos diseñando políticas públicas que favorezcan buenas prácticas laborales en este contexto, ejerciendo vigilancia y control para su efectividad. Finalmente, la libertad sindical en este marco, representa un paso decisivo en el reconocimiento y ejercicio de los derechos laborales.

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WORKER COOPERATIVES: AN ALTERNATIVE FOR DECENT, SUSTAINABLE AND INCLUSIVE WORK

This work presents a reflection on the singular legal status of the working partner in worker cooperatives. Among the purposes and mission of the ICA, included in the “Strategic Plan 2020-30”, is the need to pay more attention to the dignity of work as one of the pending challenges. Consequently, combating unequal working conditions for the working partners, seeking a legitimate equalization to working conditions and recognized rights for employed workers, constitutes a plausible goal to be achieved within its lines of action for this decade; Failure to do so could be considered an attack against the cooperative principles and values, enshrined by the ICA and included as an annex to ILO Recommendation 193, from which one of the central pillars of the social and solidarity economy is extracted, which is, the approach of the people-centered economy.

The corporate nature that Spanish law grants to the contractual relationship between the working partners and the cooperative does not prevent us from recognizing the inexorable connection that these working partners have with the field of labor relations. The exclusion of such workers from the workplace is not based on the peculiarities of the service they perform or on their subjection to the company, but responds to a specific option of legislative policy motivated by the presumption that the cooperative pursues objectives based on solidarity, democracy and mutualism. On the other hand, the heterogeneous regional legislative framework that derives from the competence framework of the Spanish Constitution does not favor the configuration of an adequate legal status for the worker members of associated work cooperatives. However, all this should not constitute a justification for not guaranteeing equal and decent working conditions for the working partners. It is inadmissible that the working partners enjoy less favorable working conditions than those that would correspond to them if they were employed. The very competitive pressures of the market in which these cooperatives operate, together with the lack of guarantees regarding their working conditions, constitute a favorable framework for “self-exploitation”. Hence, the necessary intervention in the key of guardianship to guarantee minimum standards of labor protection and homogeneous working conditions for these worker partners; and this, regardless of the fact that within the current legislative framework we cannot formally qualify it as an  employment relationship stricto sensu.

In order to achieve these objectives, the synergies derived from regulations at the international level must be taken advantage of, within the framework of the ILO, as well as in the context of community-level initiatives that enhance the social economy. Specifically, it is necessary to take advantage of the momentum in favor of cooperatives as alternatives that generate decent work and contribute to sustainable development, with stable, safe and inclusive jobs. This framework will serve to carry out a decisive impulse to the consolidation of labor standards for the working partners of the associated work cooperatives. On the one hand, the concept of decent work, configured within the ILO, constitutes the legal bastion to jointly and unitaryly address minimum regulatory standards, applicable to all working people, in particular, to the group that concerns us, the working partners. On the other hand, the supports of the European Union to this sector, as the axis for the social and economic reconstruction of the EU; particularly, the implementation of a legal Statute for the European social enterprise in order to create the “European Label of social economy” should favour the consolidation of “good labor practices” within the framework of associated work cooperatives.

On the other hand, at the national level, the public authorities play a fundamental role in the objectives described, not only by reinforcing the implementation of adequate labor standards through public policies that qualitatively value these social advances, but also by carrying out effective periodic controls that verify their effectiveness and, consequently, imposing appropriate sanctions for non-compliance. Public policies in this sense would lay the foundations for carrying out legislative reforms in this line, following some of the measures already contemplated at the regional level, such as, for example, the equalization of corporate advances to the salaries provided for in the corresponding collective agreement. It would be desirable for such practices to be extended to other working conditions. Similarly, gender equality policies should be favored, promotion of employment for young people or vulnerable groups, or also, measures for reconciling family and professional life that are effectively translated into joint responsibility of both parents, etc. And this, in addition, to other policies in favor of “green employment” and renewable energies, which are respectful with the planet. All of this would contribute to the associated work cooperatives effectively representing an alternative of decent, sustainable and inclusive work, in accordance with the purposes of the ICA.

On the other side, we must emphasize that the recognition of certain minimum labor standards for the working partners, not only would it combat “self-exploitation” of the working partners, but would also help to combat the “false cooperativism”. It is known that recourse to cooperativism does not always respond to the objectives and principles that inspire it, but that some business initiatives use it as an alternative to circumvent labor legislation, since the cooperative framework can offer them greater profitability, reduction of salary and social costs , as well as, fewer controls and demands on the power of business management, and likewise, less or no union control. These practices, located within the framework of the illegal transfer of workers, are not only contrary to the purposes of social utility and principles that inspire cooperativism, but also contribute to generating unfair competition, which ultimately and ultimately results in negatively on the people who provide service in such entities.

Finally, we must highlight the undoubted progress that has taken place in the field of collective rights of worker members as a result of the recent pronouncements of the Supreme Court on the matter. It is clear to admit that the working partners can legitimately harbor alternative interests that are strictly labor-related that go beyond those of the corporate relationship, for whose defense the channels of participation in the governing bodies of cooperatives derived from their condition of partners may be notoriously insufficient. The differences of interests between the working partners and the cooperative intensify as the size of the cooperative increases, where members are further removed from the governing and management bodies, represented in the Governing Council. The recognition of the right to freedom of association in the context of the working partners of associated work cooperatives, carried out by the Supreme Court, opens possibilities for union action, both individually and collectively. In the absence of the recognition of other channels of representation for the promotion and defense of the interests of the working partners in the framework of the provision of services, the union channel deploys all its resources in the field of these cooperatives, which undoubtedly it has to translate into an engine of change and progress in the recognition and exercise of labor rights. Also in this matter, it is necessary to take advantage of the normative impulses in the supranational sphere. We refer, on the one hand, to the important contribution that the ILO can make in its work of control regarding the compliance and application by the States of the fundamental labor conventions to the working partners of the associated work cooperatives, particularly, in in relation to ILO Convention 87, “Convention relative to freedom of association and protection of the right to organize”. And, at the community level, we must highlight Directive 2003/72/EC of the Council, of July 22, 2003, which completes the “Statute of the European cooperative society with regard to the involvement of workers” in which mechanisms for information and consultation of workers and, therefore, for collective participation are established. All of this is paralleled by the collective dimension of labor rights that we are analyzing.

