Revista Nº 37 Diciembre 2020
Descargar el número completo de la revista 37Descargar
María José Senent Vidal (Coordinadora)
El acto cooperativo en el derecho español
Carlos Vargas VasserotDescargar Ver resumen
La pretensión de este trabajo, como su título indica, es poner de manifiesto en qué medida la doctrina del acto cooperativo de origen latinoamericano ha penetrado en el Derecho español y qué consecuencias se pueden extraer de ello, sobre todo para sustentar la tesis societarias o corporativas de la relación mutualista que se desarrollan por los socios de las cooperativas con la entidad. En el estudio se abordará primero la recepción del acto cooperativo en la legislación de varios países de Iberoamérica y después se analizará el Derecho positivo español en búsqueda de preceptos legales que reconozca los rasgos del acto cooperativo. El trabajo también aborda las diferentes posturas doctrinales acerca de la naturaleza societaria o contractual de la relación cooperativizada y finaliza con una toma de postura al respecto.
THE COOPERATIVE ACT UNDER THE SPANISH LAW
The aim of this work, as its title indicates, is to show to what extent the Latin American doctrine of the cooperative act has spread across Spanish law. And what consequences can be drawn from it, especially to support the corporate thesis of the mutual relationship developed by the cooperative members with the entity. As it is known, the Mexican Salinas Puentes was the precursor of the cooperative act theory. In 1954 he coined the name, as an opposed term to the “trade act”. In 1967, the Brazilian Bulgarelli developed this theory, distinguishing between the cooperative’s actions with third parties and with partners. He also stated that the latter is carried out in a closed circle through cooperative acts that are characterized by their internal nature, its partnership agreement, and its bylaws. From these two authors, and from others who, with important nuances, were adhering to this position, we can extract the following characteristic notes of the cooperative act on which there is a certain consensus: non-profit; internal and corporate; not being, neither a market nor commercial operation nor an exchange or sale contract but a specific business; cooperative law applies in preference to contract law; they can be carried out by both, the partners of the cooperatives with them and vice versa, as well as between cooperatives themselves (as a manifestation of the cooperative principle of intercooperation). And although this is more controversial, it does not generate any transfer of assets from the partners to the company in the delivery of goods or products for their management by the cooperative. Currently, most Latin American countries in the area and all the countries in which the cooperative movement is more developed, have been adopting a concept of the cooperative act in their laws: Brazil (1971), Argentina (1973), Uruguay (1984 and 2008), Honduras (1987, reformed in 2013), Colombia (1988), Mexico (1994), Paraguay (1994), Panama (1997), Venezuela (2001), Puerto Rico (2004), Nicaragua (2005), Peru (2011) and Bolivia (2013).
In the study of the reception of the theory of the cooperative act in Spain, firstly it is approached from the different positions of Spanish academics on this issue. It should be clarified that Spanish legal doctrine refers to the fact that in the actions of cooperatives with their partners, an internal relationship arises and that there is no plurality of contracts rather than the obligations the partnership contract itself ensued for the parties (which in the end is what the theory of the cooperative act defends). It speaks about corporative thesis (also called a partnership, or mutualist thesis), against the trade thesis of the mutualist relationship which considers that the cooperative relationship is a contractual relationship (can be either exchange or labor relationship according to the type of cooperative) different and differentiated from the corporate one. It should be pointed out that in Spain there has traditionally been a majority position in favor of the existence of a double contractual relationship between partners and cooperatives. However, for some time the corporate thesis of the mutual relationship (which is implicit in the theory of the cooperative act) has gained supporters. And it is currently the predominant, both in the field of work cooperatives (where it had a long tradition) and in consumer cooperatives, and also it has gained some jurisprudential recognition.
The article carries out a rigorous analysis of the Spanish legislation on cooperatives, both historically and currently. Searching legal precepts that recognize the characteristics of the cooperative act in the terms formulated by the doctrine that founded that theory and collected in most of the cooperative laws in Latin America. Firstly, the meaning of the term “actividad cooperativizada” (typical of Spanish cooperative legislation), is compared with the “acto cooperativo”. The significant points in common between these meanings (internal and corporate nature, carried out between the cooperative and its partners for the fulfillment of their mutual and non-profit purpose) are highlighted, which, with certain reservations, are taken as equivalent. After analyzing the State Cooperative Law (LCOOP) and all the Autonomous Communities’ cooperatives laws, the legal precepts from which the majority of the characteristic notes of the cooperative act mentioned above can be deduced are set out.
In the first place, the LCOOP (as most autonomous cooperative laws do), in addition to recognizing ex lege the statutory nature of the right/obligation to participate in the cooperative activity (arts. 15 and 16), states the corporate nature of the mutualist relationship in associated worker cooperatives (art. 80.1) and the internal nature of operations with partners in agricultural cooperatives (add. prov. 5.4). On the other hand, it denies the sale nature of the deliveries of goods and services provided by the cooperatives to their partners in consumer cooperatives (add. prov. 5.2) and it considers these as direct consumers (add. prov. 5.3). Finally, it recognizes the principle of inter-cooperation (art. 79.3). Furthermore, its territorial scope of application is determined according to the cooperative activity carried out by the cooperative with its partners. Some autonomous cooperative laws also specifically recognize the corporate nature of the cooperative activity. Others categorically declare the preferential application of company law over contracts to regulate it, and some even consider that there is no transfer of assets, products, or payments made by partners to the cooperative for its management.
The validity of the theory of the cooperative act has important practical consequences because it confirms the currency of the cooperative relationship, which means that mutual bonds are framed and based on the social contract, where they have their genesis. Therefore, in essence, these exchange relationships will have to be regulated mainly by partnership law (cooperative law, bylaws, and decisions of the corporate bodies). Only the content of the contract that most closely resembles the mutualist relationship that the cooperative society develops with its members will be applied in a subsidiary manner, by an analogical application. In the event of a conflict between a partner and the cooperative (for example, in the performance of their work in a work cooperative or in the setting of the price or delivery time of products in an agricultural cooperative), company law must be applied preferentially. Which may mean that the social will is imposed upon the individual will of the partners (for example, by modifying the settlement price of the products delivered, the deadlines to pay said settlements, or the conditions of the development of the cooperative activity) and the partner will have to take first the corporate channels for the resolution of conflicts (the challenge of corporate agreements, liability actions, etc.).
In my opinion, and as I have long defended, in essence, and originally, the cooperative relationship or activity has a corporate nature, but there are certain assumptions, just a few but increasingly, in which this relationship is contractualized. This distortion of the original configuration of the cooperative act, occurs more in large cooperatives (where the cooperative identity has been lost), and it is something that can be detected when a series of symptomatic events occurs. Namely, the immense majority of the members neither participate in the social life of the cooperative (which is controlled by a few and very active members), nor are they interested in the progress of the entity, but only that it can fulfill with solvency the contractual commitments it has acquired with it. The loss of identity and denaturalization of cooperatives, an endemic problem linked to the growth and success of cooperatives, is a worrying and difficult issue to solve for the cooperative movement. Given the passivity and few real possibilities for the ordinary partners of large consumer cooperatives to participate in the political (cooperative principle of democratic management) and economic (cooperative principle of economic participation) life of the entity. These companies should promote other cooperative principles, such as the ones of education, training, and information of the partners, the cooperation between cooperatives, and above all, the community interest. All these principles are strongly linked to corporate social responsibility as well as related to the origin and development of the cooperativism, which is now appropriated by the large capitalist corporations. At least, in this way, cooperatives would be distinguished from other types of entities acting in the market and would be more easily recognizable by their partners and strangers for their signs of identity and differentiation. If the cooperative act (or cooperative activity) is the peculiar way in which cooperatives act with their partners, if there is no cooperative, there is no cooperative act either, and therefore the partners-cooperative relationship is assimilated to the client-company relationship that is articulated through exchange contracts, work contracts or any other type of contract.
