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Revista Nº 40 Junio 2022

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Tres hitos en la consolidación de la Economía Social y Solidaria (ESS)

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Artículos

Los antecedentes a la Ley de Cooperativas de 9 de septiembre de 1931

Miguel Pino Abad

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En el presente artículo se analizan los diferentes antecedentes normativos que se redactaron en España previos a la ley de cooperativas de 1931. El punto de partida se encuentra en el proyecto de Joaquín Díaz de Rábago a fines del siglo XIX, con el que quiso superar las deficiencias de que adolecía sobre esta materia tanto el Código de Comercio de 1885 como la ley de asociaciones de 1887. Proyecto que no cristalizó, como tampoco el anteproyecto que se elaboró por una comisión nombrada en 1925 y en la que desempeñó un papel fundamental Antonio Gascón y Miramón. Tras este nuevo fracaso, se sucedieron otros intentos con igual resultado negativo hasta que poco después de proclamarse la Segunda República española se promulgó, a instancias del ministro de Trabajo Largo Caballero, el decreto de 4 de julio de 1931, que el 9 de septiembre se elevó a la categoría de ley.

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THE BACKGROUND TO THE COOPERATIVE LAW OF SEPTEMBER 9, 1931

This article analyzes the different normative antecedents that were drafted in Spain prior to the cooperative law of 1931. The starting point is found in the project of Joaquín Díaz de Rábago at the end of the 19th century, with which he wanted to overcome the deficiencies that both the Commercial Code of 1885 and the associations law of 1887 suffered on this matter. A project that did not materialize, nor did the draft that was prepared by a commission appointed in 1925 and in which Antonio Gascón played a fundamental role and Miramon. After this new failure, other attempts followed one another with the same negative result until shortly after the Second Spanish Republic was proclaimed, the decree of July 4, 1931 was promulgated, at the request of Minister of Labor Largo Caballero, which on September 9 elevated to the category of law.

 

EXPANDED ABSTRACT

In the second half of the 19th century, cooperatives promoted by industrial and agricultural workers proliferated in various areas of Spain, especially in Catalonia, Valencia, Andalusia and Madrid. At that time, the legal framework that promoted the development of cooperativism was the Law of Associations of June 30, 1887, although previously there were some parliamentary initiatives, which sought to stimulate its creation by granting tax benefits that would be granted to consumer, production or credit cooperatives. Just one year before the enactment of the aforementioned law of associations, the project that Minister Eugenio Montero Ríos commissioned from the Galician sociologist and economist Joaquín Díaz de Rábago with the intention of presenting and debating it in the Congress of Deputies stood out. It should be emphasized that this proposal was immediately after the appearance of the Commercial Code of 1885 and in a certain way responded to the scant presence in the legal text of the figure of this type of company. The Code contained a brief classification of cooperatives in its article 124 (production, credit and consumption), but it did not define the cooperative, nor did it catalog whether it was within or outside the commercial sphere. The Díaz de Rábago project provided a broad overview of cooperatives. It consisted of a statement of reasons. They followed a total of 35 articles arranged in four titles: 1º. Of cooperative societies: their constitution and publicity (articles 1 to 11); 2º: of the regime of cooperative societies (articles 12 to 25); 3º: of the termination and dissolution of cooperative societies (articles 26 to 30); 4th: franchises and incentives for cooperative societies (articles 31 to 35).

At the beginning of the 20th century, the advance of cooperation determined that various nations such as Mexico, Argentina, France, Switzerland or Belgium had their own laws on this matter. In Spain, on the other hand, a similar process did not take place. It was necessary to wait until in 1922 several members of the Institute of Social Reforms proposed to the plenary the creation of a special section that would be in charge of all the studies and works related to cooperation. In the meantime, the Associations Section was entrusted with drawing up a plan that was to culminate in the drafting of a cooperative law. In January 1923, the Minister of Labor proposed to the Council the division of the Associations Section of the Institute of Social Reforms and the constitution of the Cooperation Section, which was consummated by royal decree of February 9 of that year. The study of everything related to cooperatives and consumer leagues was attributed to her and she was ordered to compile a statistical census of entities of this nature that operated in Spain. At the head of this section was Antonio Gascón y Miramón, who coordinated the work to compile the aforementioned statistics on Spanish cooperatives and the analysis of the foreign legislation that would be taken into account to formulate the draft cooperation law.

With the celebration in 1924 of the International Exhibition of Cooperation and Social Works in Ghent, coinciding with the XI Congress of the International Cooperative Alliance, the idea of ​​promulgating a cooperative law in Spain increased. But it was necessary to wait a year for the drafting of a preliminary bill for cooperatives to be reactivated. In this sense, article 1 of the royal decree of January 14, 1925 provided for the constitution of a commission, chaired by the undersecretary of the Ministry of Labour, Commerce and Industry or a person delegated by him and made up of two members, one employer and the other Labor Council worker. One of the first questions submitted to the consideration of the commissioners was whether the new regime for cooperative associations had to be established by a special and separate organic law, constitute another chapter within the Commercial Code or a more general law, such as that of associations. Of these three options, the commission opted for it to be a special organic law, in accordance with the bases of the royal decree of January 14, 1925, although there were discrepancies between the members on the way this matter should be channeled.

The project proposed by the commission consisted of 104 articles, divided into eleven chapters: nature, personality and general conditions of cooperative associations (arts. 1-6); constitution, registration, government and administration of cooperatives (arts. 7-25); of the different kinds of cooperatives and their special conditions (arts. 26-50); modification and dissolution of cooperatives (arts. 51-57); of the federations, unions and concerts of cooperatives (arts. 58-60); of the Central Cooperation Board and its delegations. Inspection of cooperatives (arts. 61-73); dissemination and teaching of cooperation (arts. 74-76); various powers and benefits granted to cooperatives (arts. 77-85); of the granting of credits and subsidies to cooperatives (arts. 86-92); of the tax regime of cooperatives (arts. 93-94) and sanctions (arts. 95-104), concluding with ten general and transitory provisions.

Although the bill was already drafted, it did not continue its process to convert it into law. It was necessary to wait until, by order of January 18, 1927, the competences of the Cooperation Section were established. It was said that it should be responsible for studying the cooperative movement in its various aspects; the processing of initiatives and proposals aimed at promoting and regulating this form of social action and the application of all the provisions issued or to be issued on the matter, especially the royal decrees of December 21, 1920 and January 24, 1924, without prejudice to the powers that competed with the central intervention of cooperatives, determined in the royal order of January 20, 1923.

It was unofficially learned that, in order to know the situation of cooperation in Spain, the civil governors of the provinces were asked for a list of the cooperatives registered in the Register of Associations. In addition, an indication was requested of the cooperatives that, due to their importance and other characteristics, were worthy of being asked for statutes, balance sheets and other data. In this sense, the entities were notified that, if they received any communication from the Ministry of Labor requesting the reference data, they should not fail to send it, since it was about contributing to the preparation of the cooperative law.

On April 1, 1929, chaired by General Salas and with the assistance of all the members, the Social Works Commission of the Ministry of Labor met, in charge of studying the cooperative law. Various amendments to the general paper were presented and it was agreed that after these had been distributed, the Commission would begin to work in various meetings for this purpose. At the end of the month, the press was informed that the Social Works Board was very advanced in the work of the cooperative law.

This draft consisted of forty articles. The cooperatives of production, consumption, cheap houses, insurance and credit were included. A mandatory registry of cooperatives was established in the Ministry of Labor, with cooperatives being exempted from paying the industrial contribution and profits, provided that they did not pursue ideas of profit and served strangers.

The end of the Dictatorship of Primo de Rivera meant that this last project was not approved either, although shortly after a new attempt was made when at the beginning of July 1930 the Minister of Labor and Welfare, Pedro Sangro y Ros de Olano, He announced to the journalists that he would have finalized the bill on cooperatives for the next Council and that it would be submitted for the consideration of his fellow cabinet members.

It was on July 4, 1931 when the Minister of Labor, Largo Caballero, announced to the press that, among other measures, a decree on the regime of cooperatives was going to be approved in the Council of Ministers that day, which had not could have been signed in the previous one, but that it would be approved to coincide with the day of cooperation. If we focus on the content of the decree, the first thing that stands out is that it consists of 49 articles, which are followed by a series of general and transitory provisions. In the preamble, after acknowledging the importance of the cooperative movement and the State’s interest in promoting it in Spain, the principle of the need to subject cooperatives to their own legal regime is established, in order to avoid any mystification.

Finally, it was decided that a commission made up of three representatives of the Ministry of Finance, another three from Labor and one from the Economy, would present to the Government, within a maximum period of four months, a project of bases that would allow the consolidation of this decree until cause rule of law, as in fact happened on September 9 of that same year, 1931.