Socio trabajador de cooperativa de trabajo asociado, ¿asalariado y/o autónomo?: evolución, tendencias y nuevas propuestas

Ana I. Pérez Campos

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La naturaleza jurídica del vínculo que une al socio-trabajador con la cooperativa de trabajo asociado es, ha sido y, al menos en un futuro próximo, seguirá siendo una cuestión compleja y controvertida, que ha generado dudas en el legislador y debates la doctrina. Pese a la aparente claridad, la posibilidad de que los socios aporten su trabajo a la sociedad, introduce elementos de incertidumbre en la lógica de definición de la prestación de servicios en cooperativas de trabajo asociado, al permitir que se configure de forma muy diversa, bien como un trabajo subordinado, organizado y dirigido dentro de la propia sociedad, o bien como un trabajo autónomo.

Con este trabajo se pretende reflexionar sobre la naturaleza de la relación entre la cooperativa de trabajo asociado y sus socios trabajadores. La dispersión y heterogeneidad del marco normativo aplicable a la prestación de servicios del socio-trabajador constituye un reto de futuro, a la vez que una oportunidad, tanto para evitar la práctica utilización fraudulenta de la cooperativa de trabajo asociado como para fortalecer y desarrollar este tipo de sociedades, como instrumento de lucha contra el desempleo, la pobreza y la exclusión social.

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WORKER MEMBER OF ASSOCIATED WORK COOPERATIVE, SALARIED AND/OR SELFEMPLOYED?: EVOLUTION, TRENDS AND NEW PROPOSALS

The legal nature of the bond that unites the member-worker with the associated work cooperative is, has been and, at least in the near future, will continue to be a complex and controversial issue, which has generated doubts in the legislator and debates the doctrine. Despite the apparent clarity, the possibility that the partners contribute their work to the cooperative society introduces elements of uncertainty in the logic of defining the provisionof services in this type of cooperatives, by allowing it to be configured in a very diverse way, either as a subordinate,  organized and directed job within the society itself, or as an autonomous job.

In the associated work cooperatives, the traditional scheme of lucrative enterprises of the market economy is broken, in which some are the employers and others the workers; These two categories of people are not clearly delimited since the workers are the same, partners and owners of the company. The dual status of partner and worker is one of the most relevant characteristics of this type of company and, in turn, serves as an element of differentiation with respect to other commercial companies.

The current regulatory framework establishes that the relationship that unites the worker member with the associated work cooperative is of a corporate nature and not a work one, since the worker member is responsible, along with the other members, for the fate of the cooperative where Prest your services; discarding the basic elements -wok for others and dependence – that make up a relationship as an employment relationship.

Now, the question is not so simple, insofar as the notes that make up employment are indeterminate legal concepts, in most cases requiring jurisprudential specification. And it is that jurisprudence has not contributed to clarify the panorama in this matter, since it has been applying, in an oscillating way, ambiguous or imprecise criteria; in some cases, the jurisprudential criterion considered that it had a labor nature while, in others, it was not.

In short, the qualification of the provision of services between cooperative and member is still the subject of debate, because despite the efforts of the legislator and jurisprudence to clarify and anchor the provision of services of the worker member in the corporate sphere, regardless of the qualification that is given to the provision of services, the characteristic field of Labor Law has been, is and will surely continue to be that of dependent and employed work. In this case, the attenuated presence of dependency and work for others notes could perhaps tip the balance towards the laborization of this service provision. Thus, it could be thought that the cooperative employment relationship brings together the notes that make up an employment relationship, although it would be desirable to specify even more to give it an exact legal qualification.

From the perspective of work in associated work cooperatives, once the difficulties in qualifying the provision of services of the member-worker and the heterogeneous regulatory framework of its scope and legal protection have been analyzed, two proposals would be articulated for a future regulatory development of cooperative activity; either through a change of maximums: the requalification of the work of the working partner towards a special employment relationship, or towards a change of minimums: the harmonization of the legislation applicable to the activity of the worker partners.

These proposals should be valued as an opportunity to modernize the cooperative model, without renouncing its essential principles and values, and to expand its possibilities and its robustness for the future.

The identification of the work benefit of the partner-worker as a special labor relationship is not an easy task, in fact, it was tried without success in 1976. The solution may lie, as has already been pointed out by the doctrine, in the construction of a new special employment relationship with a specific design on the basis of a minimum imperative order and with an operative part for internal self-regulation depending on the size of the company. In the configuration of a new professional legal framework for this group, there are advantages and disadvantages for the  implementation of the proposed model. In any case, there is no doubt about the need to adapt the nature of the provision of services, for the sake of the development of the social economy.

Perhaps these are bad times to ask the labor legislation for an extension of his guardianship, when he appears to be withdrawing from his original orientation; In this regard, it would also be a necessary change for the future of the worker member in associated work cooperatives that intends to fulfill another objective, perhaps unconsciously forgotten, which is the one that the associated work cooperative identifies with the purpose that the member worker can have a stable and satisfactory job.

The heterogeneity of the cooperative regulations with regard to the work regime of the members-cooperativists of an associated work cooperative, needs a clear harmonization. Faced with union pressure, some cooperative laws such as Catalan and Extremeña have been modified where, depending on the fulfillment of certain requirements, the working conditions of the partner-worker are equated with those of the place of provision of services.

In Spanish law there is no single concept of cooperative society and of a harmonized and coherent classification and definition of the different types, which is moving cooperative law away from the constitutional mandate of “promoting” cooperatives through “adequate legislation”; This does not mean, of course, that each legislator has its own substantive law, but that, far from making the Law an instrument for cooperative development, it is becoming an obstacle to its development.

The dispersion and heterogeneity of the regulatory framework applicable to the provision of services of the member-worker constitutes a challenge for the future, as well as an opportunity, both to avoid the practice of fraudulent use of the associated work cooperative and to strengthen and develop this type of societies, as an instrument of economic and social development.