Ley de Economía Social y Solidaria en Uruguay: texto y contexto
Pablo Guerra y Sergio Reyes LavegaDescargar Ver resumen
Este artículo analiza la Ley 19.848 de Economía Social y Solidaria del Uruguay, aprobada el 10 de diciembre de 2019 por mayoría en ambas Cámaras, luego de un amplio período de discusión que se remonta a 2008, cuando la Ley 18407 (Ley General de Cooperativismo) incluye entre las potestades del flamante INACOOP, realizar propuestas de regulación de “otras formas de economía social y solidaria”.
Se trata de una Ley que permitirá por primera vez en el país, instrumentar políticas públicas de fomento y desarrollo a un sector amplio de la economía que reunirá cooperativas, mutuales, empresas autogestionadas por sus trabajadores, redes de producción artesanal, sociedades de fomento rural, asociaciones así como otros emprendimientos de producción ecológica o de comercio justo que cumplan con una serie de principios rectores.
SOCIAL AND SOLIDARY ECONOMY LAW IN URUGUAY: TEXT AND CONTEXT
This article analyzes the Law on Social and Solidarity Economy of Uruguay (N°19.848), ratified on December 10, 2019 by the majority of both Chambers, after a long period of discussion since 2008, when Law N° 18407 (General Law of Cooperativism) included among the powers of the new National Institute of Cooperativism (INACOOP), to make proposals for the regulation of “other forms of social and solidarity economy”. The law aims to recognise, promote and support the Social and Solidarity Economy – and says it is in the national interest to stimulate and develop it in any of its expressions
On the one hand, we will refer to the law-building process, showing how the various collective subjects were interacting, how the changes in the different drafts handled were being processed and how was the parliamentary process, that led to its approval by majority in both Chambers. On the other hand, we will show the particularities of the Law with the text which was finally approved.
It will be exposed how the Law is inspired by the theoretical development that sees the SSE as a broad and alternative sector both to the capitalist private sector as to the state sector, including perspectives of principles and values commonly embraced by the social movements that have boosted with the greatest force the solidarity economy and the solidarity social economy around the world, so that the classic actors (cooperatives, mutuals, associations and foundations) are integrated together with the so-called new actors or new movements of transforming economies (case of fair trade, responsible consumption, ethical finances, recovered companies to self-managed ventures, etc.).
Even so, in the law-building process, conceptual and strategic differences have been evidenced in addition to merely technical ones. Many actors participated in its formulation, some of them very in favor of having a Law of these characteristics, others in disagreement. For example, the cooperative movement was divided: although a majority supported the gestation process and the Law itself, another party was opposed to regulating in these matters (the most notorious case was that of Agrarian Cooperatives). New social actors, such as the National Coordinator of Solidarity Economy, were favorable from the beginning to a Law of this type. Regarding the political system, the party then at the head of the national government (Frente Amplio) unanimously voted for the Law. The opposition, for its part, voted divided.
Regarding the structure of the Law (20 articles organized in 7 chapters), the scope of some of the most important articles is analyzed, highlighting aspects such as the delimitation of the concept of the social and solidarity economy, the principles and entities of the sector, promotion policies and the role of INACOOP, as well as state control and registration of entities.
Concerning the content of the Law, we believe that Art. 4 is one of the richest from a strictly doctrinaire point of view. There the principles that the entities of the sector must respect are established. The first of these principles says “The person must be the center of economic and social activity, having absolute primacy over capital.” It is, as can be seen, a principle commonly used by solidarity economy movements around the world and even present in other legal texts, the case of Spain (2011).
The list of principles continues with references to the commitment to the environment (a principle that, as we know, does not appear in the Declaration of Principles of the International Cooperative Alliance and which is also little taken up by other legislation on Social and Solidarity Economy in the rest of the world ), to social inclusion, gender equality or democratic management.
It is also an interesting Law with regard to the entities mentioned as part of the sector. Article 6 lists cooperatives first, but then a list of other entities follows, such as mutuals, self-managed companies by their workers, rural development companies (an expression of rural associativity that responds to the particularities of Uruguayan case), the networks that promote food sovereignty, agroecology and organic food production, civil associations that promote fair trade, ethical finance, responsible consumption, responsible tourism, artisanal networks, or even mercantile societies to the extent that they comply a series of very severe requirements regarding how they are managed, how they are capitalized and how they distribute eventual profits. As you can see, this is an extensive list that obeys a broad view of the sector that includes traditional actors in the social economy and new emerging actors (the Law, for example, is the first in the world to refer to the concept of “transforming economies”, recently adopted by the Intercontinental Network for the Promotion of the Social and Solidarity Economy (RIPESS).
As for the institutionality that carries out the policies, Art. 11 provides that the National Institute of Cooperativism -INACOOP- will be the driving agency, with its powers and responsibilities in this regard (a) defining, promoting and promoting public policies aimed at the development and strengthening of the SSE; (b) Register and recognize ESS organizations; (c) develop ESS policies, projects and programs for training, research and technology transfer, and technical assistance; (d) create a technical assistance network; (e) favor strategic agreements with public and private institutions; (f) monitor and evaluate the ESS organizations; (g) register entities in the Registry created by the law itself; and (h) create an ESS Observatory.
One of the aspects that generated the most debate was related to the control system. The Law chose to follow the model of cooperatives, assigning control of the entities of social and solidarity economy to the Internal Audit of the Nation (AIN). However, it also established that INACOOP “may establish technical control criteria, which must be communicated to the AIN, and, when requested by the AIN, shall exercise the functions of oversight of said entities.”
Concluding, this Law, beyond its successes and failures, will allow for the first time in the country, to implement public policies of promotion and development to a wide sector of the economy that will bring together cooperatives, mutuals, companies self-managed by its workers, artisanal production networks, rural development societies, associations as well as other organic or fair trade enterprises that comply with a series of guiding principles.
Unificación del sector cooperativo cubano. Apuntes críticos a la luz de los principios cooperativos
Orestes Rodríguez Musa y Orisel Hernández AguilarDescargar Ver resumen
La Constitución de la República de Cuba de 2019 formuló un reconocimiento general de la cooperativa. Ese mismo año, se promulgaron nuevas normas ordenadoras de los dos sectores del cooperativismo nacional y, aunque ninguna manifestó la pretensión de acercar las dos modalidades existentes, en tanto están al amparo del precepto unificador de la carta magna, es pertinente cuestionarse la aproximación entre ellas. En consecuencia, el objetivo asumido en este trabajo tiene una doble implicación: valorar el grado de unificación del cooperativismo cubano, tomando como referencia los principios enarbolados por la ACI y, consecuentemente, analizar el nivel de recepción de estos en las normativas patrias.
