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El plan de acción europeo para la Economía Social (Building an economy that works for people: an action plan for the social economy), es una oportunidad única para construir la economía social del “Dato”. Ello será clave en las estrategias para hacer frente a los retos que suponen la economía del Dato y los cambios sociales que desencadenarán, así como ayudar a abordar los problemas ambientales y transformar la forma en que administramos nuestras plataformas. La economía social digital podría cambiar fundamentalmente la forma en que los datos, los activos y los recursos laborales se valoran y comercializan, empoderando e incentivando a individuos, empresas y gobiernos a cooperar liberando valor financiero de cosas que actualmente se desperdician, descartan o tratan como económicamente invaluables. Next Generation Internet (NGI) podría impulsar un cambio generalizado de comportamiento y ayudar a realizar una economía del Dato verdaderamente democrática y sostenible.

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THE NEW DATA SOCIAL ECONOMY

The “Building an economy that works for people: an action plan for the social economy” There is a unique opportunity to harness the social data economy. This will be key to strategies to address the challenges posed by the Data economy and the social changes it will unleash, as well as helping to tackle environmental problems and transform the way we manage our platforms. The digital social economy could fundamentally change the way data, assets and labour resources are valued and traded, empowering and incentivising individuals, businesses and governments to cooperate by unlocking financial value from things that are currently wasted, discarded or treated as economically invaluable. Next Generation Internet (NGI) could drive widespread behavioural change and help realise a truly democratic and sustainable data economy.

 

EXPANDED ABSTRACT

The European Action Plan for the Social Economy (Building an economy that works for people: an action plan for the social economy), is a unique opportunity to build the social economy of the “Data”. This will be the key in strategies to address the challenges posed by the Data economy and the social changes it will bring, as well as helping to deal with environmental problems and transform the way we manage our platforms.  The digital social economy could fundamentally change the way data, assets and labor resources are valued and traded, empowering and incentivizing individuals, businesses, and governments to cooperate by unlocking financial value from things that are currently wasted, discarded or treated as economically invaluable. Next Generation Internet (NGI) could encourage widespread behavioral change and help to regulate and realize a truly democratic and sustainable data economy. Legal uncertainty and barriers, commercial disincentives and lack of adequate infrastructure are among the main factors preventing the exchange of data between Social Economy enterprises. In addition, the absolute immersion of the digital and the physical will dominate the new era on the Internet. The paper addresses the increasingly difficult task of regulating and discerning fact from fiction.

The treatment given by the legislator to the social economy ecosystem in this context is fundamental to clarify the governance of this new market, its agents, and the new European data spaces, questions of legal regime on which this work explores in depth. Crucial, among others, will be the evolution in Europe of the proposed regulation known as the Data Act, which aims to maximize the value of data in the economy by ensuring that a wider range of stakeholders gain control of their data and that more data is available for innovative use, while preserving incentives to invest in data generation.  It contributes to the creation of a cross-sectoral governance framework for data access and use by legislating on issues that affect the relationships between actors in the Data economy. It also counteracts new network effects and encourages cooperative platforms that enable open access to data, and allow for “fair” remuneration of data, as well as provide basic technological infrastructure, in a way a return to the original configuration of the Internet.

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En todo el planeta, los cuidados de larga duración van generando un segmento de la economía en crecimiento constante. El número de empresas privadas y fondos de inversión que han entrado en este mercado ha crecido exponencialmente. Este es un ámbito caracterizado por la prestación del cuidado por mujeres y, con el incremento de la inmigración de personas más pobres y de otras culturas, los cuidados también se les encargan a ellas. La tipología de la oferta de atención, pública o privada, de cuidados es muy variada. Al impulso de la renovación digital han surgido, como una alternativa más, las plataformas digitales de cuidados. Sin legislación específica, éstas plantean muchos problemas que merecen especial estudio y atención. Algunos pueden ser solventados si la entidad titular de la plataforma no es un empresario que intermedia los servicios entre el cliente y las cuidadoras sino una empresa de la economía social.

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DIGITAL PLATFORMS FOR CARE AND SOCIAL ECONOMY ENTITIES

Across the planet, long-term care is a constantly growing segment of the economy. The number of private companies and investment funds that have entered this market has grown exponentially. This is an area characterized by the provision of care by women and, with the increase in immigration of poorer people from other cultures, care is also entrusted to them. The typology of care, public or private, is highly varied. Due to the momentum of digital renewal, digital care platforms have emerged as an alternative. Without specific legislation, they raise many problems that deserve special study and attention. Some can be solved if the entity that owns the platform is not an entrepreneur that intermediates the services between the client and the caregivers, but rather a social economy entitie.

 

EXPANDED ABSTRACT

Across the planet, long-term care is a constantly growing segment of the economy. The number of private companies and investment funds that have entered this market has grown exponentially.

The Spanish welfare system, like other southern European countries such as Italy or Greece, is a mainly familial system. The greater labor participation of women, the aging of the population and the still low male involvement in household chores, together with the economic crisis and the loss of purchasing power of families, lead women to continue performing care tasks in an unpaid or unrecognized way and now, due to COVID crisis, with greater hardship. All this has led to the so-called “social crisis of care”. The need for long-term care has grown faster than the political capacity to respond to it, in an already fragile context.

It is clear that new solutions to care delivery are required on two fronts: in terms of the nature and facilitation of care policies and services, and in terms of the conditions under which care is provided. In recent years, the need to make the care economy a lever for changing the economic model, thus contributing to creating social value and promoting the sustainability of life and the planet, has been confirmed with greater intensity.

In Spain, Act 39/2006, of December 14, on the promotion of personal autonomy and care for people in a situation of dependency (LAPAD), was at the time a great advance in terms of the care economy, recognizing the universal right of the person to receive assistance. But the budgetary reality of subsequent years has meant that public benefits and services do not reach all the people who need them in the long term, and many are still unable to afford private care.

The Government of Spain’s Employment, Recovery and Resilience Plan on the Care Economy and, more recently, the Communication from the Commission to the European Parliament and the Council, the European Economic and Social Committee and the Committee of the Regions on the European Care Strategy, design the strategies and propose the agendas to try to address the needs of all care interests (caregivers and those who receive care) and provide an appropriate response and urgent to the problems raised.

For the moment, the insufficiency of public resources has boosted private economic activity in care, characterized by being a lucrative and continuously growing sector. Families who hire caregivers often engage with them through informal channels of connection or private entities, such as placement agencies. From an objective point of view, the variety of the offer of these services is a good thing. Care services should meet the needs and preferences of both workers and care recipients and be adequate, appropriate, flexible, and provided free of charge or at a reasonable price, commensurate with workers’ ability to pay. However, long-term care services remain inaccessible to most older people with care needs. In almost all the States of the European Union, care activity is provided by both public entities and private companies, given the lack of public resources to cover the volume of long-term care needs.
The typology of care, public or private, is highly varied: On the one hand, cohousing, and other modalities such as ecological housing, oriented retirement communities, micro communities, village movement, among others. On the other, the residences for the elderly, also of varied typology.

In growing trend, are the companies that offer home care services, also of varied typology. Some hire workers themselves, but they are in the minority. Most act as placement agencies and simply mediate between caregivers and families. These entities can, in turn, act in two ways: limit themselves to selecting the people and putting both parties in contact or, in addition to establishing contact between the parties, assume to register the worker on behalf of the family, in the Special System for Domestic Employees of the Social Security, and handles administrative tasks. Some of these companies have already begun their expansion through the franchise formula.

Due to the momentum of digital renewal, digital care platforms have emerged as an alternative. Without specific legislation, they raise many problems that deserve special study and attention. Regarding digital platforms in the fields of home care and domestic work, there are significant regulatory gaps for their implementation and action, all of which must be treated differently. The risk of invisibility that comes with working on platforms can be amplified if it is added to domestic work, already at risk of becoming invisible; the paucity of studies and initiatives addressing the intersection of these phenomena indicates how urgent it is to address this issue for academics, social partners and policymakers.

It is important to know the basic characteristics of the three actors involved in the provision of long-term care through digital platforms, because their idiosyncrasies mark, in an essential way, the possible business models: clients, caregivers and digital platforms. The experience of other digital work platforms makes us think of new vulnerabilities derived from this special kind of work that is that of care.

Some can be solved if the entity that owns the platform is not an entrepreneur that intermediates the services between the client and the caregivers, but rather a social economy entity.
In the collaborative economy, value is generated by the providers and/or users of the platforms (prousers) who, despite this, and generally, are not rewarded given that this value remains in the hands of the owners of the platforms, usually capital companies, so that the value generated by the suppliers and / or users becomes a benefit for the capitalist partners. But it is possible to alter this equation if the platform is owned by the prousers organized in associated work Cooperative or in Labor Society, for example, and it is these entities who manage it. The disruptive element that appears is that the social purpose of the cooperative or the labor society will be developed through the platform, that is, through digital technology. If there are no studies on digital care platforms in general, even less on digital care platforms owned by a social economy entity. So, the proposal formulated in this work is only the beginning of a long way to go.