On the other hand, work in an associated work cooperative is being involved, lately, in controversies due to the fraudulent use through the so-called “billing cooperatives or online associated work cooperatives” that arise with the sole declared objective of avoiding the high fiscal or social costs derived from registering as a self-employed worker. Along with this, the deterioration of working conditions, the increase in unemployment, poverty and social exclusion are also factors that within this context will lead to cooperative work taking on a special role, due to its real generation capacity. of employment –both self-employment and work as an employee-.

In short, it proclaims the equalization of rules applicable to the partner-worker to guarantee decent work. At a time in history where the number of unemployed, poverty and social exclusion reaches unimaginable figures, the debate on the configuration of the provision of services of the partner-worker and cooperative management in the global international context turns out to be essential.

The meeting of labor law and cooperative law continues to produce a great variety and diversity of solutions, the implementation of which will make cooperativism more than a myth, an authentic reality.

Las cooperativas de trabajo asociado en la economía de plataformas

Alicia Villalba Sánchez

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De la Cuarta Revolución Industrial han aflorado espacios virtuales donde intercambiar prestaciones de todo tipo. Las de servicios no han permanecido ajenas a este fenómeno, resultando usual encontrar ecosistemas digitales que, merced a una gestión algorítmica, fueron concebidos para organizar e incluso albergar trabajo de todo tipo. Tratándose de un entorno inédito, las relaciones concertadas en su seno han sido poco propensas a la regulación, integrándose en el vago concepto de la “economía colaborativa”. La concurrencia en ellas de trazos distintivos de otras conocidas por el ordenamiento jurídico obliga a resolver dicha confusión distinguiendo colaboración de cooperación, con el firme propósito de deslindar el espacio que la cooperativa de trabajo asociado está llamada a ocupar dentro de la economía de plataformas previniendo, a su vez, el uso espurio que de ella pudiera hacerse disimulando otras formas de prestar servicios.

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WORKER COOPERATIVES IN THE PLATFORM ECONOMY

The relevance acquired by the virtual environment as a meeting point between job seekers and providers of employment is a polymorphous phenomenon of diverse aetiology. Its origin lies in the technological evolution that has made it possible to articulate digital platforms, but its success depended, to a large extent, on an economic situation characterised by the disappearance of companies and the consequent scarcity of jobs. The economic depression that began in 2008 gave an unusual boost to those digital platforms that, instead of channelling the exchange of services between peers, have hosted offers of subordinate employment that often sought to escape from labour discipline. The need to turn to this new environment in search of a job that did not exist in the traditional labour market soon transformed a sphere originally conceived for collaboration between individuals into an environment where initiatives driven by the profit motive prevailed, with hardly any legal restrictions. The collaborative economy is thus distinguished as part of a platform economy where other business models also find a place. Despite the predatory contracting that has proliferated in the platform economy, it is important not to miss the opportunities that the legal system offers us to make the most of a technological base whose characteristics fit well with the cooperative paradigm. Free membership through open and accessible digital environments; democratic management through the design and application of algorithms by the members themselves; and the autonomy offered by the registration of any acts through distributed and self-managed systems based on the blockchain are three key aspects which allow us to predict a prosperous future for the cooperatives within the so-called “platform economy”. Achieving them, however, requires addressing the difficult distinction between “collaborative platforms”, “platform cooperativism” and the simple cover-up of bogus self-employment.

A priori, the worker cooperative could be a vehicle for an initiative that provides jobs for its members in accordance with cooperative principles. Although the members’ relationship with it is of a corporate nature, article 14 of Royal Legislative Decree 8/2015 of 30 October, which approves the revised text of the General Social Security Act, allows cooperatives to opt in their articles of association to assimilate their worker-members to employees and, therefore, to include them in the General Social Security Scheme; or to include them in the Special Scheme for Self-Employed Workers. The fact that the co-operative offers this possibility, which does not exist in capitalist companies, has attracted the attention of those who wish to use it in a way that is spurious to the inspiring principles of the cooperative movement.

This happens when a cooperative recruits worker-members to put them at the disposal of other companies without providing them with organisational, material, financial or management structures that allow and facilitate the most efficient provision of self-employment. An illegal transfer is thus consummated, all the more serious when it is carried out under the protection of an entity belonging to the social economy, whose activity is presumed not only to be in accordance with the law, but even beneficial for its members and for the community that hosts it. Or when, without engaging in the illegal lending of workers, they camouflage the pure and simple provision of self-employed work by their members under the umbrella of an entity through which they invoice their services. Reference is made to digital invoicing cooperatives, dedicated to recruiting professionals to whom they offer a tailor-made tax and social security regime. The risk of disguising an illegal transfer of workers under the cooperative form or of making the cooperative a mere intermediary entity for invoicing purposes means that the existence of a real cooperative must be established, a task that has so far been undertaken by case law. It is therefore particularly important to accredit the activity actually carried out by the cooperative in order to ascertain that this demonstrates the effective creation and organisation of mechanisms for internal action and relations with clients which result in the provision of common services, generating and promoting business management formulas, whether in the purely material sphere, advice, cost reduction, attracting clients, or any other type which results in the better development of the provision of services to its members.

Since art. 7 of the ILO Recommendation no. 193 (2002) on the promotion of cooperatives warns the signatories of the need to “ensure that cooperatives cannot be created or used to evade labour legislation”, it is essential to ensure that its constitution “does not serve to establish disguised employment relationships”. This purpose can only be achieved by fighting “against pseudo-cooperatives, which violate workers’ rights”. In this regard, it is considered appropriate, firstly, to elucidate the role that the worker cooperative is called upon to play in the so-called “platform economy”, differentiating it from initiatives motivated by an altruistic purpose, but also from those that conceal real salaried work. And, secondly, to propose possible methods to prevent it from being used to subvert the principles of the social economy. This will be helped by the legal reform by virtue of which the activity of persons providing paid services consisting of the delivery or distribution of any consumer product or commodity, by employers who exercise the entrepreneurial powers of organisation, direction and control directly, indirectly or implicitly, by means of algorithmic management of the service or working conditions, through a digital platform. Finally, various measures are proposed to promote the development of platform cooperativism as an alternative way of benefiting not only economically but also socially from the platform economy. Specifically, it stresses the need to adopt measures to provide financial support and technical advice to those who dare to set up a worker cooperative in this digital ecosystem. However, insofar as their development requires the acquisition of legal and economic knowledge about the social economy, in general, and about the cooperativism, in particular, it is essential to strengthen the role that educational institutions are called upon to play in promoting them. In this way, graduates will have the necessary tools to successfully undertake a cooperative project in a context once again marked by the economic decline resulting from the current pandemic.

