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Revista Nº 39 Diciembre 2021
La armonización del derecho cooperativo (II)
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La armonización del derecho cooperativo (II)Descargar
Perspectivas del Derecho Cooperativo
Dante CracognaDescargar Ver resumen
El artículo versa sobre la construcción del Derecho Cooperativo y para ello plantea las razones que justifican su existencia sobre la base de un enfoque fundado en el análisis de la experiencia cooperativa. Comienza ocupándose de los orígenes y el desarrollo de la legislación cooperativa que surgió como consecuencia de la necesidad de regular un fenómeno social novedoso y la influencia que sobre ella ejercieron los principios cooperativos declarados por la Alianza Cooperativa Internacional. Señala los rasgos propios que caracterizan a las cooperativas y que provocaron una paulatina autonomía de la legislación cooperativa con relación a las legislaciones en las que se encontraba incorporada. A partir de la autonomía legislativa señala la necesidad de una aproximación científica que, junto con una adecuada autonomía didáctica, construya las bases del Derecho Cooperativo capaz de hacerse cargo de su objeto propio y diferenciado. Concluye analizando los riesgos que amenazan la existencia del Derecho Cooperativo y considera los condicionamientos que imponen las estructuras políticas territoriales como así también los mecanismos para su superación.
PERSPECTIVES OF COOPERATIVE LAW
The article deals about the building up of the Cooperative Law taking into account the reasons for its existence -based on the analysis of the cooperative experience. It starts considering the meaning of Law and legislation and making clear the difference between both concepts in as much as the former is wider comprising legislation as well as the sentences of the courts and the doctrine of the authors. Within this framework it goes into the origins of the cooperative legislation which arose from the need to regulate a new social phenomena -the cooperative- which obviously had no regulation at the time of its inception to the point that the first cooperative had to register under the act regulating the friendly societies. Cooperative acts started to be enacted in the second half of the XIX Century and later developed in three main trends: autonomous in Europe and North America; promotional in India and other colonial countries and State controlled in the USSR and its satellites countries. Changes in the developing countries and the implosion of the Soviet Union together with the proclamation of autonomy and independence as a cooperative principle were reducing the last two legislative models and today the first one is predominant worldwide.
The influence exerted by the Cooperative Principles laid down by the International Cooperative Alliance at its Paris Congress of 1937 and reformulated in 1966 determined that cooperative legislation started to adopt a peculiar profile different from that of commercial companies and other types of organizations. The Statement on the Cooperative Identity approved by the ICA at its Centennial Congress held in Manchester in 1995 is the last and most complete doctrinal document containing the definition of a cooperative, the cooperative values and the cooperative principles. This statement is actually exerting a notable influence on cooperative legislation worldwide during the last decades backed by its recognition in international documents such as the Resolution of the UN Assembly 56/117 (Annex: Guidelines aiming at creating a supportive environment for the development of cooperatives) and OIT Recommendation 193 on the Promotion of Cooperatives.
The article points out that the specific characters of the cooperatives caused a progressive independence of the cooperative legislation from the legislations where it used to be incorporated, such as the Civil or Commercial Codes or other Law bodies. In such a way the cooperative legislation commenced to gain a proper space and recognition as being distinct because it regulates a peculiar organization. It can be said that the legislative autonomy is the first step in building the Cooperative Law; however, being it an important step it is only the first one and in many countries is still not complete due to the fact the cooperative identity is not yet entirely recognized as different from that of the capital enterprises. The author emphasizes that the clue in this question is to find the specific object that characterizes the cooperative and justifies it to be treated as a different subject. It appears that the fact that members of the cooperative are at the same time the owners and the users of the cooperative gives to it a special character consistent with the circumstance that the cooperative is at the same time an association of persons and an economic enterprise. Consequently, this peculiar relation between the cooperative and its members become the peculiar feature that makes the cooperative different from capital societies and associations and a specific legal theory can and should be constructed upon it.
The specificity of the cooperative legislation painfully obtained after years of efforts done in order to get recognition of the difference among cooperatives and other forms of enterprises is being permanently and increasingly threatened by a tendency to treat all enterprises in the same fashion (“one measure fits all”). The argument used is that equal treatment ensures fair competence ignoring that equal treatment is just only among equals and that cooperatives are different; the question is not to render the cooperatives preferences or privileges but a treatment according to its specific nature. In this respect, the legislative autonomy of the cooperatives needs to be protected by a rigorous scientific approach by the scholars providing sound basis to the legislators and the judges for a clear view and comprehension of this subject. The Academy has an important role to play in the advancement of the Cooperative Law going beyond the mere cooperative legislation but, unfortunately, up to the moment not enough has been done in this filed specially in teaching and researching at the Law schools. Nevertheless, it has to be stated that in several countries Cooperative Law is being taught as a separated subject thus gaining teaching autonomy and valuable publications about the matter have been done. Even more, comparative studies on Cooperative Law are starting to appear considerably enlarging the horizons for the advancement of the subject.
At the same time, threatens arise from other fields of the Law risking the autonomy of the Cooperative Law: besides what has been said about Corporate Law, Labor Law claims that worker cooperatives are part of it; Administrative Law pretend that public utilities cooperatives are to be regulated only by it; Consumer Law affirms that consumer cooperatives are subjected to it; Competence Law and Tax Law have similar approaches; and so on. The challenges are numerous and among them there are some that are not so frontal but more subtle. Such is the case of the CRS which tries to demonstrate that the social aspects of the cooperatives are well -or even better- performed by capital enterprises. Besides, very often social economy enterprises (or solidarity ones or popular ones) also aspire to demonstrate that cooperatives have no difference with them and aim at confining cooperatives only as a mere example of Social Economy.
Another front of trouble for Cooperative Law is presented by the political organization of countries where the legislative competences are split in different jurisdictions: federal state and provinces or nation and regions. In those cases conflicts or differences may arise which can undermine the unity and consistence of Cooperative Law even in one single country. Similar situation might appear within spaces of economic and political integration where norms originated in the different countries coexist with those enacted by the supranational authorities. Of course in these cases harmonization is necessary in order to avoid problems for cooperatives and ensuring the existence and progress of Cooperative Law as a single unit; here again law experts and academics have an important role to play.
Armonizar los derechos cooperativos. ¡Realidad! ¿necesidad? ¡trampa!
Hagen HenrÿDescargar Ver resumen
Después de haber advertido al lector de la ambigüedad y de la amplitud de la noción de “armonización”, el artículo aborda dos temas: las armonizaciones regionales de leyes de cooperativas y la cuestión si hay una obligación jurídica de armonizar los derechos cooperativos. El artículo agrupa las armonizaciones regionales en categorías con sus diferentes efectos y concluye en la importancia de que esas leyes uniformes se refieren de una u otra manera a los principios cooperativos de la Alianza Cooperativa Internacional, reconocidos universalmente, incluso a través de su integración en la Recomendación sobre la promoción de las cooperativas (No. 193) de la Organización internacional de trabajo en 2002 (R. 193 de la OIT). En cuanto a la cuestión si hay una obligación jurídica de armonizar los derechos cooperativos, el artículo argumenta que sí, la hay; la establece el Párrafo 10 de la R. 193 de la OIT. Al estipular que “los Estados Miembros deberían adoptar una legislación y una reglamentación específicas en materia de cooperativas, inspiradas en los valores y principios cooperativos…” el Párrafo 10 parece contradecir el Párrafo 18 que estipula que “La cooperación internacional debería ser facilitada mediante… el desarrollo a nivel internacional y regional de… leyes comunes.” El artículo resuelve esa aparente contradicción en favor del Párrafo 10 porque la traducción de los principios cooperativos en reglas y prácticas jurídicas permite diversidad, lo que “leyes comunes” no hacen, y porque la diversidad es fuente del desarrollo sostenible. El artículo concluye al discutir algunos problemas de esa traducción.
HARMONIZING COOPERATIVE LAWS. REALITY! NECESSARY? TRAP!
After having underlined at the beginning the polysemy of the word “harmonization” in the context of the approximation of laws, the article pursues two objectives: The first is to present cases of regional harmonizations of cooperative laws. The second is to demonstrate that the 2002 Promotion of Cooperatives Recommendation (No. 193) of the International Labor Organization, despite a somewhat unclear wording to the contrary in several of its paragraphs, suggests that the cooperative laws should not be unified, but rather that the cooperative principles, as enshrined in the 1995 International Cooperative Alliance Statement on the cooperative identity, be translated into legal rules and praxes.
The article recognizes that its objectives make for its rather limited scientific value. It excludes more than it includes. Firstly, it does not consider intra-national harmonizations, of which there is a growing number, given the dissatisfaction with either the multitude of sectoral cooperative laws in a country (examples were, are or might be France, Greece, Japan, Kazakhstan, South Korea) or the multitude of cooperative laws due to the constitutional order of a country (examples were or are Australia, Canada, Russian Federation, Spain, United States of America). The article also disregards harmonizations of cooperative laws effectuated by the harmonization of other laws than that of the laws on cooperatives, such as for example, tax laws, accounting standards, competition law. The article does not deal with the different motivations behind the harmonizations, which are mostly political or economic, nor does it consider cases of unintended harmonizations, such as the isomorphization of all enterprise forms by law. Secondly, the article does not differentiate between the modes and grades of harmonization. Indeed, the word “harmonization” covers such different issues as the unification of laws resulting in uniform laws and the informal coordination of cooperative law-making, as well as everything in between.