The business model that arises when an associated work cooperative or a labor society is the owner of the digital platform is the following: the associated work cooperative or the labor society integrates care workers as partners, and they provide care services through the digital platform owned by the social economy entity in question. The client contracts the services to the associated work cooperative or the labor society that owns the platform, since this will not be, unlike the examples that have been pointed out above of care platforms, a mere intermediary of the services; In this way, the client is not obliged to directly hire the different professionals, but contracts with the company that owns the platform. This offers the economic and legal advantages linked to the centralization of services that, as the cooperative or the labor society is committed to providing them, will be offered to the customer safely and continuously. It becomes fundamental to study how the algorithm will work when allows the client to choose the workers and to distribute and compensate for the work performed. But unlike what we have seen happening with other care platforms, it will be the worker-partners who will participate in decision-making regarding these and many other issues.

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El tamaño cooperativo puede ser determinante para el actual Plan de Acción de la Unión Europea en el ámbito de la Economía Social, que pretende impulsar al sector ayudándolo a que la transición digital, ecológica, verde y circular, sea efectiva. En este estudio proponemos una revisión de los incentivos a la integración cooperativa agroalimentaria a nivel español como uno de los ejes prioritarios de actuación del Gobierno de España y alineado con el Plan de Acción Social Europeo. Concretamente, se estudia la situación autonómica y la normativa de aplicación para obtener una visión de conjunto sobre las debilidades y fortalezas que el entramado normativo presenta al respecto de la integración de cooperativas y su relación con el caso extremeño. La existencia de importantes divergencias por Comunidades Autónomas es una de las principales conclusiones alcanzadas.

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THE AGRI-FOOD COOPERATIVE INTEGRATION. ANALYSIS IN EXTREMADURA FACING THE CHALLENGES OF THE EU ACTION PLAN FOR THE SOCIAL ECONOMY

The size of cooperatives can be decisive for the current Action Plan of the European Union in the field of Social Economy, which aims to boost the sector by helping it to make the digital, ecological, green, and circular transition effective. In this study, we propose a review of the incentives for agri-food cooperative integration at the Spanish level as one of the priority axes of action of the Government of Spain and aligned with the European Social Action Plan. Specifically, the paper analyses the situation in different regions in Spain to obtain an overview of the weaknesses and strengths of the global regulatory framework regarding the integration of cooperatives and its relationship with the case of Extremadura. The existence of relevant divergences by Autonomous Communities is one of the main conclusions reached.

 

EXPANDED ABSTRACT

Competitiveness is a key concept in a world where market forces determine economic outcomes. The dimension of a business is a relevant factor in competitiveness. Size has always been considered an element that enhances business competitiveness because it definitely determines the ability to conquer new markets, surpass other players, attract investment and grow. This research is based on the premise that cooperative size can be a crucial determinant for the effectiveness of the current European Union Action Plan for the Social Economy. The plan aims to boost the sector by helping it in the digital, ecological, green and circular transition. In this context, and unfortunately, the Spanish agricultural cooperative sector is currently highly fragmented, and this clearly influences a position of inferiority when it comes to carrying out this transition.

The paper is written on the premise that the cooperative integration not only achieve better economic performance but also social and ethical advantages, ranging from the claim of the cooperative model, and the principle of cooperative cooperation, to the promotion of rural development, and the protection of employees.

We have carried out a review of the incentives for agri-food cooperative integration at the Spanish level as one of the priority lines of action of the Spanish Government and in line with the European Social Action Plan. In fact, we have studied the situation in the Autonomous Communities and the applicable regulations in order to obtain an overview of the weaknesses and strengths of the regulatory framework regarding the integration of cooperatives and its relationship with the case of Extremadura. In an attempt to offer a detailed and comparative view of how some Autonomous Communities have regulated the processes of cooperative growth and integration, clear divergences have been detected between them. The cases of those with specific prior legislation – the Autonomous Communities of Castilla-La Mancha, Valencia, Castilla León and Andalusia – are analysed, followed by an analysis of the situation in the Autonomous Community of Extremadura, which has recently introduced specific measures for cooperative integration. It has been observed that the differences in scope, eligible concepts and amounts justify the existence of significant differences to be considered by the cooperative’s executive-manager depending on its territorial affiliation.

Specifically, the case of Extremadura has all the figures analysed for integration, namely: positive measures for regional Priority Associative Entities (EAPs), measures to promote Producer Organisations (POs) in their regional development plans, as well as other alternative or complementary measures to the first ones. However, it is remarkable that in each new financial year in Extremadura fewer resources are allocated to integration, but the requirements, demands and limitations in terms of eligible concepts and amounts seem to increase. In fact, the €200,000 de minimis amount has not been reached in recent years. Furthermore, expenses are not included that are contemplated in other Autonomous Regions, such as, for example, the internationalisation expenses of the new entity generated, which we believe would be very useful for the sector and for exports from the Extremadura region. As for the aspects most closely linked to the strategy for promoting and disseminating cooperative integration, raising awareness of the cooperative fabric, and specific training for cooperative managers and members, we believe that they should be addressed because they would be of great help in ensuring that public efforts to promote cooperative integration succeed in Extremadura. Therefore, there is much scope for promoting integration in Extremadura, by improving the amounts of aid and extending the eligible expenses, although perhaps what is most necessary is an effort in dissemination, awareness-raising and even training of the human capital at the management of cooperatives in Extremadura. The conclusions obtained are valid for potential corrective and incentive measures, respectively, by regulatory bodies in the Autonomous Community of Extremadura.

We can conclude that there are significant differences in the treatment of cooperative integration in the different autonomous communities. This would explain why cooperatives ’management teams’ predisposition to integration may be conditioned by the legislative environment, depending on whether the latter has more or fewer measures to support integration. Thus, it was found that the location of the institution and the applicable regulations have a bearing on integration. In the light of the comparison, it can be concluded that in the Autonomous Community of Extremadura there is scope for the Junta de Extremadura’s policy to stimulate integration: by increasing aid to at least €200,000, as in other Autonomous Communities, by considering new types of expenditure such as training costs, and by easing existing restrictions rather than introducing new ones.

The European Union’s Action Plan for the Social Economy poses important challenges for the agri-food cooperative network in Extremadura. The growth and international expansion promoted by the plan will not be possible in Extremadura for agri-food cooperatives if they do not organise themselves into a network. The promotion of cooperative integration is not a new policy in the region, as has been analysed in this paper. Moreover, the comparative study carried out has enabled us to note the similarities and differences between the measures implemented by Extremadura and those of the other Autonomous Regions. For this reason, we consider that a comparative review of the different existing regulations can serve as a reference for the Autonomous Community of Extremadura to analyse and review its requirements for the region’s cooperatives so that they are not at a disadvantage compared to other Autonomous Communities when they opt for integration. The advantages of integration, not only cooperative but also at the level of any business reality, have long been corroborated by research, but in a context such as the current one where there is a European Action Plan to stimulate the sector, they are particularly relevant. This Plan explicitly clarifies that existing support systems do not always consider the special characteristics of their business models in terms of governance, profit allocation, working conditions and social impact, issues that should form the basis for future incentive measures. All these reasons justify the usefulness and convenience of a research study for Extremadura such as the one performed.

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El presente trabajo pretende analizar el futuro del acceso a los mecanismos de financiación por las empresas de economía social a la luz del Plan de Acción para la economía social puesto en marcha por la Comisión europea. Se parte la consideración de aspectos esenciales de la economía social contextualizada en el momento de recuperación pos pandemia en el que nos encontramos, poniendo en valor el papel que la economía social puede y debe asumir. Se refieren mecanismos de financiación preexistentes y se analiza, con visión crítica, el contenido del Plan de Acción en esta materia. Se consideran, conjuntamente, el Plan de Acción y los Objetivos de Desarrollo Sostenible adoptados por Naciones Unidas. Se concluye con un conjunto de reflexiones que procuran acercar el análisis investigador al marco de actuación de las empresas de la economía social.

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THE IMPROVING ACCESS TO FINANCE WITHIN THE FRAMEWORK OF SOCIAL ECONOMY. RECONSIDERATION OF THE FINANCIAL INSTRUMENTS AND INVESTMENTS MECHANISM IN THE CONTEXT OF THE SOCIAL ECONOMY ACTION PLAN

This paper aims to analyse the future of access to financing mechanisms by social economy companies in the context of the Action Plan for the social economy launched by the European Commission. It starts with the consideration of essential aspects of the social economy contextualized in the moment of post-pandemic recovery, valuing the role that the social economy can and must assume. Pre-existing financing mechanisms are analysed and the content of the Action Plan in financial matter is reflected, with a critical vision. Together, the Action Plan and the Sustainable Development Goals adopted by the United Nations are considered. It concludes with reflections that aims to bring the research analysis closer to the action framework of social economy companies.

 

EXPANDED ABSTRACT

This paper aims to analyse the future of access to financing mechanisms by social economy companies in the context of the Action Plan for the social economy launched by the European Commission.