Confluencia en torno al principio de puertas abiertas. Especial referencia a las modificaciones legislativas recientes en el ordenamiento español

Rufino Benítez García

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El objeto de reflexión es el principio cooperativo de adhesión voluntaria y abierta, seña de identidad y verdadero condicionante para la cooperación, en tanto que principio consolidado en la Declaración de la Alianza Cooperativa Internacional (ACI) sobre Identidad Cooperativa (Manchester, 1995), y que configura un sistema accesible a todas las personas que se muestren dispuestas a participar en la cooperativa. Dicho principio ético posee un carácter informador de la cooperativa, cuya permanencia desde Rochdale hasta actualidad ha sido incuestionada, y nuestro objetivo será resaltar las más recientes modificaciones en el Derecho cooperativo autonómico en relación con este principio. En este mosaico legislativo hay puntos de confluencia, materializándose la reclamada armonización en el respeto a dichos principios configuradores, sin que la autonomía organizativa propia de la cooperativa se haya visto menoscabada. Se finalizará con una propuesta de posibles reformas en aras de un entendimiento razonado del principio.

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CONFLUENCE AROUND THE PRINCIPLE OF ADHESION AND VOLUNTARY WITHDRAWAL. SPECIAL REFERENCE TO RECENT LEGISLATIVE MODIFICATIONS IN THE SPANISH LEGAL SYSTEM

The object of reflection of this article is the cooperative principle of voluntary and open membership, identity sign and true conditioner for cooperation, as a principle consolidated in the Declaration of the International Cooperative Alliance (ICA) on Cooperative Identity (Manchester, 1995), and which configures a system accessible to all people that they are willing to participate in the cooperative, preventive of any discrimination when accepting or denying the admission of a member, and that it has found accommodation in the Spanish Constitution in art. 129.2. This Declaration reformulates the principles, specifically, regarding voluntary and open membership, in the sense that cooperatives are “voluntary organizations, open to all people capable of using their services and willing to accept their responsibilities as a member, without social, political, religious, racial or sex discrimination”. Therefore, prohibiting transactions with non-member third parties would hinder their expansion, as it is an impediment for them to fulfill their function, since, like all companies, they must act in the market, consequence of the progressive process of commercialization that has suffered. This ethical principle (since it delimits its personal, supportive nature and that of its members, and that may or may not find expression in the national and regional legal provisions, given its flexible nature, without having binding legal force) has an informative character on the operation of the cooperative, rising as a true interpretive element of its regulations. Indeed, as a representative entity of the social economy, it must remain faithful to the principles of cooperativism formulated by the ICA, among them, to this principle of free adherence or open doors, in the sense that there is a door to enter (positive aspect) and another to go out (negative aspect). This postulate is conceived as the first cooperative principle, by which third parties have a free hand to enter the corporate sphere at any time to satisfy their needs as partners, having overcome the paradigm that cooperatives should only operate with their own associates.

From the opposite point of view, the power to freely unsubscribe is based on the full voluntariness of the condition of cooperative person, and no one can be obliged to remain in that society. In this sense, we position ourselves in favor of a cooperative model far from past restrictions, and in accordance with the principle of free enterprise enshrined in article 38 of the Constitution, the fundamental core of the system.

This principle is the most powerful, as a manifestation of cooperative altruism, by wanting all its members to benefit from the advantages of cooperation, thus fulfilling their social function. Its permanence from Rochdale (origin of modern cooperativism) to the present has been unquestioned. The purpose of the writing will be to highlight the most recent modifications in autonomous cooperative law in relation to this open-door principle, because their legal significance is subject to the terms in which they have been incorporated into the respective internal laws. However, it is not possible to take this consideration to its ultimate consequences, observing them as immutable rules, but as guidelines for action, because the principle formally considered is not standardized. Meanwhile, these principles will remain in an ethical sphere, without finding legal expression. We must question whether there is an alleged subjective right to entry, or, at least, that the applicant is the holder of a legitimate interest to join the cooperative. Question that, as we will see in our text, does not find a unanimous answer from the conglomerate of rules of the Spanish legal system. In any case, and as a general rule, we can affirm that there is no right, by which an applicant can, by their own will, adhere to society. On the contrary, it is at the discretion of the cooperative the admission of a person who, complying with the requirements, expresses his desire to join, because the personalist nature of these collective formations prevails.

This doctrine has been legislatively reflected in the vast majority of regional laws. We are prone, therefore, to claim a unity of legal regime, undisputed in the rest of social forms, and a minimum legislative harmonization. In any case, the majority of cooperative autonomous texts find consensus around the relevance acquired by the cooperative principles established by the ICA. In this legislative mosaic there are points of confluence, materializing the demanded harmonization in respect of said universal configuring principles, without the
organizational autonomy of the cooperative having been impaired.

Very important has been the approval of the Basque Cooperatives Law in 2019, whose art. 47.1 orders respect for cooperative principles between the duties of administrators, and its art. 117.4 a) that the “distortion of the cooperative is considered a very serious offense, when the cooperative principles recognized in this law are repeatedly violated or when persons who cannot legally be members are admitted as partners”. In fact, its art. 20, entitled “right to admission”, establishes that, “(…) any person who meets the requirements of the previous article (referring to people who may be members) and is interested in using the services of the cooperative, has the right to to join as a member unless a just cause derived from the activity or corporate purpose of the cooperative prevents it”. It should be noted the exception that supposes the existence of a just cause, restricting the operation of the principle of open doors, a true limit for the aspiring member, despite compliance with the requirements set by art. 19 of said Law. Although, there is no discretion on the part of the cooperative for this rejection, since the just cause must derive from its activity or corporate purpose, and must be objective, and its qualification cannot be left to the discretion of the Governing Council.