As for its first objective, the article classifies regional cooperative laws into those which are directly applicable in several countries; those which require transforming into national law before they may be applied; those which regulate cross-border cooperatives, but do not regulate all necessary matters, and which are either directly applicable or require transformation into national law; and regional laws which are currently being elaborated.
The article mentions for the first category the 2010 Uniform cooperative act of OHADA, the Organization for the harmonization in Africa of business law and the 2014 East African Community (uniform) Cooperative Societies Bill. The first one applies directly since 2011 in the 17 Member states of OHADA, the second one is not yet in force. In the second category we find the 1997 Model law on cooperatives and their unions of the Commonwealth of Independent States (CIS) and the 2008 Ley marco para las cooperativas de América Latina, the Framework Law for cooperatives in Latin America. The first one is not a binding law, but the CIS suggests to its Member states to follow this model. The second one is also a model law. However, it was adopted by a non-governmental organization, the regional organization for the Americas of the ICA. Its legal value stems from the fact that the Parlatino, the Latin American Parliament, endorsed its content with insignificant changes. In the third category we find the European Union Council Regulation (EC) No. 1435/2003 on the Statute for a European Cooperative Society (SCE) and the 2009 Estatuto de las cooperativas del Mercosur. These texts regulate cross-border cooperatives. As they are incomplete, the national laws applicable to cooperatives in the country where they are registered apply in addition. The EU Regulation came into force in 2006; the Estatuto Mercosur will come into force once transformed by all Member states of Mercosur into national law. As far as the fourth category is concerned, the African Union is elaborating a model cooperative law for its Member states and the Pacific Island countries are contemplating the harmonization of their cooperative laws.
The effects of these harmonizations are mixed. Besides the usual diversification through implementation, all of them have their specific outcomes. The most far-reaching concern the two African uniform laws. In many instances the OHADA Uniform act is not even known in the countries concerned; some of the Member states of the EAC, whilst not ratifying and/or transforming the 2014 Uniform act, engage in national cooperative law making and do not wait for the outcome of the initiative of the AU to have a model cooperative law for its Member states. As concerns the EU Regulation, it produced harmonizing effects on some cooperative laws of EU Member states despite the explicit aim of the EU Commission to not harmonize the national laws. Whatever the effects are in terms of harmonization, intended or unintended, all of the mentioned harmonizations refer in one way or the other to the cooperative principles. The question is whether there is a farther-reaching legal obligation to translate the cooperative principles into legal rules and praxes.
The second part of the article deals with this question. It starts by summarizing and categorizing the different ways of how a growing number of regional and national cooperative laws refer to the cooperative principles. This categorization is to help find answers to the question of what the effects of these references are. Without discussing this point any further the article takes these references as a point of fact to then deal with the question of whether Paragraph 10. of the ILO R. 193 creates a legal obligation to translate the cooperative principles into legal rules and praxes. The Paragraph states that the Member states [of the ILO] should “adopt specific legislation and regulations on cooperatives, which are guided by the cooperative values and principles…”. The article summarily presents arguments in favor of such an obligation and then discusses its content. It does so by interpreting the wording of Paragraph 10 as compared to that of Paragraph 18. Paragraph 18 states that “International cooperation should be facilitated through “developing … common regional and international guidelines and legislation”. At first sight, Paragraph 10 contradicts Paragraph 18. But it must be read in conjunction with the legal concept of sustainable development. This concept requires diversity. The translation of principles into legal rules and praxes is more likely to maintain diversity than “common legislation”. While the consensus on this is growing, the conclusion raises a number of additional questions. For example: To whose cooperative principles does the ILO R. 193 refer to, to those of the ICA, to its own or to more general ones? How to translate these principles into law?
Harmonization (or rather Standardization) of Cooperative Law in the OHADA Zone: What is the Result after Ten Years of Implementation of the Uniform Act?
Willy TadjudjeDescargar Ver resumen
LA ARMONIZACIÓN (O MÁS BIEN LA UNIFORMIZACIÓN) DEL DERECHO COOPERATIVO EN LA ZONA OHADA: ¿CUÁL ES EL RESULTADO TRAS DIEZ AÑOS DE APLICACIÓN DEL ACTO UNIFORME?
Este artículo es un resumen de la investigación realizada por un equipo de investigadores. El objetivo era analizar la Ley Uniforme de Sociedades Cooperativas de la OHADA (AU-COOP) tras diez años de aplicación. El Acto Uniforme fue adoptado el 15 de diciembre de 2010 y entró en vigor el 15 de mayo de 2011 en todos los diecisiete Estados parte del Tratado OHADA. Esta Ley Uniforme pretende, por tanto, modernizar el derecho de las cooperativas, que estaba anclado en las leyes coloniales, en leyes inadecuadas que datan del período posterior a la independencia, o en leyes más recientes que permiten la autonomía e independencia de las cooperativas. La investigacion pretende analizar el nivel de implantación de AUSCOOP tras diez años de aplicación
En resumen, se pueden extraer dos ideas principales de las conclusiones y recomendaciones de los autores. Por un lado, el AU-COOP contiene debilidades e incoherencias que merecen ser corregidas durante una reforma. Por otra parte, el AU-COOP adolece de una falta de “comunión” con el entorno jurídico. De forma más sistemática, la cuestión de la falta de “comunión” con el entorno jurídico parece haber sido la principal causa de la escasa aplicación del AU-COOP, más allá de todas las incoherencias señaladas por los autores. La falta de “comunión” puede explicarse por una especie de “retirada” del derecho de la OHADA. Esta última parece estar “encerrada en sí misma” en ausencia de una sinergia positiva con las leyes sectoriales (son leyes que regulan sectores de actividad. Pueden ser nacionales. Ejemplo: Código de Minas, Ley de Farmacia, etc., o regional. Ejemplo 1: el Código CIMA -Conferencia Interafricana de Mercados de Seguros. Ejemplo 2 : Reglamentos de la CEMAC – Comunidad Económica y Monetaria de África Central o de la UEMOA -Unión Económica y Monetaria de África Occidental- sobre la microfinanciación, etc.) y las leyes transversales (leyes que regulan un aspecto global de la vida empresarial. Por ejemplo, el derecho fiscal, el derecho contable, el derecho de la competencia, el derecho laboral, el derecho de las ayudas estatales, etc. Algunos son nacionales y otros regionales).
Este “retroceso”, en lo que respecta a las leyes sectoriales, se basa en el artículo 10 del Tratado OHADA, que establece que “los Actos Uniformes son directamente aplicables y vinculantes en los Estados Contratantes, no obstante cualquier disposición anterior o posterior de derecho interno en sentido contrario”. Sin embargo, el AU-COOP es una ley general y, como tal, debe permitir que se adopten leyes especiales nacionales o regionales para completar su arquitectura según la regla specialia generalibus derogant, que significa que las leyes especiales derogan las leyes generales. Más concretamente, cuando dos leyes pueden aplicarse a una situación, una especial y otra general, la ley especial tiene preferencia. Dado que el derecho de la OHADA no admite la adopción de leyes especiales que puedan contener disposiciones contrarias a sus normas, es difícil conciliarlo con las leyes sectoriales que puedan intervenir en la vida de las cooperativas. Dado que el equilibrio clásico entre el derecho general y el especial no puede lograrse según la regla specialia generalibus derogant, esto da lugar a una especie de derecho de la OHADA “orientado hacia dentro” y, por tanto, a una falta de “comunión” con el entorno jurídico.
En esta perspectiva, el artículo 5 del AU-COOP, según el cual “las sociedades cooperativas funcionarán en todas las ramas de la actividad humana”, ha sido especialmente problemático. De hecho, varias leyes sectoriales, tanto nacionales como regionales, no han admitido la forma cooperativa como forma jurídica autorizada para el ejercicio de la actividad que regulan. Además, algunas leyes sectoriales han admitido normas contrarias a las de AU-COOP. Los autores aportan ejemplos en los sectores financiero y sanitario.
En cuanto al “retroceso” de las leyes transversales, los autores subrayan que, en varios aspectos, estas leyes no tienen en cuenta las especificidades de la forma cooperativa. Estas leyes se adoptaron en su mayoría sobre la base del modelo de funcionamiento de las empresas comerciales, sin integrar a menudo las características distintivas de las cooperativas. Además, se han observado incoherencias entre los diferentes Actos Uniformes, con una especie de “aislamiento” del AU-COOP. Este último fue adoptado en 2010, años después de la entrada en vigor de las otras Leyes Uniformes, que fueron diseñadas sobre la base de la fisonomía de las sociedades comerciales.
A la vista de todo, nos parece que habría que prever un trabajo de “puesta en común” del derecho OHADA con las leyes sectoriales y transversales para facilitar la aplicación del AU-COOP. Además, más allá de esto, parece que no se ha hecho lo mínimo que se debería haber hecho. En realidad, la aplicación del AU-COOP parece haber sido un fracaso no tanto porque el contenido sea malo, sino sobre todo porque los Estados no se tomaron en serio su recepción. El verdadero problema reside en la formación y la sensibilización. Según un actore del sector cooperativo en la zone OHADA, “sería necesario planificar todo un programa de sensibilización y apropiación del AU-COOP, con los consiguientes recursos, para permitir que sus beneficiarios conozcan brevemente la OHADA; informar al público objetivo sobre los cambios introducidos por la AU-COOP; animar y apoyar a las cooperativas en la armonización de sus estatutos con las disposiciones de la AU-COOP; permitir que la autoridad encargada de llevar el registro de las cooperativas reciba formación para entender el AU-COOP; actualizar los datos estadísticos básicos de las cooperativas (lo que justifica la informatización); armonizar el control de las cooperativas mediante la realización de auditorías”.