The starting point is the consideration of essential aspects of the social economy contextualized in the moment of post-pandemic recovery, placing value on the role that the social economy can and must assume. From a practical perspective, definitions of contrasted validity are assumed. They allow to fit the phenomenon into the reference text that constitutes the central axis of this research: the Action Plan for the social economy.

These initial contextualization notes continue with the consideration of the social economy as an instrument for recovery after the pandemic. The economic impact of the crisis caused by the COVID-19 pandemic on the economy has been very significant and there is no doubt that much of it will continue to have an impact in the medium and long term. It is obvious that the social economy has not remained unaffected by these circumstances and has been adversely affected. But it has also been an opportunity to demonstrate its resilience in such an adverse scenario. The drafting, approval and implementation of an Action Plan for the social economy is a clear confirmation of the commintment of European authorities to this value.

The article refers pre-existing financing mechanisms and critically analyzes the content of the Action Plan in this area. It is pointed out that social economy entities do not always have easily identify funds that invest in social enterprises, that public authorities do not take full advantage of the existing possibilities to facilitate the access of social entities to public procurement or financing, nor of the flexibility offered by the current EU rules on state aid. Consequently, they are not sufficiently understood and recognised. They need more and better support to grow and thrive.

The study is enriched with a brief reference to particular and pre-existing forms of financing: impact investments, defined by the Global Impact Investing Network (GIIN) as an investment made with the intention of generating social and environmental impact as well as financial return, and social banking, made up of those credit institutions that develop a business model based on the compatibility of economic and social profitability, by financing the real economy and reinvesting part of their economic profits in society.

Moving on to the specific issue, the article continues with a section on improving access to financing in the Action Plan, which devotes section 4.2 to the specific item “improving access to funding”. The Action Plan starts from the consideration that more intermediaries and investors are aware of social economy entities, including social enterprises, and are providing repayable finance and business development support to address their needs. The Plan notes that Ethical banks have played an important role in this regard. Since the 2008 financial crisis, the micro-finance sector has also experienced considerable growth in the EU and neighbouring countries. Many micro-finance institutions are part of the social economy, with a dedicated social mission to help individuals from vulnerable groups and with difficulties to access the traditional banking system to create businesses, thereby creating jobs for themselves and others. Overall, the use of financial products such as guarantees has proved to be an effective way of mobilising private finance for social enterprises from both mainstream and philanthropic investors.

However, not all pronouncements are positive. An analysis of social enterprise finance markets revealed a persisting mismatch between the demand and supply of repayable finance for social enterprises in Europe, both in terms of access to debt and equity.

In the article, the Action Plan and the Sustainable Development Goals adopted by the United Nations are considered together, the latter being understood as an urgent call for action by all countries -developed and developing- in a global partnership. They recognize that ending poverty and other deprivations must go hand-in-hand with strategies that improve health and education, reduce inequality, and spur economic growth – all while tackling climate change and working to preserve our oceans and forests. Linking these values with the principles of the social economy has placed these companies at the forefront of achieving the SDG, especially those where initially the private sector and, therefore, the social economy play a relevant role. Through current examples, we demonstrate how the social economy has incorporated sustainable development as a central part of the business model of financial institutions that reinvest in projects focused on serving people and their environment and that are in line with the SDG.

It concludes with a set of reflections that seek to bring the research analysis closer to the framework of action of social economy enterprises. The social economy has proven to be an actor with an important capacity to respond to the COVID-19 pandemic. Having overcome the critical moments, especially in terms of health, we are heading towards a scenario of reconstruction. Consequently, the establishment of strategic planning that implies the distribution of resources. Within the framework of this reconstruction scenario, we are in the perfect position to give the social economy the role it deserves, taking advantage of its potential and bringing about changes in the traditional management model to which we are accustomed. Guaranteed access to financing is a key pillar for achieving this objective. Our concern for the legal perspective of financing mechanisms in the social economy system stems from the awareness of the need to take into account the particularities of social economy enterprises at the local level and, especially, at the community level.

In this regard, the European authority has set up several parallel lines of action: launch new financial products in 2022 under the InvestEU programme aimed at mobilising private financing targeted at the needs of social enterprises at different stages of development; ensure that InvestEU financial intermediaries providing finance to social enterprises are easy to identify by potential beneficiaries; complement financial instruments with grant support for building social enterprise finance markets in Europe by supporting the setting up of new financial instruments and investment readiness programmes. And complement equity investment instruments with grant support aimed at lowering transaction costs for risk-capital investments into social enterprises.

Furthermore, approaches to social impact measurement should be well thought through, so the Commission Will support the development of social impact measurement and management by mapping and reviewing existing practices and launching trainings for social economy stakeholders, to improve understanding and facilitate uptake of such practices.

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Tras la pandemia sanitaria se ha producido un importante impulso en la transformación digital de nuestra sociedad aunque también se han evidenciado carencias que resulta necesario ir paliando. Una de ellas es el limitado progreso digital de las pymes entre las que se encuentran la mayoría de sociedades laborales. Por tanto, resulta necesario impulsar la utilización de las nuevas tecnologías por este tipo social para que puedan aprovechar las oportunidades que les ofrecen estos medios.
A estos efectos, se abordan algunas de las cuestiones que son clave para lograr la transformación digital de las sociedades laborales. En primer lugar, su posible constitución telemática cuando optan por la forma de sociedad limitada. Y, en segundo, el recurso a las nuevas tecnologías en el funcionamiento de su junta general; más concretamente se analiza la asistencia virtual de los socios y la, recientemente regulada, junta exclusivamente telemática.

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ADVANCES IN DIGITALIZATION OF LABOR COMPANIES. SPECIAL REFERENCE TO ITS TELEMATIC CONSTITUTION AND THE MEETING, PARTIALLY OR EXCLUSIVELY, DIGITAL

After the health pandemic, there has been a significant boost in the digital transformation of our society. Nevertheless, there are also several shortcomings which need to be palliated. One of them is the limited digital progress of SMEs and, as a part of them, of the labor companies. In this type of companies, it is necessary to promote the use of new technologies and, in order to achieve this purpose, several key issues will be analyzed in this article. For instance, the possibility of a telematic constitution of labor companies when they opt for the private limited liability form. In the same way, the virtual attendance and participation of partners at the general meeting, or the recently regulated possibility of exclusively telematic general meetings will also be examined.

 

EXPANDED ABSTRACT

The Recovery, Transformation and Resilience Plan, framed in the funding funds Next Generation EU, defines among its strategic plans developing the Digital Spain 2025 agenda, the Digitization Plan for SMEs. This Plan aims to promote the digitalization of these companies, because in this field their progress has been much more limited in Spain despite being the predominant type of enterprises. This circumstance affects, even more, the entities of the social economy. In these entities the level of digitization achieved is lower than the business average because they are basically integrated by micro-enterprises and SMEs. However, they are crucial to promote and catalyze the socioeconomic transformation because in these entities people prevail over capital and the principles and values of the social economy ensuring stable and quality employment, sustainability and strong resilience to economic shocks are promoted. In short, they are ideal for helping in the humanist digitalization that should lead the Recovery Plan to achieve an economy focused on people fairer and more sustainable. It is, therefore, necessary to encourage them to use new technologies so that they can take advantage of their benefits and improve their efficiency and competitiveness.

The article addresses some of the issues that are key to achieve the digital transformation of labor societies as one of the main entities of the social economy. Specifically, their possible telematic constitution and the use of new technologies in the operation of their general meeting. Previously, the significance of the labor society as a hybrid social type is analyzed. Due to its mandatory form of public or private limited liability company type labor companies must be considered capitalist companies although they differ from these ones in their purpose, that is, promoting access to membership and control of the company by its indefinite employees. Such consideration implies that the general regime of capitalist companies should be invoked since neither their specific regulation, nor other rules issued to promote corporate digitalization expressly refer to the labor society. This fact constitutes an undoubted advantage over other entities of the social economy that suffer from this supplementary remedy.

At first, the telematic incorporation of companies in Spain was focused on private limited liability companies. The Royal Decree 44/2015, of 2 February, extended that regulation-although in a limited way- to other social types. The Royal Decree included the specifications and conditions for the use of the Electronic Single Document (EDD), for the start-up of labor private limited liability companies through the telematic processing system. Based on this regulation and on Law 14/2013, of 27 September, on Support for Entrepreneurs -amended by Law 18/2022, of 28 September, on the creation and growth of companies- the current problems of the telematic constitution of a labor private limited liability company will be analyzed, considering that this analysis will differ depending on whether standardized articles of association are used or not. As conclusion, it is proposed, lege ferenda, the approval of standard articles of association adapted to their peculiarities so that these companies can compete in equal terms with ordinary private limited liability companies. Despite this, we prefer, for the reasons we enumerate in the paper, its telematic constitution without this standardized resource because it allows them to adapt social functioning to their real needs through the articles of association.