El difícil tránsito a la condición de socio-trabajador en las cooperativas de trabajo asociado

Juan Escribano Gutiérrez

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Las Cooperativas de trabajo asociado han demostrado su resistencia a la destrucción del empleo. En un contexto económico como el actual, en el que los niveles de desempleo continúan persistentemente altos, habría de facilitar el tránsito hacia modelos de autoempleo colectivo. Además, dicha facilitación redundaría en el cumplimiento del mandato del art. 129.2 CE. No obstante, el examen de los diferentes mecanismos de adquisición colectiva de la empresa por parte de los trabajadores nos hace concluir que no son suficientes para garantizarla y ello a pesar de que se generaliza, con relación a la adquisición de la condición de socio, la aplicación de la mayor parte de las medidas de fomento del empleo recientemente aprobadas.

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THE DIFFICULT TRANSITION TO MEMBERSHIP IN WORKER COOPERATIVES

Worker cooperatives have proven their resilience to job destruction. In an economic context such as the current one, in which unemployment levels remain persistently high, the transition towards collective self-employment models should be facilitated. Moreover, such facilitation would be in line with the mandate of art. 129.2 of the Constitution. However, an examination of the different mechanisms for the collective acquisition of the company by workers leads us to conclude that they are not sufficient to guarantee this, even though the application of most of the recently approved employment promotion measures is generalised in relation to the acquisition of the status of shareholder.

 

EXPANDED ABSTRACT

The instruments provided for in our legal system to facilitate the acquisition of worker-member status in worker cooperatives are governed by a twofold logic. Firstly, that of facilitating social entrepreneurship. In other words, Social Economy enterprises occupy an important space in the global economy and their promotion is in line with the logic of their dynamisation. The participation of workers in the organisation of work and the distribution of profits translates into greater productivity and results in better business management, if only because they have a direct interest in the financial health of the company and in carrying out the work as efficiently as possible. Therefore, these enterprises will benefit from general business promotion measures and those specifically foreseen for the social economy, since the promotion of worker cooperatives will benefit the overall economy of the country.

 

In addition, they will also benefit from attempts to promote a business model that generates, a priori, higher quality employment than exists in the practice of employment relations. In particular, the assumption is that the work of the partner-worker will enjoy higher levels of protection than the average levels of quality of employed work. However, for decades it has been maintained that this combination of quality employment and social entrepreneurship is not always so obvious. We therefore believe that it is necessary to take a critical approach to this binomial.

On the other hand, the current legislation does not provide adequate means for workers to make the constitutional mandate of article 129.2 effective. In practice, there are major difficulties in the ways envisaged for acquiring the status of member. The traditional consideration of salaried work within the cooperative as a transitory phenomenon – which contemplates on its horizon the transition to the assumption of membership – is not always fulfilled.

Thus, for example, the powers granted, in the various cooperative laws, to the Articles of Association and internal cooperative regulations to increase the requirements to be able to make this transition, can have the opposite effect. The possibility of becoming a member, far from being a subjective right, will also be limited by the impossibility of indefinitely increasing the cooperative’s workforce. For its part, the progressive separation of the working conditions enjoyed by members and employees, to the detriment of the former, does not contribute to the initiative of employees in the direction analysed here.

In our view, the assumption that it is natural for workers hired by the co-operative to become members does not allow us to deduce the obligation for such a transition to take place when the necessary requirements are met. In other words, workers do not have their employment contracts subject to termination conditions related to the exercise of such a power, contrary to what is the case in other legal systems.

With regard to the possible transfer of the company to workers organised in cooperatives, our conclusions are not optimistic either. It would therefore be necessary to implement a reform of Articles 44 and 51 of the Workers’ Statute. Basically, it would be important to introduce nuances to the excessive rigour that compliance with the provisions of Article 44 entails for workers, which is intended to allow adequate protection for workers considered by the Statute as mere taxable persons. In addition, it should be made possible for labour debts contracted by the company to facilitate the transfer of assets to the workers, while Social Security debts could be deferred or limited, depending on the case, in order to favour the viability of the new company and provided that minimum standards are met in terms of the working conditions to be enjoyed there.

In many cases, such working conditions, and their lowering compared to the sector, become the fundamental element that allows the new business reality to compete after an unfavorable takeover. Thus, the phenomena of self- and hetero-exploitation are becoming more and more common. It would therefore be necessary, without having to reverse the exclusion of worker cooperative members from their status as employees, to ensure the extension of the same working conditions that they would have enjoyed if they had not been members. This would be achieved by means of compulsory referrals to collective agreements in the sector, as is already provided for in certain special cases in some regional laws.

Three main conclusions can be drawn from the analysis of employment promotion measures. On the one hand, most of the time, for the purposes of the application of such incentives, no distinction is made as to how membership is achieved. Thus, it makes no difference whether this is the result of the creation of a new co-operative, the conversion of a capitalist company into a co-operative managed by its workers or the incorporation of former workers into the co-operative.

Secondly, there is hardly any reference to the nature of the work that the acquisition of membership is intended to achieve. It only seeks to ensure the indefinite nature of the link between member and co-operative, but in no case does it specify the need for the co-operative to maintain minimum or comparable levels of quality in the provision of work to those required of employees who provide their services in the same co-operative. Moreover, it is possible to detect in the regional regulations a lack of attention to the employment generated and its quality when granting subsidies, prioritising aspects such as the link to the territory, the size of the company or the economic activity of the cooperative.

Finally, following the description of the different promotional instruments found in our legislation, we can affirm that there is still a long way to go. In this respect, suffice it to recall the total neglect to which social entrepreneurship has been subjected in the context of Law 7/21, on climate change and energy transition. As is well known, this text foresees the need to carry out the most important industrial reconversion that has taken place in our country since the beginning of the 80s of the last century. Various instruments are devised for the transition from a polluting industry to one that generates green jobs. However, at no time is any incentive provided for this transition to be led by the workers of these polluting industries through collective self-employment formulas, despite their significant potential. On the contrary, it relies exclusively on the polluting companies themselves to carry out this transition in the least damaging way possible for employment.

El voto plural ponderado y el principio cooperativo de gestión democrática. Análisis de su paulatino reconocimiento en el derecho positivo español

Carlos Vargas Vasserot

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El artículo trata del reconocimiento legal del voto plural ponderado a los socios de las sociedades cooperativas de primer grado, con carácter general, y para determinados tipos de socios (por ejemplo, socios personas jurídicas), en especial. Se aborda también el contenido del principio cooperativo de gestión democrática de la Alianza Cooperativa Internacional, que parte de la regla de un socio, un voto en las cooperativas de primer grado, aunque admite el voto plural para las cooperativas de segundo o ulterior grado. Antes de realizar este análisis, se estudia el sistema de atribución de votos a los socios en las sociedades de capital, en especial en la calificadas como sociedades laborales, y en las sociedades agrarias de transformación. El estudio comparado de la regulación sobre el derecho del voto en la ley estatal de cooperativas y en las principales leyes autonómicas pone de manifiesto que cada vez es más habitual el reconocimiento del voto plural, aunque siempre ponderado en función de la actividad cooperativizada desarrollada por cada socio y suele limitarse el número de votos máximo que puede ostentar cada socio.

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THE WEIGHTED PLURAL VOTE AND THE COOPERATIVE PRINCIPLE OF DEMOCRATIC MANAGEMENT. ANALYSIS OF ITS GRADUAL RECOGNITION IN SPANISH POSITIVE LAW

The paper deals with the legal recognition of the weighted plural vote for members of first degree cooperatives, in general, and for certain types of members (for example, legal person members), in particular. The content of the cooperative principle of democratic management of the International Cooperative Alliance is also addressed, which starts from the rule of one member, one vote in first degree cooperatives, although it admits plural voting for second or subsequent degree cooperatives. Before carrying out this analysis, the system of attribution of votes to the partners in capital companies, especially in those classified as labor companies, and in agrarian transformation companies, is studied. The comparative study of the regulation on the right to vote in the state law on cooperatives and in the main regional laws shows that the recognition of plural voting is becoming more and more common, although it is always weighted according to the cooperative activity carried out by each partner and normally limit the maximum number of votes that each partner can have.

 

EXTENDED ABSTRACT

The seven co-operative principles of the International Co-operative Alliance (ICA) are considered to be the guidelines that co-operatives must follow in order to maintain the essence of cooperativism and put its values into practice (self-help, self-responsibility, democracy, equality, equity, solidarity, honesty, transparency, responsibility and social vocation). Of these principles, undoubtedly one of the most important, and one which is reflected in all legal concepts of co-operatives, is the second one called «democratic management by members», which according to the 1995 ICA Statement on the Cooperative Identity reads as follows: » Co-operatives are democratic organisations controlled by their members, who actively participate in setting their policies and making decisions. Men and women serving as elected representatives are accountable to the membership. In primary co-operatives members have equal voting rights (one member, one vote) and co-operatives at other levels are also organised in a democratic manner».