Dada su política de uniformización del derecho, que no parece dar frutos y que afecta a la aplicación coherente y eficaz del AU-COOP, nos parece que la OHADA debería avanzar hacia un enfoque mixto de armonización-uniformización. En efecto, si el AU-COOP sólo define en principio normas generales (derecho común), ello supone dejar implícitamente en manos de las autoridades nacionales o regionales el establecimiento de normas especiales (que deberían poder ser contrarias a sus normas más bien generales). Desde el punto de vista funcional, esta estrategia parece tanto más adecuada cuanto que las categorías específicas pueden variar de un Estado a otro.
The Uniform Act related cooperative societies (UA-COOP) is the main source of cooperative law in all the seventeen States parties to the OHADA founding Treaty. Ten years after its entry into force (2011-2021), the aim of this study is to assess the level of enforcement of this Act. More concretely, the aim is to compare the state of cooperative law at the time of the entry into force of the UA-COOP (2011) with the current situation (in 2021). Such a comparison should make it possible to assess the contribution of the UA-COOP to the development of cooperative law and strengthening of national cooperative movements in the OHADA zone.
La intervención pública en las sociedades cooperativas: la necesidad de revisar el modelo de “tutela administrativa”
María Burzaco SamperDescargar Ver resumen
El modelo de intervención pública que contienen las leyes cooperativas en España responde a un molde que tiene su origen en los antecedentes históricos. Asimismo, la multiplicidad normativa plantea una serie de dificultades que se manifiestan de diverso modo. Similares en su estructura, las leyes cooperativas conciben la presencia de las Administraciones Públicas como una balanza de contrapesos: por un lado, el fomento de las cooperativas; por otro, el control materializado en una serie de mecanismos de intervención de variable intensidad.
Esa importante presencia pública plantea dos problemas fundamentales: a) el difícil equilibrio con el principio de autonomía, que forma parte de la identidad cooperativa; b) las diferencias en el contenido de las leyes respecto de determinadas potestades especialmente intensas.
Algunas de las leyes más recientes parecen incorporar una reflexión sobre algunas de estas modalidades interventoras. Sin embargo, son avances aún tímidos y no siempre coherentes con la regulación que contienen.
PUBLIC INTERVENTION IN COOPERATIVES: THE NEED TO REVIEW THE “ADMINISTRATIVE TUTELAGE” MODEL
The model of public intervention in cooperatives currently in place in Spain cannot be isolated from the historic evolution of the relevant regulations. This journey also explains the constitutional distribution of responsibilities for all matters relating to cooperatives, which forms the basis of the multi-layered legislative framework to be examined.
The path taken by the regulatory framework for cooperatives in Spain demonstrates:
a) Firstly, the strong ideological impact in the initial phases, which also undoubtedly had consequences for the positions maintained by the public authorities with regard to cooperativism; an integral factor in its connection to the workers’ union movement and the different constructions relating to the relations between State and cooperativism. This explains why it has been so difficult for the cooperative formula to fit into the known regulatory moulds – a circumstance which is not unique to Spain.
b) On the other hand, the impossibility of isolating intervention in cooperatives from the general traits of public intervention in the economy that have characterised every period of history. In this regard, one can observe a certain coherence between them both, although it would not be correct to say that the treatment of cooperatives has been substantially different from the way in which the state has perceived its organisational role in each period.
c) Finally, a certain inertia in the maintenance of intervention mechanisms: thus, and despite the verifiable differences with regard to some aspects, there seems to be a common thread running through all the manifestations of that organisational activity (administrative registry, sanctioning powers, temporary intervention mechanisms, disqualification, etc.).
The link with the current legislation on cooperatives requires a reference to the Spanish Constitution for the following reasons: firstly, because of the mandate, provided for in Article 129/2 of the Spanish Constitution, to promote cooperativism through adequate legislation which must also be linked to the constitutional economic model and the principles of the social and democratic state. Another reason, however, is the impact that our intricate system by which responsibility is distributed has had on the current multi-layered legislative framework, characterised by multiple laws which, although they have some things in common, also differ in some not insignificant respects. This legislative multiplicity has resulted in phenomena such as the “flight from the law on cooperatives”, according to the two realities that this phrase may refer to: a) the search for the legal system most favourable to the interests of those establishing cooperatives; b) the avoidance of any regional laws that would be applicable, either in favour of state law or other more favourable regional legislation.
The study of regional legislation highlights the fact that the various rules share some common features:
a) Respect, at least in their formal wording, for the principles of cooperativism and the singular nature of cooperatives. Such principles would make it possible both to differentiate cooperatives from other forms of business and to differentiate “false” cooperatives from “authentic” ones. Nevertheless, and despite the paradox that this entails, the preciseness of said principles is intended to render them compatible with a certain degree of flexibility in their regulatory incorporation.
b) The laws appear to create a balance of counterweights; thus, the general mandate to promote cooperativism (which materialises in incentives of varying nature) coexists with a system of intervention aimed at preventing the cooperative formula from being employed in a self-interested or dishonest manner, or serving to avoid requirements provided by certain sector-specific regulations (tax, employment, etc.).
That difficult balance required of the public authorities is best exemplified by ILO Recommendation 193, and projects onto the principle of cooperative autonomy.
In more detail, the study analyses the provisions in place on both sides of the scale:
a) As regards promotion, it demonstrates the tendency for grandiose proclamations of little real effectiveness, although curious differences can be found in the formulas used depending on how recent, or otherwise, the laws in question are.
Such general declarations are accompanied by concrete measures, most of which have been inherited from past laws.
In that same context, there is the activity of promoting cooperativism linked to areas such as education and public procurement. The importance of these sectors which should not be overstated, because the measures contemplated in the laws on cooperatives are faced with serious obstacles regarding their application due to their overlapping with provisions of sector-specific legislation with which they are incompatible (the law on public procurement, for example).
b) In relation to interventional or organisational activities, the legislatively established mechanisms are also examined:
1) Registry procedure, characterised by evolution towards an administrative registry model which, however, emulates the Commercial Register and its principles (an aspect which is of doubtful constitutionality).
2) The cooperative inspectorate, with coexists with inspection activities in the relevant industry. In this regard, there are again overlaps which add to the discrepancy between the appropriate model and the pertinence (or otherwise) of an inspectorate specific to cooperatives.
3) The penalty system, which constitutes an important part of the rules regarding public administrations and cooperativism. This point is of singular importance for two reasons: firstly, one observes a refinement of the penalty system in its adherence to the principle by which criminal offences must fall within a prior definition, thus defining violations more accurately (as well as preventing excessively open or ambiguous definitions), and defining penalties more precisely. This consideration does not preclude the existence of aspects that are open to criticism, such as the residual definitions that remain in place for minor offences.
Nevertheless, the most concerning aspect is the legislative disparity: a comparison between the several laws on cooperatives highlights unreasonable differences between the statutes of limitation for aspects such as offences and penalties, the amounts of said penalties, or the very acts defined as offences, inter alia.
c) Disqualification, a measure which is linked to both the reasons for winding up of cooperatives and the commission of serious and/or very serious offences, although its regulation is not always sufficiently precise.
d) Temporary intervention, a copy of corporate intervention transposed into the legislation on cooperatives, although only enshrined in two cooperative-specific laws.
The evolution of regional legislation on cooperatives offers certain signs which make it possible to discern that the legislators appear to be re-establishing their traditional role and the pertinence of reviewing the relational model in place between public authorities and cooperatives. Thus, for example, the Region of Extremadura’s Stated Purpose behind Law 9/2018, of 30 October 2018, on cooperatives, alludes to an intended reduction of the penalty system “which, in the future, will probably disappear”. The Basque legislator also acknowledges “the need to innovate aspects which have to a certain extent become obsolete” – one of these being “the ‘policing’ role played by the authorities”, and that “it is a tributary of a regulation anchored to a vision of administrative tutelage and supervision which is understood to be in need of review” (Stated Purposes of Law 11/2019, of 20 December 2019, on Basque Cooperatives). Nonetheless, these changes are still in their incipient stages, showing how difficult it is to break with the inertia of the historical regulatory framework.
La responsabilidad del socio de una sección cooperativa: imputación de pérdidas y deuda bancaria
Felipe Palau RamírezDescargar Ver resumen
En el presente artículo se abordan cuestiones complejas y tan importantes como la responsabilidad de los socios por las deudas sociales y la imputación de las pérdidas. El sistema de responsabilidad en las sociedades es uno de los principios configuradores de su régimen jurídico, siendo fundamental la distinción entre la responsabilidad externa o frente a terceros de la sociedad y de los socios, de una parte, y de otra, la responsabilidad interna de los socios con la sociedad. La imputación de pérdidas y de deuda bancaria a los socios de una sección debe resolverse de conformidad con la ley de cooperativas estatal o autonómica aplicable y los estatutos de la sociedad cooperativa correspondiente. El principio de responsabilidad limitada de los socios por las deudas sociales no se aplica en sede de imputación de pérdidas y, por consiguiente, no puede impedirse que los socios soporten las pérdidas de la cooperativa de forma personal e ilimitada, de forma proporcional a su participación en la actividad cooperativizada. Del mismo modo, los socios de una sección deben responder frente a la cooperativa por las pérdidas y la deuda derivada de la actividad diferenciada de la sección.