UNIFICATION OF THE CUBAN COOPERATIVE SECTOR – Assessment of progress in light of cooperative principles
On April 10, 2019, the new Constitution of the Republic of Cuba was published, which formulated a general recognition of the cooperative, breaking with its previous limitation to the agricultural sphere. In that same year, new norms were promulgated that ordered, separately, the two manifestations of national cooperativism: agriculture (Decree-Law No. 365 “On Agricultural Cooperatives” and Decree No. 354 “Regulation of the Decree-Law of the Agricultural Cooperatives “) and non-agricultural cooperatives (Decree-Law No. 366” On Non-Agricultural Cooperatives “and Decree No. 356” Regulation of Non-Agricultural Cooperatives “), in an attempt to systematize the organization and operation of the variety of existing typologies within the first [Basic Units of Cooperative Production (UBPC), Cooperativa de Producción Agropecuaria (CPA) and Cooperativa de Crédito y Servicios (CCS) now grouped under the name of Agricultural Cooperatives (CA)] and to perfect the experimental practice of the second [Non-Agricultural Cooperatives (CNA)].
Despite the fact that none of these regulations was presented with the intention of advancing the rapprochement between the two existing modalities, as they are under the protection of the unifying precept of the Magna Carta, it is valid to question to what extent between them it was possible give an approximation. In this regard, the election parameters to be considered must be those that delineate the identity of these figures, that is, “the principles of cooperativism” (Constitution of the Republic of Cuba, 2019: Art. 22 b.).
The full understanding of the cooperative identity is only achieved with the study of the guidelines that govern the internal and external functioning of the entity. Said guidelines are contained in a set of rules resulting from the fluctuations of prevailing economic and political interests in different historical contexts, from which the International Cooperative Alliance (ICA) offers its own catalog according to the needs of cooperatives to global level, contributing decisively to their “universal reach, by making them applicable to all types, times and places”(Llobregat Hurtado, 1990: 16).
Consequently, the objective that is assumed in this work has a double implication, since it aims to assess the degree of unification of Cuban cooperativism, in accordance with the constitutional guideline, taking as reference the principles of the movement raised by the ICA, with which which will also offer, in a secondary way, an analysis on the level of reception reached by these in the national regulations.
When examining the constitutional projection on the unification of Cuban cooperativism, it can be seen that the letter of Article 22 section b) has some aspects that signify an evolution with respect to the old Constitution of 1976, as well as other elements that generate uncertainty and various absences that could result in in inertia, namely:
Inertia: The reduction of its legal nature to “Form of ownership”, neglecting the associative bond that it implies, the corresponding service purpose, the values that are inherent to it and the institutional environment in which – according to its identity – it must be articulated. In addition, the emphatic formulation regarding the “collective work of its proprietary members” as sustenance for cooperatives, could appear as a limitation to establish other types of cooperatives different from work cooperatives, such as consumer or credit cooperatives (nonexistent until now in the country), which are also inspired by popular socio-economic needs.
Evolution: In another sense, the agrarian perspective of the old Constitution disappears. Now cooperatives, regardless of the sector of the economy where they develop, will have constitutional protection. In addition, the relevance of some “principles” that should mark the functioning of these institutions is recognized, as they are part of a movement that overcomes and strengthens them.
Uncertainty: However, one wonders to what “Principles of cooperativism” refers to the Constituent Assembly, since in Cuba those raised by the International Cooperative Alliance have never been mentioned, nor has a uniform criterion been used to define them. Therefore, different interpretations of the Constitution may be, in this case, made by the legislator.
Against this background, the will of the legislator and the enforcement authority are decisive to promote the articulation of a national cooperative movement. With this idea in mind, thea unification experienced by the regulation of Cuban cooperativism in light of cooperative principles, since these synthesize the essential aspects of the identity of said figures.
When evaluating the reception of the principle of voluntary and open associationIn the cooperative regulations in force, a relative assimilation of the central aspects of the same can be seen, despite the fact that the initial legal formulation is limited to the recognition of voluntary entry and permanence. In addition, there is a sensitive closeness between them, except for the limits on the number of possible partners for the CNAs and some other specific issues related to extremes of the analyzed rule.
Regarding the principle of democratic control by associates, from what has been studied it can be inferred that the way in which the principle is drafted within the norms of the sector in the country is insufficient, due to its limited nature, to cover the entire extension democratic cooperative functioning, which is much closer to the wording formulated by the ICA. Added to this is the fact that the participatory content provided for the two national cooperative typologies is remarkably similar, despite the fact that the ways in which it is presented in their articles vary.
Regarding the economic participation of the associates lor more notable is the absence of a general forecast that systematizes its essential elements, following the ICA paradigm. In addition, it is perceptible the difference between the forecasts regarding social capital and the categorical system associated with it in both cooperative types and the progressive unity that exists between them in terms of distribution of profits and participation in cooperative return.
In anticipation of autonomy and independence, although it has been argued that legal advice can contribute to optimizing the autonomy of cooperatives, especially in the area of their self-regulation, it is true that to date the Cuban model for organizing relations between them and the State is absorbing or dependency, regardless of the sector of the economy in which they operate.
When dealing with education, training and information it can be argued that there is a relative similarity between the provisions of the regulatory norms of Cuban cooperatives in terms of cooperative education, which coincide in their deficiencies with respect to their external projection and the absence of informative content, thus marking the essential point of their distancing from the ICA principle. Likewise, they show a commitment to link to state development and the creation of financing for such activities.
The rule of cooperation between cooperatives has been confined to a supposed collaboration and cooperation concretized -generally- through compensation and contracts, not giving way to date to the sustained institutionalization of superior forms of organization of the movement, such as second-degree cooperatives, which are not even mentioned in the most recent changes legislative.
For its part, the practical application and institutional articulation of commitment to the communityto date, it has not followed the path envisaged by the ICA. But, to the same extent that the scenario of coincidence between popular interest and cooperative interest is consolidated, as well as the conscious practice of direct social responsibility, the intermediation of the State to preserve the general interest through formulas such as authorization would be meaningless. on the corporate purpose, the capped prices, the state commission and the collection of taxes, which constitutes the ideal to be achieved.
From such analyzes it can be synthesized that:
– The constitutional regulation of cooperatives, in addition to repeating the idea that these are a form of ownership focused on collaboration only in the scope of the work of the partners, offers a favorable outlook for the differentiation of it from associations with a purpose lucrative private sector and leaves useful bases at the disposal of the authorities and the legislator that would allow, through the principles of cooperativism, to articulate the development of this figure, from its unification, with the social aspirations that define its identity.
– The organizing norms of the two Cuban cooperative typologies show, based on their new legal formulations of 2019, a remarkable approximation in terms of the fundamental rules that back them. However, this progress, insofar as it represents progress towards the legal unification of the sector, is marred by significant shortcomings in terms of the level of assimilation by the principles that have been given, of the contents systematized in the principles of the ACI and, on which depends, to a large extent, the improvement of the national cooperative movement in order to validate its particular identity and social projection.
Un marco jurídico para la empresa social en la Unión Europea
Igone Altzelai UliondoDescargar Ver resumen
Las instituciones europeas siguen avanzando en la iniciativa legislativa del Parlamento Europeo para la aprobación de un Estatuto para las empresas sociales y solidarias así como en la implantación de una Etiqueta de Empresa Social Europea. Reconocen la diversidad de acepciones del término “empresa social” (ya sea desde el punto de vista sociológico, jurídico, etc.) y las notables diferencias entre los ordenamientos jurídicos de los Estados miembros. Por ello, insisten en la necesidad de adoptar una definición y crear un marco jurídico a escala de la Unión Europea que pueda conjugar con los ordenamientos nacionales y con la diversidad de formas jurídicas que de ellos se derivan. Al estudio de ese marco jurídico está dedicado el presente trabajo.