The paper presented here deals with the reference in this cooperative principle to members having equal voting rights in first degree cooperatives and the reception and exceptions to this rule in Spanish cooperative law. The paper begins by recalling that the one member, one vote rule was not expressly recognised in the original statutes of the Rochdale cooperative although it has accompanied the principle of democratic management since the first proclamation of the cooperative principles in 1937. However, the ICA has relativised the rigidity of this rule. Thus, in its interesting Guidance Notes for the 2015 Cooperative Principles, it points out that the phrase one member, one vote in relation to the second principle described the customary rules for voting in primary co-operatives and coincides with what was the norm in the mid-1990s, when the principles were last formulated, where most primary co-operatives had a homogenous group of members, but that nowadays «it may be necessary to apply different voting systems, if there is a good reason to do so». And the exception to this rule is the general rule in Spanish cooperative laws, since both the 1999 State cooperative law and the sixteen autonomous cooperative laws recognise the possibility for members of first-degree cooperatives to hold more than one vote in the social bodies, although always granted based on the activity carried out by the members in the cooperative.

The work first deals with the concept of democracy, showing that it does not necessarily mean that everyone has a vote, but that agreements are taken by majority, which is why capital companies are also democratic, although the big difference is that in these entities the votes are given to the members according to the share capital they have contributed and the number of shares or holdings they have subscribed to. This broad concept of democracy has enabled us to argue that even if there is a weighted plurality vote in a cooperative, it can still be democratic in nature. However, all Spanish cooperative laws set limits on the number of votes that each member can hold and the percentage of share capital that they can subscribe, in an attempt to ensure that there are no major inequalities between members.

The central part of the paper examines the legal recognition of weighted plural voting for members of first-degree cooperative societies in general and for certain types of members (e.g. legal person members) in particular. Before carrying out this analysis, the system for attributing votes to members in capital companies, especially those classified as worker owned companies, and in agricultural processing companies, is studied. A comparative study of the regulation of voting rights in the Spanish national law on cooperatives and in the main regional laws shows that it is becoming increasingly common to recognise plural voting, although this is always weighted according to the cooperative activity carried out. However, it shows that there are significant differences in regulation between the different regional cooperative laws and there is no uniform trend as to which types of first-degree cooperatives and within what limits plural votes can be attributed to members.

With regard to second-degree cooperatives, all Spanish regional cooperative laws continue to allow plural voting in cooperatives, with significant differences in their regulation, especially when setting the maximum number of votes, sometimes when establishing the criteria for the weighting or allocation of plural votes, and sometimes when mandatorily establishing multiple voting proportional to the cooperative activity carried out and/or the number of members.

The paper also points out that plural or multiple voting, weighted or proportional to cooperative activity, has been a historical aspiration of certain sectors of cooperativism, such as the agricultural and service sectors, with the aim of stimulating and politically recognising greater member participation. Instead, for other types of co-operatives it has not been considered as relevant, such as in worker cooperatives because it is of less practical importance and because in this type of co-operative mutuality is measured mainly by the individual rather than by their activity, or in consumer cooperatives because the greater participation of members in cooperative activity, and consequently the attribution of votes, often depends on the economic capacity of each member, which is what allows them to consume more.

On the other hand, it is also stated that the recognition of plural votes for the members of a cooperative can be a complex task and a source of conflict within the company: it is necessary to establish what amount or value of the co-operative activity gives the right to an additional vote (for example, in a co-operative the number of kilos contributed, which will also depend on the quality, class or category of the products delivered) and reliable data must be available on the cooperative activity carried out by each member in the previous financial year or years before the first general assembly is held. For all these reasons, it is essential, in addition to a correct statutory regulation, to have a professionalised social management that avoids, as far as possible, problems regarding the attribution of plural votes, which is one of the reasons why plural voting, although legally permitted, is not used by the majority of cooperatives.

The conclusions are as follows:

  1. The recognition of plural voting in second- and further-degree cooperatives is widespread in Spanish cooperative legislation, with more and more cases in which the laws recognise it for members of first-degree cooperatives, although it is always weighted according to the cooperative activity carried out by each member, and the number of votes that each member can hold is usually limited numerically. In the author’s opinion, it seems to me to be right, as has been done by several regional co-operative laws, to avoid setting a specific maximum number of votes per member, and it is better to set a percentage of votes, since in co-operatives with a large number of members it may not be very significant for a member to be able to have several votes.
  2. The acceptance of weighted plural voting recognizes the existence of inequalities in the participation of members in cooperative activity and makes it possible to translate social heterogeneity in terms of political rights, thus ensuring that those members who participate more have more weight when it comes to shaping the will of the cooperative.  Moreover, the rule of unitary voting is not intrinsic to the cooperative principle of democratic management, and the AICA itself is increasingly admitting exceptions to it.
  3. A proper recognition of plural voting for the members of a cooperative can prevent the most active members of a cooperative from fleeing to other types of society by exercising their right to leave the organisation, which is a latent danger, for example, in many agricultural co-operatives which depend heavily on the volume of production provided by a few members and which can be politically mistreated if they are treated in the same way as those who hardly contribute any production to the cooperative. This would be the injustice of the single vote.
  4. The author considers the recognition and generalisation of plural voting to be an evolution of the cooperative type in line with the social and current demands of the markets, and that it is a way of empowering and strengthening the cooperative movement and making it more attractive and competitive.

Responsabilidad social empresarial en las cooperativas: buenas prácticas en materia de desconexión digital

Paula de Íscar de Rojas

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La aceleración de la transformación digital en la empresa y el uso creciente de las TICs en el trabajo ha provocado cambios notables en el mundo de las relaciones laborales, también a nivel legislativo. La hiperconectividad y la falta de descanso pueden derivar en importantes riesgos para la salud de las personas trabajadoras. En el presente trabajo se pretende estudiar, por un lado, el marco normativo que regula en España el derecho a la desconexión digital, haciendo especial alusión a las sociedades cooperativas. Por otra parte, se analizará el vínculo existente entre el derecho a la desconexión en el ámbito laboral y los ODS, especialmente en lo referente al trabajo decente y a la conciliación de la vida profesional, familiar y personal. Por último, concluiremos con una breve mención a la aplicación de protocolos internos de desconexión digital en las cooperativas.

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CORPORATE SOCIAL RESPONSIBILITY IN COOPERATIVES: GOOD PRACTICES ON DIGITAL DISCONNECTION 

The rapid development of digitalisation in business and the increasing use of ICT at work have led to significant changes in labor relations, including at the legislative level. Hyperconnectivity and lack of rest can lead to health risks for workers. This paper aims to study, on the one hand, the regulatory framework governing the right to digital disconnection in Spain, with particular reference to cooperative societies. On the other hand, it will analyze the link between the right to disconnection in the workplace and the SDGs, especially concerning decent work and the reconciliation of professional, family, and personal life. Finally, there will be a brief mention of the application of internal protocols for digital disconnection in cooperatives.

 

EXPANDED ABSTRACT

The COVID-19 pandemic has accelerated the digital transformation of businesses in all company areas. This has led to significant ICT upgrades in companies.

Regarding cooperatives, we can observe important shortcomings in some of them. The technological backwardness of cooperatives in the primary sector is made extraordinarily difficult by the worrying connectivity problems that exist in rural Spain and the deficiencies in the creation and attraction of digital talent.

The use of eCommerce, digital marketing, social networks, corporate e-mail, or the use of video calls to hold meetings is the new routine of all kinds of companies. In the field of labour relations, the number of people who choose to work remotely has increase exponentially.

However, the abusive use of teleworking can lead to hyperconnectivity and health problems caused by a lack of a break from digital workplace tools. In this sense, society needs legal mechanisms to protect workers and facilitate digital disconnection from work outside working hours.

The strong impact of ICTs in business and people’s lives has led to the need to regulate new «digital rights» and to develop a «digital ethic» that prevents the violation of these rights, e.g. the protection of personal data or -in this case- the right to digital disconnection of workers.

Some countries are starting to regulate this right, although in Europe there is no EU legal framework regulating digital disconnection, but a proposal for a Directive. This proposal establishes minimum standards. However, these standards have already been complied with by some European states for years, through their regulations. Furthermore, we miss the mention of cooperative societies in this proposed Directive.

In the case of Spain, the right to rest is regulated by such important regulations as the Spanish Constitution and the Workers’ Statute. On the other hand, the right to digital disconnection is only regulated in one article of the Data Protection Act (Article 88), which has been harshly criticised by the doctrine. It is also criticised that there is no mention of self-employed workers, economically dependent self-employed workers (in Spain they are called TRADEs), or members of cooperatives, especially worrying in the case of worker cooperatives. Likewise, there is no mention of the right to digital disconnection in the State Cooperatives Act or in the regional cooperatives laws (and we have a total of seventeen).