We will end with a discussion of possible reforms that should be carried out in order to find a reasoned understanding of the principle. It seems essential to us to reconcile the adaptation of cooperatives to new business demands with the maintenance of their identity, which is threatened by the legislative profusion of the national cooperative order.

La adopción de acuerdos de la asamblea general de la cooperativa mediante votación secreta

Joaquim Castañer Codina

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El derecho de voto de los socios en la asamblea general es un elemento configurador básico de las cooperativas. Una de las formas en que puede ser expresado este derecho es la llamada votación secreta. Esta modalidad de voto se produce cuando no es posible conocer el sentido del voto de los socios. La votación secreta se contempla de forma expresa, con mayor o menor alcance, en todas las leyes de cooperativas de nuestro país, estatal y autonómicas. Sin embargo, la regulación presenta muchas diferencias y disparidades que no tienen justificación. El presente trabajo pretende hacer un análisis crítico de esta modalidad de voto, a partir de su regulación en aquellas leyes de cooperativas.

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THE ADOPTION OF AGREEMENTS OF THE GENERAL MEETING OF THE COOPERATIVE THROUGH SECRET VOTING

Spanish cooperative laws are very sparing when it comes to regulating the form of voting in the adoption of resolutions of the general assembly. This scarcity of rules is due to a fully conscious choice of the legislator: it is the cooperative itself that, by virtue of the principle of autonomy of the will, decides which voting mechanisms will be used in the adoption of agreements.

Among the few regulations that we can find in this matter, there are those that require that certain agreements be made by secret vote of the partners. The ratio of this requirement is usually the need to guarantee the freedom and independence of vote of the member when certain agreements are made that especially affect the position of economic dependence that he maintains with the cooperative. It must be remembered the great impact, mainly economic, that the cooperative can have on the member’s personal and family life (e.g., an associated work cooperative that is the source of their livelihood or a housing cooperative that must provide them with a decent housing). In this sense, the secret ballot is directly connected with the double condition of member and user that is typical of the mutualism that characterizes the cooperative.

These rules on secret ballot provided in the various cooperative laws can be divided into three groups.

In the first place, we have the rules that require that certain specific agreements be adopted in any case by secret ballot (secret ballot by legal provision). The most important are, on the one hand, the agreements for the election and removal of the members of the corporate bodies as well as the exercise of liability action against them. And, on the other, some agreements related to the acquisition and loss of membership (and, especially, the decision to expel him from the cooperative).

Second, we mention the rules that give the cooperative’s bylaws the power to expand the agreements that the general assembly must adopt by secret ballot (secret ballot by statutory provision). The statutes cannot suppress the legal assumptions of secret voting, unless the law expressly allows it. But they can add other agreements that will have to be adopted by secret ballot, as well as subject these new cases of secret ballot to conditions. On the contrary, the other internal regulations of the cooperative lack this power.

And, as a last class of rules, we point out those that attribute to a percentage of votes (or, according to the law, of partners) the right to demand the adoption of agreements by secret ballot, and that also usually enable the statutes to introduce precautions to avoid the abusive exercise of this right (secret ballot requested). It is a minority right that state law attributes to 10% of the votes present and represented in the assembly, unless the statutes lower this percentage. The regional laws also recognize this right, although some establish different percentages or computational bases. In principle, this request can be made with respect to any type of agreement, unless otherwise provided by law or statute. The statutes can also introduce precautions to prevent and avoid the abusive exercise of this right, among which it is worth highlighting that only one request for a secret vote can be promoted in each assembly session.

One of the problems with secret suffrage is how to make its exercise compatible with some of the rights of the partners that, as a general rule, require that the meaning of their vote be known. Specifically, the work refers to four different cases.

The first is how to determine which partners will be able to challenge the corporate resolutions adopted secretly, when active legitimacy is attributed only to those who have not voted in favor of the agreement. In the Spanish sphere, this issue has been resolved, in general terms, by requiring that the partner who wants to challenge discloses the meaning of his vote in the minutes of the meeting or within the following 48 hours. The partner must choose: either he reveals the meaning of his vote in order to challenge the agreement, or he keeps his vote hidden but will no longer be entitled to challenge.

The second case refers to the problems posed by secret voting when there is plural or fractional vote in the cooperative or, in general, the principle that each member has only one vote is not followed. It is evident that the breaking of this principle makes secret voting difficult but does not prevent it, since these difficulties are often technical-organizational in nature and, therefore, can be overcome. In any case, state law incorporates a double provision that affects this issue. On the one hand, providing that the members holding plural votes may renounce them and exercise only one vote. On the other, allowing the statutes to regulate cases in which equal voting will be imperative.

As a third case, we study the effects of the secret ballot in the adoption of resolutions that activate the right of the member to cause justified withdrawal from the cooperative. First of all, it should be noted that none of the legal agreements that allow qualifying the withdrawal as justified must be adopted by secret ballot. This means that the coincidence can only occur if the statutes extend the cases of secret ballot and / or the causes of justified voluntary withdrawal. And, in this case, the logical thing is that these same statutes foresee how to make the secret ballot compatible with the identification of those entitled to exercise the right of justified withdrawal.

Finally, a fourth scenario that we consider is the impact that the secret vote has on the agreements where some partner must abstain due to incurring in conflict of interest. On the one hand, the secret nature of the vote should not prevent the identification of the conflict of interest situation before the voting takes place and, once this situation is noticed, deny the exercise of the vote to the partner involved in this conflict. On the other hand, if this partner were to vote, the democratic principle makes it difficult for his vote to become decisive in reaching the agreement and, even if it were, mechanisms can be found to deactivate the inconveniences that the secret ballot presents.