A LEGAL FRAMEWORK FOR SOCIAL ENTERPRISES IN THE EUROPEAN UNION
The European institutions continue to advance the legislative initiative of the European Parliament for the approval of a Statute for social and solidarity-based enterprises in the European Union. They recognize the diversity of meanings of the “social enterprise” (depending on the sociological or legal context) and the notable differences between the legal systems of the Member States. For this reason, they insist on the need to adopt a definition and create a legal framework at the level of the European Union that can combine with national laws and with the diversity of legal forms derived from them. The present paper is devoted to the analysis of this framework.
There are frequent examples where social economy is conceived by European institutions as a key factor for economic development, as a relevant and transversal input that contributes to achieving the objectives of their policies. This is how it has been viewed in political circles, as a key feature in advancing economic and social development. It follows, for example, from the conclusions of the Council of the European Union of December 2015, the monographic summit on this subject. All this contributes to a growing interest in the social economy and in the new concepts associated with it, as is the case of the social enterprise.
However, this movement to promote the social economy is accompanied by some undeniable difficulties, such as the lack of an appropriate regulatory environment, both at European level and internally in the States of the Union, which prevents this sector from developing its full potential and maximising its impact. This is why the announcement made by the President of the European Commission in December 2019 on encouraging an Action Plan to promote the social economy, was described as a historic milestone. It has been the result of the collaboration in recent years between agents from the social economy sector, the European Parliament (its Social Economy Intergroup), the Council of the European Union and the European Economic and Social Committee, among others.
On a national level, the so-called Spanish Social Economy Strategy 2017-2020 should be highlighted, which plans to follow the path marked out by the Community bodies. As stated in its preamble, this responds to the need to take into account and promote the specific features of social economy companies in the single market, with the aim of encouraging the development of these companies within the framework of European Union policies. Likewise, given the characteristics of the Spanish business fabric, the social economy is considered an essential element for economic recovery, job creation and social cohesion. For this reason, this Strategy aims to promote its values and increase its projection.
Social enterprises vs. other forms of corporate social commitment
In this context marked by the progress of the European approach and the aforementioned Spanish Strategy, we address our work on the establishment of a legal framework for social enterprises in the European Union. We are operating in a scenario characterised by a deep-rooted idea that the social economy as a sector reserved for non-profit organisations or certain organisations (such as cooperatives, mutual societies, associations or foundations); by a social and economic reality that encompasses a diversity of companies and organisations of all sizes and sectors of activity and by a very wide range of measures, initiatives and investments aimed at them, for which it is essential, above all, to know and identify the companies likely to be its targets. Our objective is to analyse its legal configuration, in order to formulate proposals and contribute to solving the problems of its fragmented regulation.
In this work, we pay special attention to identifying social enterprises and distinguishing them from those whose commitment to society lies outside this area. This is the case with corporate social responsibility and many other formulas that have emerged around the so-called ethical businesses, companies for the common good, collaborative companies or the B Corporations.
The European Statute for Social and Solidarity-based Enterprises and the European Social Enterprise Label
The institutions of the European Union are developing a statute for the social enterprise, based on an operational model that defines it, regardless of its legal form, by adding three essential elements to its founding documents: a) a social objective of common interest; b) the priority of reinvesting profits in this objective; and c) management with democratic governance criteria. This basic and simple scheme responds to the need for a flexible framework capable of accommodating the very wide diversity of legal forms, types and realities of business. For its identification in economic traffic, it is planned to introduce a European Social Enterprise label.
Implications for Spanish law
In Spain, Law 5/2011 on the Social Economy does not follow this system and neither does it provide an efficient legal configuration for these companies, so it must be inferred. This requires some adjustments to be made to fit the notion of the Social Economy Entity in Spanish law into the framework of the European Social Enterprise, which is unavoidable given the primacy of Community law. In this work, we observe that the notions of social economy entity (in Spanish law) and social enterprise (in EU law) can be considered equivalent and that it is also possible to make a reading of the principles of social economy contained in article 4 of the Spanish law adapted to the three key elements that make up the European Social Enterprise.
This reading requires special precision in understanding the essential element that is preference in reinvesting profits, although it is conceived in a flexible way. However, there are limits to this flexibility. The distribution of profits among the partners or members of the social enterprise is admissible within certain margins and this makes it necessary to distinguish two case groups.
On the one hand, in the majority of cases the criterion of reinvesting profits mainly or primarily in the achievement of the company’s social objective is imposed. This means ensuring that the distribution of profits does not undermine that objective. This is the current limit in the framework of the European Social Enterprise. However, taking into account the current Spanish legislative situation and in order to contribute to greater legal certainty, we think that the legislator should consider the inclusion of a quantitative limit, in the style of other legislators such as the French or the Italian.
On the other hand, in this work the legislator should not ignore cases in which the distribution of profits contributes precisely to alleviating a social problem, as is the case with companies created to enable their partners or owners to escape from situations of economic vulnerability or social exclusion. In such cases, the prohibition or limitation of distribution to such persons becomes meaningless and therefore merits ad hoc treatment.
Nuevas fórmulas en torno a la responsabilidad de los socios de las cooperativas en Euskadi
Miren Epelde JuaristiDescargar Ver resumen
Es patente la apuesta de la Unión Europea por un mercado con mayor presencia de las empresas de la economía social y consideración hacia las personas trabajadoras, como es el caso de la sociedad cooperativa. A pesar de su tradición, en su regulación siguen existiendo apartados que pueden ser interpretados de forma diversa o que generan dudas, como los relativos a la responsabilidad de los socios. Si bien se deduce que la responsabilidad por deudas sociales es claramente limitada, surgen dudas en torno a la imputación de pérdidas.
Tras años de investigación y negociación con los agentes implicados, en diciembre de 2019 se aprobó la nueva Ley de cooperativas de Euskadi, donde el legislador opta por aclarar que la responsabilidad de los socios por las deudas sociales es limitada y establece fórmulas novedosas para la imputación de las perdidas, sin menoscabo al patrimonio personal de los socios cooperativistas.
NEW TOOLS FOR THE LIABILITY OF THE COOPERATIVE PARTNERS IN THE BASQUE COUNTRY
It goes without saying that the world is involved in a global economic crisis. As we know, the Covid-19 is the main reason of this situation. As a result, the industry and in general the economy is making a big effort to survive. However, the last economic crisis the world suffered did not happen a long time ago. The measures adopted in that crisis were not the best ones for the economy, although, one thing was proven, the social economy would be the key to get out of the crisis.
Until now the economic system was focused on two aspects: capitalism economy and public economy. However, the third pillar, which is the social economy, was not considered. Nowadays the experts are realizing that the economic system used until now was not efficient and a change was needed.
The social economy takes into account the employees and it is more focused on the personal wellness. Due to that fact, the motivation of the employees often increases. They would feel like they are part of something and because of that if the workers are happy in their daily routine and they know that if they do their best, the company will answer in a good sense for their personal life, they would work better. As a result, the company´s productivity would be higher and good economic results would provide for the survival of the company and also a job for workers.