With particular reference to worker cooperatives, Article 83 of the State Cooperatives Act refers to the distribution of working hours and breaks to the bylaws, the internal regulations of the cooperative, or the General Assembly, a matter which is highly criticised by the doctrine. The special nature of this figure, worker-members of worker cooperatives, means that they deserve a specific and detailed regulation, as they provide services to the company like any other worker in a comparable situation. if a non-partner and a working partner provide work, carry out the same tasks, and use the company’s digital tools at the same time and manner, the risks for both persons are the same. For this reason, it would be discriminatory not to apply the right to digital disconnection for working partners in this type of cooperative.

In any case, the Spanish legislator has applied the extension to all worker-members of cooperatives of the protection granted to non-member workers on many occasions. Because of that, we understand that a right as transcendental as the right to digital disconnection from work must be applied to any person who works in the cooperative (that is, worker-members and non-member workers).

Relative to the «COVID-19» regulations, telework was prioritised in Spain over other employment measures. In the regulation governing teleworking, there is a brief reference to digital disconnection in the field of occupational risk prevention.

To sum up, Spain needs greater and more appropriate regulation of this right, adapting it to the diversity of companies existing in Spain, including cooperatives.

Secondly, cooperative societies are governed by guiding principles that are closely related to the Sustainable Development Goals.  The principle of concern for the community is closely related to Goal 8 on decent work, which can be directly linked to the right to digital disconnection.

Work cannot be decent and dignified if it infringes on the security of the worker. Hyperconnectivity and lack of rest lead to health problems for workers (physically and mentally). In the case of teleworkers, a blurring borderline between work and personal life can cause many problems, including in their family. If workers do not take a digital break from work, they can suffer from serious illnesses such as depression or technostress, and some of them may become workaholics. In conclusion, there will be no decent work without digital disconnection from work.

In line with the Sustainable Development Goals, the right to digital disconnection is also relevant to Goal 5 on gender equality. Employment cannot be conceived as decent or sustainable if it does not include half of humanity in terms of equal treatment and opportunities.

In the field of gender equality, the digital disconnection from work helps to achieve a better reconciliation of family, professional and personal life for workers, being women particularly affected by the lack of rest due to the traditional role they have been assigned as «people who care the rest of the family members». As mentioned above, they work for the cooperative like any other non-member worker with similar functions, so they will have to apply any provisions regarding the reconciliation of work and family life.

Therefore, the importance of the right to digital disconnection from work for workers’ health, for work-life balance, for gender equality, for sustainable development, and economic growth makes it necessary an urgent updating of the Spanish regulations.

Finally, Article 88 of the Data Protection Act, which regulates the right to digital disconnection, refers to collective bargaining. Collective agreements hardly contain any reference to the aforementioned regulation, so they are of little use. On the contrary, we advocate the development of internal digital disconnection protocols and policies in cooperatives. These protocols must be adapted to the conditions of each cooperative, to its activity, and, of course, to its different members (worker-members, non-member workers, etc.). In addition, they should include real and achievable policies, actions that favour equal opportunities, and practices that allow a better work/non-work life balance for those who choose to telework.

Revisión actual de la explotación comunitaria de la tierra: condicionamientos de su fiscalidad

María del Carmen Pastor del Pino

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La explotación comunitaria de la tierra como instrumento mediante el cual los titulares de derechos de explotaciones agrarias aúnan esfuerzos para mejorar su rendimiento y lograr objetivos de arraigo económico y social recobra relevancia en el actual contexto multifuncional de la política agraria común. En este contexto en el que no sólo resulta importante la competitividad comercial sino también la revitalización y el progreso rural, es donde adquieren relevancia las actuaciones de explotación comunitaria de la tierra desarrolladas especialmente mediante fórmulas asociativas de economía social. Planteada esta cuestión preliminar que sustenta el enfoque, el presente trabajo analiza la forma en que la fiscalidad puede condicionar el empleo de los principales instrumentos de explotación en común de la tierra.

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COMMUNAL LAND USE: INFLUENCE OF THE TAX SYSTEM

Community land use as an instrument through which holders of farm rights join forces to improve their performance and achieve economic and social anchoring objectives is gaining in importance in the current multifunctional context of the common agricultural policy. In this context, where not only commercial competitiveness but also rural revitalisation and progress are important, that community land use actions developed especially through associative formulas of social economy take on current relevance. Having raised this preliminary question, this paper analyses the way in which taxation system can condition the use of the main instruments of communal land use.

 

EXPANDED ABSTRACT

Communal use of land as an associative model through which to carry out a rural development project should not be considered as a formula of the past, based on ideological considerations or on short-term needs. The need to revitalise rural areas that make up a large part of our territory and that of the European Union means that it is almost obligatory to review all those forms that can promote them, acting as a revulsive and lever for change, one of which is the subject of this paper. Communal use of land through cooperative-type associative model can and must therefore play a leading role in the current Spanish and EU context of rural and agricultural development, in which not only elements of competitiveness but also of sustainable growth of the territories must predominate. Its capacity to contribute to the development of rural areas, this form of economic intervention can and must be worthy of the corresponding public measures provided at internal and EU level. This system of measures should include deriving from beneficial tax regimes.

Community land exploitation through cooperative societies must be reviewed from a current perspective in order to determine its virtues in the achievement of rural development objectives, but also to identify the regulatory problems that may prevent it from achieving them. In addition to this general analysis of its substantive regime this paper analyses on a more specific aspect: tax regulation conditions the development of this figure when it is carried out by social economy societies: in particular, community land cooperatives, but also agricultural cooperatives that incorporate this activity, highlighting the advantages and disadvantages of each of these possibilities. Having reviewed this first aspect, the paper analyses the main tax implications from this corporate model both for the company itself and for the members.

The tax regime applicable to community land cooperatives or agricultural cooperatives which may include such joint farming as an activity, either by setting up a specific section or through a separate entity such as a capital company or an agricultural processing company requires as with other similar typologies wishing to benefit from the tax advantages provided for in the specific Law on the Tax Regime for Cooperatives (LRFC), compliance with the requirements laid down in the tax regulations, both substantive and specific. These requirements may condition the way in which the joint operating activity can or will be carried out establishing requirements and imposing certain limitations that differ depending on the type of cooperative in question. It is therefore important to analyse in detail the effects that these constraints may have on the operation and management of the joint operation in order to evaluate the real scope for action available to these societies if they wish to benefit from the relevant benefit measures.

For example, if this activity had been carried out through a society created with capital participation the agriculture cooperative, it is necessary thinking the limitations on its participation in the share capital of non-cooperative entities, since failure to adjust it would entail the loss of the tax status of protected status. Or consider also the consequences arising from the transfer itself by the members and its effects on the requirement of the tax rule regarding the necessary status of farm owner that the members of the agriculture cooperative must hold in order to be able to enjoy the corresponding tax benefit system, since those members could cease to be so as a result of the corresponding transfer. In this sense it can be considered that the member who makes the transfer to the section set up for this purpose would not lose that status, since it is simply a case of transferring or transferring a right to one of the cooperative’s own structures in order to carry out a new activity within its corporate purpose, without losing ownership of the holding. This would be different if the transfer were made to the company set up specifically to develop the holding jointly since in this case the transferring members would cease to be the owners of the agriculture holdings, having transferred them to the aforementioned company.

Community societies which therefore meet the requirements contained in the tax regulations to be specially protected, and which do not also incur in any of the causes for loss of this status can avail themselves of the tax benefit measures provided for in arts. 33 and 34 of the LRFC. These benefit measures will be applied without prejudice to the special rules of arts. 15 to 29 of the same legal text referring to corporate tax adjustment rules (art. 6.2 LRFC), and logically independently of the other measures that the tax regulations themselves may provide for, as they are applicable to them as a supplementary rule. The tax benefits available to community land cooperatives would therefore be, as long as they comply with the general requirements of their substantive regulations: those provided for in art. 33 for tax protected cooperatives; and if they also comply with the specific requirements of the tax regulations, those of art. 34 of the LRFC, for specially protected cooperatives.

In the second question the taxation of the activities carried out under the joint exploitation system two aspects should be mentioned. Firstly, the true objective of this concept, which is none other than to seek to optimize the factors of production of each member by using formulas for the joint exploitation of these factors under an associative form, the cooperative. The cooperative thus carries out an economic activity, the joint venture being precisely the means by which the member intervenes in the market and through which it contributes the corresponding added value to local development. Only if the members contributions are impregnated by this objective would they not be subject to transfer taxes (value added tax and transfer tax), and the specific conditions under which each transfer is made would have to be reviewed in any case.

In the opposite direction but with the same essence the benefits received by the member from the cooperative will be subject to personal income tax, as income of one type or another of those provided for in its regulations, depending on the real purpose of the transfer. This question requires knowing what was the real purpose of the transfer and the relationship between the partner and the societies in the future. Finally and without any special features being highlighted in relation to the taxation of capital gains or losses deriving from the reimbursement of contributions or the taxation of cooperative returns received by members, as the general system provided for in the tax regulations for such cases applies to them, the taxation deriving from such actions may be transferred when, in accordance with the cases provided for in the tax regulations, the necessary agreements are adopted between the company and the members so that such taxation is delayed.