In sum, we conclude that these cases may make it difficult to exercise the secret ballot but they do not really prevent it. However, in some of them it is convenient to alleviate the obstacles that may arise by introducing certain precautions in the bylaws of the cooperative.

El socio de cooperativa y el de sociedad de capital, puntos de divergencia y convergencia en torno a los principios que dirigen la dinámica interna cooperativa. Libre adhesión, control democrático y participación económica del socio

Antonio José Macías Ruano

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Sociedad cooperativa y sociedad de capital son dos estructuras jurídicas para el desarrollo de una actividad empresarial que, operando en el mismo mercado, tienen unos marcados caracteres diferenciadores que se plantean como opuestos. Sus respectivos integrantes, los socios, tienen un estatus y desarrollan papeles diferenciados en la estructura. El concepto legal de cooperativa centra la caracterización en el régimen de libre adhesión y baja voluntaria, con estructura y funcionamiento democrático. Estas notas definitorias deberían bastar para distinguir a las cooperativas de cualquier sociedad de carácter capitalista. Sin embargo, en el ámbito legislativo se producen distintos puntos de convergencia entre ambas clases de sociedades y respecto a las actuaciones de sus socios que, sin confundirlas, comparten soluciones que provocan un acercamiento mutuo que homogeneiza la proyección interna y externa de ambos operadores, y esto se aprecia más que como una tendencia, como un sino, lo que nos debe llevar a una reflexión sobre la asunción de tal homogenización legislativa o la necesidad de su diferenciación para mantener la identidad.

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THE COOPERATIVE PARTNER AND THE CAPITAL COMPANY PARTNER, POINTS OF DIVERGENCE AND CONVERGENCE AROUND THE PRINCIPLES THAT GUIDE THE INTERNAL DYNAMIC COOPERATIVE. Free membership, democratic control, and economic participation of the partner

This paper aims to highlight the most relevant points of encounter in what affects the partner of the legal regime of cooperatives and the main companies of capital -anonymous company and limited company- in the Spanish legislation. Cooperatives and corporations are two legal structures that, at least ideologically, start from opposite premises: the instrumental or finalist, character of society. In the cooperative society, what is relevant is the action of the partner; in the capitalist society, the return on investment. However, legislatively, a structural and financial rapprochement is taking place between cooperatives and capital companies in the name of a purported improvement in competitiveness and efficiency for them. The principles guiding the internal dynamics of cooperatives are the first three of those enunciated by the International Cooperative Alliance (ICA) at its 1995 Manchester Congress: free membership; democratic control; and the economic participation of the partner. With these references, an analysis has been made of the legal provisions that bring the situation and behavior of cooperatives closer to the shareholders of capital companies.

We start from our analysis of the conception of the cooperative as a company of a commercial character, and we focus on the legal regime of national scope, L. 27/1999, of 16 July, of Cooperatives, ignoring the sixteen substantive autonomous norms on the subject to focus the comparative analysis. We also focus on capital companies, public limited liability companies, and limited liability companies, since the limited partnership barely has a presence in Spanish corporate practice. We also start, concerning capital companies, from a concept of partner with a certain degree of involvement in the legal structure, although we also contemplate the mere investors in whom the interest in collaborating is hardly appreciated –affectio societatis-.

Concerning the first cooperative principle of free accession and voluntary departure, it would seem obvious to any kind of society: societies are voluntary associations of persons, despite the existence of one-person societies, so it is always free for the member to join and stay. However, the content of the cooperative principle entails non-discrimination for the incorporation of persons seeking to use the cooperative structure. The question of the «open door» as a tendency towards the incorporation of new partners, runs up against the capacity of the structure itself to admit more partners, and another point to consider is the possibility of transmitting the status of the partner by those who are already part of the cooperative for the entry of new ones. In the cooperative, there is no free transfer of membership. Anyone who claims to be a member must apply to the administrative body, and the cooperative can accept the new member, or not, and regardless of whether another member has been able to leave the structure. In the case of limited liability companies, provision can only be made for the non-transmission of membership.

The other facet of the first cooperative principle is the voluntary departure of the member, who is always free, but who brings therefore the return of the contributions made. In the Spanish cooperative system, the possibility has been introduced for the General Assembly to qualify part of the contributions as unconditional reusable reimbursement, so that the Governing Council may not return part of the contributions made, as in the case of capital companies, where, except in cases of separation, exclusion, reduction agreement for repayment of contributions, or in limited companies where the right to acquire shares of the deceased member is provided for by statute to survivors, where a member intends to cease to be a member, or in the event of death in the latter case, may transfer its shares or units, but may not require the company or its joint ventures to purchase them.

About the principle of democratic control by the partner, which should be one of the most marked signs of cooperative identity, with the premise of «a member a vote», in reality, the existing cooperative legal regime has less and less identity. On the one hand, it will depend on the kind of cooperative partner, it will have one value or another in its vote. On the other hand, in some cooperatives, plural voting is allowed according to the cooperative activity developed. On the other hand, the free and democratic exercise of the right to vote, with the measures adopted by the state of alarm and the possibility of holding the General Assembly by telematic means, may be inconvenient to the issuance of the secret ballot provided for by law and which may be requested by the partners, thereby hindering democratic control by the partner. Finally, about democratic control, the partner’s abstention from decision-making is an aspect to which the capitalist companies are moving closer, although in the anonymous ones, subject to statutory provisions.

