Revista Nº 43 Noviembre 2023
Desafíos jurídicos de la Economía Social
Descargar el número completo de la revista 43Descargar
Manuel García Jiménez
Desafíos jurídicos de la Economía SocialDescargar
La necesaria regulación del carpooling en España
Mª Victoria Petit LavallDescargar Ver resumen
El presente trabajo analiza la aplicación de la actual regulación de la ordenación del transporte discrecional de viajeros por carretera en nuestro país aplicable a la actividad de las plataformas en línea y a sus usuarios, pues son múltiples las dudas que surgen, pese a sus puntuales modificaciones. En concreto, se centra en aquellas que siguen el modelo de BlaBlaCar, denominado carpooling: la posible calificación del servicio subyacente prestado por los usuarios como transporte privado particular, así como la determinación de la naturaleza de la actividad de la plataforma como prestadora de un servicio mixto (servicio de la sociedad de la información y transporte). Muchas de las actuales dudas parece que van a resolverse con la futura Ley de Movilidad Sostenible, pues no sólo contiene por primera vez en nuestra legislación una definición de carpooling, sino que prevé una modificación de la legislación del sector. Con todo, la proyectada Ley es susceptible de mejora.
THE NECESSARY REGULATION OF CARPOOLING IN SPAIN
The provision of occasional passenger transport services by road is one of the sectors that have traditionally been using the model of the so-called collaborative economy or consumption. In fact, platforms such as BlaBlaCar, Amovens and other similar initiatives that have been emerging in the market (Amicoche, DedoCar, JoJob…) constitute the modern manifestation of collaborative or participative consumption. All of them provide car-sharing trips among private individuals, where it is the driver who offers free seats on a trip previously planned by him or her and, in principle, in exchange for a participation only in the travel expenses, but not for reward.
But despite its importance in daily practice, the legal framework currently applicable thereto in Spain, contained in Act No 16/1987, of July 30, on the Organisation of Land Transport (LOTT), developed by Royal Decree 1211/1990, of 28 September, approving the Regulation on the Organisation of Land Transport (ROTT), is undoubtedly confusing and defective.
Indeed, in order for the service provided by the drivers to be considered a private transport, thus not requiring administrative authorization, two cumulative requirements have to be met: a) that the service is intended “to satisfy the personal or domestic travel needs of the owner of the vehicle and his or her relatives”, without receiving remuneration of any kind, either directly or indirectly, except the payment of allowances or travel expenses; and b) that the number of seats of the vehicle used does not exceed the limits established by regulation.
The second requirement does not pose a problem. However, the same is not true for the first one. On the one hand, the term “relatives” is not defined in legislation, although only an extremely broad interpretation could lead to the conclusion that the relationship between the driver and the passenger, who is usually a complete stranger, is a relationship of friendship or equivalent. Nor is it established what is to be understood by absence of remuneration for the owner of the vehicle, which is why there are still discrepancies in interpretation, both in legal literature and in case law. The provision must be interpreted as absence of profit for the owner of the vehicle. However, it is not at all clear what should be understood by “travel expenses”, whether they only include fuel and tolls or also the expenses associated with the vehicle (insurance, taxes, lubricants, tire wear, depreciation…).
But also, nor does the legislation resolve the legal nature of the activity of these platforms, i. e., whether they carry out an information society activity or whether they also act in the field of transport; expression used by the well-known and commented CJEU (Grand Chamber) Judgment of December 20, 2017 in the Uber Case, followed by the CJEU (Grand Chamber) Judgement of April 10, 2018.
Specifically, with respect to BlaBlacar, the Judgements of the Commercial Court n.º 2 of Madrid of 2 February 2017 and of the Provincial Court of Madrid of 18 February 2019, concluded that the platform carries out an activity typical of the information society; that is, a “service normally provided in exchange of remuneration, remotely, electronically and at the individual request of the services recipient”. Consequently, following the provisions of the Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (known as Bolkestein Directive), its activity is liberalized, so the principle of free access and provision established in Article 56 TFEU governs. These decisions base their conclusion on the so-called the significant importance test, which consists in an analysis of the control that the collaborative platform exerts over the provider of such services, which is found in the Commission Communication “A European Agenda for the collaborative economy”.
The solution given by our Courts has not been exempt from criticisme from authors. In fact, some of them have considered that the platform exercises a decisive influence on the provision of divers: it creates the offer that would not exist without the platform, establishes a maximum price, gives instructions on the provision of the transport service, provides compensation to the driver in the event that the user cancels the service imminently, verifies the user’s mobile phone and his driving licence, prevents use by those users who have had inappropiate behavior on trips, etc. Definitely, the platform not only provides a service in the field of the information society, but also in that of transport. That’s why it should respect the national legislation of the sector contained in the LOTT and the ROTT. But these Acts currently don’t regulate this activity and, consequently, what type of authorization these platforms should obtain, if any.
The draft Sustainable Mobility Act for the first time refers to collaborative transport considering that it constitutes a particular type of private road transport and contains a definition of it.
At the same time, it envisages an amendment of the LOTT to expressly include it therein. It considers the activity of the drivers to be private transport and the platforms to be transport intermediaries; it eliminates the term “relatives”; and it seems to resolve current doubts about what concepts are included in the travel expenses. However, its wording could clearly be improved. It is therefore necessary for the legislator to finally regulate mediation activities in private passenger transport by road, clearly establishing market access requirements, or the lack thereof, and to take into account this not-anymore-new business model carried out through online platforms.
Specifically, since the draft Act includes the activity of mediation platforms in the field of passenger transport, it should modify current legislation of the sector in such a wat that the LOTT and the ROTT include the regime of this kind of intermediaries at the state level and, of course, its referral to the tourism regulations, of regional competence, is eliminated. Furthermore, since the underlying activity is already considered a private transport, as can be seen from the proposed Act, no administrative authorization should be required from these platforms. In fact, drivers are no required to obtain it either.