Los centros portuarios de empleo: una entidad mutualista

Julio Costas Comesaña

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Los centros portuarios de empleo (CPE) son la respuesta normativa del Gobierno a la sentencia del Tribunal de Justicia de la Unión Europea, por la que se declaró el sistema español de gestión de la cesión de los trabajadores portuarios incompatible con la libertad de establecimiento en el mercado interior. En este trabajo se analiza la evolución histórica de este sistema, las razones por las que se declaró contrario al Derecho de la Unión Europea, y la legislación que se ha ido aprobando para conciliar, por una parte, los objetivos de interés general de regularidad, continuidad y calidad del servicio de estiba portuaria y de protección de los trabajadores portuarios, con, por otra parte, la libertad de contratación y de competencia en los mercados de servicios portuarios. Y como la naturaleza mutualista de estos centros puede ser la clave que permita conciliar tales objetivos con la libertad de competencia.

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PORT EMPLOYMENT CENTERS: AN MUTUALIST COMPANY

The port employment centers are the normative response of the Spanish government to the judgment of the Court of Justice of the European Union, by which the Spanish management system for the assignment of dockers was declared incompatible with the freedom of establishment in the internal market. This paper analyzes the historical evolution of the collective management system for dockers in Spain, the reasons why it was declared contrary to the Law of the European Union, and the legislation that has been successively approved to try to reconcile, on the one hand the general interest objectives of regularity, continuity and quality of the cargo-handling service and protection of the rights of dockers, with, on the other hand, the freedom of contracting and free competition in the port services markets. And how the mutualist nature of these centers may be the key that allows us to reconcile such objectives with freedom of competition.

 

EXPANDED ABSTRACT

The port employment centers (CPE) are the normative response of the Spanish government to the judgment of the Court of Justice of the European Union (Case C‑576/13), by which the Spanish management system for the assignment of dockers was declared incompatible with the freedom of establishment in the internal market. This paper analyzes the historical evolution of the collective management system for dockers in Spain, the reasons why it was declared contrary to the Law of the European Union, and the legislation that has been successively approved to try to reconcile, on the one hand the general interest objectives of regularity, continuity and quality of the cargo-handling service and protection of the rights of dockers, with, on the other hand, the freedom of contracting and free competition in the port services markets. And how the mutualist nature of these centers may be the key that allows us to reconcile such objectives with freedom of competition.

Specifically, at first, through RDL 8/2017, cargo-handling companies were granted full freedom to hire port workers and to provide cargo-handling services: (i) by their own means, (ii) requesting temporary assignment of stevedores of the Stock Corporation of Management of Port Workers (in Spanish, SAGEP) of which this was a shareholder – from which it could be separated by his own will and without labour costs-, or (iii) participating with other cargo-handling companies in the constitution of an Employment Port Centre (in Spanish, CPE), whose corporate purpose is the contracting of stevedores to make them available to member or non-member cargo-handling companies, as well as the professional training of workers. Subsequently, to make the liberalization of cargo-handling service carried out by RDL 8/2017 compatible with the protection of the rights of docker workers, The RDL 9/2019 configures the CPEs as temporary employment agencies (ETT) in the port sector, subject to a special regime contained in Chapter V (articles 18 to 21) of the Law 14/1994 (LETT). To this end RDL 9/2019 allowed, through a collective agreement, to establish the mandatory subrogation of SAGEP workers for the partner who decided to separate from it, as well as in the case that the cargo-handling companies partners of SAGEP agreed to transform them into CPEs, which was what happened in most ports.

On the publication of RDL 8/2017, the negotiation began for the approval of the V Framework Agreement on cargo-handling. However, for various reasons, the negotiation did not prosper. Among the difficulties -intrinsic and extrinsic to the sector- that collective bargaining has faced, we can highlight: 1) the triangular nature of the labour relationship of the dockers hired by the CPE; 2) the nature of the CPEs as joint ventures constituted by competitors who are the foundation and the main destination of the activity constituting their corporate purpose; 3) the fact that the CPEs hold a de facto dominant position in the market for goods handling services; 4) a particularly concise regulatory framework regarding the corporate regulation -of the legal status of the partners/users- of the CPE; 5) the constitution of the CPE as corporations; therefore, subject to a regulation that does not adjust to their mutualist nature; and 6) an analysis of the limits imposed by competition law on collective bargaining, especially rigorous by the National Competition Commission (CNMC).

In fact, the impossibility of signing a V Framework Agreement on cargo-handling that counted with the «approval» of the CNMC, led the legislator to the conviction that a new modification of the regulatory framework of the CPE was necessary to provide security to the negotiating parties of the collective agreement. With this objective, through Law 4/2022, the LETT has been modified again, to affirm the mutual nature of the CPE and impose corporate obligations on the partners that, on the one hand, allow the efficient operation of the same, and, on the other hand, guarantee the quality of employment and the protection of port workers.

The CPEs are mutual companies in the technical sense because they are voluntarily set up by the cargo-handling companies that have the need -common to all of them- of having dockers in sufficient number and with appropriate qualifications to carry out their cargo-handling activity, which the CPE can satisfy in an optimal way to the extent that the partners participate in the joint activity, requesting the temporary assignment of the port workers of the former. As in other types of mutual companies, the mutual nature of the CPE does not prevent it from temporarily assigning its workers to non-member cargo-handling companies, nor does it prevent its partners from contracting the temporary assignment of dockers with third companies.

Responding to the triple objective that the CPE might: (i) achieve its mutual corporate purpose; (ii) promote efficiency in the management of cargo-handling activity; and (iii) guarantee the quality of the employment of port workers; article 18 of the LETT establishes a series of obligations for the partners. In the first place, the partners are obliged to request from the CPE the assignment of dockers in the terms established in the framework contract for the provision of services, which each partner must sign with the CPE and which must guarantee the effective occupation of CPE staff. Secondly, the partners must collaborate –without exclusivity- in the professional training of the port workers of the CPE. Thirdly, the partners are obliged to participate in the social and labour measures approved by the CPE to avoid and reduce collective dismissals. These labour costs may be imposed on the member, while he is participating and when he decides to leave the CPE.

This new regulation has allowed the approval of the 5th Cargo-handling Framework Agreement. In any case, the contractual regulation of these legal obligations is subject to the limits imposed by Competition Law on the parties’ autonomy. It cannot be ignored that the CPEs have a dominant position in the port in which they operate, and that the partners are competitors in the provision of the cargo-handling service. Both circumstances impose a special responsibility on the CPE and the partners when regulating such obligations and not exchanging commercially sensitive information, particularly when designing the labour costs that may be imposed on the partner who voluntarily decides to leave the CPE.

Un marco normativo para las empresas sociales en España para el freno de la desigualdad

Antonio José Macías Ruano

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Economía social y empresa social son propuestas de generación de riqueza fuera de la concepción capitalista de retribución a la inversión, con distintas acepciones y contenido dispar. En España, se ha desarrollado legislativamente un concepto de economía social basado en estructuras jurídicas que pueden perseguir, exclusivamente, el interés colectivo de sus integrantes y no el general económico o social.

En Europa, en paralelo con el concepto de economía social, surge en Italia el de empresa social, para cualquier entidad que ejerza con carácter permanente y principal una actividad económica en pro del interés general, al margen de la forma social. En España no existe una norma específica para empresas sociales, solo alguna regulación sobre estructuras jurídicas que pueden ser calificables como tales. Se propone la fórmula de su presencia legislativa para la mejora de la colectividad y que reduzca la desigualdad más allá de los integrantes de una estructura cualquiera.

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A REGULATORY FRAMEWORK FOR SOCIAL ENTREPRISES IN SPAIN TO CURB INEQUALITY

Social economy and social enterprise are proposals for generating wealth outside the capitalist concept of remuneration for investment, with different meanings and disparate content. In Spain, a concept of social economy based on legal structures that can pursue, exclusively, its members’ the collective interest, and not the general economic or social interest, has been developed through legislation.

In Europe, in parallel with the concept of social economy, the concept of social enterprise has arisen in Italy, for any entity that permanently and principally carries out an economic activity in the general interest, regardless of its social form. In Spain there is no specific regulation for social enterprises, only some regulation on legal structures that can be classified as such. We propose the formula of its legislative presence for the improvement of the community and to reduce inequality beyond the members of any given structure.

 

EXPANDED ABSTRACT

The distinction between persons, at the individual level and within any organization, is inherent in the human being. The diversity in the enforceability of rights and the fulfilment of obligations is assumed to be inherent in the social structure itself.

Within the liberal framework, the concept of equality between men is confined to a mere question of formal, non-material or real equality. Inherent in the capitalist system is formal legal equality and economic inequality among the subjects. However, from very early on, around the second industrial revolution, currents of economic, philosophical and legal thought have been emerging to temper the inequality that is created.