THE LIABILITY OF THE COOPERATIVE SECTION PARTNER: IMPUTATION OF LOSSES AND BANK DEBT
The article deals with complex and important issues such as the liability of the partners for corporate debts and the allocation of losses. The system of liability in companies is one of the principles shaping their legal regime, being fundamental the distinction between the external liability or liability towards third parties of the company, on the one hand, and on the other hand, the internal liability of the partners with the company.
As explained, and rather surprisingly because of the importance of the liability system from a typological point of view, the laws regulating cooperative societies not only follow different legal approaches, but even refer to the statutes of cooperative societies for the determination of the liability of members for corporate debts.
In view of the legislative differences existing between one Autonomous Community and another, the questions that arise, the imputation of losses and bank debt to the members of a section must be resolved in accordance with the applicable regional cooperative law and the statutes of the corresponding cooperative society. This complex issue is based on the distinction between the external liability regime of the cooperative and its members, and the internal liability or imputation of losses. All the laws expressly regulate the liability of the members, either in a dispositive or imperative manner. With one or the other character, the solution normally foreseen is that of no liability for social debts or liability limited to the contributions made to the capital of the cooperative regardless of whether or not they are paid up.
The internal liability of the members vis-à-vis the cooperative is distinct from the liability for social debts, as a case of external liability vis-à-vis third parties, which, in addition to covering cases in which they have acquired specific obligations with the cooperative, such as the obligations of permanence or the payment of passive dividends, includes the imputation of losses, whether they are ordinary or extraordinary cooperative losses, or extra-cooperative losses. The principle of limited liability of the members for the social debts does not apply to the imputation of losses and, therefore, these members cannot be prevented from bearing the losses of the cooperative in a personal and unlimited manner, in proportion to their participation in the cooperative activity. However, this is a controversial issue and some regional regulations limit liability. There are even court decisions that consider such limitation without an applicable legal rule providing for it.
The autonomy of management of the sections, the need for their action not to prejudice the members of the cooperative who are not part of them, and the assumption by the members of the liability arising from the specific operations of each of the sections, makes it possible to understand that in order to demand liability from the members of a section it is unnecessary for the cooperative to have made prior disbursements, rather the cooperative is obliged to impute such debts: it is not a mere faculty. Thus, in the case of a cooperative society with debts arising from a section, the debts arising from the specific activity of the section must necessarily be imputed to the members of the section if the administrators act diligently. In addition, the cooperative will be able to demand such amounts at any time without waiting for the member to leave the cooperative.
In case of withdrawal of members of a section, the cooperative must demand from them the debt and losses originated by the specific activity of the section, proportionally to the cooperativized activity of the member. Otherwise, to the detriment of the members who remain in the section and continue to assume the risk of their specific activity and their debts to third parties, it would facilitate the escape of the universal liability of the member of the section towards the cooperative through the application of the open-door principle.
No distinction must be made as to the nature of the debts of the cooperative, or of the section, which are intended to be imputed to the members and, therefore, nothing prevents the imputable debt from being a bank debt, as any regional regulation expressly foreseen.
Empresa agraria asociativa: análisis legislativo de la sociedad agraria de transformación versus la cooperativa agraria
Beatriz Llopis GilabertDescargar Ver resumen
La Sociedad Agraria de Transformación y la Cooperativa agraria se incluyen dentro de la categoría de empresas agrarias asociativas, que gozan de personalidad jurídica independiente de la de sus socios, que se dedican a la actividad agraria y se consideran fundamentales para el desarrollo del asociacionismo agrario. Además, son las fórmulas asociativas de las que se ha hecho uso el sector agrario. En el presente artículo una vez se han puesto de manifiesto unas consideraciones previas sobre la empresa agraria, se realizará un análisis legislativo de la Sociedad Agraria de Transformación y la Cooperativa agraria, desgranando las principales diferencias entre ambas sociedades relativas a el objeto social, la constitución, la forma jurídica, los límites de los socios, el reparto de beneficios y los órganos de gestión entre otros.
AGRICULTURAL ASSOCIATIVE ENTITY: LEGISLATIVE ANALYSIS OF THE AGRICULTURAL PROCESSING COMPANY VERSUS THE AGRICULTURAL COOPERATIVE
The agricultural company is distinguished from the commercial company basically by the requirement of professionalism demanded of the owner of the farm, the agricultural entrepreneur, as opposed to the owner of the commercial company, “the trader”. This professionalism is required because the development of agricultural activity represents a state policy due to its social function and is therefore subject to a series of incentives and subsidies within the framework of the Community Agricultural Policy, and professionalism is therefore considered necessary in order to be eligible for public funds.
In addition, another differential element between farmer and trader is based on the risk assumed by a farmer, such as agricultural risk and the limitations of the biological cycle. This fact determines a difference between agricultural and commercial activity.
In principle, agricultural companies are civil (their legal regime will be adjusted in accordance with the provisions of the Civil Code), unless they adopt properly mercantile forms of incorporation such as the Limited Liability Company or the Public Limited Company, although the corporate purpose is not mercantile but civil in nature.
The subjective element of the agricultural company is constituted by the owner of the farm, who is considered in Article 2 of the LMEA as the natural or legal person who carries out the agricultural activity, organizing the assets and rights making up the farm with business criteria, and assuming the risks and the civil, social and tax liability that may arise from the management of the farm.
From the point of view of the owner of the farm business, the farm business is distinguished on the basis of two criteria. The first of these refers to the legal structure of the company. On the basis of this criterion, both the the agricultural processing company and the agricultural cooperatives are included in the category of associative agricultural companies. Therefore, they have legal personality independently of their partners and their corporate purpose is linked to agricultural activity.
It should be noted that both the the agricultural processing company and the agricultural cooperative constitute the traditional and widely accepted form of agricultural associationism, therefore, the interest of this article lies in the importance of making a legislative comparison, explaining the main differences between both companies with the aim of being relevant for the choice of the ideal legal form for the agricultural entrepreneur.
It should be noted that while the the agricultural processing company is considered to be a civil company because this is defined in Law 1776/81, the agricultural cooperative has a “special” commercial purpose due to its complex management structure, unlike the commercial companies themselves.
Regarding the corporate purpose, in the The agricultural processing companys it is considered much broader, since it includes the production, marketing and transformation of agricultural, livestock or forestry products, among others, while in the agricultural cooperatives the main function is marketing.
As regards incorporation, both the the agricultural processing company and the agricultural cooperatives must be registered in their special registries in order to acquire legal personality, specifically in the general the agricultural processing company registry and the cooperative registry. however, in both companies a different percentage of paid-in capital is required in order to incorporate the company.
In the case of the the agricultural processing companys, an initial payment of at least 25% of the capital stock is required, and in the case of the agricultural cooperatives, the total amount of the paid-up contributions cannot be less than the minimum capital stock established in the bylaws, which means that it must be fully paid up.
Both natural persons and legal entities may be members of both agricultural cooperatives and agricultural cooperatives. In the case of natural person members, they can be owners of agricultural holdings, but also agricultural workers in the the agricultural processing companys; however, in the case of legal person members in the agricultural cooperatives, in addition to legal persons whose corporate purpose has agricultural purposes, the the agricultural processing companys themselves, and communities of property are also included. in addition, a maximum contribution limitation is established for a single member, which in the case of the the agricultural processing company is different if it is a natural person or a legal entity, and in the case of the agricultural cooperatives it is the same limit in the first degree cooperatives, whether they are legal entities or not.
The procedure for the acquisition, transfer and cancellation of membership in both the agricultural processing companys and the agricultural cooperatives is determined by what is established in the bylaws. However, the the agricultural processing companys are much more open and less restrictive than the cooperatives as regards the transfer procedure, since it is not limited to having the status of members beforehand, nor is it necessary to acquire it within a certain period of time, as occurs in the case of the agricultural cooperative.
Focusing on the liability and distribution of profits of the members, while in the the agricultural processing company the members are liable to third parties in an unlimited manner with their assets and the distribution of profits is proportional to the contribution to the capital of each member or according to the bylaws, in the cooperatives the liability for social debts is limited to the contribution to the capital stock and the distribution of profits is proportional to the operations, activities or services developed by the members in the cooperative.
The process of dissolution and liquidation of the company is much more defined and detailed in the the agricultural processing companys than in the cooperatives, since once the dissolution of the company has been approved, the liquidation phase of the company begins in both companies, which will be limited in the case of the the agricultural processing companys to one year and with an odd number of liquidators, but with a maximum limit of five, while in the agricultural cooperatives neither the maximum term of the liquidation phase nor the maximum number of liquidators is specified, although they must also be an odd number.
It should be noted that the regime, control and organization of cooperatives in general and of agricultural cooperatives in particular is much stricter than that of other types of agricultural companies such as the agricultural processing companys, because it imposes an intervention as a control body with a supervisory role.