Secondly, the work focuses on the significant advances produced after the pandemic in the digital functioning of the general meetings of labor societies regardless of whether they are public or private limited liability companies. On the one hand, the possible telematic attendance of partners in the general meetings of the labor societies is studied, as regulated by article 182 of the Law on Capital Companies. This telematic attendance was exclusively recognized for public limited liability before the reform of Law 5/2021, of 12 April, although it was admitted for the limited ones based on the autonomy of the will. However, this telematic attendance must be provided in the articles of association and this is something usually not included in the articles of association of labor companies. Therefore, we consider it highly advisable that these entities, whether public of limited liability companies, include in their articles of association this possibility with the legally foreseen requirements. It is questionable whether the articles of association could limit the possibility of telematic attendance to one type of partner in labor companies. Specifically, promoting the telematic attendance of shareholders holding shares or shares of general class, and not offering this alternative to partners holding shares of the working class under the justification that their necessary condition of indefinite workers of the company and their natural proximity to the registered office, facilitates their personal participation. We consider such clause to be problematic and we advise against its inclusion in the articles of association because it seems to assume, that the virtual presence of the members is not equivalent to the physical one and would prevent partners holding working class shares from taking advantages of the virtual attendance.

Finally, the general meetings held exclusively through telematic means are analyzed. This possibility was one of the first exceptional measures issued after the declaration of the state of alarm by the covid-19 pandemic to avoid the inadequate functioning, or even paralysis, of this collegiate body due to the restrictions on mobility imposed, like any other citizen, to the partners. It should be noted that during the exceptional period of the pandemic the express statutory provision was not required. The proper functioning of the telematic general meeting led to the extension of this legal possibility beyond the state of alarm. Thus, Law 5/2021, of 12 April, includes in the ordinary company regime the possibility of holding exclusively telematic general meetings in both public and private limited liability companies, adding to the LSC the new article 182 bis. This provision, however, subject the possibility of holding meetings without the physical assistance of the members or representatives to the prior authorization of the articles of association. This requirement has been criticized in this paper. After analyzing the legally required conditions, paying particular attention to the particularities of labor societies, urge that these entities, whether public or private limited liability companies, authorize this possibility in their statutes to take advantage of its undoubted benefits, among other things, to reduce costs and waste of time for partners.

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La digitalización del sector agroproductor es un hecho, aunque todavía sigue siendo lenta y necesita de herramientas que le resulten de fácil implementación en sus organizaciones y además les permitan interactuar con otros agroproductores sin alterar las reglas de la libre competencia. En este trabajo ofrecemos las claves para la aplicación de las tecnologías disruptivas en el sector de las cooperativas agroalimentarias, formulando propuestas concretas de implantación de las tecnologías de la información y comunicación en sus respectivas organizaciones. Las TICs han llegado para mejorar las funciones de las organizaciones y de sus actividades, pero además, para proveer a las entidades de las herramientas necesarias para interactuar en la trazabilidad de productos o de servicios, lo que favorecerá la difusión de la marca, la comercialización de productos o servicios, mayor creatividad e innovación y como consecuencia de todo ello, se logrará un mejor acceso a los canales de financiación.

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DIGITALIZATION OF THE AGRICULTURAL SECTOR: INTERCOOPERATION AND DISRUPTIVE TECHNOLOGIES

The digitalization of the agro-producing sector is a fact, although it is still slow and needs tools that are easy to implement in their organizations and allow them to interact with other agro-producers without altering the rules of free competition. In this paper we offer the keys for the application of disruptive technologies in the agri-food cooperative sector, formulating concrete proposals for the implementation of information and communication technologies in their respective organizations. ICTs have arrived to improve the functions of organizations and their activities, but also to provide entities with the necessary tools to interact in the traceability of products or services, which will favor the dissemination of the brand, the marketing of products or services, greater creativity, and innovation and, as a consequence of all this, better access to financing channels will be achieved.

 

EXPANDED ABSTRACT

In addition, we reflected on the digital transformation of agriculture through the use of the Internet through different formulas that should be encouraged by increasing digital skills among the rural population and promoting the culture of agribusiness and digital innovation. ICTs should be an engine of change and not an enhancer of inequalities. The digital divide is therefore one of the main causes of social inequality, access to a computer, to a connection point with the network, is still complicated, the next step is the use, but we lack digital skills to be able to use it, and finally the misuse of the information society, for lack of identification of misconduct.

The digital transformation will change the structure of the labor market and the nature of work, in addition to redefining the role of farmers and agribusinesses, how and where people work. This implies a major change in the use of digital technologies in internal management, commercial operations, new business models and interaction with customers and third parties through different channels. Small and medium-sized enterprises, including cooperatives, often find it difficult to move beyond the application development stage and become operational as such. Education is one of the key points to accelerate innovation and digital transformation; the complicity of the Public Administrations in this point is essential to change the business culture and create support programs so that, especially young people, are the ones who digitize the agricultural sector through innovation and technology transfer programs, together with the necessary funding.

The development of the Internet and the activities that can be carried out through the network is leading to the implementation of processes and languages that provide security both to the communication channels and to the contents that circulate through it. This will require information to be structured and filtered using legal tools that we already have, such as personal data protection regulations, and technological tools, such as the use of computer markup languages, such as XML, which will make it possible to create documents that are valid in themselves (Smart contracts, Smart documents) to which, if we add electronic signatures and time-stamping, their modification will be prevented.

The consideration of blockchain as a system of data structuring and democratization of processes, will allow to order the information of the network. With blockchain we will be able to order and control procedures, in such a way that the role of supervisory and control bodies can be automated, the important thing in this case will be how to alphanumerically check the hash of the document that has circulated through the network. Applying Blockchain technology involves analyzing processes focused on validation, on achieving the highest levels of certainty, control and trust. Blockchain is intended to contribute to providing confidence to the network and to the transactions developed and, in any case, it will act as a mediator, making connectivity possible. But Blockchain is not the panacea, nor is it the only solution to provide security to the procedures on the network, so it is important to highlight some essential elements of it which is mainly performance, standardization, or interoperability.

The information society brings technological innovation and the interconnection of networks. We understand that these are essential pillars for the development of the local area from the users’ perspective and for the business fabric, which is usually made up of small companies, many of them cooperatives. The fight against the digital divide in the rural environment is a fact, which is being carried out by the different Public Administrations, for which it is essential to focus on social commitment, on people, on protecting their rights and reducing inequalities.

The rural economy and rural businesses will increasingly depend on digitization, as well as on qualified professionals who make the most of the digital transformation and improve rural production in a sustainable way” and that “we must seek, above all, to overcome the digital divide and develop the opportunities offered by digitization and connectivity of rural areas.
The different public initiatives at both national and European level are aimed at offering that ecosystem that provides security to all procedures, and that consumers, as the weakest link in the chain, strengthen their position by knowing online, the information of the product they are going to purchase. Blockchain used as the basis for management platforms enables shared databases in real time, which will allow transactions to be processed in real time and will not require the participation of third parties for validation. This places us in front of automated and disintermediated markets (peer to peer); to which must be added, without hesitation, all the financial regulations relating to payments and value exchanges.

The transformation and exponential evolution of the Internet is reflected in the small and medium-sized business sector and particularly in the environment of agricultural cooperatives, which can develop their activities and communications regardless of their size. The creation of databases is essential for the development of the activity of these entities, and the way to technologically articulate relationships, flows, data, links with third parties, will be decisive for the paradigm shift in the development of economic activity. The use of Blockchain as a data structuring system will contribute to the organization of this information in the network. Its segmented structuring must prioritize data privacy (GPDR and LOPGDD) and avoid leaks and unauthorized access to certain information. In the agri-food sector we can talk about sharing data obtained on the farm by tractors, by drones or sensors always under the protection of protection and security. In addition, their combination with data from external sources such as satellites, weather stations and market information makes it possible to create advanced prediction and advisory models. Therefore, we will briefly analyze the concept of Big Data and Artificial Intelligence applied to the agro-production sector.

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En 2021 se presentó el Plan de Acción Europeo para la Economía Social en el que la Comisión viene trabajando junto a los representantes del sector y otros agentes sociales. Asimismo, la Unión Europea está desarrollando diferentes acciones que apuestan por el uso intensivo del conocimiento en las actividades económicas sin descuidar valores sociales como la sostenibilidad e igualdad de oportunidades, lo que aconseja aunar cambio tecnológico con progreso social, incrementando los procesos de emprendimiento basados en la economía social como soporte organizativo. Por otro lado, hay que ampliar la orientación que suele acompañar a las llamadas de las spin-off, start-up y EBT’s basadas en la generación, transferencia y explotación de conocimiento, hacia fórmulas que no se basen exclusivamente en el capital. En este contexto, el objetivo de esta contribución es identificar las barreras específicas que, además de las genéricas que suelen afectar a todo proceso de emprendimiento, también se presentan en el emprendimiento mediante spin-off o start-up con figuras propias de la economía social, como son las cooperativas y sociedades laborales.