El fin en las sociedades de capital. Egoísmo y altruismo, lucro y sostenibilidad. Posibles combinaciones
Irene Navarro FríasDescargar Ver resumen
La discusión sobre el propósito de las sociedades de capital ha reavivado el debate sobre cuestiones tan trascendentes para las compañías como el fin social y la vinculación de los administradores a la consecución del mismo. A algunas de estas cuestiones se dedica el presente trabajo. Entre ellas a la distinta forma en la que el altruismo puede estar presente y desempeñar, bien una función fundamental, bien una instrumental en relación con el fin lucrativo, y a la explicación del distinto régimen jurídico al que se somete cada una de estas formas. Entre otros aspectos se destaca que el auténtico altruismo, el que llamamos fundamental, solo puede ser decidido por los socios, no por los administradores.
THE PURPOSE OF LIMITED LIABILITY COMPANIES. SELFISHNESS AND ALTRUISM, PROFIT AND SUSTAINABILITY. POSSIBLE COMBINATIONS
The discussion on the purpose of limited liability companies has rekindled the debate on such transcendental questions for companies as the corporate purpose and the link between the directors and the achievement of this purpose. This paper is devoted to some of these questions.
Corporations do not want to continue to behave in an exclusively selfish manner, focused on their own profit. On the contrary, they want to contribute to common sustainability goals. At least this is what many have been saying since the 2019 Business Roundtable. When we ask ourselves whether or not a for-profit purpose can coexist with an altruistic purpose in a limited liability company, we must differentiate between two different cases. Firstly, cases in which the altruistic purpose displaces or, without displacing it, coexists with the profit-making purpose and, therefore, is not relegated to a merely secondary or accidental role. Secondly, the development of altruistic actions (or, in general, corporate social responsibility actions) as “incidental” actions within the “normal” for-profit management of the company. It is worth noting that both the first and the second possibility are admissible in our legal system and, in general, in the legal systems of our environment. However, the requirements that condition the legalty of both initiatives are different.
A case of the first group, which we will call fundamental altruism, would be the famous Dodge vs Ford case, when Henry Ford, President of the Ford Motor Company, decided not to continue to agree on the distribution of the so-called special dividends, despite the special economic boom the company was going through, with the aim of benefiting its workers and also the consumers of its cars. In relation to the legality of this type of decision, we have pointed out that they can be adopted, but always surrounded by the corresponding guarantees. In particular, it will be necessary to provide for this altruistic purpose in the articles of association and the consent of all the partners, and not only of a majority, albeit a qualified majority, as the cause of the contract is affected. All this in the framework of our existing limited liability companies.
A different issue that is also worth considering is whether it is necessary or opportune to incorporate a type of company such as the benefit corporation or similar companies into our legal system. There are reasons to believe that this would be an advantage for our legal system, ranging from the possibility of avoiding greenwashing, to the possibility of deploying a branding effect or lowering transaction costs. It should be stressed that the Spanish legislator has joined the group of countries that have adopted the benefit corporation or similar types (benefit corporations in the USA, societa benefit in Italy, entreprise à mission in France, British community interest company or sociedad de beneficio e interés colectivo in Colombia). The Tenth Additional Provision of Act 18/2022, de 28 de septiembre, de creación y crecimiento de empresas, recognises the figure of the Sociedad de Beneficio e Interés Común (SBIC), which is pending regulatory development.
In relation to the second possibility, we deal with the development of corporate social responsibility actions as “incidental” actions within the “normal” profit-making management of the company. For example, a donation policy to promote sport among children and young people in the neighbourhood where the company is based. We will call this instrumental altruism. In short, and without prejudice to further developments, in our opinion these actions must always be instrumental in nature, they can never be genuinely or solely altruistic, insofar as their justification comes from their being able to serve the interest of the company. While in the case of fundamental altruism its legitimacy lies in the fact that the measures are taken with the consent of the shareholders, it is the partners who decide, in the case of instrumental altruism, carried out mainly by the directors, its legitimacy derives from the connection of the measure with the company’s interest. It is true that this instrumental nature for the corporate interest will occur in the medium or long term, normally by way of improving the company’s reputation, and that at the time of taking the decision, the director (competent in principle to take these decisions, unlike in the previous case, as we have said) will have to make a prognostic judgement for which he will normally have a wide margin of discretion. However, in our opinion, it is clear that an action that is completely disconnected from the corporate interest, which cannot be justified on the basis of its instrumental link with that interest, can only be adopted with the consent of all the shareholders. This raises two further questions: when can we say that an altruistic action instrumentally serves the corporate interest?, and when should an action be considered genuinely altruistic and therefore requiring the unanimous approval of the shareholders?
Finally, in this matter of instrumental altruism and decisions taken by the directors, we insist on the difference between a rule of conduct and a rule of control. In other words, the difference between the director obligation to find the means he considers optimal to achieve the social purpose and the extent to which its decision can be controlled, which inevitably doesn´t reach so far. In an area such as the one we are studying, plagued by uncertainty, for example, about how actions aimed at favouring third parties are related to the company’s own performance, the business judgment rule plays a fundamental role.
All these issues are addressed in this paper.
La sustitución del socio cooperativo como límite temporal al pago del reembolso
Andrea García MartínezDescargar Ver resumen
Para mitigar las posibles consecuencias negativas en la organización societaria que emanan del carácter abierto de la cooperativa, la legislación permite la inserción de cláusulas estatutarias que limiten temporalmente el derecho de reembolso derivado de la baja voluntaria. El presente trabajo, se centrará precisamente en analizar una de estas cláusulas. En concreto, ha de hacerse referencia al hecho en que solicitando el socio la baja voluntaria de la sociedad cooperativa, se prevea que el reembolso no se hará efectivo hasta el momento en que este sea sustituido en sus derechos y obligaciones por otro socio. Esta previsión, poco esclarecedora en cuanto al cómputo del plazo, genera cierta inseguridad jurídica. Así pues, se tratará de dar una interpretación a la controvertida cláusula, puesto que la interpretación que se dé puede implicar la negación del derecho al reembolso al socio que causa baja.
THE REPLACEMENT OF THE COOPERATIVE SHAREHOLDER AS A TIME LIMITATION TO THE PAYMENT OF THE REFUND
One of the defining regulatory principles of the cooperative society is the principle of voluntary and open membership or more commonly known as the “open-door principle”. According to this principle, the shareholder who decides to join the cooperative does it voluntarily and this will be the reason why the shareholder decides to remain in the cooperative.