Finally, in tax matters, the agricultural processing companys and agricultural cooperatives present important differences in direct taxation. in particular, agricultural cooperatives enjoy a special rebate of 95% of the quota and surcharges on rural property and are taxed at a special corporate tax rate of 20%, while the the agricultural processing companys do not enjoy any ibi rebate and are taxed at the general corporate tax rate of 25%.
Enfoques normativos sobre las prácticas desleales en la cadena agroalimentaria. Atención a las empresas de economía social. Prácticas desleales y empresas de economía social
Trinidad Vázquez RuanoDescargar Ver resumen
En el mercado de productos agroalimentarios es necesario identificar los presupuestos normativos que ofrecen un nivel adecuado de competencia en beneficio de su correcto funcionamiento y de la protección de los que participan en dicho mercado. Esto es, los operadores que intervienen en la figurada cadena que une “el campo con la mesa”, con especial atención a las empresas de economía social. La Comisión Europea se ha preocupado del sector vulnerable en la cadena de suministro de alimentos (Directiva (UE) 2019/633, de 17 de abril). Nuestro legislador ha aprobado el Real Decreto-ley 5/2020 de medidas urgentes en materia de agricultura y alimentación y la Ley 16/2021, de 14 de diciembre, de reforma de la Ley de la Cadena Alimentaria. Sin embargo, y aun cuando se fomenta la innovación en la cadena alimentaria, la transparencia y se incrementa el reparto más justo del valor, la CNMC ha planteado algunas observaciones en negativo al contenido de la reforma.
PROPOSAL TO REGULATE UNFAIR PRACTICES IN THE AGRI-FOOD CHAIN. ATTENTION TO SOCIAL ECONOMY COMPANIES. Unfair practices and social economy companies
In the agri-food products market, it is necessary to determine the regulatory budgets that provide an adequate level of competition for the benefit of its proper functioning and the protection of those who participate in said market. The subjects that participate in the agri-food market must be understood in a broad sense. In other words, in relation to all the operators involved in the figurative chain that links ‘the field with the table’, with special attention to social economy companies. Specifically, it is necessary to refer to entrepreneurs, distributors, manufacturers, consumers, farmers and any other subject that participates in the aforementioned market.
One of the main concerns of the European Commission in the agricultural and food sector has been the protection and guarantee of the interests of small and medium-sized food and agricultural companies, producers and farmers. As these are considered the vulnerable sector in the food supply chain both because of their disadvantage in the ability to negotiate with larger operators and because of their position in contractual relationships in the market.
The reflection of this concern was the approval of Directive (EU) 2019/633 of the European Parliament and of the Council of 17 April 2019 on unfair trading practices in business-to-business relationships in the agricultural and food supply chain. This regulatory text was approved by a large majority and its content will be mandatory for EU member countries before November of this year. The European Commission has to evaluate the effectiveness of the provisions of the standard in the internal market and its consequences before the end of 2025.
The unfair actions that try to limit themselves are commercial practices that violate the principles of good faith and fair trade in the agri-food market that are imposed unilaterally by a contractual party (the largest) and without the counterpart having the bargaining power, except for the mere acceptance of the specific contractual content. The specific object of Directive (EU) 2019/633 is expressly specified in the limitation of: commercial practices that grossly deviate from good commercial conduct, that are contrary to good faith and fair dealing and that are unilaterally imposed by one trading partner on another.
The protection provided by this Directive should benefit agricultural producers and natural or legal persons that supply agricultural and food products (including producer organisations), and associations of producer organisations. Those producer organisations and associations of producer organisations include cooperatives. Cooperatives being social economy entities.
The reference rule intends to limit unfair commercial practices in the food supply chain, which imply the alteration of equal opportunities for small and medium-sized agricultural and food companies, producers and farmers. Mainly because of the diverse bargaining power of these parties in the contract. This has been stated by the European Commission in the proposals to modernize the Common Agricultural Policy (CAP) 2021-2027. This has been stated by the European Commission in the proposals to modernize the Common Agricultural Policy (CAP) 2021-2027. Specifically, the legislative initiatives on updating the CAP as of 2020, the purpose of which is for the Agrarian Policy to respond to the present and future challenges of this sector, such as: climate change or generational change. That is to say, that it contributes to the European Green Deal (2019), first, objectives on the environment and action for the climate; and, second, equitable treatment and economic stability, preserving the special position of agriculture in European society.
Fair competition in the market requires ensuring competition and guaranteeing the proper exercise of the freedom of business of those who are part of the market. Business freedom is the recognition of free entrepreneurial initiative in the entire economic system and under equal conditions for those who develop it and regardless of the forms of their organization. And it is the public powers that have to protect their exercise and productivity according to the demands of the general economy and market planning. Effective competition will define the market economy and this affects the consumer through the offer of products and / or services and with the determination of their final price.
In addition, free competition in the market requires the guarantee of the interests of the rest of the participants in the economic environment, which includes the behaviors that are carried out in said market for concurrent purposes. A diversity of operators participate in the agricultural and food supply chain: agents of production, transformation, marketing, distribution and retail of these products. Consequently, unfair commercial practices have direct effects on agricultural producers and their organizations (suppliers) and, indirectly, on all primary producers.
Our legislator has approved RD-Law 5/2020, on urgent measures in the field of agriculture and food, and the Law 16/2021 reform of the Food Chain Law. The aim of these new reforms is to promote innovation in the food chain, give transparency to its operation and increase the fairer distribution of value. But, nevertheless, the National Commission of Markets and Competition (CNMC) has made some negative observations to its content. The fundamental aspects that the Competition Commission questions are the following. First, the material and territorial scope of the reform, which refers to any commercial operation. The question arises because it is not specified that the commercial performance generates an imbalance between the contracting parties. Second, the regime of unfair commercial practices in the agri-food chain. A minimum transposition is made and the current unfair behavior is maintained and other new practices are incorporated. But not all prohibited behaviors included in the “black practices” and “gray practices” lists are not accepted. Nor does the rule refer to the order of regulatory application on unfair practices in the market (unfair competition rule, trademark regulation, antitrust rule, regulation of retail trade or rule on business secrets). Finally, the Competition Commission studies the sanctioning regime and the infractions. The sanctioning regime is simplified and coordination measures are established for the agri-food sector and other sanctioning authorities. The Commission points out the need to strengthen cooperation between the entities that have sanctioning powers and those that are supervisors. And it is also necessary to specify the compensation system applicable to subjects who do not comply with the rules.
Los beneficios fiscales como herramienta para la promoción de los objetivos de desarrollo sostenible: el caso de las fundaciones ibéricas
Ana Fialho, María del Mar Soto Moya, José Francisco Sedeño López y Patrícia Anjos AzevedoDescargar Ver resumen
El presente trabajo tiene como objetivo principal analizar la existencia y, en su caso, la oportunidad de incorporar a los sistemas tributarios de España y Portugal, medidas incentivadoras del compromiso de las fundaciones al logro de los Objetivos para el Desarrollo Sostenible (ODS). Se procederá a examinar los sistemas tributarios de estos dos países para identificar los beneficios que existen en cada uno de ellos y su relación con el fomento de los ODS. Para lograr estos retos, se comienza con un encuadramiento teórico sobre la importancia del derecho como instrumento de transformación social, así como de las políticas y de los incentivos fiscales para el desarrollo sostenible. Después de identificar los beneficios fiscales en vigor, se hace una comparación entre las dos realidades y se presenta la relación entre los beneficios y los ODS, buscando, por medio de la comparación, evidenciar las oportunidades para la creación de medidas fiscales más sostenibles en dichos Estados.
TAX BENEFITS AS A TOOL FOR THE PROMOTION OF THE SUSTAINABLE DEVELOPMENT GOALS: THE CASE OF THE IBERIAN FOUNDATIONS
In 2015, the United Nations issued the 2030 Agenda for Sustainable Development, which includes seventeen Sustainable Development Goals (SDGs). The implementation of the SDGs aims to promote equal opportunity and economic empowerment by helping countries and their populations to promote sustainable development. The SDGs focus not only on international cooperation, but also on the elimination of discrimination and inequality within countries. In this sense, we can state that there is currently a general perception (with which we agree) that the scope of the SDGs does not only depend on governments but must involve the whole of society and its actors.
In this context, the role of the social and solidarity economy (SSE) in the implementation of the SDGs can be questioned. Moreover, it can be affirmed that foundations, as actors of this economy, play an important role in the achievement of the SDGs. Indeed, foundations have a very important function for the communities in which they are located, since among their objectives is to articulate resources with different national and foreign entities, in order to promote social and economic development, as well as a greater social balance, contributing to the reduction of asymmetries.
Regarding the importance of fiscal policies in achieving the sustainability challenge, in the last two decades, there has been an interest in the field of fiscal policy to stimulate economic growth, diversify economies and reduce the level of poverty. This economic growth and the fiscal reforms that have taken place, including improved tax collection systems, have allowed revenues to grow in Gross Domestic Product (GDP), creating budgetary space to begin to address a wider range of policy objectives beyond that of macroeconomic stability. In the context of legitimate tax planning, the tax legislator offers a set of advantageous solutions for foundations, either by placing them in the field of non-taxation or by fully or partially exempting them from certain taxes.