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BARRIERS TO THE USE OF SOCIAL ENTREPRENEURSHIP FORMULAS IN SPIN-OFFS AND START-UPS. THE CASE OF COOPERATIVES AND WORKER-OWNED COMPANIES IN SPAIN

In 2021, the European Action Plan for the Social Economy was presented, on which the Commission has been collaborating with representatives of the sector and other social agents. Likewise, the European Union is developing different actions that are committed to the intensive use of knowledge in economic activities without neglecting social values such as sustainability and equal opportunities, which makes it advisable to combine technological change with social progress by increasing the processes of entrepreneurship based on the social economy, as an organizational support. On the other hand, the orientation that usually accompanies spin-off, start-up and technology-based companies based on the generation, transfer and exploitation of knowledge needs to be broadened towards formulas that are not exclusively based on capital. In this context, the aim of this contribution is to identify the specific barriers that, in addition to the generic barriers that usually affect all entrepreneurial processes, also arise in entrepreneurship through spin-offs or start-ups with figures from the social economy, such as cooperatives and worker-owned companies.

 

EXPANDED ABSTRACT

In 2021, the European Action Plan for the Social Economy was presented, on which the Commission has been collaborating with representatives of the sector and other social agents. Likewise, the European Union is developing different actions that are committed to the intensive use of knowledge in economic activities without neglecting social values such as sustainability and equal opportunities, makes it advisable to combine technological change with social progress by increasing the processes of entrepreneurship based on the social economy, as an organizational support. On the other hand, the orientation that usually accompanies spin-off, start-up and technology-based companies based on the generation, transfer and exploitation of knowledge needs to be broadened towards formulas that are not exclusively based on capital. In this context, the aim of this contribution is to identify the specific barriers that, in addition to the generic barriers that usually affect all entrepreneurial processes, also arise in entrepreneurship through spin-offs or start-ups with figures from the social economy, such as cooperatives and worker-owned companies.

In 2021, the European Action Plan for the Social Economy was presented, on which the Commission has been collaborating with representatives of the sector and other social agents. The European Action Plan for the Social Economy highlights the role played by social economy organizations in the current economic and social context, emphasizing that they provide concrete and innovative solutions to the main challenges we face. They are a source of job creation and contribute to inclusion and integration in the labor market.

However, the European Action Plan for the Social Economy also expresses the underutilization of their potential, as evidenced by the fact that “The social economy remains unknown to too many people”, and that they do not always have capital invested “Patient, long-term”. These and other circumstances lead to the fact that social economy entities do not enjoy sufficient understanding or recognition, resulting in difficulties in the development of their activities and their social and economic impact, which ultimately justifies more and better support. Consequently, the European Action Plan for the Social Economy aims to promote social innovation, support the development of the social economy and boost “its social and economic transformative power”.

In accordance with the premises of these European Union policies, there is no doubt about the interest, of increasing the entrepreneurial processes based on the social economy, as an organizational support, and, on the other hand, of integrating the orientation that usually accompanies the so-called spin-offs, start-ups as technology-based companies and emerging companies based on the generation of knowledge for intensive use.
However, in order to achieve this goal, it is appropriate to identify the specific barriers that, in addition to the generic barriers that usually affect all entrepreneurship processes, also arise in spin-off or start-up entrepreneurship under the social economy, such as, in particular, cooperatives and worker-owned companies. In this sense, in the national context there are successful precedents in the context of social economy entrepreneurship.

Fortunately, it is also true that there are already successful experiences of this type of technology-based and knowledge-intensive companies that have opted to set up as cooperatives and worker-owned companies. However, on the other hand, it is no less true that their weight is smaller than expected.

The orientation that usually accompanies spin-off, start-up and technology-based companies based on the generation, transfer and exploitation of knowledge needs to be broadened towards formulas that are not exclusively based on capital. In this context, the aim of this contribution is to identify the specific barriers that, in addition to the generic barriers that usually affect all entrepreneurial processes, also arise in entrepreneurship through spin-offs or start-ups with figures from the social economy, such as cooperatives and worker-owned companies.

On the one hand, the term “start-up” has been used to identify small, emerging but highly innovative companies with great potential for growth and profitability, which are called to develop a business cycle that can be summarized in the existence of an initial start-up phase, followed by growth and ending with the sale of the company. This process involves the entry and exit of investors, which is articulated, not on the adoption of a certain corporate form, but through the so-called “investment agreement”. This is a contract which will regulate the conditions of investment in the company by means of economic and political clauses which will be better suited to capital companies, although from a legal point of view the use of a cooperative or worker owned company should not be an obstacle to the entry of investment, as it will depend on the adequacy of the agreed obligatory content with the guiding principles of social economy companies.

On the other, technology-based companies are regulated in the Organic Law 6/2001, of December 21, 2001, on Universities in several articles, among which it is worth highlighting art. 41 and art. 83 LOU, in which technology-based companies are expressly mentioned, as well as by application of art. 84 LOU, and which were introduced by Organic Law 4/2007, of April 12, 2007, amending the LOU, without this or other precepts of the LOU identifying a specific type of company beyond the generic mention of the nature of “company”. Moreover, it is also interesting to note that the aforementioned reform of the LOU in 2007 in its DA 24ª modified Law 53/1984, of December 26, 1984, on incompatibilities of personnel in the service of public administrations, by establishing that these are companies “created from patents or results generated by research projects carried out in universities. However, the possibility of employment of cooperatives and worker-owned companies was recognized in the wording of art. 18.1 of Law 14/2011, of June 1, on Science, Technology and Innovation. The current wording of art. 18.1 of Law 14/2011, of June 1, on Science, Technology and Innovation, provides greater clarity in this regard. The reform recently introduced by Law 17/2022, of September 5, establishes that “research personnel may be authorized to provide services through a part-time employment contract in commercial companies and other entities with legal personality created or participated by the entity for which said personnel provides services”.

Limitations are identified as structural barriers the University may encounter when participating as a partner in a technology-based company that has adopted one of the forms of social economy companies, given that its participation in the share capital is easier in a capital company (public limited company or limited liability company) than in a cooperative or worker-owned company. However, the greater adequacy of capital companies to respond to the possible needs of entry and exit in the spin-off does not diminish the possibility that the technology-based company can also be articulated in a social economy company in which “voluntarily” assumes compliance with the principles of social economy, such as the participation of the partners in the production process, the democratic nature of decision making and the distribution of benefits according to the activity developed by the partners, among others.

Similar indirect barriers can be seen in relation to the possibility of creating a start-up or emerging company using a cooperative or a worker-owned company, given the greater versatility of capital companies compared to social economy companies when it comes to undertaking the investment agreement in the start-up. However, the regulation of social economy entities, as well as that of cooperatives and labor companies does not represent a direct legal barrier insofar as it does not prevent the possibility of serving as a channel for a start-up and assuming investment, but an indirect barrier as it will depend on the specific obligatory content assumed in the investment agreement, which must be aligned with the legal configuration of the social economy entity and with the guiding principles of these.

Finally, from a legal perspective, attention should be paid to the evolution of the recent Spanish Law 28/2022, of December 21, on the promotion of the emerging companies ecosystem. The wording of Article 3 contained in the Draft Law on the promotion of the ecosystem of emerging companies, rightly, has adapted to it, being the scope of action of the rule limited, taking into consideration the characterization of emerging company to any legal entity that simultaneously meets several conditions. Among these was, it should be newly created or no more than 5 years had elapsed “from the date of registration of the public deed in the Mercantile Registry “, which has been modified in the text finally approved, which also takes into account the registration in the Registry of Cooperatives. This modification, together with other adjustments, highlights its application to cooperatives.

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Las tecnologías de la información suponen una oportunidad para mejorar la competitividad de las empresas, que en el caso de las cooperativas también debe propiciar su contribución a la sociedad. En Cuba se ha venido produciendo un importante proceso de trasformación digital, que ha resultado consustancial al perfeccionamiento del modelo socioeconómico nacional. Tomando como referencia ese contexto, el presente trabajo se ocupa de valorar la manera en que impactan las cooperativas en el proceso de digitalización en la Isla. Para ello, se explica el desenvolvimiento de las transformaciones digitales en el país; se analiza el marco institucional de las cooperativas en Cuba, partiendo de sus antecedentes históricos hasta la actualidad; y, por último, se valora la inserción de estas formas asociativas en el proceso de transformación digital patrio.

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COOPERATIVES AND THEIR IMPACT ON A DIGITALIZED WORLD. RATINGS FROM AND FOR CUBA

Information technologies represent an opportunity to improve the competitiveness of companies, which in the case of cooperatives should also foster their contribution to society. In Cuba, an important process of digital transformation has been taking place, which has been consubstantial with the improvement of the national socioeconomic model. Taking this context as a reference, the present work deals with assessing the way in which cooperatives impact the digitization process on the Island. For this, the development of digital transformations in the country is explained; the institutional framework of cooperatives in Cuba is analyzed, starting from its historical background to the present; and, finally, the insertion of these associative forms in the national digital transformation process is valued.