There is a well-known entity in the world which strongly considers the social economy. They are called cooperatives and because of their way to organize are considered part of the social economy. In the last decade cooperatives have been the key to survival for many companies in the European and Spanish market. The crisis that started in 2007 and the following ones greatly affected many factories, and as a result their futures were uncertain. Many factories turned to social economics as their solution.
It seems, though, that as time goes by the shadow of the crisis still looms. As a result, many leaders have based their political agendas on the necessity of contributing to the economic transformation in order to survive and adapt to the current marketplace. To do so, they intend on using new business practices and economic agents. In this way the European Union has placed a big bet on social economics, and has given more consideration to employees as is the case in a cooperative society. When the economic crisis concerns to different European countries, Union´s help has to be strong and effective to give advice and try to find a Union solution.
However, the legal ambiguity that exists in this area allows for the possibility of making different interpretations about the same regulation. Such is the case when it comes to assessing the liability of a cooperative member. Taking the Basque and Spanish regulations into account, it is concluded that a partner’s liability in regard to social debts is limited to the contribution made by them. Nevertheless, there is some doubt about how limited the liability of a partner is when a factory has losses and they can be attributed to them.
The State Cooperatives law is the 27/1999, of 16th of July. According to this law the liability of the partner’s in the case of debts is limited to the input made by them. Nevertheless, the answer when there are losses is not the same. The law allows the possibility of attributing the losses to the partners. Something similar happens in the Basque Country where there are many cooperatives.
The law to regulate cooperatives in the Basque Country was the 4/1993, of 24th of June. According to this regulation, in the case that a factory has losses, there is a possibility of attributing them to the partners. This fact wasn´t good for the partners. After the last crisis suffered in 2007, employee saw that the attribution of losses to them was real, and due to that, their personal assets would be affected. As a result, they asked for a law change.
After years of research and negotiations with representatives from different cooperatives, the Basque government has enacted a new law in order to clarify the ambiguities present in the 1993 law. The new regulation states that partner´s liability when it comes to social debt continues to be limited. In the case of the responsibility created by yearly losses, the new 2019 law approves new ways for a partner to be liable without affecting their personal assets. It says that first of all the losses have to be covered by the voluntary reserves. However, if they are not enough, obligatory reserves would be affected. And as the last chance there is a possibility to attribute them to the partner´s.
Another point to take into account is the option of creating a special account, and cover the losses with the surplus of the next years. These two ways are optional, because is deducing from the law that they are optional, and so that it is the option of choosing one or another way. With this interpretation, it seems that the partners are not going to respond with their own personal assets. Nevertheless, the innovation of the law appears in the last point, where it is said that capital increase would be possible to face the losses if previous measures are not enough and as a result not undermine the partner’s personal assets.
Moreover, the situation of partner´s termination or their decision to leave the cooperative also creates ambiguity in the interpretation, due to the fact that the state regulation and Basque Country regulation is not the same. The state law says that partners are liable of the debts generated in the cooperative during five years since their termination. However, the Basque legislator says that there is not option to be liable after leaving the company. With the new regulation, some of this aspects were changed, and there is an option to be liable of the decisions which were taken when the partner was member of the cooperative.
Therefore, the goal of this article is to clarify the aforementioned legal ambiguity, and in order to do that, the new regulation in going to be analyzed.
Las cooperativas de viviendas en régimen de cesión de uso como cauce jurídico para los nuevos modelos habitacionales
Sara Louredo CasadoDescargar Ver resumen
El derecho a una vivienda digna y adecuada se recogió en la Constitución Española de 1978 y en numerosas declaraciones y cartas de derechos posteriores. Las cooperativas de viviendas, enmarcadas en la regulación del instituto cooperativo de la Constitución, se han regulado en la Ley nacional y en las autonómicas de cooperativas. La figura ha sufrido fuertemente la crisis del sector inmobiliario del año 2010 pero sigue siendo una herramienta útil para desarrollar ese derecho a poseer una vivienda. Además, son un cauce jurídico que se adapta bien a los sistemas de cesión del derecho de uso a los habitantes y a la cohabitación, dos tendencias habitacionales nuevas en nuestro país.
En este artículo queremos analizar cuál es la normativa más adecuada para regular estas iniciativas novedosas que, en otros países de Europa y América, llevan ya algunas décadas funcionando. Nos fijamos también en las experiencias españolas más recientes de cesión de uso y cohabitación que se han articulado como cooperativas.
THE HOUSING COOPERATIVES WITH A REGIME OF TRANSFER OF USE AS A LEGAL TOOL FOR THE NEW HOUSING PATTERNS
The right to decent housing is reckoned as one of the most important social rights for citizens. It does not only imply the use of a space to live but also it has a close connection with the daily life, privacy and family organisation of the inhabitants. The importance of the right has not been disputed, being enshrined in various International Treaties and almost every Constitution in the world. However, its legal status and enforcement against public actors, in the case of Spain is not completely clear. It is recognised in article 47 of our Constitution as a right for all Spanish citizens but it is not protected by the higher guarantees of the most preserved fundamental rights.
The right to housing may be achieved by housing cooperatives, a known and ancient figure that through a philosophy of sharing -at least at a theoretical level-, reunites people with the same needs and aspirations regarding housing and with the aim of saving the maximum amount of intermediaries’ costs possible. This paper wants to analyse the role that cooperative societies may have in models of housing that are new in Spain. Traditionally, in our country, housing cooperatives considered that their objective was fulfilled when the houses were built and given to their members as owners. This implied the end of the society and even of the community created through the cooperative and the appearance of a new regime based on horizontal property and Civil Law. However, nowadays, new models of inhabitation constitute an adequate solution for certain social groups: especially, the youth, the elderly and the handicapped people. These collectives, due to their special needs or way of living, do not need to be owners of a house. The alternative is not only renting but being an assignee of the use of the house that is collectively owned. This regime is well known and developed in other countries, such as the Scandinavian ones in Europe and in the United States of America.
In fact, the Andel model, which was born in Denmark and has spread to other countries such as Sweden, Finland and Germany, in a smaller scale, it is precisely a hybrid system between the ownership and the renting of a house. It consists of the common ownership of a building by the members of a housing cooperative that pay an entrance and a monthly fee to inhabit the house. This fee is lower than a monthly rent and the model has as one of its main advantages that inhabitants may remain in the house for an indefinite period of time.
Apart from the Andel system, we study another recent phenomenon that is called co-housing. The idea is that the collectivity formed to build and to own the common space may be also looking for a common lifestyle, in terms of ecology, integration, social relationships, etc. and due to this sense of community, they integrate a co-housing community. This implies the democratic and common management of the structures built, their use in turns, a respectful organisation to achieve welfare for the ensemble. In this kind of inhabitation, cooperatives can also serve the purpose thanks to their democratic principles and social spirit.
Descending to the normative regime, it is found that the Spanish legal system on cooperatives is neither an obstacle nor a help because it does not forbid the maintenance of the cooperative once the buildings are finished but it does not deeply regulate these situations. The national law -number 27/1999- and those of the Autonomic Communities in Spain are not very descriptive in the ways other than ownership in which the members of the cooperative may enjoy their houses. However, the grant of the use is mentioned in some of them and some support is found in the Civil Code. In fact, the grant of use can be achieved through a right in rem: the right to use or to usufruct. These norms will help our study but we may not loose the focus on the internal norms of the cooperative: the corporate statutes and the regulation of the intern regime as well as all the agreements adopted by the democratic organs of the society. These will constitute fundamental bases for the cooperative and the daily life of its members. They will also be of paramount importance in cases of co-housing, in which it is needed a thorough regulation of the turns, the rights of the inhabitants and the consequences of non-compliance with the internal systems.