This structural inequality is being widened by the events that have occurred so far this century, which have had a particularly serious impact on a country like Spain, as well as the financial and real estate crisis of 2009; the 2020 pandemic; and the manifest and expected effects of the invasion of Ukraine. Any measures to promote wealth generation that have a special impact on the social environment must be a priority for the national legislator.

At the legislative level, Spain was the first State of the Union to publish a law that valued the entities of the social economy that generated wealth with non-capitalist parameters, Law 5/2011, of March 29 (LES). And this legislative initiative started, basically, following the consolidation of a concept that emerged in France, and that was extended to the European level, although it was outlined in the last quarter of the twentieth century, which has been evolving at the institutional and legal level. At the same time, however, other concepts and terms than the social economy have been constructed for the development of economic activities reactive to the capitalist conception, in the search for values such as equality, solidarity, social or environmental commitment. One of these legal and economic constructions is that of social enterprises, which, in Europe, is mainly developed in Italy, where they are widely regulated and enhanced at the institutional level. However, in Italy where social enterprises have received the most legislative attention, in other countries of the European Union structures and support measures have been collected for entities pursuing a positive social impact, beyond the self-interest of the organization’s ownership, making them an instrument for reducing the social and economic inequality of particularly vulnerable sectors.

Scientific attention on the term and content developed from the last decade of the last century, almost parallel, in Europe and the United States, although hardly interrelated. In Europe, the impetus for social enterprise appeared at the end of the 1980s in Italy, with cooperative initiatives to meet unmet needs, especially in the field of labour integration and personal services. Thus, at the scientific level in October 1990, the journal Impresa Sociale, which is still published, was published for the first time in order to answer the fundamental question: Is it possible and desirable to organise the production of goods and services of collective interest on an entrepreneurial but non-profit basis?

In this country, Italy, Law 381 of 1991, created a new class of cooperative: the Social Cooperatives. With the Legislative Decree 24 March 2006, n. 155 «Discipline dell’impresa sociale» Italy abandons the specific cooperative social type for the social enterprise, accommodating any entity, whatever its structure, it pursues an economic activity on a permanent and principal basis with a view to achieving objectives of general interest, focusing on the activity and not on the social form. Currently, the social enterprise in Italy is regulated by Legislative Decree 3 luglio 2017, n. 112, where it is determined that «social enterprise» is a legal qualification, a legal status, not a type of entity.

While, at European institutional level, in 1996 the international network of university research centres and individual researchers in social enterprises EMES was formed, who set the identifiers of the three dimensions of social enterprise economic/business, social, and property/governance, which served as a European institutional criterion for the formation of the legal framework for social enterprises.

The European Union’s resolutions and regulations on the need to regulate and strengthen social enterprises have been numerous. But only a conception of what it should be has been achieved, of the parameters that must be met for its consideration as social enterprises (the same as those established by the EMES network), and the need for its promotion in the legislations of the Member States of the Union. With the study commissioned by the European Commission on Social Enterprises and their Ecosystems in Europe. Comparative Synthesis report, of 2020, a map has been obtained of the conceptions that the different States of the European Union have of those entities that can meet the parameters of social enterprises, as well as their respective legal regulation, and their impact on the economy and employment.

In Spain only social initiative cooperatives, foundations and associations of general interest with economic activity, special employment centres, occupational centres and insertion enterprises may be classified as social enterprises. All these legal structures are recognised as social economy entities in the LES, thus providing a legal framework for recognition and promotion measures, although scarce, which the European Union encourages. However, in the absence of any general rules which contemplate them for their purpose, not for a predefined structure, many of the entities which have a positive social impact and which act within the parameters set by the European Union, they lack national legislative recognition, as well as adequate promotional measures that are reciprocated by the impact they have on the social environment, apart from the members of the structure.

An example of legal regulation of legal structures based on the purpose they pursue, regardless of what the types of companies or entities may be, we have with Law 2/2007, of 15 March, professional societies, which, without determining a particular form or type of company, on the basis of the teleological criterion of the purpose pursued by it, shall classify the entity as professional.

With a legislative model similar to the Italian one, Spain could expand the legal instruments of entities for the fight against inequality, which is one of the possible purposes of the social economy. Once they have been legally recognized, they could fit into the general framework of the Social Economy Act, given that they are entities that pursue the general economic or social interest (art. 2 LES), and this in two ways: by the updating of the so-called, although still non-existent, Catalogue of entities of the social economy by the Ministry of Labour (art. 6 LES), or by modifying the LES by incorporating social enterprises as entities of the social economy in its article 5, taking advantage of its reform to incorporate new promotion and promotion measures that are really effective.

What is proposed is:

  • To regulate, individually, social enterprises in Spain with a framework law whose subjective scope is teleological, covering any legal structure that pursues the objectives of general interest and complies with the European dimensions that qualify them.
  • To determine in the special rules for social enterprises the provision of aids and measures for their promotion, of a fiscal nature and of financial endowment, calculated in so far as they involve public savings in improving the common general interest which these entities generate.
  • Establish a regime providing for forms of public control to ensure that the status of social enterprise is used only by entities that are actually such, that is to say, they act in accordance with the law.
  • The reform of the Law on the Social Economy with the incorporation of new cross-cutting measures for the promotion, promotion and financing of its entities, beyond those currently mentioned.
  • The proposed reform of the Law on the Social Economy should include social enterprises as entities of the social economy once they have been legally recognized in a single rule, recognizing, on the one hand, the promotion measures to be established for these entities, and extending it to all incentive measures laid down in the general law.

Las Mutualidades de Previsión Social: disección histórica, régimen jurídico y su adaptación a Solvencia II

Salvador San Onofre Fernández

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El presente trabajo tiene por finalidad analizar las Mutualidades de Previsión Social (en adelante, también “Montepíos”, “Mutualidades” o “MPS”, indistintamente) de ámbito nacional, desde su pronta aparición como instrumento de previsión social a través de las llamadas asociaciones de socorro hasta nuestros días, pasando por su régimen jurídico,  la influencia que ha tenido sobre ellas la distinta normativa –sobre todo la relativa a Solvencia II–, y el impacto que determinadas circunstancias acontecidas en los años 2019 y 2020 tuvo sobre estas entidades aseguradoras de base mutual.

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SOCIAL SECURITY MUTUALITIES: HISTORICAL DISSECTION, LEGAL REGIME AND ITS ADAPTATION TO SOLVENCY II

The purpose of this paper is to analyze the Social Welfare Mutualities (hereinafter, also «Montepíos», «Mutualities» or «MPS», indistinctly) at the national level, since their early appearance as a social security instrument through the so-called associations up to the present day, going through their legal regime, the influence that the different regulations have had on them – especially those related to Solvency II -, and the impact that certain circumstances that occurred in 2019 and 2020 had on these mutual-based insurance entities.

 

EXPANDE ABSTRACT

The Mutual Societies for Social Security, formerly known as Montepíos, emerged to cover the needs of certain associated groups once their work period is over or in the face of life’s misfortunes, granting all kinds of benefits, such as retirement, orphanhood, widowhood, disability or aid for burial after death, carrying out a true social provision, based on criteria of solidarity and self-management.

These were entities with an eminently social and private spirit, which always adopted the mutual form or civil association, all of them non-profit.

Its legislative antecedents can be found in a series of regulations that were developing and defining the associative figure of Mutuality, from 1908 to the present. In those first normative texts, the main characteristics that the Montepíos had to meet were already collected, the legal requirements for the constitution of these companies, the configuration of their benefits for benefits to the associates as complementary to those of the general protection regime of the State, they were granted full legal capacity and to act, or the development of their governing bodies and the figure of the Protective Entity, among other issues.

The flourishing of the Social Welfare Mutualities and their commendable social welfare work made the Legislator try to regulate their legal regime, and their subsequent inclusion as insurance entities subject to the rules of organization and supervision.

At present, the legal regime of Mutual Insurance Societies is regulated by a multitude of regulations of different legal rank, highlighting the provisions of the Law on Organization, Supervision and Solvency of Insurance and Reinsurance Entities, and its implementing Regulations, and in the 2002 Social Security Mutual Insurance Regulations. In matters not provided for in said regulations, the regulations of the public limited company and the provisions of their own statutes are applicable to the Montepíos.

Important, due to the importance and the impact it had on Mutual Societies, was the approval, promulgation and publication of Law 20/2015, of July 14, on the organization, supervision and solvency of insurance and reinsurance entities (Solvency II), whose Title II regulates the legal regime of mutual insurance companies.

Beyond the modifications that the LOSSEAR introduced in its legal regime, said legislation had a very significant impact on the ordering, supervision and solvency of said entities, and on their process of adapting to community and national regulatory standards.

Thus, in a short period of time from its publication to its entry into force, the Social Security Mutual Societies had to make real technical, human, investment and management efforts to comply with the III Pillars of Solvency II.

In the solvency section, many Mutual Societies went from being solvent overnight to not meeting the required solvency ratios – SCR/MCR – and could incur a situation of financial deterioration, or even incur negative own funds.