 

EXPANDED ABSTRACT

In the business field, technological advances offer greater organization of the links with the communities, by segmenting forms of contact and dissemination of content, taking into account individual preferences. In addition, proactivity is fostered, by predicting results, anticipating problems and avoiding them, through data processing, monitoring and analysis of social behavior patterns. Added to this is the incidence of technological advances in the efficiency of processes to reduce environmental impact.

Although information technologies constitute an imperative to improve the competitiveness of companies, in cooperatives the balance must also be tipped so that their use contributes to equity, social balance, and the formulation of public policies aimed at reducing gaps. so that the trainings reduce the rates of technological illiteracy and so that there are incentives for investments in alternatives that facilitate access to these media and information resources.

In Cuba, especially during the last decade, an important process of digital transformation has been taking place. This process, which has been consubstantial to the improvement of the national socioeconomic model, has been expressed in the lines of political leadership of the country, as well as in various hierarchical and recently created regulations. However, it is worth asking if the cooperatives have contributed to this purpose and, in turn, if the changes in the world of information and communication technologies (ICT) that take place in the country have impacted on the development of the cooperatives.

On this basis, the present work intends to assess the way in which cooperatives impact the process of digitalization of Cuban society. For this, it will begin by explaining the context of digital transformations suffered by Cuban society. In a second moment, the institutional framework of cooperatives in Cuba will be briefly analyzed, starting from its historical background to the present. Finally, the insertion of these associative forms in the Cuban digital transformation process will be valued.

When assessing the progress experienced with the transition from computerization to digital transformation, it is verified how the latter is a logical and necessary derivation of a process that has not yet concluded in Cuban society. The current stage focuses on the changes closest to the citizen, and that involve a diversity of public and business actors.

In this scenario, the Cuban cooperatives are inserted, whose historical development has not yet led to a national cooperative movement. In this sense, the 2019 Constitution, although it persists in reducing the legal nature of the figure to a form of property, eradicates its agrarian perspective and recognizes the relevance of some principles that should mark its operation, as long as they are part of a movement that overcomes and strengthens them.

Starting from this institutional panorama, the potentialities and limitations of cooperatives to insert themselves in the context of digital transformation that the country is experiencing can be appreciated.

In the commercial order, the use of the different digital tools available does not occur in a balanced way among all the economic actors, although there is evidence on the implementation in the cooperative sector of this type of dynamics to develop its socioeconomic activity. In scientific publications, studies on the subject are scarce. For their part, press reports related to specific experiences of this type focus only on certain edges that limit the general understanding of the matter.

Despite the aforementioned, and taking into account the characteristics of the national cooperative organizations, it would be necessary to consider as factors with an incidence in the present situation, the challenge that, in the patrimonial and organizational order, face the adoption of these practices. Added to this is the challenge of providing all those involved inside and outside the cooperative organization with adequate training to generalize the use of ICTs.

With regard to the possibilities of teleworking, they should be analyzed at different levels. First of all, for organizations in the agricultural sphere, due to the nature of their corporate purpose, this option is not viable in terms of most of their activities. In the CNAs, the feasibility or not of this new way of working is also often conditioned by the characteristics of the service or the goods that they produce. In addition, it is necessary to consider the robustness of these organizations to adequately order such a process, as well as the limited availability of material support to face the costs of this modality of work.

Another insertion edge of the cooperative sector in digitization is its ability to operate within the Cuban industry of computer programs and applications. Two issues are relevant to this. The first has to do with its recognition as an agent to be considered within a strategic sector of the country’s development. The second is related to the opening of a field for the expansion and diversification of its productive activity, which can reach relevance inside and outside the country. However, to date the use of such potentialities by entities in the sector is discreet, since only two non-agricultural cooperatives are known within the one hundred and twenty-four new forms of economic management dedicated to software development.

As a summary, it can be argued that:
Cuban society, as a whole, has experienced a process of increasing computerization, backed by important political documents and their consequent implementation. Currently, the results achieved, in addition to their reservations, allow us to face the ascending goal of digital transformation in which all national actors must be involved, including cooperatives.

The legal regulation of the cooperative in Cuba historically has not been coherent with its identity, as it has been defined from reductionist conceptions that have not favored its development in accordance with the satisfaction of social needs. The 2019 Constitution opens a door for the legislator to institutionalize a socioeconomic movement that overcomes the limitations presented so far. However, the legal regime of the institution still retains the debt of a General Law of Cooperatives that contributes to homogenize the conception regarding these associative forms.

In this context, relevant opportunities have been opened for the national cooperative sector in terms of electronic commerce, teleworking and insertion in the Cuban industry of computer programs and applications. But, a sufficient use of these potentialities is not appreciated, which deserves more detailed studies in which academics, decision-makers and cooperative members intervene, in order to identify and exploit existing reserves.

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El presente artículo trata de las empresas sociales como una categoría societaria especial que el Plan de Acción para la Economía Social (PAES), presentado por la Comisión Europea a finales de 2021, ha incluido dentro de su ámbito. El PAES rompe así con la técnica usada por la mayoría de leyes de la economía social del mundo, incluida las españolas, que sólo reconocen como entidades de la economía social a las que se constituyan como una de las formas jurídicas tipificadas como tales, como son las cooperativas, mutualidades, fundaciones y las asociaciones. El trabajo comienza analizando el concepto de economía social que contiene el PAES, para después exponer los argumentos para defender que no todas las empresas de la economía social son empresas sociales. Posteriormente se realiza una breve recopilación de varios conceptos de empresa social desarrollados por la doctrina económica que revelan una gran diversidad de enfoques. A continuación, se analizan varios documentos publicados por la Unión Europea, desde de la Iniciativa en favor del emprendimiento social de 2011 hasta el reciente PAES, que señalan las notas que caracterizan a las empresas sociales independientemente de la forma jurídica que tengan. También se exponen los resultados obtenidos del análisis de diferentes ordenamientos jurídicos europeos, donde se distinguen tres modelos principales de regulación jurídica de las empresas sociales. El artículo concluye explorando las distintas vías que tiene el legislador español para regular las empresas sociales, señalando la oportunidad de reformar la Ley 5/2011 a través de la anunciada Ley Integral de Impulso de la Economía Social.

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SOCIAL ENTERPRISES AS ENTITIES OF THE SOCIAL ECONOMY IN THE EUROPEAN ACTION PLAN. LEGE FERENDA PROPOSALS FOR RECOGNITION IN SPAIN IN LAW 5/2011 ON SOCIAL ECONOMY

This paper deals with social enterprises as a special corporate category that the Social Economy Action Plan (SEAP), presented by the European Commission at the end of 2021, has included within its scope. The SEAP thus breaks with the technique used by most of the world’s social economy laws, including those in Spain, which only recognise as social economy entities those that are constituted as one of the legal forms typified as such, such as cooperatives, mutual societies, foundations and associations. The paper begins by analysing the concept of social economy contained in the SEAP, and then sets out the arguments to defend the idea that not all social economy enterprises are social enterprises. This is followed by a brief compilation of various concepts of social enterprise developed by economic doctrine that reveal a great diversity of approaches. Subsequently, several documents published by the European Union are analysed, from the 2011 Social Entrepreneurship Initiative to the recent SEAP, which point out the features that characterise social enterprises regardless of their legal form. It also presents the results obtained from the analysis of different European legal systems, where three main models of legal regulation of social enterprises are distinguished. The paper concludes by exploring the different ways in which the Spanish legislator can regulate social enterprises, pointing out the opportunity to reform Law 5/2011 through the announced Integral Law for the Promotion of the Social Economy.

 

EXPANDED ABSTRACT

On December 9, 2021, the European Commission presented the Communication Building an economy that works for people: an action plan for the social economy, which aims to implement a set of measures to mobilize the full economic potential of the European social economy for job creation, for a fair and inclusive economic recovery and for the ecological and digital transition. The plan, after noting that traditionally social economy refers to four main types of entities (cooperatives, mutual societies, associations and foundations), states that “social enterprises are now generally understood as part of the social economy”. Along the same lines, specifically including social enterprises, many official international documents are aligned, some of them very recent and of unquestionable importance. For example, the Resolution concerning decent work and the social and solidarity economy of the International Labour Organization of June 2022, states that “according to national circumstances, the SSE includes cooperatives, associations, mutual societies, foundations, social enterprises, self-help groups and other entities operating in accordance with the values and principles of the SSE” (II.5).

As the European action plan points out (section 2), the terms social and solidarity enterprises are sometimes used interchangeably to refer to social economy entities, but as this article demonstrates, these expressions are not synonymous. The few laws on the social economy in the world use a formalistic criterion whereby certain types of entities are included in the social economy on the basis of their legal form. However, for some time now there has been an open debate as to whether other types of enterprises, even if they are not constituted with the traditional forms of the social economy, should be recognized as such because they comply with its guiding principles.