Even if the possession of a house in ways different to ownership are not very known or popular in Spain, they started to have an increasing demand since the first years of 2010. This means that we now have some examples of communities organised on the basis of a right of use, both “simple” or in co-housing. As an example, we will analyse the norms and the requirements of access of the community of LaBorda in Catalonia. We also have observed that some municipal authorities and even the Spanish Government are now giving more support to building groups, sometimes even transferring lands to building communities for long periods of time or facilitating the access to certain subsidies, if the groups will form a co-housing community. Examples of these situations are found in the municipalities of Rivas Vaciamadrid and Atxondo and in the latest plan of housing number 9 for Spain, that we comment throughout the paper.
Our principal objective is to know if these forms that we think will be more and more used in future years can pivot over the cooperative model. We observe that the traditional real estate market based on ownership or rent is no longer an adequate solution for many people. Moreover, the economic crisis that started in 2010 showed the great amount of speculative interests that are present in this market that ultimately harm consumers. Cooperative societies, even if they have also been affected by capitalistic interests, have at their core the social welfare of members and communities. The tendencies to own in common, to share spaces and time and to be part of a group fit very well in the cooperative spirit from a philosophical point of view, but we also think that cooperatives are legally prepared to support these structures.
Cooperativa y empresa familiar.
Rosario Cañabate PozoDescargar Ver resumen
El ejercicio de una actividad empresarial por los miembros de una familia requiere ciertas connotaciones cuando se estructura como una organización jurídico-empresarial a la que se le añade el calificativo de familiar. En tal ámbito, el presente trabajo de investigación analiza las peculiaridades de la empresa familiar y su adecuación a la forma jurídico-empresarial de la sociedad cooperativa. El estudio se realiza a la luz del acogimiento legal de los principios cooperativos de la Alianza Cooperativa Internacional en su normativa reguladora. Desde esa perspectiva, el análisis del régimen jurídico de las cooperativas nos permitirá tomar en consideración su acomodamiento a las necesidades de la empresa familiar frente a otras formas jurídico-societarias vinculadas, tradicionalmente, a la empresa familiar y no presididas por tales principios cooperativos.
COOPERATIVE AND FAMILY BUSINESS
Family business management has special connotations when the family members run them. This research paper analyzes the necessary adaptations of a family business when it adopts the legal form of a cooperative society company. The study is carried out in the light of the legal acceptance of the Cooperative Principles of the International Co-operative Alliance enclosed in its regulatory regulations. From this perspective, the analysis of the legal regime of cooperatives will allow us to check their accommodation to the needs of the family business compared with other legal-corporate forms traditionally linked to the family business.
Methodology is based on the legal configuration of cooperative companies in our legal system and ex lege submission to the cooperative principles of the ACI. These cooperative principles determine the essential characterizing notes of these organizations and serve to define and frame them as specific corporate types. However, it is highlighted its own evolution and flexibility and, when appropriate, legal adaptation according to the demands of the market in which they operate.
This paper does not intend to offer an exhaustive analysis of cooperative system principles, which would exceed our purpose, but rather of the fundamental aspects that may affect the possible legal structure of the family business as a cooperative company. We review the concept of family business, which is not an easy task since there is no single archetype of family business nor a specific legal company type for this business reality, determining the characteristics and needs of family businesses.
The future on any family business deeply depends on the legal and organizational company type that they choose. Hence, we also analyze the legal scope of the values and principles of family business in comparison with those that resemble the cooperative society companies. This is a controversial issue and we shed some light on it with through an own doctrinal positioning.
Finally, our research focuses on the adequacy of the cooperative company scheme to the family business. This is mainly done based on the structuring cooperative principles of the ACI in relation to the regulatory legal framework of cooperative companies. We review the most solid Mercantile Law’s doctrine and analyze national and regional legislation on this regard. We focus on the principle of voluntary and open adherence, on the principle of democratic management, on the principle of economic participation of the partner, on the principle of autonomy and independence, on the principle of education, training and information, on the principle of cooperation between cooperatives and on the principle of interest in the community.
Regarding the analysis of such cooperative principles, not all of them are addressed to the same extent due to their own specific connection with the goal of our study.
Cooperative principles become guidelines that define the specific features of cooperative societies and shape their own and specific identity, according to their regulatory law. Examination of their regulation shows the strengthening of the entrepreneurial character of cooperative companies and, in several aspects, a singular approach to capitalist societies. This is also contained in the paper and ease the acceptance of its legal form by family businesses. Cooperative principles have to be globally complied as a whole, without having to comply with each and every one of the cooperative principles enunciated and periodically reviewed by the ACI.
All in all, for the intended purpose of accommodating the cooperative company system to the family business, we remark the existence of different types of partners, such as collaborators or investors that facilitate the financing of the company without any participation in the cooperative activity. Futhermore, we also address the possible use of plural or multiple vote. It also highlights the existence of the education and promotion fund, at the service of family members, which can serve to its better management and future projection. In this sense, the possibility of making the cooperative’s structure more closed and of reducing the number of its members for family businesses whose viability does not require a very high number of participants, or even establishing a maximum number of members are suitable available options for starting some family business as a cooperative company.
Thus, if the family business follows a managerial democratic participation of its members, a higher involvement with its territory, the placement of its strategies and objectives at the service of its members, and not only the search of a higher economic return based on the capital invested, the cooperative company could match the specific requirements of the family business. However, there cannot be a unique response for all types of family businesses due to their own diversity. On the other hand, certain classes of cooperatives are better adapted to family business’ characteristics. This is the case for the associated work cooperative, the agrarian cooperative, the community land cooperative and the mixed cooperative.
El régimen tributario de las sociedades agrarias de transformación
Marina Aguilar RubioDescargar Ver resumen
El objeto del presente estudio es revisar, a través del análisis de su régimen jurídico, la tributación de las Sociedades Agrarias de Transformación (en adelante SAT) tanto en el territorio común como en los territorios forales del País Vasco y de Navarra. Consideramos que la importancia alcanzada por algunas SAT en el sector agroalimentario español contrasta con el poco interés que históricamente se les ha prestado tanto por parte del legislador como de la doctrina, especialmente en el ámbito tributario. El interés de este trabajo se justifica en la relevancia cuantitativa y cualitativa de este tipo de sociedades en el tráfico mercantil, en la flexibilidad e indeterminación de su régimen legal y en la especialidad de su régimen fiscal.
THE TAX REGIME OF AGRICULTURAL PROCESSING COMPANIES
The aim of this study is to review, through the analysis of their legal regime, the taxation of the Agricultural Processing Companies (hereinafter APCs) both in the common territory and in the regional territories of the Basque Country and Navarra. These questions have had little doctrinal treatment, but their interest is justified in the quantitative and qualitative relevance of this type of companies in commercial traffic, in the flexibility and indeterminacy of their legal regime and in the specialty of their tax system. It is remarkable that the importance attained by some APC in the Spanish agri-food sector contrasts with the little interest that historically has been given to them both by the legislator and by doctrine, especially in the tax field.
Regarding its legal regime, the rule that regulates the APCs has only 14 articles and has not been modified since its promulgation more than thirty-five years ago. It was only developed by the brief Order of the Ministry of Agriculture of 1982, to specify the requirements of constitution and registration.