In order to overcome these situations, the Mutual Societies had to adopt a whole series of decisions and urgent measures: avail themselves of the transitory regime of technical provisions, the request for complementary own funds, avail themselves of the special solvency regime for a period of 3 years, apply the adjustment intended to take into account the loss absorption capacity of deferred taxes, the expansion of the mutual fund, the request for passive spills or the modification of its social benefits, among many other measures.

With the adoption of some or all of these proposals, and others, many MPS managed to adapt to the solvency II regime, but many others fell by the wayside or had to concentrate, or give up their portfolios to become mere Foundations.

Still not answered for the effort that the adaptation to the Solvency II regime entailed for the Social Security Mutual Societies, the years 2019 and 2020 brought all sorts of circumstances that meant that, once again, many Mutual Societies were on the verge of not being able to comply with the ratios of solvency and of being subject to special control measures or intervention by the General Directorate of Insurance and Pension Funds.

There were five circumstances that occurred in that period:

The first was the entry on January 1, 2019 to the general solvency regime for those Mutual Societies that had been authorized by the DGSFP to temporarily avail themselves of the special solvency regime for a transitory period of 3 years.

With the passage to the general solvency regime, the specificities that were applied to the MPS were finished, in relation to certain particularities: solvency requirements, governance system and information requirements to the supervisor, developed by regulatory means.

The second circumstance was the sharp and sudden worsening of EIOPA’s risk-free curve, which continued to put pressure on Mutual Societies’ profitability and solvency positions.

Subsequently, it was the application of the new biometric survival tables that replaced the old PERM-2000 that once again had an impact on the solvency position of these entities, especially those that operated in the life branch and in the defined contribution regime.

The application of the new biometric survival tables, based on greater longevity and life expectancy for both women and men, and much more aggressive in their surcharges than their predecessors – the PERM/F-2000 – represented an increase of the mathematical provisions assigned to the MPS groups, consequently increasing the valuation of the technical provisions.

Fourth, the outbreak of the global pandemic caused by the COVID-19 disease impacted the world economy and financial markets, and soon had its negative impact on the valuation of financial assets in the MPS investment portfolio. , producing a drastic reduction in their valuation both for accounting and solvency purposes, as well as a gradual worsening of the ratings assigned to said assets.

Lastly, and in fifth place, it was the new policies of the credit institutions in the collection of commissions that led to an increase in the costs and administration expenses of the assets in the portfolio of the MPS.

In conclusion, the paper addresses the current situation of Mutual Societies and the enormous reduction in their total number as a result of multiple factors, as well as the future of this type of mutual-based insurance entities.

Legal framework da Economia Social e Solidária na América do Sul – análise dos casos do MERCOSUL e UNASUL

Daniel Francisco Nagao Menezes

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El artículo analiza el proceso de institucionalización de la agenda de la Economía Social y Solidaria (ESS) en América Latina, estudiando los procesos de integración regional de UNASUR y MERCOSUR. La pregunta de investigación consiste en responder cómo se utiliza la ESS en la cooperación política regional en América del Sur y cuáles son los impactos en la construcción de estructuras regionales de gobernanza para el desarrollo social. La hipótesis es que los procesos regionales en contextos institucionales en América del Sur utilizan una concepción restringida de la ESS que la define como un instrumento de política social para combatir la pobreza. Esto limita el potencial transformador de la agenda de ESS. La propuesta es una ampliación del concepto de ESS con el fortalecimiento de prácticas socioproductivas como alternativa al desarrollo extractivo en la región.

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LEGAL FRAMEWORK OF THE SOCIAL AND SOLIDARITY ECONOMY IN SOUTH AMERICA – ANALYSIS OF THE MERCOSUR AND UNASUR CASES

The article analyzes the process of institutionalization of the Social and Solidarity Economy (ESS) agenda in Latin America, studying the processes of regional integration of UNASUR and MERCOSUR. The research question consists of answering how the SSE is used in regional political cooperation in South America and what are the impacts on the construction of regional governance structures for social development. The hypothesis is that regional processes in institutional contexts in South America use a restricted conception of SSE that defines it as an instrument of social policy to fight poverty. This limits the transformative potential of the ESS agenda. The proposal is an expansion of the SSE concept with the strengthening of socio-productive practices as an alternative to extractive development in the region.

 

EXPANDED ABSTRACT

The article analyzes the construction of frameworks for regional policies of Social and Solidarity Economy (ESS) in the Union of South American Nations (UNASUR) and in the Southern Common Market (MERCOSUR). Regional cooperation has been one of the main political responses of South American governments and societies to the growing social and political resistance to neoliberal policies. After the failure of the Free Trade Area of ​​the Americas (FTAA) project promoted by the US in 2005, there was a proliferation of regional integration initiatives: the Bolivarian Alliance for the Americas (ALBA) in 2004; UNASUR in 2008, the Community of Latin American and Caribbean States (CELAC) in 2010. In the context of these regional policy debates, ideas such as the SSE, which seek alternatives to market-based development, are well received. This has revitalized the debate on the potential of regionalism as a means of promoting development, regional governance and increasing political autonomy in shaping the future trajectories of globalization processes (Riggirozzi & Tussie, 2012; Vivares, 2014).

The adoption of an SSE agenda by UNASUR and MERCOSUR is part of this broader process of politicization of regionalism that changed the terms of the debate on regional integration in the context of political and social resistance to the US-led Washington Consensus. New groupings such as UNASUR are “post-neoliberal” entities insofar as they are driven by political, productive and social objectives and not strictly economic (and more specifically free trade) objectives (Sanahuja, 2010). Instead of following pre-established ideas or recipes of what integration should be, post-hegemonic regionalism (Riggirozzi, Tussie, 2012) becomes a set of open, exploratory and pragmatic processes. MERCOSUR has also undergone a post-neoliberal shift, although it still remains largely about market integration. In the “Buenos Aires Consensus” of 2003, Brazil and Argentina adopted social policy and development goals for the bloc – to face the challenges of poverty, social cohesion and inequality through the generation of employment and education. After the failure of the FTAA process, MERCOSUR acquired a more clearly defined identity as an aspirational political bloc. The incorporation of Venezuela in 2013 and its suspension in 2017 reinforces the political potential of the bloc.

Post-liberal regionalism is shaped by a set of conflicting forces and tensions. On the one hand, at UNASUR there is no agreement on the basic understanding of a common economic and/or development strategy for the regional bloc. In fact, competing models coexist. MERCOSUR aims at economic diversification and integration through regional production chains with a strong role for a developmental state in this process. The Andean countries that make up the Pacific Alliance specialize in primary extractive sectors to serve a global market and free trade policies (Briceño Ruiz, 2013; Quiliconi, 2014), especially aimed at Asia (Vadell, 2013).

On the other hand, the advances achieved in terms of social inclusion, poverty eradication and inequality reduction are in tension with the erosion of individual and collective rights, as well as the rights of Mother Nature, in relation to the harmful consequences of the expansion of the extractive industry. . The advance of extractivism as a form of “accumulation by dispossession” (Harvey, 2004) is taking place in all South American countries, regardless of the political orientation of their governments (Bebbington, 2012). Some of the most notable consequences of this are the increasing visibility of adverse health effects caused by the use of pesticides in intensive monocultures (Barri, 2010), forced displacement of local populations and land grabbing practices linked to the extension of agricultural areas (Borras et al., 2012; Brent, 2015) or the devastating socio-ecological implications of large-scale mining, industrial forestry, and infrastructure megaprojects (Saguier 2012; Saguier, Gerlak, 2015). Understanding the interrelationships between regionalism and development is to bring to light the power relations and conflicts that occur between public and private actors around the construction, resistance and legitimation of rules and practices of territorial governance.

These unresolved tensions between demands, expectations and meanings of “development” are also reflected in the discursive space of the Social and Solidarity Economy. In general terms, ESS refers to a set of practices with a social purpose that contribute to the construction of a new way of thinking and doing economics, but as we describe below, there is a significant variation in the way the ESS is framed and used. . The ongoing efforts to incorporate an SSE agenda are unprecedented in the longer and more recent histories of Latin American regional cooperation. This makes the evaluation of SSE regional cooperation particularly important and urgent, namely to explore the potentialities and limitations of this policy area in the construction of a regional framework of policies and development instruments through regional cooperation processes.

The article, therefore, examines how the socio-productive ideas and practices identified as SSE are being incorporated into regional political cooperation in UNASUR and MERCOSUR. We asked how the SSE agenda is being adopted and used in practice and what implications this has for building regional development policy frameworks.

We recognize that there is a methodological difficulty in defining the scope of ESS policies for analysis. This is because the scope and limitations of SSE policies are equally influenced by the direct and indirect results of policies in other areas carried out at regional and national levels. Added to this is the fact that the breadth of the SSE agenda does not allow an easy demarcation of the field of action of these policies. Given these difficulties, we focus only on programs and initiatives undertaken by UNASUR and MERCOSUR that are explicitly framed in the SSE language. For this reason, our analysis should be seen as a first step within a comprehensive assessment.