Based on the evidence described above, we must ask about the relationship between the role of tax policies and the contribution of foundations to the SDGs, as well as about the existence of sufficient tax incentives in Spain and Portugal to encourage foundations’ commitment to sustainability and whether such benefits contribute to the achievement of the SDGs. As a sign that this is an issue that has gained interest in recent times, the X Spanish-Portuguese Foundations Meeting was held in Mérida, Spain, in February 2019, whose main theme was “Foundations and the SDGs: synergies and opportunities in the face of common challenges” and which has motivated and served as a starting point for this work.
The choice of these two countries is not random and is justified for different reasons. The first is the existence of cultural, social, and economic similarities between the two countries. Secondly, it is worth highlighting the importance of the third sector in both economies: although the weight of the third sector in the economy as a whole is different in each country – 3 percent of Gross Value Added (GVA) in Portugal and 1.45 percent of GDP in Spain – both countries have seen a growth in the importance of foundations in recent years, a trend that will continue to increase as a result of the worsening social problems caused by the COVID-19. Thirdly, there is previous evidence of the link between Iberian foundations. Fourthly, we believe that it is essential to make some proposals for the future, pointing out what kind of tax benefits could be implemented in order to increase the commitment of Iberian foundations to the SDGs.
Considering the above, our intention is none other than to highlight the importance of incorporating, within the public policies of Portugal and Spain, a more sustainable model, to which fiscal instruments can undoubtedly contribute. The work has been developed taking into account the research carried out on the extra-fiscal function of taxes, focusing specifically on the use of tax benefits to encourage the transition towards a more sustainable model. At the methodological level, once we have analysed the legal-tax regime of Iberian foundations, we have focused on verifying the relationship between the tax benefits observed and the SDGs, trying to identify each tax measure with a specific goal of the 2030 Agenda.
At the same time, we must highlight the link between the SDGs and the so-called circular economy, in which the value of resources remains as long as possible, extending the life cycle or products. In this way, we analyse how circular economy’s development could promote the compliance of the SDGs and vice versa, specially focusing on tax- point of view. Although the Spanish and Portuguese situation are not the same, we can affirm that both tax systems are not oriented towards the promotion of a circular economy and the development of the SDGs, so we aim to highlight the current situation and contribute to the debate on the design of tax policies that favour the promotion of sustainability by foundations.
Having made these considerations, in order to make explicit the assumptions from which we start and some of the basic problems to which we intend to respond, the paper is structured in four sections. Firstly, it will analyse the state of the art of sustainable development from the perspective of taxation and how public policies can be an ideal tool for promoting the SDGs and social transformation. It will then address the regulation of existing tax incentives in consumption and income taxation, both for individuals and legal entities, as a means for the achievement of sustainability by foundations in Portugal and Spain, with the aim of pointing out the opportunities to increase commitment to the SDGs, through tax savings, in Iberian foundations. Once this study of the regime applicable to foundations has been carried out, a critical assessment of the current instruments will be made and proposals for the future will be made.
There is no doubt that, in a context of economic and health crisis such as the current one, our regulations must be adapted to economic and social objectives, exercising a function that goes beyond mere tax collection.
Estudios de derecho comparado
Daniel Francisco Nagao Menezes (Coordinador)
Presentación sección especial legislación cooperativa en Brasil
La emergencia y expansión del cooperativismo en Brasil
Daniel Francisco Nagao MenezesDescargar Ver resumen
Este artículo está dedicado a analizar el surgimiento y expansión del movimiento cooperativo en Brasil. El artículo es relevante al observar qué arreglos adaptativos ocurrieron en Brasil al utilizar conceptos europeos en la construcción del cooperativismo brasileño. También demuestra la existencia de una relación muy específica con el Estado, diferente a otros países, oscilantes períodos de indiferencia del Estado en relación a la cooperativa, alternando con períodos de combate y otros de promoción del cooperativismo. El objetivo es permitir la comprensión de la situación actual del cooperativismo en Brasil, dividida entre grandes empresas económicas que se desvían de los principios originales del cooperativismo y; un cooperativismo popular, destinado a sobrevivir a las adversidades económicas. El texto es descriptivo, presenta un momento histórico brasileño, no busca responder una pregunta de investigación específica.
THE EMERGENCE AND EXPANSION OF COOPERATIVISM IN BRAZIL
Even considering the specific characteristics of management and organization of cooperatives, in Brazil the role of the State in the expansion of agricultural cooperatives was of fundamental importance. A set of measures allowed the formation of cooperatives aimed at agro-industrial activities due to the modernization of agriculture in the second half of the 20th century.
Latin American countries are characterized by greater dependence on the State for the development of economic activities and implementation of social rights. For this reason, the history of cooperativism in Brazil is the history of the State’s treatment of cooperative societies.
Initially, Brazil has a period of indifference by the State in relation to cooperatives, which goes from the end of the 19th century to 1930. During this period, the State did not prohibit and also did not encourage cooperativism as an economic strategy. Groups wishing to found a cooperative should apply for authorization from the state.
The second period runs from 1930 to 1950, when cooperatives were prohibited by the state as they were mistaken for a communist organization. Only a few cooperatives linked to unions loyal to the government were allowed to function. At this time, Brazil lived the dictatorship of Getúlio Vargas and, it is interesting to note that Mexico (Cardenas) and Argentina (Perón), created a relationship with cooperativism very similar to that which existed in Brazil.
The third period starts in the 60s and is in effect until today. From that moment on, the State adopted cooperativism as a strategy for the development of some strategic sectors, such as agriculture, pushing cooperativism away from its original principles..
During the 60s, the institutional representation of Brazilian cooperativism was divided into two: the Brazilian Association of Cooperatives (ABCOOP) and the National Union of Cooperatives (Unasco), and it was only in 1969 that the Organization of Brazilian Cooperatives (OCB) was created, unifying the two entities. OCB assumed the role of representing and centralizing measures related to Brazilian cooperatives but controlled by the State. OCB thus became accredited to provide legal support for a new format for business cooperativism in Brazil.
Therefore, since that time, in Brazil, two large groups can be defined in relation to the cooperative movement. The first represents traditional and older cooperatives, formed in the mid-twentieth century and which the Organization of Brazilian Cooperatives – OCB reorganized with an economic focus and establishment in the market, and, on the other hand, are the so-called social cooperatives, which are part of Solidarity Economy, which until 2016 had a Special Secretariat in the federal government, linked to the Ministry of Labor, therefore with a social focus.
In this text, aspects inherent to the so-called corporate/multi-cooperative cooperativism will be discussed, therefore, the one with an economic-mercantile focus. This cooperativism was consolidated in Brazil, as already mentioned, after the emergence of the OCB system, which, since the 1970s, has promoted the sector through union representation, political presence, information, monitoring and social promotion.
In business/multi-cooperative cooperatives, contradictions express dialectical pairs (and not just dualisms) and these pairs must be critically analyzed, such as the territorialization of cooperatives in the perspective of integrating the political, economic and cultural dimensions. In this methodological path, therefore, followed by the dialectical method, subject and object are intrinsic: the subject is constructed/transformed, building/transforming, and, at the same time, the object, which, once under construction, or already built, being the fruit of human work influences the subject’s actions.
The development model in Brazil is agro-export, marked by exports as an exogenous variable, which generated an important portion of national income and which supported imports that significantly supplied part of the domestic demand. Cooperative norms are contained in the constitutional context, in the Civil Code and in a special legislation, which is the Law of Cooperative Societies. First cooperative societies were formed and then law regulated them. Now, the Brazilian Federal Constitutions and their influence on cooperativism deserve to be highlighted and, then, the issues pertinent to the General Law of Cooperativism, that is, Federal Law 5.764/1971, will be discussed.
The pursuit of public policies in the course of the twentieth century was aimed at implementing the modernization of agriculture in small and medium-sized production units, which is why the role of agricultural cooperatives was extremely important, aiming to optimize and maximize this path. Then industrialization expanded rapidly and started to demand the restructuring of the field, since it is a source of raw material. It was necessary to prepare the field to produce for industry and, at the same time, for the field to also receive industrialized products, such as pesticides, fertilizers, modified seeds and machines.
The rules contained in the current Federal Constitution and in the specific legislation on cooperatives were being shaped for the development of multi-cooperatives. Therefore, in this long way from the Republican Constitution of 1891 until the Citizen Constitution of 1988, the main guidelines were corroborating a strengthening of the preference for business cooperativism.
In this context, cooperatives become the mediators between public policies and small and medium productive units for the introduction of capitalism in the countryside. These are profound transformations in cooperative organizations, transformations that are based on the re-signification of the old cooperativism brought from Europe and that currently lives highly dialectical relations, strongly approaching the business logic and, thus, it moves away from the cooperative principles formulated by the cooperative members from Rochdale, England. This continuous process of industrialization of rural areas brought about the fragmentation of transformations in the relations of production in agriculture and, consequently, redefined the socioeconomic and political structure in the Brazilian field.
In the past, cooperativism emerged to defend workers excluded from the labor market because of the Industrial Revolution. Since it appeared, therefore, it has been undergoing transformations and becoming a hybrid, to meet the demands of workers and capital, and precarious its cooperative principles. When cooperativism assumes the needs of capital and approaches corporate values, it begins to experience contradictions within the system, experiencing the dilemma between cooperative principles, cooperative members, the market and competitiveness.