And concerning the third cooperative principle of economic participation of the partner, it is perhaps where there is most homogenization between the cooperative and the partner of the capital company, when, a priori, it is a premise that substantially differentiates the two types of companies. The concept of share capital is identifiable for both types of companies:
the sum of all the members’ contributions, but the instrumental or finalist character of the capital is what distinguishes them. The return of surpluses is the most relevant aspect deriving from the cooperative principle. In the cooperatives, the member obtains the profit in proportion to the cooperative activity developed, returning the society to the one who has generated the profit, the profits obtained thanks to his activity. On the other hand, in the case of capital companies, the shareholder receives the benefit in proportion to his contribution to the share capital. However, the possible participation in the surpluses by the members who do not carry out the cooperative activity -collaborators, associates, inactive…-, the possibility of the capital being remunerated, in particular in respect of voluntary contributions; the issue of special shares or equity securities for the financing of the cooperative entails remuneration for the investor, whether a member or not, without the development of social activity. And finally, the so-called “mixed cooperatives” have meant the capitalization, almost fifty percent, of the cooperatives. In mixed cooperatives, mere investors will decide in proportion to their share in the capital, up to the limit of forty-nine percent of the voting value and will participate in the profits as the members of the capital companies do. This category of cooperative means moving away from the concept of a democratic society to that of a plutocratic nature.

In short, despite the distant conception of these types of companies, the points of legislative convergence between members of cooperatives and of capital companies are numerous, so that “haberlos haylos”, and the tendency is that they multiply, which should lead us to a profound reflection on the assumption of such legislative homogenization or the need for its differentiation to maintain identity.

La validez y oponibilidad de los pactos parasociales en las cooperativas

Eduardo Miranda Ribera

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El planteamiento del presente trabajo surge debido a la actual tendencia de las cooperativas, concretamente las del sector agroalimentario, a someterse a procesos de integración con el objetivo de ser más competitivas y eficientes. En las sociedades de capital, para asegurar un adecuado funcionamiento y evitar situaciones de bloqueo de los órganos sociales, tradicionalmente, se ha optado por utilizar la figura de los pactos parasociales. Sin embargo, esta figura apenas presenta precedentes en las cooperativas. Por ello, en el presente trabajo se analizarán las principales características de los pactos parasociales, su validez y oponibilidad en las sociedades de capital, para posteriormente determinar si estos serían válidos entre los socios cooperativistas y oponibles a la sociedad cooperativa.

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THE VALIDITY AND EFFECTIVENESS OF SHAREHOLDERS´ AGREEMENTS IN COOPERATIVES

Nowadays, the demands imposed by a globalized and competitive world require the adaptation of corporate relations. However, the rigidity of some laws and the rigorous qualification of official registries avoid the inclusion of clauses that promote greater corporate flexibility. Currently, a large number of companies use the shareholders‘ agreements to solve possible restrictions or situations which block the society. These types of agreements are those which are signed by all or some partners and, sometimes, also by the society. The aim of these agreements is to provide solutions to certain situations related with the functioning, organisation, or activity of a company.

However, given that the different types of agreements that can be incorporated into a shareholders´ agreement, the specialised authors in the matter had distinguished between relationship agreements, attribution agreements and organizational agreements (this classification has also been recognised in different sentences as for example in the sentence of the “Audiencia” (High Court) of Barcelona of 11th October 2019 [TOL 7.566.564] and the sentence of the “Audiencia” (High Court) of Murcia of 29th November 2018]. The relationship agreements are characterised by containing agreements regarding the relations between the partners without affecting the company, such as, for example, the imposition of obligations to obtain shares under certain conditions. The attribution agreements are those which try to attribute advantages to the society as a result of the assumption of different obligations by the people who sign the shareholders´ agreement, such as the configuration of financial obligations (for example the delivery of new contributions) or commercial obligations. The shareholders‘ agreements try to establish rules to improve the functioning and organisation of the society.

Nonetheless, we do not know any research about the usefulness and importance of shareholders‘ agreements in cooperatives, what is quite surprising, given that in cooperatives there are many situations which are similar to corporate companies ones. For this reason, shareholders´ agreements could be useful in cooperatives.

In corporate companies shareholders‘ agreements are accepted, as long as they do not exceed the law, morality and the public order (article 1255 RD 24/07/1889, Civil Code). In particular, the specialized authors in this matter, accept the validity of shareholders‘ agreements while they do not violate the ius imperativum. Hence, shareholders´ agreements that violate an imperative Law will not be valid due to the fact that such agreement would violate the principle of legal certainty, by avoiding the correct identification of companies in the economic traffic.

Therefore, according to this interpretation, any agreement that aims to preserve the rights of the partners would be valid. Consequently, the validity of shareholders‘ agreements transcends beyond the violation of an imperative Law. For that reason, each agreement will have to be addressed and delimited whether it puts in danger any of the essential parts of the company. In spite of its validity, the agreement cannot be enforced to the company, however, when the shareholders´ agreements are signed by all the partners, it could be enforced to the society. Despite the fact that making shareholders´ agreement is expressly recognized in corporate companies, it cannot be enforced against the company (article 29 Royal Legislative Decree, 1/2010, of 2nd July, approving the consolidated text of the corporate enterprises Act).

The state cooperative Law and most of the regional legislation in cooperatives do not regulate this point related to shareholders‘ agreements, however, there are two regional laws, which recognise the possibility of cooperative members to make shareholders‘ agreements -in a similar way to corporate companies-(article 18.5 Law 9/2018, of October 30, on cooperative societies in Extremadura and art. 10.2 Law 11/2010, of November 4, of Cooperatives of Castilla-La Mancha).

Consequently, the shareholders´ agreements must be admitted in absence of an express prohibition, based on the analogy iuris (article 1255 RD 24/07/1889, Civil Code). These agreements must be considered valid in cooperatives as long as they do not disobey a cooperative rule, principle, or value that tries to ensure, for example, the protection of third parties. In this way, the analysis of the validity of each specific shareholders‘ agreement will require a complete study of the rule, principle or cooperative value affected, in order to try to glimpse its scope and consequences.

As for its effectiveness, the specialized authors in the matter understands that, in some cases, shareholders‘ agreements can be enforced against the society when they are signed by all the partners. Nevertheless, this situation, does not seem an obstacle to the effectiveness of the shareholders‘ agreements, due to the fact that there are other legal instruments that ensure the fulfilment of all the responsibility agreed by all the partners. Therefore, shareholders‘ agreements are especially useful for regulating situations which cannot be included in the cooperative statutes.