Specifically, two aspects of this principle can be distinguished. On the one hand, there is voluntary membership, that is, those who wish to join a cooperative society do this because they wish to do so, and in principle, they remain in it for as long as they so wish, although they can withdraw from it at any time without having to give just cause or any reason; and on the other hand, open membership, which means that anyone who meets the objective requirements for membership can, if they wish, become a member of the society.
Despite the open-door principle should be viewed positively in terms of the easy entry of shareholders into the cooperative, the fact that shareholders can request to leave a cooperative whenever they wish means that, unlike in other types of society, the share capital is of a variable nature.
Nevertheless, this variable nature which characterises the share capital of cooperatives generates considerable difficulties from an economic and organisational perspective. Every time a shareholder leaves the cooperative society, there is a change in the share capital, since the shareholder has a recognised right to refund the amount of their contributions. Hence, if there is a mass leaving of shareholders, the company runs the risk of being decapitalised.
However, in order to mitigate the possible negative consequences of the open nature of the cooperative organisation, cooperative legislation allows the incorporation of clauses in the bylaws which temporarily limit the right to refund derived from voluntary leaving, allowing the bylaws to require members commit themselves to not leaving voluntarily, without just cause which allows it to be classified as justified, until the end of the economic year in which they intend to leave or until the end of the financial year in which they intend to withdraw or until the period laid down in the bylaws has elapsed from the date of their admission.
Furthermore, cooperative legislation usually establishes a maximum period for paying the refund, which as a general rule, in most cooperative legislation, has been set at five years in the case of withdrawal taking place during the life of the shareholder, and one year in the case of death.
Despite the existence of such measures, cooperative legislation also allows the inclusion of certain clauses in the statutes which limit or condition the exercise of the right of leaving, also affecting the right to refund to cooperative shareholders. One of the most common in practice is the incorporation in the articles of association certain clauses which impose conditions on the payment of the refund and which could mean the denial of the right of refund to the member who leaves the cooperative.
In particular, mention should be made of the case where, when a shareholder requests voluntary leaving the cooperative society, there is a statutory provision which provides that a refund will not take place until the rights and obligations of the shareholder are replaced by another shareholder.
In this case, the statutory provision is not very clarifying in terms of the calculation of the period, since the adjournment will be minimal if the date on which the substitution takes place coincides with or is close to that of the leave, or it may happen that the adjournment exceeds the maximum limits determined for this purpose by the different cooperative rules if a substitute is not found.
Consequently, in view of the legal uncertainty that might be created by such a statutory provision, the problem consists in determining whether the maximum time limits imposed by the different cooperative laws also cover all those cases in which the payment of the refund would have been conditioned on the replacement of the member who leaves the cooperative. Or whether, on the contrary, the possibility of indefinitely limiting the payment until a hypothetical new shareholder joins the cooperative is established. The last situation could be understood to leave aside the normative recognition of the right of reimbursement recognised to the member of the cooperative.
Given that the regulation is not clear on this point, it will be necessary to pay attention to the interpretation of case law in order to clarify the time limit for the return of contributions in the event that the cooperative shareholder exercises the right to refund.
In this regard, it is interesting to refer to the Supreme Court Decision of 11 June 2020, in which a shareholder of an integrated cooperative (housing and health) requested to leave the cooperative and the subsequent refund of his contributions to the share capital. However, this request for refund was ignored by the cooperative because, although there was a clause stipulating that the refund of contributions would not take place until the withdrawal was covered by the entry of another new shareholder, this had not taken place.
The Supreme Court interprets the aforementioned as not meaning that the shareholder is not entitled to reimbursement for a period of time which may be indefinite, and even less so that he is subject to a circumstance or condition which may not occur -as is the case here where no one wants to join the cooperative in his place- since such an interpretation would lead, in such cases, to the denial of the right to reimbursement.
The case law provides a clear answer on this point, explaining that what is really meant by this statutory provision is that, within the maximum period set by the cooperative rules in general, refund will be made when a new shareholder joins the cooperative. However, if this maximum period elapses without the old member being replaced by the new one, the refund must be paid without any further delay or conditions. In this way, the member’s right to recover his investment and the cooperative’s right not to be suddenly decapitalised are reconciled.
La prestación de cuidados en la economía social: una aproximación al marco político
Inmaculada Baviera-PuigDescargar Ver resumen
Este trabajo analiza minuciosamente el marco político general de la economía social en el sector de los cuidados, en el contexto de organismos internacionales relevantes como Naciones Unidas y la Unión Europea, así como en España. El estudio se ha efectuado de una manera descendente, para ver el influjo de unas instituciones sobre otras. De todo ello se concluye que nos encontramos ante una crisis global de los cuidados, dado el envejecimiento poblacional, la falta de reemplazo generacional, y los cambios en la convivencia familiar. Esto afecta de manera especial a las mujeres, tanto como receptoras (por su mayor longevidad) como prestadoras (remuneradas o no) de estos cuidados. A ello se suman las distintas crisis y las tendencias desfavorables en el empleo. En este contexto, el modelo cooperativo y de la economía social para la provisión de cuidados resulta innovador y sostenible.
CARE PROVISION IN THE SOCIAL ECONOMY: AN APPROACH TO THE POLITICAL FRAMEWORK
This paper analyzes in detail the general policy framework of the social economy in the care sector, in the context of relevant international organizations such as the United Nations and the European Union, as well as in Spain. The study has been carried out in a top-down manner, in order to see the influence of some institutions on others. The conclusion is that the global care crisis, caused by multiple factors (population aging, lack of generational replacement, and changes in family structures), can be a driving force for the cooperative and social economy model of care provision, as it is innovative and sustainable. The World Commission’s report on the Future of Work, on the occasion of the ILO’s centenary, stated that investment in the care economy could generate millions of jobs worldwide by 2030. In addition, the UN’s World Social Report 2023 has highlighted the pressing need for end-of-life care (“which includes palliative and hospice care”), the demand for which is expected to increase in the coming years, although countries are not yet ready. The WHO stresses that “palliative care is a human right and a moral imperative of all health systems”.