Although the modernization of agriculture began in the 1950s, it was from the 1970s that transformations began to be felt at the national level, with the implementation of State programs aimed at improving and expanding production areas. So-called CAIs (Agroindustrial Complexes) were instituted in Brazil, which increasingly demanded changes in the way of producing in the field. With the help of the government, the implementation of the Agro-Industrial Complexes that occurred in the 1970s promoted the intersectoral integration of three basic elements: the industries that produce for agriculture, modern agriculture and the agro-industries. And, together with this new productive structure, cooperatives were also being reorganized, which became multi-cooperative calls and started to operate in networks to meet the new requirements. Industrial capital started to command the rural economy, shaping cooperatives according to their interests. Then there was an intense process of agro-industrialization of cooperatives in the 1980s, especially in the southern region of Brazil. Agricultural cooperatives have become agro-industrial cooperatives, serving the rural in all phases of the production process and integrating productive units with financial capital, always directed by the State through the implementation of specific public policies.
Brazil is experiencing a historic opportunity to inaugurate a fourth stage in the history of Brazilian cooperativism, starting with agricultural cooperatives. The proposal for this fourth stage is to couple cooperativism to a strategy to overcome underdevelopment, as advocated by organizations such as ECLAC and authors such as Celso Furtado and Raul Prebisch.
This will result in the redirection of cooperative production to the domestic market, moving away from the dependence that large agricultural cooperatives have on the foreign market, especially China and the United States. This will reduce the dependence of large Brazilian agricultural cooperatives on the international market and, on the other hand, will increase the power of small businesses, returning to the old cooperative principles of Rochdale.
Cooperativas de trabalho no Brasil e Lei 12.690/12
Marianna Ferraz TeixeiraDescargar Ver resumen
A Lei n. 12.690/2012 foi promulgada com o intuito de definir a organização e o funcionamento das Cooperativas de Trabalho e instituir o Programa Nacional de Fomento às Cooperativas de Trabalho. Essa lei trouxe um maior amparo a esse ramo do cooperativismo, que sofreu imensamente os efeitos do termo de conciliação firmado entre a União e o Ministério Público do Trabalho, uma vez que tais tipos de cooperativas foram impedidas de serem contratadas pela Administração Pública, sofrendo preconceito constante e reduzindo as oportunidades para a consecução de sua finalidade. Assim, para compreender as garantias e inovações trazidas com a legislação específica, é necessário entender o cooperativismo de trabalho, a diferenciação do ato cooperativo em relação ao contrato de trabalho, de forma a afastar a relação de emprego e os motivos que acarretaram na fiscalização intensa, bem como os equívocos gerados pela assinatura do termo de conciliação.
LABOR COOPERATIVES IN BRAZIL AND LAW 12.690/12
In Brazil, cooperatives could be divided in seven different branches, according to the Brazilian Cooperatives Organization – responsible for promoting and defending Brazilian cooperative system. This division aims to facilitate the organization and the representation of these societies before the executive, legislative and judiciary powers. Among these branches, only two of them have specific legislation –the credit branch and the labor branch–, the others must follow the national General Law on Cooperatives.
Considering that the labor branch is governed by Law n. 12,690/2012, this paper aims to analyze the historical reasons that led to the enactment of specific legislation and its differences in relation to the General Law on Cooperatives, the problems that involved cooperatives during this period, as well as the national understanding in which concerns the comparisons made between cooperative and labor relations, in order to understand the distinction between the cooperative act and the employment contract.
To this end, through a qualitative investigation, taking into account the historical context of Brazilian labor cooperatives, a deductive approach will be made in view of the extensive literature review on the subject, in order to demonstrate the objectives it proposes, resulting in a deductive study, as it is intended to portray the situation that generated the specific law and its effects in the current reality.
Therefore, it is necessary to note that labor cooperatives emerged during the 19th century with the purpose to reach a better income, better work conditions and a better promotion of the workers, which were not achieved by Industrial Revolution, promoting, this way, a labor independency.
Those cooperatives congregate workers with the same profession or from one same class with identity of interests due to their work activity, who become owners of the capital of the cooperative enterprise and self-managers of common businesses.
The organization of the activity of its members, the preparation of plans to be developed, the offer and signing of contracts, on behalf of its members, with users, as well as the receipt on behalf of the members and the transfer of the entire economic product to the workers are responsibility of the cooperative society, that acts, as a longa manus of the activity performed by the professionals that make up the entity.
The relation established between cooperatives and member is called cooperative act. The Cooperative Act theory is a Latin American creation based on cooperation, conceived in the Framework Law for Cooperatives in Latin America as those acts performed between cooperatives and their members or by cooperatives among themselves, in fulfillment of their social objective, and must submit to the Cooperative Law. The Legal Charter of San Juan allows the perception of this concept under two aspects. The first restricts the recognition of the act as operationalization or substantiation of cooperation, since it results from the corporate relationship, while the second brings greater amplitude to the recognition of the act, which assumes a constitutive character of cooperation, by becoming the raison d’être of the cooperative.
The cooperative act arises from the cooperative society contract signed between cooperative and its member at the time of voluntary and free entry to participate in the business. This act is the expression of solidarity and democracy that govern cooperativism and has no relation with the employment relation, because the cooperative relationship is based on two principles, that of double quality and that of differentiated personal retribution. While the principle of dual quality alludes that the member must be, at the same time, a member of the cooperative and a client, benefiting from this duality of situations, being legally imposed on cooperatives that provide services to their members, pursuant to article 7 of Law n. 5.764/71, the principle of differentiated personal remuneration allows the cooperative member to receive a personal remuneration higher than what he would obtain if he were not associated.
The employment relationship, on the other hand, is formalized by a labor contract, which is a legal transaction in which the employee, a natural person, provides services in a personal, subordinate and non-eventual manner to the employer, receiving remuneration as consideration. The labor contract, in turn, has the requirements of subordination, personality, onerousness and continuity, and may be tacitly or expressly agreed, verbally or in writing.
None of those requirements could be applied to the relation cooperative and its members. The service hired could be developed by any member of the society, as the cooperative aims the conclusion of the activity itself. Furthermore, the service will be performed for a third party and not for the cooperative, what pushes away the personality. The onerousness cannot also be perceived, because the members subscribe for shares of the capital stock, participate in the assemblies and in surplus for the year based on the annual production, making withdrawals closely related to production, which may vary. Finally, the subordination cannot even be suggested because the cooperative relationship is clearly connected to the affectio societatis and the inspection must be carried out by the auditor, manager or director of the cooperative in relation to the service and not the worker, since the cooperative members must manage their time and work.
Despite the non-existence of the employment relationship, during the period of the boom in labor cooperatives, many pseudo-cooperatives were created as a way of circumventing labor legislation and intermediating subordinated labor, especially with Public Administration.
For this reason, the inspection promoted by the Public Ministry of Labor became intense, with the aim of combating fraudulent situations and, with that, a Public Civil Action was filed and culminated in a legal agreement signed between the Union and the PML, preventing the Administration from hiring cooperatives. This act had repercussions in all public spheres until today, despite the numerous criticisms and violations perpetrated by the term.
On July 19, 2012, Law n. 12,690 was published, providing the rules for the organization and functioning of Labor Cooperatives ending the legal uncertainty that hovered over these societies, legally recognizing work cooperatives and guaranteeing rights to their members, by establishing mechanisms to combat labor intermediation cooperatives. By modifying some criteria already established by the General Law of Cooperatives and adding innovations, this rule seeks to consider the principle of concretion to be applied by the Labor Court, to institute the full effectiveness of the cooperative work act, to promote decent work able to bring improvements in the condition of the members’ life.
Mudanças e desafios para o direito cooperativo no Brasil
Renato Lopes BechoDescargar Ver resumen
O texto, de natureza descritiva, pretende demonstrar os pontos mais críticos do Direito Cooperativo no Brasil. Não há a pretensão de esgotar o tema mas, tão somente situar o leitor estrangeiro sobre o momento histórico vivido pelo Brasil. O texto será dividido em quatro capítulo, sendo o primeiro tratará dos desafios democráticos aos cooperativismo brasileiro, o segundo capítulo abordará as propostas legislativas em debate no Congresso Nacional e que, em futuro próximo poderá alterar o Direito Cooperativo, o terceiro capítulo indicará os temas principais em discussão no Poder Judiciário, demonstrando que as questões tributárias são as mais candentes no Brasil e, o quarto e último capítulo tratará da ausência de uma doutrina jurídica atual, capaz de responder aos desafios no novo século.
CHANGES AND CHALLENGES FOR COOPERATIVE LAW IN BRAZIL
Cooperatives are societies with their own nature and structure, with social and economic utility. They are social economy entrepreneurs who must follow cooperative principles and values such as mutuality and concern with the community and with cooperation between cooperatives.
International organizations (ICA, UN, ILO) encourage countries to reaffirm the principles and values of the ICA/1995 Declaration and to promote cooperatives (Recommendation 193/ILO). In the regional spheres (European Union and MERCOSUL), there is also concern about spreading cooperativism. The conferences and meetings of agents specialized in cooperatives in Ibero-America suggest the harmonization of laws, public policies and the regional integration of cooperatives, with the legal recognition of MERCOSUR cooperatives.
The policies involve actions through which cooperatives are able to carry out their activities, meet the demands of the market and their members, and obtain space in the competitive market. Therefore, it is recommended that cooperatives be promoted and protected at regional levels, with instruments and programs for integration between different countries and without obstacles to their expansion.