The argument is that the adoption of an SSE agenda has opened political and political space to explore new cooperation mechanisms for social inclusion as part of regional cooperation efforts. However, so far this regional cooperation has been based on a narrow conception of SSE as a social policy aimed at eradicating poverty. This SSE approach overlooks much of the transformative potential of SSE ideas and practices to address and overcome the limitations of current economic development paradigms, both neoliberal and neo-developmental. By selectively legitimizing certain solidarity economy practices to the detriment of others, the incorporation of an SSE agenda into regional integration processes is itself a practice of SSE discursive production.

The text is organized as follows. First, we present ESS as an umbrella concept that brings together different forms and experiences of community-based reciprocity economy. We propose two archetypal SSE approaches to define a conceptual framework to further explore the role of the SSE agenda in building the relationship between regionalism and development. Second, we researched and discussed the SSE programs and instruments found in UNASUR and MERCOSUR. Its characteristics are identified in terms of which socio-productive practices are considered SSE and which regional governance institutions host, define and implement this agenda. In the conclusion, we reflect on the implications of the treatment of the SSE agenda in these regional processes for the perspectives of building integrated policy frameworks for development.

Comentarios a jurisprudencia

Isabel Rodríguez Martínez (Coordinadora)

El contenido de la impugnación del inventario en el concurso de acreedores de una cooperativa de viviendas. Comentario de la Sentencia del Tribunal Supremo 364/2021, civil, de 26 de mayo (ROJ: STS 2137/2021)

Ana Belén Campuzano

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La cuestión que aborda la Sentencia del Tribunal Supremo 364/2021, de 26 de mayo, es la relativa al alcance del contenido de la impugnación del inventario de la masa activa en el concurso de acreedores de una cooperativa de viviendas, que la legislación concursal regula señalando que la impugnación del inventario podrá consistir en la solicitud de la inclusión o de la exclusión de bienes o derechos, o del aumento o disminución del avalúo de los incluidos. Lo que se discute es si dicha previsión legal permite que por este cauce puedan resolverse cuestiones jurídicas previas a la impugnación que se pretende o si por esta vía sólo cabe solicitar estrictamente la inclusión o exclusión de bienes o derechos o el aumento o disminución del avalúo de los incluidos.

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THE CONTENT OF THE LEGAL REMEDY OF THE INVENTORY IN THE BANKRUPTCY OF A HOUSING COOPERATIVE
COMMENTARY TO THE JUDGMENT SUPREME COURT 364/2021 [1ST] MAY 26 (ROJ: STS 2137/2021)

The issue proposed by the Supreme Court Judgment 364/2021, of May 26, is the scope of the content of the legal remedy of the inventory of the active mass in the bankruptcy of a housing cooperative, which the bankruptcy legislation regulates by indicating that the legal remedy of the inventory may consist on the request for the inclusion or exclusion of assets or rights, or the increase or decrease in the valuation of those included. What is being discussed is whether said legal provision allows legal issues prior to the intended legal remedy to be resolved through this channel, or whether this way it is only possible to strictly request the inclusion or exclusion of assets or rights or the increase or decrease in the appraisal of those included.

Sobre el efecto jurídico de la comunicación relativa a la calificación de la baja de un socio en las cooperativas de viviendas. Comentario a las sentencias de la Sala de lo Civil del Tribunal Supremo 229/2021 y 231/2021, de 27 de abril (RJ 2021/1907 y RJ 2021/1891)

Santiago Merino Hernández y Carlos Martín Ginto Monzón

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Se analizan dos sentencias del Tribunal Supremo relativas al efecto jurídico derivado de la no comunicación, en un caso, y de hacerla de forma extemporánea en el otro, de la calificación de la baja voluntaria de un socio en una cooperativa de viviendas de la Comunidad de Madrid; y de la solución que aporta dicho Tribunal aplicando, en cuando al plazo, el establecido en el artículo 17.2 de la Ley 27/1999, de 16 de julio, de Cooperativas tanto para la calificación de la baja como para su comunicación a pesar de no establecerse en la norma de forma expresa respecto a esta última que se le deba de aplicar dicho plazo. Dicha aplicación encuentra su justificación en el hecho de que precisamente es desde la comunicación cuando se genera el nacimiento de una serie de consecuencias jurídicas, no pudiendo obviarse por tanto la existencia del mismo. Además, y esta vez respecto a tan solo una de las sentencias, se analiza el día de inicio del cómputo de intereses del reembolso cooperativo.

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ON THE LEGAL EFFECT OF THE COMMUNICATION REGARDING THE QUALIFICATION OF THE WITHDRAWAL OF A PARTNER IN HOUSING COOPERATIVES
COMMENTARY ON THE JUDGMENTS OF THE CIVIL CHAMBER OF THE SUPREME COURT 229/2021 AND 231/2021, OF APRIL 27 (RJ 2021/1907 AND RJ 2021/1891)

Two sentences of the Supreme Court are analyzed regarding the classification of the voluntary resignation of a member in a housing cooperative in the Community of Madrid and the legal effect derived from the non-communication of said resignation, in one case, and from the impromptu communication in the other. Also analyzed is the solution provided by the same Court applying, in terms of the time limit, the established limit in article 17.2 of Law 27/1999, of July 16, on Cooperatives, both for the classification of the cancellation and for its communication, which although is not expressly established in the standard with respect to the latter, the given time limit must be applied. Said application finds its justification in the fact that it is precisely from the moment of communication that a series of legal consequences is generated, and whose existence cannot be ignored. In addition, and this time with respect to only one of the sentences, the starting day of the calculation of interests of the cooperative reimbursement is analyzed.

Socios trabajadores de cooperativas de trabajo asociado: a vueltas con su naturaleza jurídica y la resolución de cuestiones contenciosas. Comentario conjunto de la sentencia núm. 848/2021, de 20 de diciembre, del Tribunal Superior de Justicia de Aragón, en relación con la sentencia núm. 1002/2021, de 26 de enero de 2022 del Tribunal Superior de Justicia de Madrid

David Tomás Mataix

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Ciertamente, las cooperativas de trabajo asociado constituyen una forma genuina de participación de las personas trabajadoras dentro del seno de esta, es por ello por lo que de tal situación se deriva la necesidad de clarificar la naturaleza jurídica del vínculo que une al socio de trabajo con la cooperativa de trabajo asociado.

Así pues, la determinación de la naturaleza jurídica del vínculo no resulta baladí puesto que de la misma se desprenderá la condición jurídica del socio trabajador, así como si la citada relación se rige por la Ley 27/1999, de 16 de julio, de Cooperativas y por la normativa autonómica dictada en tal materia, por la normativa interna de la cooperativa o, por el contrario, por la normativa sustantiva y procesal laboral.

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WORKER MEMBERS OF ASSOCIATED WORKER COOPERATIVES: BACK TO THEIR LEGAL NATURE AND THE RESOLUTION OF CONTENTIOUS ISSUES
COMMENT TO THE JUDICIAL SENTENCE 848/2021, DECEMBER 20, OF THE SUPERIOR COURT OF JUSTICE OF ARAGON, IN RELATION TO THE JUDICIAL SENTENCE 1002/2021, JANUARY 26, OF THE SUPERIOR COURT OF JUSTICE OF MADRID

Certainly, the associated work cooperatives constitute a genuine form of participation of the workers within it, which is why such a situation derives the need to clarify the legal nature of the link that unites the work partner with the associated work cooperative.

Thus, the determination of the legal nature of the relationship is not trivial since the legal status of the working partner will be derived from it, as well as if the aforementioned relationship is governed by Law 27/1999, and by the autonomous regulations dictated in such matter, by the internal regulations of the cooperative or, on the contrary, by the substantive and procedural labor regulations.

Recensiones

Amalia Rodríguez González e Itziar Villafáñez Pérez (Coordinadoras)

Glosa a la Ley de Cooperativas de Euskadi

Itziar Villafáñez Pérez

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Las mujeres en la ESS. Perfil de competencias y necesidad de formación para incrementar y visibilizar su liderazgo

Marina García San José

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Digitalización de la actividad societaria de cooperativas y sociedades laborales

Paula de Íscar de Rojas

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Responsabilidad, economía e innovación social corporativa

Paula de Íscar de Rojas

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Situación y perspectivas de las sociedades de garantía recíproca en el actual escenario jurídico-económico

Marina García San José

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Reseñas de publicaciones de carácter jurídico sobre entidades de Economía Social

Amalia Rodríguez González, Itziar Villafáñez Pérez y Ane Echevarría Rubio (Coordinadoras)

Año 2021

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Reseñas de jurisprudencia del Tribunal Supremo sobre entidades de Economía Social

1 de diciembre de 2021 - 30 de abril de 2022 / María José Arnau Cosín y Jesús Olavarría Iglesia

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