In this context, a key issue is the need to maintain the purchasing power of pensions, which, among other things, requires intergenerational solidarity. However, the crises and unfavorable trends in employment and wages have generated growing levels of inequality in recent years, an issue addressed by the 2030 Agenda for Sustainable Development, whose Goal 8 aims to “promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all”. The social and solidarity economy is key to achieving this goal, because of its adaptation to the local context, particularly in terms of employment and decent work and, within the framework of the care economy, because of “the provision of social services, such as those related to health and care”, as the UN Resolution on “Promoting the social and solidarity economy for sustainable development” pointed out in 2023. The social economy also promotes SDG 5 insofar as this situation particularly affects women, both as recipients (due to their greater longevity) and providers (paid or unpaid) of this care. In recent years, the social economy has contributed to a fairer digital transition, through platform cooperatives. While the United Nations encourages Member States to accelerate initiatives to promote the transition from informal to formal work, including by taking advantage of e-formalization policies in new and growing sectors such as the care economy, these will need to be harmonized with the requirements being discussed within the European Union, as well as with Spanish labor legislation and court criteria.
An important milestone is the resolution “Promoting the social and solidarity economy for sustainable development”, adopted in 2023 by the United Nations, which brings in the definition of the social economy contained in the ILO Resolution of June 10, 2022. The social economy encompasses entities that contribute to sustainable development in its triple aspect: economic, social, and environmental. They are based on a number of principles, including “the primacy of people and social purpose over capital”, the transition from the informal to the formal economy, and the achievement of decent work and quality of life. These entities may take different forms, depending on national circumstances, namely: cooperatives (which have a long tradition in the Spanish context), associations, mutual aid societies, foundations, and social enterprises, among others. The European Union has also worked on new frameworks to which the Member States must conform.
In the context of the European Care Strategy and in coherence with other policies, such as the EU action plan for social economy, it stresses the idea that social economy entities are important partners for public authorities in the provision of long-term care, as well as other social and welfare services. Hence the funding opportunities offered through the Recovery and Resilience Facility for the promotion of a change of model, through the modernization of social services and, in particular, of community services, aimed at care in one’s own environment. The 2023 Proposal for a Council Recommendation on developing social economy framework conditions, addresses the need to create an appropriate policy and legal framework, which can improve access to the labor market.
The Government of Spain launched the Strategic Project for Economic Recovery and Transformation, Social and Care Economy (PERTE ESYEC), and other legal reforms, as in the case of care for people in a situation of dependence. Policy lever VIII of the Recovery, Transformation and Resilience Plan (aligned with the objectives of the European Recovery and Resilience Facility), on “New care economy and employment policies”, promotes the improvement of the functioning of the labor market and, in particular, strengthens the care economy, for which “it is essential to articulate a specific plan that puts people back at the center of the economy”, so that “no one is left behind”, “properly valuing the tasks of care and social assistance, as well as the potential for job creation that this entails throughout the territory”. To this end, this lever policy includes two components: 22 (Shock plan for the care economy and reinforcement of inclusion policies) and 23 (New public policies for a dynamic, resilient and inclusive labor market). The change of model promoted, based on person-centered care, is part of the National Strategy for Deinstitutionalization. It also drives the digitalization of the care sector, with a focus on social economy entities in the sector, innovative equipment in the home such as advanced telecare, and collaborative living projects in housing cooperatives. PERTE ESYEC has contributed to social and territorial cohesion, as well as to the digital transition, through the proximity assistance services offered by digital platforms. With respect to the latter, Spanish courts have contributed significantly to the defense of workers’ rights and the improvement of their working conditions.
In this context, cooperatives are aligned with the objectives set by the European Union. They have been emerging as innovative providers of quality care when other public or private providers could not meet the demand for certain services such as home care, or adult day care centers and residences. This is by virtue of their democratic, people-centered, not-for-profit business model, with a genuine desire to serve their communities and to provide formal, stable employment and training opportunities. For all these reasons, the social economy, and cooperatives in particular, are an innovative and sustainable business model that is highly resistant to crises. But above all, they have the advantage of placing people at the center of the care, economic and business logic, both as recipients of care (and deserving of quality care) and as providers of care (with the right to decent living and working conditions).
La aplicación del artículo 15 de la Ley de Competencia Desleal y su relevancia en el contexto de la Economía Social
Ignacio Rabasa MartínezDescargar Ver resumen
El presente trabajo es un estudio del artículo 15 de la Ley de Competencia Desleal, que, a grandes rasgos persigue el prevalimiento de una ventaja competitiva derivada de la infracción de distintas normas del ordenamiento jurídico. Partiendo de ese marco, se hace un análisis del fundamento de la norma y de su capacidad, si quiera indirecta, para incentivar el cumplimiento de las normas jurídicas cuyo fin puede ser la protección social o ambiental. El estudio de la norma se aborda desde la óptica de la Economía Social y la economía sosteninble, trayendo a colación, a lo largo de los distintos apartados las sinergias o particularidades que puede presentar su aplicación en este área.
APPLICATION AND IMPORTANCE OF ARTICLE 15 OF UNFAIR COMPETITION LAW IN THE SOCIAL ECONOMY
The aim of this paper is to study article 15 of the Unfair Competition Act (LCD) and its special relevance in the context of the social economy, in particular for social economy entities, and sustainability as an objective pursued by the European Union and national legislator.
The first section deals with the systematic location of the alleged violation of rules within the LCD and the teleological purpose of article 15 LCD, based on par conditio concurrentium or parity between competitors. Although it is not designed to be applied automatically every time a rule is violated, it also discusses the indirect way in which this article can help compliance with other legal rules, although this is not its main function.
In the second section, the aim is to delimit which normative provisions can be included in the different paragraphs of Article 15 LCD. Firstly, a cohesive analysis of the concept of legal rule is carried out, given that each of the paragraphs of the aforementioned article, which regulate divergent case scenarios, use a different nomenclature (laws, legal rules, legislation, rules). In particular, reference is made to the guiding principles of the social economy, to codes of conduct and to cases that could and do occur in the context of bogus cooperatives. In particular, the case of abuse of the social form is addressed, and its possible sanction as an unfair act under Article 15 LCD is theorised.
The third section studies the question of legal standing, which may present particularities with respect to the general regime of the LCD. It starts from the premise that the Social Economy Entities (those envisaged in article 5 LES) are subscribed to the subjective scope of the LCD, insofar as they are market economic operators, also including the Fishermen’s Guilds as public law corporations. In strict relation to Article 15 LCD, it is concluded that the passive legitimation is not restricted to the subject that infringes the rule that gives rise to the unfair infringement, but reaches any subject that takes advantage of the competitive advantage derived from this infringement of the rule.