The model of insertion of the cooperative society in Latin American countries comes from the European experience and has had a heterogeneous evolution, with different origins and degrees of state intervention, in addition to the lack of access to credit. Taking into account the economic importance that cooperatives have in the region, institutional mechanisms are still being sought with the task of consolidating and strengthening the cooperative model, as well as the development of cooperatives in the national and regional market.
In Brazil, cooperatives are still governed by Law 5,764/1971 and by the Civil Code (with the 2002 reform). They are conceptualized as a society of people, of their own form and nature, of a civil nature, characterized by the principles and values of the ICA. Currently, there are also special laws in Brazil, such as the law on social cooperatives (law 9,868/99), the law on work cooperatives (law 12,690/12) and the law on credit cooperatives (Complementary Law 130/09) that improve the concept of society of people, moving away from the commercial nature of cooperative societies.
By express provision of the law, cooperatives are equated to non-business companies, that is, simple companies, and are not subject to the commercial bankruptcy regime. It is clear in Brazil that the legal regime of cooperatives is old and conventional, disconnected from the economic reality of the market and also that it is necessary to make changes to improve corporate aspects and the economic regime of cooperatives.
In addition, there are social and cultural obstacles against the cooperative in Brazil, with a lack of knowledge of the community and the judiciary about the characteristics of cooperatives, localized problems in the management of cooperatives and in the relationship with cooperatives, difficulties of capitalization and credit for the cooperative and the prejudice that exists about this type of company. These aspects add to the institutional setting that is difficult for Brazilian businessmen, with the disregard of the legal personality without criteria, the bureaucracy, the fiscal costs and charges of the employment relationship.
Two general bills on cooperatives are being processed in the National Congress (Bill Nos. 153/07 and 03/07). Recently, a new standard of the Accounting Committee (ICP 14) has come into force with provision for financial instruments for cooperatives. Despite establishing changes in the matter, concerns about the adequacy of the rules in view of the nature and needs of cooperatives persist.
Despite the legislation not following the real legal and economic nature of cooperatives, they have great importance for the Brazilian economy. By virtue of the lack of support, in reality cooperatives are associated with other companies or even remain economically unviable.
This 50-year time lapse represents a generation gap –two generations more specifically– of jurists who no longer think about cooperativism. In other words, the legal knowledge of jurists from the 50s, 60s and 70s was not continued by the next generation and, consequently, was transmitted to the subsequent generation, which is why, currently, cooperative law is not debated.
This is reflected in the absence of scientific publications on cooperative law, organization of scientific events or even scientific associations. In class bodies, few actions are performed. At universities, the picture is the same, with very few exceptions, no professorships of cooperative law being offered. The research carried out by the graduate program is minimal, with few researchers or research groups dedicated to the topic, with little Brazilian participation in international organizations and associations.
In the absence of critical mass, the task of a major change in cooperative law remains for the next generations, and the current generation must overcome the difficulty of training new professionals in cooperative law. Overcoming structural issues such as the cooperative act or the mandatory intercooperation, uniqueness of representation, depends on the formation of a critical mass, which is yet to come.
For this, the role of universities in training the next generation of jurists is essential, either by resuming and rebuilding the existing knowledge on cooperative law – and introducing new themes, such as postgraduate studies with the discovery and organization of frontier themes that should be answered by the next generations, going through extension, working with existing cooperatives, in a process of double learning.
It is a long-term work that will demand a broad institutional articulation, involving political, economic and theoretical themes. This will challenge the government, civil society, companies, universities and research centers to form national, regional and international networks in pursuit of these common goals and make it possible to recover Cooperative Law in Latin America and respond to the new challenges of contemporary society. This will allow new challenges to be faced, such as the democratization of cooperatives and their expansion to the most popular spheres of society, which make up what is called in Latin America the solidarity economy, which rescues the old principles of Rochdale’s cooperativism. These challenges will only be overcome with the interaction between theory –carried out by universities and research institutes– and practice, which involve court decisions, legal entities and social movements.
Comentarios a jurisprudencia
Isabel Rodríguez Martínez (Coordinadora)
El capital social en la sociedad cooperativa, las aportaciones no dinerarias y la demanda de su reembolso (a propósito de la STS, civil, de 6 de julio de 2021)
Manuel Paniagua ZureraDescargar Ver resumen
Una controversia indebidamente judicializada entre dos socios expulsados de su sociedad cooperativa de trabajo asociado de enseñanza, de la que fueron socios fundadores y administradores, permiten a la Audiencia Provincial de Murcia y a la Sala de lo Civil del Tribunal Supremo analizar la institución del capital social en la cooperativa. En términos más novedosos, estas resoluciones judiciales profundizan en la noción de aportación social en el Derecho de sociedades de capital y el Derecho de sociedades cooperativas: las prestaciones de bienes o derechos valorables económicamente (o patrimoniales) y transmisibles. Así como en el régimen de las aportaciones no dinerarias y, en especial, en la ineptitud de las prestaciones de trabajo o servicios como aportaciones no dinerarias al capital social de una sociedad cooperativa. El estudio aporta, asimismo, reflexiones de interés sobre las funciones del capital social en la cooperativa.
THE SHARE CAPITAL IN THE COOPERATIVE SOCIETY, THE NON-MONETARY CONTRIBUTIONS, AND THE DEMAND FOR THEIR REFUND (ABOUT THE STS, CIVIL, JULY 6, 2021)
An unduly judicialized controversy between two partners expelled from their cooperative education worker society, of which they were founding members and administrators, allows the Provincial Court of Murcia and the Civil Chamber of the Supreme Court to analyse the institution of share capital in the cooperative. In more innovative terms, these judgments delve deeper into the concept of social contribution in Capital Company Law and Cooperative Company Law: the provision of goods or rights that are economically (or property) and transferable. The same applies to non-monetary contributions and, in particular, to the inadequacy of the provision of work or services as non-monetary contributions to the share capital of a cooperative society. The study also provides interesting reflections on the role of share capital in cooperatives.
Baja voluntaria en cooperativa de viviendas por incumplimiento en la entrega de la vivienda y responsabilidad de la entidad avalista. Comentario a la Sentencia 1262/2021, de 29 de marzo, Sala de lo Civil del Tribunal Supremo
Francisco Javier Arrieta IdiakezDescargar Ver resumen
En esta sentencia se abordan las consecuencias de unas bajas voluntarias, con motivo del incumplimiento de la entrega de las viviendas por la cooperativa a los socios, que son calificadas como justificadas por el órgano de administración. En concreto, el objeto del litigio trae causa del hecho de que la entidad avalista considera esa circunstancia como mutuo disenso que le libera de tener que devolver las cantidades aportadas por los socios a la cooperativa. Por el contrario, los socios que reclaman sus aportaciones a dicha entidad se oponen a tal pretensión.
VOLUNTARY RESIGNATION IN HOUSING COOPERATIVE DUE TO NON-COMPLIANCE IN THE DELIVERY OF THE HOUSING AND RESPONSIBILITY OF THE GUARANTEEIGN ENTITY
This case law addresses the consequences of voluntary resignatios, due to failure to deliver the homes by the cooperative to the members, which the administrative body qualifies as justified. Specifically, the object of the litigation is due to the fact that the guarantor entity considers this circumstance as a mutual dissidence that frees it from having to return the amounts contributed by the members to the cooperative. On the contrary, the cooperative members who claim their contributions to said entity oppose such claim.
La responsabilidad en el pago de las pensiones de las falsas cooperativas de trabajo asociado. Comentario a la sentencia de la Sala de lo Social del Tribunal Superior de Justicia del País Vasco, de 22 junio de 2021 (rec. núm. 801/2021)
Manuel Alegre NuenoDescargar Ver resumen
La sentencia objeto del presente comentario resuelve el recurso de suplicación interpuesto por una trabajadora frente a la sentencia dictada por el Juzgado de lo Social que estimó parcialmente su demanda en la que reclamaba el reconocimiento de una base reguladora de la pensión de jubilación superior a la reconocida por el Instituto Nacional de la Seguridad Social (INSS) y la condena al pago de la misma.
Las cuestiones objeto de análisis y resolución en la sentencia dictada por la Sala de lo Social del Tribunal Superior de Justicia del País Vasco, son dos: los efectos que la constitución de las “falsas cooperativas” tienen en el encuadramiento de sus socios trabajadores en el sistema de Seguridad Social y la responsabilidad empresarial en materia de prestaciones como consecuencia del incumplimiento de los actos de encuadramiento y de la obligación de cotizar.
THE RESPONSIBILITY IN THE PAYMENT OF THE PENSIONS OF THE FALSE ASSOCIATED WORK COOPERATIVES
Commentary on the ruling of the Social Chamber of the Superior Court of Justice of the Basque Country, of June 22, 2021 (rec. No. 801/2021)
The sentence that is the subject of this comment resolves the appeal filed by a worker against the sentence handed down by the Social Court that partially upheld her claim in which she demanded the recognition of a regulatory base for the retirement pension higher than that recognized by the National Institute of Social Security (INSS) and the order to pay it.
There are two issues to be analyzed and resolved in the judgment handed down by the Social Chamber of the Superior Court of Justice of the Basque Country: the effects that the constitution of the “false cooperatives” have on the framing of their working partners in the Social Security system and corporate responsibility in terms of benefits as a result of non-compliance with the framing acts and the obligation to contribute.
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