The antecedent of the APC is found in the so-called Union Colonization Groups that were created after the Spanish Civil War as intermediaries between farmers and the State. The need to adapt the legal regime in this associative way to the new political, legal and economic reality of the country motivated the reform process and conversion of the Union Colonization Groups into another social type that could more safely undertake the challenges of a more competitive agriculture. Thus, in the late 1970s, APCs were born as a peculiar formula of agrarian associationism to encourage agrarian development through societies that are well adapted to rural areas.
The analysis of the SAT regulation shows that it is not a different corporate legal form from the existing ones, but rather that it is a hybrid figure between civil societies, agrarian cooperatives and mercantile companies, whose use in commerce was mainly due to the intention of the legislator to encourage agrarian development. Its legal formulation, therefore, did not satisfy anyone, but in economic terms APCs worked. The key to its success lies precisely in the great flexibility of the social type and the absence of imposition of economic and financial obligations as opposed to those that agricultural cooperatives do have.
APCs, consequently, are state regulated -although there are two autonomous Decrees of Aragon and Catalonia that regulate the-, which is taxed in the regional territories according to the tax regulations that rule them. We believe that, in accordance with article 149.3 of the Spanish Constitution, the state norm must prevail, in case of conflict, over that of the Autonomous Community in everything that is not attributed to the exclusive competence of the latter, as is the case. If we delve into this process, when the rest of the Autonomous Communities do the same, we will have a situation similar to that of cooperative legislation.
For some, having a law for each Autonomy will not be anything exceptional, but it happens that the necessary unity of the market that our Constitutional Court has spoken of so many times when judging autonomous interventions in economic matters, makes it convenient for economic operators and legal operators (lawyers, judges, public notaries, etc.) to have unique applicable rules for comparable situations. Along with this, there is the economic cost of passing so many laws that turn out to be so similar later, especially when none of these rules addresses the problems that have been denounced regarding the legal regulation of these companies.
In the matter of the APCs tax regime, it was plunged for years in a regrettable state of confusion and legal insecurity, completely opposed to the necessary clarity and simplicity required by tax regulations for their correct application. This situation was clarified, to a certain extent, with Law 20/1990 on the Tax Regime of Cooperatives in common territory and with the Regional Regulations on the issue in the Basque Country and Navarra. These rules provide for the application of the general tax regime to these entities, without prejudice to the establishment of certain special rules applicable in Corporation Tax and the recognition of certain benefits in other taxes. There is a break with the traditional assimilation of APCs to agri-food cooperatives from the promulgation of the laws regulating the cooperative tax regime.
The tax treatment of the APCs is similar in the general and regional regimes. Only the Navarrese norm contemplates a specific benefit for this social type in the large taxes that levied on income and consumption, specifically the 50% reduction in the Corporation Income Tax liability. So that, in general, they do not have subjective exemptions for being APCs, nor in the main direct tax on their income, the Corporation Tax, nor in the VAT, indirect tax on the economic transactions they carry out. However, they can access both the special regimes and the objective exemptions that are regulated for these taxes to the extent that they meet the appropriate requirements. Where the reduction expressly thought for this social type are regulated, it is the Tax on Capital Transfer and Documented Legal Acts and the local Business Tax, identical in the general regime and in the regional ones, although without too much weight in the system as a whole.
The obvious conclusion is that the APCs does not have the specific tax regime that promotes its constitution and operation. Insofar as, on the one hand, these societies are considered to be mutualistic, in recognition of their economic and social purpose, and, on the other hand, this makes them included among the entities of the so-called Social Economy, it would be desirable for the legislator to provide them with their own tax incentives, in compliance with the mandate to promote and disseminate the social economy that contains art. 8 of Law 5/2011 on the Social Economy.
El rol de la moneda y criptomoneda social en el nuevo contexto económico social y digital
Macarena Hernández-Bejarano y Marta García MandalonizDescargar Ver resumen
El clásico modelo económico se encuentra en fase de revisión para satisfacer necesidades sociales y aspirar a un futuro de mayor sostenibilidad. En ese modelo económico en revisión aparecen fórmulas alternativas de producción e intercambio que manan de la ciudadanía para dar respuesta a problemas económicos y sociales, como el desempleo. Surgen y se expanden sistemas de intercambio alternativos mediante monedas no oficiales y sociales como herramientas de intercambio para estimular una actividad económica que dé prioridad a la finalidad social. La moneda social, también en su versión digital, abre un nuevo horizonte hacia la difusión de medios alternativos de un intercambio favorecedor del empleo. Con los sistemas actuales de intercambio mutuo se reconoce y valoriza el trabajo, pero se desarrolla en la economía informal. Para que su difusión, facilitada por las modernas tecnologías, no entrañe riesgos para la economía formal, planteamos –ante el vacío legal de los sistemas de trueque y de los bancos de tiempo– la conveniencia de una regulación. Esa regulación convendría que fuese de corte fiscal, laboral y de protección social, reconociendo a la moneda social y promoviéndola en el contexto de la economía social formal como instrumento de satisfacción de necesidades como el empleo. Una moneda social regulada e integrada en la economía social formal pudiera servir de estímulo para la economía más sostenible hacia la que se dirige Europa en 2030.
THE ROLE OF THE SOCIAL CURRENCY AND CRYPTOCURRENCY IN THE NEW DIGITAL ECONOMIC SOCIAL AND DIGITAL CONTEXT
The aftermath of the 2007-2008 economic and financial crisis steered the European Union’s policies towards new challenges for the 2020 and 2030 horizons. These European policies set, as a priority objective, the need to revise the prevailing economic model and to face a sustainable future that meets social needs –in compliance with the United Nations Sustainable Development Goals (SDG)– to consolidate the “Europe brand” towards sustainability.
Initiated this path of work by the Member States, the international pandemic situation caused by COVID-19 has shaken the pillars of society and the economy strongly. In this national and global context, in which our way of life, work and relationship has changed radically, digitization expands and the movements that challenge the current monetary system become especially important.
Because of its role in promoting the social economy, interest lies in alternative exchange systems to the official currency, known as “social currencies”. These are transactions of goods and services that use an unofficial currency as a tool for exchange in order to try to reduce unemployment, poverty and social and financial exclusion. These experiences that are not new, but that take importance in the current context, are what illustrate this research work. This analysis provides a classification test of the various models of mutual exchange put into practice in different countries. Thus, emergency and mutual credit monetary systems, modern barter systems, time banks or monetary systems that encourage business activity.
Common and differential aspects can be drawn from experiences in these mutual exchange systems. Some of its advantages can also be identified, such as tools that enable collaboration with the public sector, that support SMEs and that promote job creation. But there are also disadvantages: their low knowledge, their short life cycle or their limited scope of action. From this, some problematic questions are the subject of reflection. One of these problems is on which the main core of this research revolves: the lack of a regulatory framework applicable to these exchange models, so that they can be established and developed in the formal or regulated economy. To date, the existing legal vacuum allows them to operate in the submerged economy, outside the rules of the formal market, detecting risks to fair competition.
The risks to fair competition would come mainly from the mutual credit currencies of exchange of services in time banks or products in community barter networks. The development of these mutual exchanges through these parallel systems expands informal work. In order not to affect the formal economy, the support that has been given to time banks from municipal public authorities has been restricted to non-professional service supply systems. Being an exchange of non-professional services in exchange for the “time currency”, it is intended to avoid conflict with the professional services paid with the official currency. Even with this barrier, there are doubts of affectation and conflict because there are legal gaps.