The fourth section deals with the possibility of applying Article 15 LCD in cases of regulatory asymmetry between economic operators. Specifically, it is analysed whether parties who are not legally bound by a rule have standing to sue those who, having the obligation to comply (that same rule), infringe it. It is, however, a question of substance, related to the basis of the rule. This is of particular relevance in the legal framework of some social economy entities, which are governed by rules that apply only to them. This section is divided in two subheadings.
The fith section deals with the general assumption of infringement of rules provided forthe first paragraph (Art. 15.1 LCD). Particularly, all the assumptions that must be met and proven for there to be conduct worthy of the reproach of disloyalty in this way are studied. The following assumptions are analysed in diferente subheadings: i) The existence of the infringement of at least one legal rule, ii) the causal link between the infringement and the competitive advantage, but also the causal link betwwen competitive advantage and prevalence. And iii) The significant degree of the advantage.
The sixth and final section deals with the assumptions of infringement of rules of specific groups. Due to It is divided into two sub-headings. The first sub-heading focuses on the infringement of the so-called competition rules provided for in 15.2 LCD. The correlation of this article with 15.1 LCD is analysed, and particularly, the differences that exist from a procedural perspective. Without being exhaustive, the most recent jurisprudential classification of categories of rules that are to be considered competitive are included. In direct relation to the social economy, it is assumed that its entities are economic operators (within the framework of the LCD), and for this reason the same competition rules will usually apply to them as to the rest of their competitors. Although from a theoretical perspective, the Preliminary Draft Bill for a comprehensive law to promote the social economy, and in particular the recent CNMC report on the same, is brought up with the aim of analysing what competitive impact (for the sole purpose of the article under study) quotas in favour of social economy entities could have.
The second sub-heading focuses on two specific cases that were introduced after the original wording of the Law, the first of which is the hiring of foreigners without authorisation to work, provided for in Article 15.3 LCD) and the second is the repeated failure to comply with the rules on combating late payment, included in Article 15.4 LCD. In both cases, as in Article 15.2 LCD, the reference to the significant competitive advantage and the prevalence of that advantage is omitted, it means a procedural advantage in comparison with Article 15.1 LCD.
With regard to the case of hiring foreigners without a permit, the divergences that exist between the regulatory basis of this precept and that which governs the budgets of 15.1LCD and 15.2 LCD, which lead to a justified differential and more advantageous treatment from a procedural point of view.
Finally, in relation to the assumption 15.4 LCD, it is analysed whether the legislator, by introducing the repeated breach of the rules to combat late payment as a specific unfair offence, implicitly recognises that the repeated breach of contractual obligations, and specifically payment obligations, is likely to cause a competitive advantage to the offender to the detriment of the rest of the competitors who do comply with theirs. In addition, the regulatory requirement that the conduct be repeated is briefly analysed.
Perspectivas de futuro de las plataformas de transporte
Silvia BobocDescargar Ver resumen
El trabajo analiza la regulación del arrendamiento de vehículos con conductor tras la entrada en vigor de los Reales Decretos Leyes 13/2018, de 28 de septiembre, y 5/2023, de 28 de junio, así como la jurisprudencia más reciente, entre otras, las sentencias del Tribunal Supremo de febrero de 2023, que declaran nulos el requisito de contratar el transporte con determinado tiempo de antelación y la prohibición de geolocalizar los vehículos antes de contratar el servicio, y la sentencia del Tribunal de Justicia de 8 de junio de 2023, que se pronuncia sobre la compatibilidad de la regla 1/30 y de la exigencia de una autorización local con el derecho a la libertad de establecimiento y la prohibición de las ayudas públicas.
FUTURE PROSPECTS OF TRANSPORT PLATFORMS
In Spain, the private-hire vehicle services (PHV services) have been subject to strong administrative intervention ever since the first regulations were adopted in 1924. Restrictions have increased since the implementation of the transport platforms Uber, Cabify and Bolt, to the point that Royal Decree Law 13/2018, of 28 September, reduced the territorial scope for which these authorisations allow services to be provided, from urban and interurban to exclusively interurban, i.e. with a route that goes beyond the territory of a single municipality (par. 2 of Art. 91.1 AOLTA). The entry into force of the Royal Decree Law marked a turning point in the regulation of PHV transport, on which the success and even the survival of the business model of the transport platforms involved in hiring them depends.
At the end of the transitional period during which the authorisations continued to entitle to carry out urban services (par. 2 of the Single Transitional Provision of the Royal Decree Law 13/2018, of 28 September) -in principle, set for 30 September 2022, although most authorisation holders requested their extension, and many applications are still pending resolution- urban transport is governed by regional or local regulations. Instead, interurban transport is governed by state regulations, even if it takes place in a single Autonomous Community, since the Autonomous Communities have not regulated autonomous interurban transport (with the exception of the Canary Islands and Cantabria, for reasons of insularity and special cases), except with regard to the conditions set out in Art. 182.1 ALOTR (First Additional Provision of the Royal Decree Law 13/2018, of 28 September).
So far, only the Community of Madrid, followed by Catalonia and Andalusia have regulated urban PHV transport, although not on a uniform basis. While in Madrid and Andalusia the pre-existing state PHV authorisations are still valid for urban transport, in Catalonia a new autonomous authorisation has been created for urban journeys.
In three judgements in February 2023, the Spanish Supreme Court rightly declared the obligation to hire PHV services at least 30 minutes in advance and the prohibition of geolocation of vehicles prior to hiring them in the Basque regional regulations to be contrary to freedom of enterprise (Art. 38 of the Spanish Constitution) and, therefore, null and void. This is because they do not contribute to guaranteeing prior hiring, nor do they make it impossible to attract customers on public roads, which are already achieved by hiring the services through digital platforms, and not directly with the driver. For the same reason, similar provisions in other autonomic regulations must also be considered null and void, even if the minimum time is less than 30 minutes, as the reason for the nullity is the same.