This paper addresses social enterprises as a special corporate category, which in some European jurisdictions, and increasingly so after their promotion by the European Union, are provided with a specific legal framework to promote and encourage their development. The paper begins with a brief compilation of several concepts of social enterprise developed by the economic doctrine, both in the United States and Europe, which reveal a great diversity of approaches. This is followed by an analysis of various documents published by the European Union, which show the increasing recognition of this business phenomenon, from the publication of the Social Business Initiative in 2011 to the recent Action Plan for the Social Economy in 2021.

In the European Union, apart from the official documents mentioned above, neither directly applicable regulations nor directives of necessary transposition have been enacted to unify or harmonize the legal status of social enterprises. Hence, there is great freedom in the way in which the member states can regulate these alternative forms of enterprise. On the one hand, within the aforementioned margin of flexibility, a large number of countries have not issued specific rules for social enterprises, as has occurred in several central and northern European countries (Germany, Austria, the Netherlands, Sweden, etc.). On the other hand, other countries have created specific formulas for social enterprises, and three models of regulation can be distinguished: the use of the social cooperative form (as Belgium has done in the xi de 2019, enactment of a special law (as the United Kingdom did with the Community Interest Company Regulations 2005 or Italy with the enactment of the Decreto Legislativo de Revisione della disciplina in materia di impresa sociale de 2017), and integration into a social economy law (as France did in Loi relative à l’économie sociale et solidaire de 2014).

With respect to Spanish law, the paper analyzes the content of Law 5/2011 on Social Economy. This regulation in its article 5.1 gives a list of social economy entities (“cooperatives, mutual societies, foundations and associations that carry out economic activity, labour companies, insertion companies, special employment centres, fishermen’s guilds, agricultural processing companies”) and at no time mentions social enterprises, so that these, provided they do not have the legal form of social economy entities expressly mentioned in the law (as is the case with insertion companies and special employment centers and social cooperatives) are outside its scope. This exclusion of social enterprises without the legal status of typical social economy entities goes against both the broad concept of social economy contained in the Action Plan and the mandate contained in the plan itself to develop policy and legal frameworks for the social economy, which requires public authorities to take into account the diversity of legal forms that the social economy can take. However, this inclusion of social enterprises within the social economy is an important issue, not least because it depends on whether or not these entities can benefit from the funds and aid earmarked for the social economy, both those that will materialize through the European action plan and those at the national and autonomous community level in Spain.

Given the unstoppable movement in our political and economic context in favor of the inclusion of social enterprises, regardless of their legal form, in the typology of social economy entities, Spain has three main ways or legislative options for doing so. One would be the enactment of a special and specific law for social enterprises, something that has been the option chosen by several European jurisdictions, such as Italy, to highlight one of them. However, given that we have a law on the social economy in our system, this does not seem to be the logical route. A second legislative option is to develop the Law, taking advantage of some of the ways of extending the scope of the social economy provided for in the law itself through regulatory development. However, this is neither a politically simple nor a legally adequate solution, in the sense that the recognition of a new corporate figure, even if it is a social subtype, must come from a specific law and not from a regulatory development.
The other option would be to reform the LES in order to overcome the formalist conception of the social economy on which the law is based and which, in principle, excludes legal entities that have not been set up using one of the canonical formulas of the social economy. This seems to be the path finally chosen, and we believe it is the right one. The preliminary draft of the so-called Integral Law for the Promotion of the Social Economy is currently being prepared. This law is intended to reform, for different reasons, Law 5/2011 on the Social Economy, Law 27/1999 on Cooperatives and Law 44/2007 on Insertion Companies. When dealing with the problems to be solved with the new law, the document states that in relation to the Social Economy Law, “the progress and development of the Social Economy activity has led to the need to deepen the classification of the entities that make up the sector” and “in this area it is necessary to incorporate some business formulas already recognized at European level”. Although it is not expressly stated, it is clear that the main business formula that the pre-legislator is thinking of including in Law 5/2011 in a novel way are social enterprises in the form of capital companies and corporations.

We do not know the content of the proposals for reform of the LES contained in the draft bill being prepared but, in order to comply with what the European Union imposes on us through the European Action Plan, it would be sufficient to include a second paragraph in section 1 of article 5, admitting into its scope of application social enterprises in the form of capital companies when they statutorily comply with the characteristics with which the Action Plan identifies social enterprises. Specifically, that they pursue primarily social or environmental purposes; that profits are reinvested primarily in the pursuit of their corporate purpose (which can be materialized by limiting the distribution of profits or the obligation to endow a certain fund for the pursuit of the corporate purpose); and that the form of organization and ownership is based on democratic principles (which does not mean requiring the rule of one member, one vote) or participatory (which can be achieved by limiting the amount of capital stock that members can own). However, when establishing these additional structural and organizational criteria for social enterprises wishing to be classified as social economy, the legislator must be careful not to abuse them so that they do not become real barriers to entry in terms of burdens and obligations, justifying that this avoids intrusiveness in the sector.

Finally, it is worth mentioning that the Spanish legislator has embarked on a parallel path to regulate a specific type of social enterprise outside the social economy and the characteristics that define social enterprises in the official European documents we have seen, focusing instead on the assessment of the positive social and environmental impacts generated by business activity. I refer to the announcement made through the tenth additional provision of Law 18/2022 on the creation and growth of companies, entitled Recognition of Sociedades de Beneficio e Interés Común (Benefit and Common Interest Companies).

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El trabajo trata de dar respuesta a la cuestión de si la denominación de «casilla de empresa solidaria» y la marca «EmpreXa» que se otorga a las entidades que eligen destinar el 0,7% de la cuota del Impuesto sobre Sociedades a actividades de interés general, consideradas de interés social, se corresponde con algún tipo de actuación o exigencia de carácter solidario. De lo contrario, se proyectaría una idea equivocada de este mecanismo –introducido por la Ley 6/2018, de 3 de julio–, en comparación con las calificaciones institucionales otorgadas a otro tipo de entes que tributan en el mismo impuesto y que sí cumplen determinados principios más cercanos al ámbito de la solidaridad, la ayuda mutua, la democracia, la igualdad, la equidad o la responsabilidad. Además, se estudian las consecuencias que se derivan de la elección de la cuota íntegra del tributo para calcular la cantidad destinada a tal fin. Finalmente se aboga por instaurar un modelo estable para la financiación del TSAS, articulado con una fórmula mixta basada en la recaudación de los tributos personales sobre la renta –para cuantificar el importe a destinar–, y en la figura de los presupuestos participativos.

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THE «SOLIDARY-BASED ENTERPRISE» BRAND. A PARTNERSHIP MECHANISM BETWEEN THE PUBLIC ADMINISTRATION, PRIVATE ENTITIES AND CIVIL SOCIETY

This paper seeks to determine whether the designation of “solidarity-based enterprise” and the “EmpreXa” mark brand granted to entities that choose to allocate 0.7% of their corporate income tax (in Spanish, Impuesto de Sociedades, IS) to activities of public and social interest, can be deemed to fulfill the requirement of a solidary-based action or purpose. However, this action could be construed to be a misrepresentation of the mechanism introduced into Spanish Law in Law 6/2018, of July 3, when compared to the institutional classifications granted to other types of entities that pay the same corporate tax and are more closely aligned with the specific principles and requirements of entities involved in the field of solidarity, mutual aid, democracy, equality, equity, or responsibility. In addition, the analysis includes a study of the consequences, particularly quantitative, that derive from choosing to pay the gross tax liability, instead of the net amount, to calculate the amount to be used for the solidarity purposes under analysis. The paper concludes with a proposal for stable funding of the TSSA, based on a formula that combines a fixed sum –calculated from the total contributions declared in personal income taxes– and a distribution of this sum through participatory budgets.

 

EXPANDED ABSTRACT

The latest Corporate Tax declaration campaigns have made it possible to make visible an alliance between the Third Sector, the Administration and the business sphere in order to encourage people to tick the “Non-Profit Organisation” checkbox, introduced in the 2018 tax year, to raise more than 100 million euros per year for activities of general interest considered to be of social interest. There is even talk of a mechanism that contributes to the partnership between the public administration, private entities and civil society, which could be framed along the lines of what Italian constitutional jurisprudence calls Amministrazione condivisa.

The Third Sector platform has warned of the particular importance of exercising this right of option, indicating that this would allow an additional amount to be allocated to the amount obtained through the 0.7 percent box on personal income tax to alleviate the consequences of the considerable increase in the number of people at risk of social exclusion. It is recalled that it constitutes a gesture of “business solidarity” so that the Third Sector of Social Action (TSSA) can meet the actual demands of citizens with solvency, improving the lives of millions of people without increasing the tax burden of the taxpayer.

It is common knowledge that the health, economic and social crisis is significantly affecting the mission and the development of the activities of the TSSA entities. Such organisations have focused on social emergency assistance programmes and aid to individuals, to the detriment of other issues related to organisational, awareness-raising and fundraising areas (Plataforma de ONG de Acción Social, 2021). Despite the shock of recent years, entities in this sector have been able to continue to fulfil their mission. To get an idea of the importance of their work, it is worth remembering that in 2020 they carried out more than 46 million direct interventions.