In conclusion, in the light of the above, the shareholders‘ agreements between the members of a cooperative as for example, the intensity of the vote, the appointment of the members of the Governing Council or the configuration of a Governing Council when the appointment of a single director is mandatory, will be valid. However, despite its validity, this type of agreements will not always be effective against the cooperative. The effectiveness of the shareholders‘ agreements will be conditioned as they do not violate any principle or cooperative value, in particular those that try to ensure the mutuality and participation of the partners in the corporate governance of the cooperative. Therefore, given that the importance of cooperative principles and values to justify the effectiveness of shareholders‘ agreements against the cooperative, I consider it to be essential to defend an interpretation of the cooperative principles and values, in favour of the configuration of shareholders‘ agreements with the aim of promoting the creation of more competitive and efficient cooperatives.

Crónica Legislativa Comparada

Gemma Fajardo García (Coordinadora)

Outline of the Workers Co-operative Act in Japan – Líneas generales de la Ley de cooperativas de trabajadores en Japón

Akira Kurimoto

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Comentarios a jurisprudencia

Isabel Rodríguez Martínez (Coordinadora)

El derecho de asociación: el incumplimiento de las obligaciones estatutarias y su sanción. Comentario a la Sentencia 434/2020, de 15 de julio, de la Sala de lo Civil del Tribunal Supremo

Marta Pérez-Gabaldón

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La Sentencia 434/2020, de 15 de julio, de la Sala de lo Civil del Tribunal Supremo desestima el recurso de casación interpuesto por el Club de Leones de Gijón contra la sanción de suspensión y expulsión interpuesta por la Federación de Club de Leones de España y la Asociación Internacional de Clubs de Leones por no acudir al procedimiento interno de resolución de disputas antes de impugnar judicialmente los acuerdos sociales. Así pues, el Tribunal Supremo aprecia que ni la obligación del asociado de acudir a la solución interna de controversias fijada en los Estatutos antes de acudir a la vía judicial, ni la sanción de expulsión ante una conducta contraria a lo marcado en los Estatutos -y, por ende, contraria a los intereses de la sociedad-, suponen una lesión del derecho de asociación recogido en el artículo 22 de la Constitución Española.

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THE RIGHT OF ASSOCIATION: NON-COMPLIANCE WITH STATUTORY OBLIGATIONS AND THEIR PENALTY

Sentence 434/2020, of July 15th, of the Civil Chamber of the Supreme Court dismisses the appeal that the Club de Leones de Gijón brought against the suspension and expulsion sanction filed by the Federación de Club de Leones de España and the International Association of Lions Clubs for not resorting to the internal dispute resolution procedure before judicially. Thus, the Supreme Court appreciates that both the obligation of the associate to resort to the internal solution of disputes established in the Statutes before resorting to court proceeding, as well as the sanction of expulsion for act in a manner contrary to what is marked in the Statutes -and, therefore, contrary to the interests of society-, they do not violate the right of association contained in article 22 of the Spanish Constitution.

Los requisitos para el ejercicio de la profesión de gestor de transporte en las cooperativas: el régimen español, más amplio y controvertido, que el marco general comunitario. Comentario a las SSTS, Sala 3ª, números 1235/2020 y 1236/2020, ambas de fecha 1 de octubre de 2020

Cecilio Molina Hernández y Miriam Monjas Barrena

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El presente trabajo se centra en el análisis de dos sentencias del Tribunal Supremo donde se aprecia que, siguiendo el ordenamiento comunitario, la figura del gestor de transporte en el ordenamiento español cuenta con los requisitos básicos de la norma jerárquicamente superior, pero, además, se añaden otros criterios que, en ningún caso, implica una vulneración de la supremacía de la norma comunitaria ni, además, suponen un desagravio para el fomento de las cooperativas. Estos requisitos versan sobre el régimen de cotización en la Seguridad Social y la participación en el capital social que debe reunir el gestor del transporte en la sociedad en la que desarrolla sus funciones.

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REQUIREMENTS FOR THE EXERCISE OF THE PROFESSION OF TRANSPORT MANAGER IN COOPERATIVES: THE SPANISH LEGAL SYSTEM, BROADER AND MORE CONTROVERSIAL THAN THE EUROPEAN COMMUNITY LEGAL FRAMEWORK

This paper focuses on the analysis of two Supreme Court judgements which show that, in accordance with European Community law, the figure of the transport manager in Spanish law has the basic requirements of the hierarchically superior rule. Moreover, the spanish law adds other criteria which, in no case, imply a violation of the supremacy of the Community rule nor, furthermore, represent a obstacle for the promotion of cooperatives. These requirements relate to the Social Security contribution system and the shareholding that the transport manager must have in the company in which he carries out his functions.

Recensiones

Amalia Rodríguez González e Itziar Villafáñez Pérez (Coordinadoras)

Régimen jurídico de las sociedades cooperativas catalanas. (Adaptado a la Ley 12/2015, de 9 de julio, de cooperativas de Cataluña)

Amalia Rodríguez González

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Economía social y solidaria y género: aportes transdisciplinarios desde Europa y Latinoamérica

Paula de Íscar de Rojas

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La sociedad cooperativa como instrumento para contribuir a la integración social y laboral

Amalia Rodríguez González

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Despoblamiento y desarrollo rural. Propuestas desde la economía social

Mª Soledad Fernández Sahagún

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La Fageda: un proyecto socio-empresarial rentable y con corazón

Andrea Castrillo Bercianos

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Resoluciones sobre sociedades cooperativas. Recopilatorio del Tribunal Supremo. Enero 1999 – noviembre 2019

Mª Soledad Fernández Sahagún

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Reseñas de publicaciones de carácter jurídico sobre entidades de Economía Social

Amalia Rodríguez González e Itziar Villafáñez Pérez (Coordinadoras)

Año 2020

Amalia Rodríguez González, Itziar Villafáñez Pérez, Mª Soledad Fernández Sahagún, Paula de Íscar de Rojas y Ane Etxebarria Rubio

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Reseñas de jurisprudencia del Tribunal Supremo sobre entidades de Economía Social

Noviembre 2020 – Marzo 2021 / María José Arnau Cosín y Jesús Olavarría Iglesia

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