In its judgment of 8 June 2023, the Court of Justice found the quantitative limitation of PHV authorisations (1/30 rule) to be contrary to the freedom of establishment (Art. 49 TFEU). On the one hand, the proceedings before the Court of Justice have revealed no evidence that the measure limiting PHV authorisations to one thirtieth of taxi licences is appropriate to ensure the achievement of sound management of transport, traffic and public space or the protection of the environment. On the other hand, they have not demonstrated that PHV services do not contribute to the achievement of such objectives, since they reduce the use of private cars, they do not cause parking problems on public roads because the RVTC requires undertakings offering PHV services to have their own parking and not to park on public roads, in addition to the fact that due to their level of digitalisation and flexibility in service provision, they can contribute to the goal of efficient and inclusive mobility and State regulation encourages the use of vehicles that use alternative energies for PHV services. In short, the 1/30 rule does not seem appropriate to guarantee the achievement of the objectives of good management of transport, traffic and public space or the fight against pollution, as PHV transport seems to do.
Moreover, the restriction would not be the minimum necessary, since the objectives mentioned can be achieved by less restrictive measures such as the organisation of PHV services, limitations on those services during certain time slots or traffic restrictions in certain areas, aspects which must be ascertained by the national courts. It could also be added that the reason for the specific 1/30 ratio has not been justified and that perhaps lower ratios would allow the same result to be obtained.
However, the Government has recently circumvented the application of the European judgement by introducing new restrictions on the activity through Royal Decree Law 5/2023, of 28 June. Among others, it makes the granting of national PHV authorisations conditional on compliance with environmental criteria for improving air quality and reducing CO2 emissions, transport, traffic and public space management in the Autonomous Community in which the authorisation is to be domiciled [Art. 99(5)(a) and (b) AOLTA]. In addition, it introduces the possibility that the Autonomous Communities may establish other criteria for improving air quality for state authorisations domiciled in their territory, which may therefore be even more restrictive. It also empowers the Autonomous Communities to refuse to grant PHV authorisations based on the application of objective criteria relating to the reduction of CO2 emissions, transport management, traffic and public space, established for their territorial scope, and to limit the maximum number of PHV authorisations to be granted to a single subject. Lastly, Royal Decree Law 5/2023 of 28 June opens the door to regulations establishing other criteria based on overriding reasons of general interest by virtue of which the granting of PHV authorisations may be limited [Art. 99(7) AOLTA].
In short, the restrictive regulatory policy on PHV services is perpetuated, without any justification for the restrictions imposed, nor is there any analysis of their proportionality or the non-existence of less restrictive alternatives. The harm to the providers of this type of transport, to the platforms involved in their contracting and, ultimately, to the users of the services, is evident.
Estándares para la gobernanza ética de plataformas digitales de cuidados
Mercedes Farias BatlleDescargar Ver resumen
En este trabajo se revisan las propuestas tecnológico-organizativas realizadas hasta la fecha en relación con la digitalización en general, el desarrollo de las plataformas digitales y el de las plataformas titularidad de entidades de la economía social. Así, se realiza una propuesta singular referida a las buenas prácticas y los estándares que hay que tener en cuenta a la hora de desarrollar una plataforma digital para la prestación de servicios de cuidados, con especial referencia a aquellas que sean titularidad de una cooperativa u otra entidad de la economía social.
Teniendo en cuenta los estándares inicialmente enunciados por SCHOLZ, se propondrán, a la luz de las innovaciones tecnológicas y de la singularidad de las plataformas digitales de cuidados, estándares y buenas prácticas, como formulación sobre la que seguir reflexionando de cara a construir un marco ético y, quizás, jurídico en este entorno de necesaria atención a las debilidades que confluyen a ambos lados de la plataforma (las de los receptores de cuidados y de los prestadores de servicios de cuidados).
STANDARDS FOR THE ETHICAL GOVERNANCE OF DIGITAL CARE PLATFORMS
According to a recent report on the care economy in Spain, 8% of the care economy is made up of social economy enterprises and organisations and 92% of commercial enterprises. The weight of the social economy in the care economy is higher than in other sectors of activity and consists mainly of micro and small enterprises. Although the study did not find any differences between the social economy and the commercial economy in terms of their ability to generate profitability (economic sustainability), it did find that commercial enterprises have an average economic result that is 48% higher than that of social economy enterprises and organisations. This is an economic sector that faces major challenges in the short term, and it is therefore necessary to pay special attention to the changes that are still to come.
The various circumstances that have generated greater demand for care have also led to the emergence of new ways of providing these services, including digital care platforms. As is well known, technology is not a neutral element that is added to any legal relationship without impact on the content or form of the legal business itself. Of course, the provision of care services, mediated by a digital platform as a channel of supply and contracting environment, is not only not an exception, but also poses (or should pose) special constraints in view of the unique conditions of the subjects on both sides of the platform; conditions that make them more vulnerable than other subjects of other legal relationships: care recipients and caregivers. Business models can be very different from one another: there is a very varied typology ranging from platforms that act as a mere intermediary between the person seeking care services and the caregivers (charging commissions for their intermediation, like any extractive platform) to those that are jointly owned by care recipients and caregivers (such as a mixed cooperative of associated work and consumers and users).
For reasons of legal security and protection of the interests of particularly vulnerable individuals, all digital care platforms should be configured in accordance with technological and functional requirements that take these circumstances into account. Whatever the business model is, we propose what should be the technological and functional standards, or good practices, that the digital care platform must comply with in order to be eligible for the aid and incentives that, hopefully, are yet to be developed for social economy platforms. This is the a way to make the difference between extractive exploitation platforms and social economy platforms.
Supranational organizations, States and social economy interest groups have all agreed to support the development of policies and actions to promote innovation and the introduction of technologies in the care sector, where they see great potential for improvement and great benefits for the population in general. The normative instruments issued by the European and national authorities refer to the need for such rules and standards, but for the time being, if they are issued at all, they do not dictate a clear, complete and contextualized regime. On the other hand, it is already possible to implement good practices which, because they are required by public administrations for the award of services or licenses, end up having a binding force similar to that of a standard (as evidenced by the so-called “quality standards”, such as ISO standards).
In this paper have been followed the UNESCO recommendation according to which ethics should be the dynamic basis for the normative evaluation and orientation of technologies, taking as a reference human dignity, welfare and prevention of harm, based on the ethics of science and technology. With this paper it is intended to contribute to the multidisciplinary reflection, we from the perspective of law, on the ethical governance of digital care platforms that must precede the necessary dictation of legal norms that establish the principles and rules of their operation. The normative instruments issued by European and national authorities invoke the need for such rules and standards, but, for the time being, they do not regulate them. However, it should be noted that this task of reflection for the construction of an ecosystem of care platforms respectful of the Rights and Freedoms of the subjects involved is a task that should not be considered closed, but the reflection should remain open, in permanent construction.