On the other hand, in an increasingly digitized scenario, new risks arise that take place when social currencies are virtualized. Speculation has been marking the itinerary of cryptocurrencies, until cryptocurrencies that avoid or minimize speculation, called “stable-coin”, have appeared on the digital currency scene. With stability and reduction of speculation, cryptocurrencies that have a proper social purpose have also been born and grown. The lack of attraction of investors is, however, the common denominator of these “social cryptocurrencies”. Not only there is a risk of failure, due to the non-attraction of resources, there is also external risk of fraud, from the duplication of accounts registered on the platforms by the same user, and internal risk of fraud because some projects with supposed social purposes are launched to collect without to distribute.
The general risks of cryptocurrencies could be added to the specific risks of social cryptocurrencies. Even so, not all the risks of cryptocurrencies are risks of social cryptocurrencies because they may not have a monetary exchange (in mutual exchange systems) and, even if it occurs, it should be non-speculative. In any case, it should be noted that cryptographic currencies offer anonymity and without disclosure of identity could be used for the purposes of tax evasion or money laundering. For its prevention, the European Union has amended the Directive on the prevention of the use of the financial system for money laundering or the financing of terrorism. In addition, tax control has been proposed by the Member States.
We consider that a legislative and institutional support for cryptocurrencies, in general, and for social cryptocurrencies, in particular, could become an enhancer of the financial inclusion of individuals and groups that have so far been excluded from the traditional financial sector. Regulation would have to promote its uses and address its risks. It would prevent and prohibit illegal or criminal activities with a supervisory authority that would favor trust and, therefore, the rise of social cryptocurrency as a secure alternative to the official currency in the post-COVID period.
There are many specific or general risks, but also there are many opportunities derived from cryptocurrencies, in our case, social. New technologies enable the consolidation of new forms of social and economic interaction. The principles and values of the social economy can be disseminated and promoted by technology through social cryptocurrencies.
There is a priority interest in the regulation of cryptocurrencies by European Union, alerting to the risks of the use of stable crypto-coins, for example. But, interest in regulation should also be focused, in our view, on social currencies that operate either on physical media or on digital support without blockchain technology. For these other social currencies, some proposals for fiscal and labor action are drafted in this analysis. By a regulation that is proportional to the uses, modalities and risks of the unofficial currency –whether in traditional, virtual or crypto format– that recognizes and regulates it for development within the formal economy, we advocate from the present research work. We wish to value this alternative exchange instrument to contribute to the satisfaction of economic and social needs that are not covered by the official currency.
Comentarios a jurisprudencia
Isabel Rodríguez Martínez (Coordinadora)
Prestación por desempleo y socios trabajadores de cooperativas de trabajo asociado. Sobre la posible concesión de la prestación por desempleo a personas socias trabajadoras convivientes y unidos por relación de parentesco. Comentario a la Sentencia 752/2020, de 10 de septiembre, de la Sala de lo Social del Tribunal Supremo
David Tomás MataixDescargar Ver resumen
La Sentencia 752/2020, de 10 de septiembre de la Sala de lo Social del Tribunal Supremo resuelve un supuesto en el cual una persona socia trabajadora de una cooperativa de trabajo asociado, que optó por el Régimen General de la Seguridad Social, solicita la prestación contributiva por desempleo, que el Servicio Público de Empleo Estatal rechazó -vía de reintegro de prestaciones indebidas- por considerar que las cotizaciones efectuadas como socio trabajador no debían ser computadas a los efectos de tener por cumplido el requisito de carencia necesaria para acceder a la meritada prestación. Concretamente, la Entidad Gestora argumentaba y justificaba la exclusión de tal periodo cotizado por encontrarse dividido el capital social de la cooperativa entre personas socias con las que la persona en cuestión convivía y con los que le unía un cercano vínculo de parentesco.
ENEFIT FOR UNEMPLOYMENT AND WORKING MEMBERS OF ASSOCIATED WORK COOPERATIVES – On the possible granting of unemployment benefit to cohabiting working partners and united by kinship relationship
Comment to the judicial sentence 752/2020, September 10, of the Social Chamber of the Supreme Court
The Sentence 752/2020, September 10, of the Social Chamber of the Supreme Court resolves a case in which a working member of an Associated Work Cooperative, which opted for the General Social Security Regime, requested the contributory unemployment benefit, being that the State Public Employment Service rejected – through the reimbursement of undue benefits – considering that the contributions made as a working partner should not be computed for the purpose of having the requirement of absence necessary to access the well-deserved benefit. Specifically, the Managing Entity argued and justified the exclusion of such listed period because the Cooperative’s capital stock was divided among partners with whom the person in question lived and with whom he was linked by a close kinship bond.
El plazo de reembolso o liquidación de las aportaciones del cooperativista. Comentario a la Sentencia del Tribunal Supremo 289/2020, civil, de 11 de junio (ROJ STS 1577/2020)
Sara González SánchezDescargar Ver resumen
La Sentencia trata del ejercicio del derecho de reembolso o liquidación del socio cooperativista que causa baja voluntaria. El reembolso se producirá cuando ingrese un nuevo socio en la cooperativa de viviendas. No obstante, si transcurre el plazo legal máximo de cinco años sin que se haya producido la sustitución del antiguo cooperativista por uno nuevo, deberá abonarse el reembolso al socio cooperativista que ejercitó el derecho.
THE TERM OF REFUND OR LIQUIDATION OF THE COOPERATIVIST’S CONTRIBUTIONS
Commentary to the Supreme Court Judgement 289/2020, Civil, of June 11 (ROJ STS 1577/2020)
The Sentence deals with the exercise of the right of refund or liquidation of the cooperativist who causes voluntary leave. The refund will occur when a new member joins the housing cooperative. However, if the maximum legal period of five years finishes without the replacement of the old cooperative member by a new one, the refund must be paid to the cooperativist who exercised the right.
Amalia Rodríguez González y Itziar Villafáñez Pérez (Coordinadoras)
Cooperativas y empleo de calidad para las personas con discapacidad
Helea Danae Cano MorenoDescargar
Inclusión de cláusulas sociales y mediambientales en los pliegos de contratos públicos. Guía práctica profesional
Amalia Rodríguez GonzálezDescargar
Innovación social en la contratación administrativa: las cláusulas sociales
Amalia Rodríguez GonzálezDescargar
Manual de economía social
Mª Soledad Fernández SahagúnDescargar
Participación de los trabajadores en la empresa y sociedades laborales
Mª Soledad Fernández SahagúnDescargar
Integración y concentración de empresas agroalimentarias: Estudio jurídico y económico del sector y de la Ley 13/2013 de fomento de integración cooperativa
Paula de Íscar de RojasDescargar
La economía social en la Comunitat Valenciana: regulación y políticas públicas
Paula de Íscar de RojasDescargar
Reseñas de publicaciones de carácter jurídico sobre entidades de Economía Social
Amalia Rodríguez González y Itziar Villafáñez Pérez (Coordinadoras)
Reseñas de jurisprudencia del Tribunal Supremo sobre entidades de Economía Social
Abril 2020 – Octubre 2020 / María José Arnau Cosín y Jesús Olavarría Iglesia