This paper carefully analyses the regulation related to the financing of this sector through this new method of allocating Corporate Tax as an attempt to answer the question of whether the designation of the “Non-Profit Organisation checkbox” and the “Company X” mark given to entities that choose to allocate 0.7 percent of the Corporate Tax quota to activities of general interest, considered to be of social interest, corresponds to a solidarity-based action or requirement. A detailed analysis of the nature of this figure shows that the designation of “solidarity” is attributed to the person – natural or legal – by simply selecting an option in a tax model without any additional requirement of an ethical or altruistic nature for the taxpayer. This may create confusion concerning institutional qualifications granted to other types of entities taxed under the same Corporate Tax, which comply with certain principles and requirements closer to the sphere of solidarity, mutual aid, democracy, equality, equity or responsibility.

In another area of consideration, the consequences, especially in quantitative terms, of choosing the total amount of the tax instead of the net amount to calculate the amount used for the purpose under analysis are studied. This corresponds to the extent that the first amount does not correspond to the amount actually paid by the taxpayer, in compliance with the primary tax obligation, as this figure is considerably reduced by applying the deductions and allowances provided for in the law.

In addition, the analysis ascertains whether the funds collected are being used to finance “projects of state-level entities,” as established in the regulations, or whether it is an item that can be transferred to the Autonomous Regions, as occurs in the management of the 0.7 percent of personal income tax.

Moreover, it attempts to answer several questions about the possibility of using other avenues to achieve the same result of increased funding for the TSSA. Especially if this figure is understood as a mere instrument for calculating the amount to be allocated by public administrations to finance this sector, to the detriment of other general items contained in the budgets of the corresponding territorial authorities. The study first addresses the hypothesis of the incorporation of this option as an initial step for the subsequent inclusion of an equivalent box for the allocation to the Catholic Church in this second tax will be addressed, avoiding the social debate generated by the issue of the public financing of this religious denomination in Spain. Secondly, a counter-argument will be presented, according to which this new path would have been chosen to equitably increase the allocation to this sector without increasing the Catholic Church’s allocation.

The paper concludes with a proposal for stable funding of the TSSA, based on a formula that combines a fixed sum –calculated from the total contributions declared in personal income taxes– and a distribution of this sum through participatory budgets. Thus, the amount received by each organisation would depend on the number of people who voted for or elected it. This option would be compatible with the current territorial distribution of competences since the participatory budget mechanism would be developed at the state and regional levels according to the current percentage of expenditure managed by each territorial authority.

As a preliminary step, it is proposed to implement the Italian model, which allows taxpayers to choose, in the tax return itself, the specific entity to which they wish to allocate the percentage of the tax liability incorporating, however, a rule that allows for an equitable distribution of the public expenditure allocated in this way.

All of the above is based on the conviction that the structural functions of the Administration in the field of social action should not be delegated to the TSS entities whose work should be subsidiary to that of the Administration or, where appropriate, shared. Indeed, the study proposes reaching an agreement with the State that establishes a minimum annual percentage of social spending in relation to GDP, in line with the average of the Eurozone countries.

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Las entidades de la economía social desempeñan un importante papel en la corrección de los desequilibrios del mercado laboral; reducen el desempleo y la inestabilidad en el trabajo y fomentan la inclusión en el trabajo de colectivos con problemas de acceso o permanencia en el mercado laboral, pero además ofrecen un buen modelo en su gestión. Una manifestación importante de esa función se aprecia en el RD 818/2021, de 28 de septiembre de 2021, por el que se regulan los programas comunes de activación para el empleo del Sistema Nacional de Empleo, que ha implantado un nuevo marco normativo que unifica y actualiza la regulación existente para conseguir una mayor eficiencia y adecuación a las nuevas necesidades del mercado de trabajo. El escenario que configura la mencionada norma contempla la consolidación de la economía social como instrumento fundamental de desarrollo empresarial y social.

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THE SOCIAL ECONOMY ENTITIES IN THE COMMON EMPLOYMENT ACTIVATION PROGRAMS

Social economy entities play an important role in correcting imbalances in the labor market; they reduce unemployment and instability at work and promote the inclusion in the work of groups with problems of access or permanence in the labor market, but they also offer a good model in their management. An important manifestation of this function can be seen in RD 818/2021, of September 28, 2021, which regulates the common activation programs for employment of the National Employment System, which has implemented a new regulatory framework that unifies and updates the existing regulation to achieve greater efficiency and adaptation to the new needs of the labor market. The scenario that configures the mentioned norm contemplates the consolidation of the social economy as a fundamental instrument of business and social development.

 

EXPANDED ABSTRACT

For decades, the Spanish labor market has presented a serious problem of structural unemployment and imbalance that has caused serious situations of exclusion and job insecurity, which in turn has repercussions on an increase in social, territorial and gender gaps. In order to overcome these dysfunctions, different modernization measures have been proposed for our active employment policies, following the guidelines set by the European Union for granting Next Generation funds -which have been assumed by our country in component 23 of the Plan of Recovery, Transformation and Resilience-. Among these measures, the catalog of Common Employment Activation Programs of the National Employment System stands out, which has been regulated by Royal Decree 818/2021, in parallel to how the Common Portfolio of Services of the Public Employment Service by Royal Decree 7/2015.

Royal Decree 818/2021 has provided a scenario for unifying and updating the regulation of existing programs to achieve greater efficiency, by adapting them to the changing circumstances of the labor market and the new needs in the digital and green sphere. Said regulation establishes the essential contents of the common programs and reflects the points of support on which a new employment policy must be based, the main objective of which is to maintain and generate quality employment. Among the nodal aspects that are developed in the Royal Decree to achieve this objective, the consolidation of the social economy as a fundamental instrument of business and social development stands out.

Everyone knows the important role that social economy entities play in correcting imbalances in the labor market by reducing unemployment and job instability and promoting the labor inclusion of groups with problems of access or permanence in the market ordinary labor and by offering, in addition, a good model in its management. A clear manifestation of this function can be seen in the regulatory norm of the common activation programs for employment, which has tried to stimulate employment in all sectors, with the support of social economy entities, but also especially in the economic sector. promoting in this environment the creation of employment

With this purpose, it has tried to guarantee incentives for the incorporation of personnel to cooperatives and labor companies, for the promotion of indefinite contracting as an employee in the entities of the social economy and for the promotion of the work of the entities whose objective is social creation of employment for people with disabilities or groups at risk of social exclusion.

This paper analyzes the direct impact of common activation programs for employment in social economy entities. To this end, the regulation of the catalog of common programs of the National Employment System is presented at first as a framework in which active employment policies are developed throughout the territory of the State through the Employment Service and the autonomous communities. Once the basic elements of the catalog of common programs have been pointed out, the role played by some agents of the social economy sector in said management initiatives in activation for employment is studied.

Among the social economy entities that assume a prominent role in the management of the aforementioned programs, attention is paid, in the first place, to cooperatives and “sociedades laborales” as environments for generating employment. One of the cast programs, located in the axis called “entrepreneurship”, is specifically aimed at promoting employment in cooperatives and labor companies. The aforementioned program comprises, on the one hand, actions to support the generation of self-employment by promoting the stable incorporation of partners in said entities; on the other hand, the promotion of projects for the creation and modernization of cooperatives and ”sociedades laborales” through an improvement in their competitiveness that, ultimately, would favor their consolidation; and, lastly, measures that help to carry out training activities, dissemination and promotion of cooperativism and the social economy directly linked to the promotion of employment.

The “centros especiales de empleo” are presented, in second place, as key entities in the labor inclusion program for people with disabilities in the protected labor market, which includes the granting of subsidies aimed at promoting the creation and maintenance of jobs in these centers. Among the measures that support the professional integration of people with disabilities in “centros especiales de empleo”, the following stand out: the financing of fixed investment linked to the creation of indefinite employment in said special centers, the salary cost of people with disabilities who work in them, the adaptation of jobs and the provision, through the professional activity support units or the personal and social adjustment services required by working people with disabilities.

Thirdly, the collaboration of “empresas de inserción” is encouraged within the framework of the labor inclusion program for people at risk or in a situation of social exclusion. It is a program, of new configuration, aimed at that group whose personal, social or family situation makes access to employment difficult; It is based on the realization of personalized itineraries in collaboration, among others, with “empresas de inserción” or their promoting entities. There are several modalities of development of this program, but as an example we can mention the economic aid per participant in the itineraries, job created to insert a worker or technical assistance to insertion companies for the hiring or maintenance of managerial personnel and technical.

Non-profit entities, as members of the social economy, also receive special attention in the field of employment programs. On the one hand, they are recognized as having a preponderant role as promoter entities of the activation actions for employment arranged in most of the programs; and, on the other hand, these entities appear as subjects that, within the framework of certain programs, enter into employment contracts as their own measure of integration with economic support. In these cases, it is not always easy to determine the type of contract that can be formalized. Even more so when the modality through which the hiring of workers in the labor insertion programs has been articulated, which was the contract for a specific work or service, has disappeared.