Taking into account the standards proposed by SCHOLZ, will be proposed, in the light of technological innovations and the uniqueness of care platforms, concrete standards and best practices, as a formulation on which to continue to reflect in order to build an ethical and, perhaps, legal status in this environment of necessary attention to the weaknesses that converge on both sides of the platform.
Specifically, the convenience of incorporating into the care platform some standards such as 1) Clear indication of the underlying business model. 2) Free software and open source code. 3) Transparency of the algorithm(s). 4) Hosting on green servers, and concludes with a brief reference to other standards.
The Roadmap of the spanish State Care Strategy states that one of its objectives is “to design and coordinate public care policies from a human rights approach with three cornerstones: people as rights holders, states as duty bearers and companies as duty bearers”. The proposals of this paper, in the modesty of its reflections, aim to contribute to the achievement of the stated objective, taking into account the interests represented by the three cornerstones in digital care platforms. Adding the perspective of the social economy, which, in other government documents (as in the PERTE of the social economy and care) are considered as converging public policy environments.
Let this paper also serve as a reminder that it is of the utmost importance to keep in mind that digitalization (and the process automation that follows) increases the costs of social economy care enterprises, which are at a distinct disadvantage compared to enterprises in the capitalist economy. The same applies to compliance with the standards we have just mentioned (quality versus economy). It is difficult for social economy organizations to compete on an equal footing in this informal market, where prices are set in an opaque manner, because it is a market in which precariousness, temporariness and informality abound. These are the evils that the spanish State Care Strategy seeks to eradicate.
El compliance como instrumento de responsabilidad social corporativa en las plataformas digitales de cuidados
Mª del Mar Andreu MartíDescargar Ver resumen
El trabajo se centra, tras analizar la actual crisis social de los cuidados y las recientes políticas institucionales para su resolución, en el estudio de las Plataformas digitales de cuidados de reciente aparición en nuestro país, con especial atención a las que son titularidad de entidades de la economía social como las cooperativas y las sociedades laborales. En su seno, es objeto de análisis pormenorizado cómo incorporar los programas de cumplimiento o compliance a este tipo de plataformas de trabajo ya que constituyen un instrumento de extraordinaria utilidad para que la empresa logre cumplir con su responsabilidad social corporativa, además de una obligación en breve.
COMPLIANCE AS AN INSTRUMENT OF CORPORATE SOCIAL RESPONSIBILITY IN DIGITAL CARE PLATFORMS
The recognition by the main international organizations, since the beginning of the 21st century, of the “social crisis of care” constitutes an unavoidable challenge in terms of social policy. It refers to the problem of a large sector of the population in a situation of dependency whose needs are not given an adequate response by the public powers to meet their needs; They are those people who, because they are in a situation of special vulnerability, require care to carry out the basic activities of daily life, achieve a greater degree of personal autonomy and be able to fully exercise their rights as citizens. There are several factors that come together in this crisis: the progressive aging of the population aggravated by the “aging of aging” and the parallel confirmation of dependency problems. At the same time, the care needs increase in other dependent groups due to illness or other causes of disability or limitation.
Caring for these groups constitutes a challenge both because of the need to respond to this demand and because of the traditional problems that exist in the caregiver sector. Thus, although there is a transition from the unpaid “family” care model to a model of greater externalization, it continues to be centered and driven by the family, maintaining its traditional feminine aspect and, to a large extent, foreignized. It is also a precarious job, socially undervalued and poorly professionalized.
To focus the issue, the situation generated by the unsuccessful LAPAD is previously analyzed, as well as the recent institutional impulses to alleviate such crisis. Achieving a new model of the care economy is an objective of the 2021 Recovery, Transformation and Resilience Plan; an achievement that, due to its transversality, affects SDGs such as “gender equality” (5), “health and well-being” (3), “decent work and economic growth” (8) and the “reduction of inequalities” (10). To this end, the “Long-term care and support plan: deinstitutionalization, equipment and technology” have been approved, among others, in 2021 and in 2022 the PERTE of the Social Economy and Care.
However, the crisis is worsening, generating a growing economic sector where digital platforms are emerging to provide care services. After analyzing the two business models followed by these platforms: those that operate as digital placement agencies and those that respond to on-demand models, their singularities compared to other work platforms are studied. To this end, the peculiarities of the three groups involved are taken into account. The first, clients who differ from others in their dependence on the provision of the service and who, sometimes, the person to be cared for is not the person requesting the service but their family environment. The second, the workers, providers of care services, tend to be overwhelmingly women and, in many cases, foreigners, with a low level of professionalization. The intervention of the platform does not guarantee, by itself, an improvement in their working conditions, nor in the professionalization of the sector. Finally, the peculiarities and ways of intervening of platforms as a technological instrument are addressed. In summary, one of the main differences with other work platforms is their own service object that is usually provided on a long-term basis to respond to an essential need of clients and that such a relationship must be governed by mutual trust that does not require another type of services.
To avoid, or at least alleviate, the inconveniences and gaps that arise in current digital platforms that function as mere intermediaries, social economy entities are ideal for providing care services. In this business model, the care workers, who will provide their services through the platform, will be working partners of the associated labor cooperative or the labor company that owns it. The client contracts the services to the associated worker cooperative or labor company which, due to this information, will no longer be limited to being only the owner of the platform but rather the company dedicated to providing care through its worker partners. This centralization of services generates economic and legal advantages for all parties. For the client because by directly committing the cooperative or labor society to the provision of the service, it will be offered safely and continuously to the subject in need of care. For caregivers, because it could improve their situation by exercising control and making decisions in their company, being able to improve their working conditions and invest in their training to achieve greater professionalization.
In the final part of the article, after studying the prevailing compliance culture and its various manifestations for any business entity, its necessary implementation in city digital platforms is addressed. However, it should be noted that its convenience in the economic sector of care extends to all possible social forms chosen by entrepreneurs – capitalist or social economy companies – and whether they provide their services in the traditional way or with the help of some tool. digital or via platform. Thus, it is enough to mention the necessary general compliance with the enormous regulations in all legal areas that any company must comply with to operate in the market according to its legal form, compliance with the specific regulations of the care sector and certain standards or parameters. that you will be interested in pursuing for the benefit of your reputation or that, at times, you will have to comply with to provide your services. We are referring, for example, to UNE-type standards that, although voluntary, become mandatory when required by public administrations for the granting of public contracts or other types of incentives.
Focusing on digital care platforms, there are two singularities that condition the implementation of compliance programs. Firstly, that the object of its services is care, presenting a particular idiosyncrasy for both people in need of care and caregivers that does not occur on other popular platforms. Thus, users are in a situation of special vulnerability as they are people who need care in their personal home, usually long-term and who, in many cases, will be disabled. Therefore, sometimes, specific procedures must be implemented to replace, when necessary, your capacity to contract and that cover both the strictly legal and ethical spheres. Furthermore, their own dependence on the provision of the care service must be taken into account, and it is necessary to comply not only with the regulations in this regard but also for the compliance systems to go further and serve to strengthen and protect the necessary, and special, relationship of trust that must govern the provision of care. For its part, the profile of caregivers tends to be, in almost all cases, women, quite often foreigners and with a low level of professionalization. Profile that conditions how compliance systems should be implemented to address various aspects. Among others, that the platform ensures that the selection and distribution of the services to be provided by caregivers are transparent and fair; It is therefore necessary to ensure the proper functioning of the relevant algorithm so that it can be verified that it works without bias and discrimination and that a fair and balanced governance system is ensured that, at the same time, promotes investment in training resources for these workers. allowing them to increase their qualifications and professionalization, contributing to improving their working conditions, reducing the precariousness of the sector and the gender gap.
Secondly, special attention must be paid to building an effective compliance system to the platform itself as a digital tool and the dangers that its use entails. Thus, not only the cybersecurity and data security problems that are exacerbated by this tool, but also the implementation of the future European Artificial Intelligence Law. Under this future standard, a digital care platform is considered a “high-risk” artificial intelligence system that, therefore, must meet numerous requirements and undergo a detailed pre-conformity assessment and monitoring throughout. its operation.
In summary, the compliance system designed should not be limited to strict compliance with the rules, whether mandatory or voluntarily assumed by the owner company, but should be capable of implementing an ethical culture of compliance because care is a right of people that affects their own dignity.
Finally, the work ends by addressing the convenience and, where appropriate, mandatory nature of the Internal Information System in digital care platforms after Law 2/2023.
La contratación pública de cooperativas por parte de la Generalitat de Catalunya (2017-2021)
Miguel Guillén BurguillosDescargar Ver resumen
Con este trabajo se pretende conocer el peso de la contratación pública de cooperativas por parte de la Generalitat de Catalunya entre 2017 y 2021. En 2021 en Cataluña existían 4.521 cooperativas que dan trabajo a 45.417 personas y generan una facturación anual conjunta de alrededor de 4.500 millones de euros, aproximadamente un 2,2% del PIB catalán. En este trabajo se presentan los datos de la contratación (tanto mayor como menor) de la Generalitat con cooperativas: número de contratos, facturación, proporción respecto de la contratación total de la Generalitat, así como los nombres de las principales cooperativas contratantes. A pesar de los esfuerzos por parte de la Generalitat en el fomento de la economía social, el estudio muestra que los porcentajes de contratación están lejos del anteriormente citado 2,2%, y por tanto queda mucho camino por recorrer en lo que respecta a la contratación pública con estas empresas.
PUBLIC CONTRACTING OF COOPERATIVES BY THE GENERALITAT OF CATALONIA (2017-2021)
This work aims to make known the significance of the public contracting of cooperatives by the Government of Catalonia (Generalitat de Catalunya), in relation to the total contracts of this administration, specifically in the years between 2017 and 2021, both inclusive.
As we know, the social economy formula with the most weight and tradition in Catalonia is cooperativism, which represents 40% of social economy companies. In total, according to data from December 2021, there were 4,521 cooperatives in Catalonia (during 2021, 182 new ones were created), which employ 45,417 people and generate a joint annual turnover of around 4.5 billion euros which represents approximately 2.2% of the Gross Domestic Product (GDP) of Catalonia (Generalitat de Catalunya, 2022).
But although we have this data of 2.2% of the Catalan GDP, this work aims to make known the percentage of public procurement to cooperatives in the autonomous administration of the Generalitat, taking into account that, over recent years, this has become the flagship of a political commitment to promoting the social economy, and more specifically cooperativism, through specific programs such as the “Xarxa d’Ateneus Cooperatius” and “Projectes Singulars”, started at the end of 2016. We will focus in particular on the last six years, those coinciding with the promotion of this program, which has involved, since its inception, an investment of around 65 million euros (35.2 million corresponding to “Projectes Singulars” and 30.3 million to the “Xarxa d’Ateneus Cooperatius” program). Through the analysis of the Generalitat’s public contracting data, we will be able to know the number of contracts and the amount corresponding to cooperatives, and thus know the percentage they represent with respect to the total contracting of this public administration, both in terms of referring to larger and smaller contracts. It will be interesting to discover if this percentage is similar to the 2.2% of the GDP that we mentioned before.
In the first part of the work, there is a review of the functioning of public procurement in Spain, the principles on which it is based, the different regulations (regional, national and European), as well as the particular impact it has had in the case of cooperatives. There is also a review of the political measures, made by the Government of Catalonia, to promote the social economy, and particularly cooperativism, in recent years.
Thanks to the data published by the Generalitat, it is possible to have details of the larger and smaller public contracts, and know the amounts, number of contracts and the company contracted. The data corresponding to the years 2017, 2018, 2019, 2020 and 2021 is analysed in this paper. The data corresponding only to the cooperatives will be filtered, and thus we will be in a position to know the hiring that was specifically made in the aforementioned years to these types of social economy companies.
The starting hypothesis is that the percentage of public procurement from cooperatives will be very low, even lower than the 2.2% that cooperatives represent in Catalonia’s GDP in terms of turnover. The provisional results indicate that, indeed, the percentages of public procurement (both on a larger and smaller scale) to cooperatives by the Generalitat are low, both in terms of billing and the number of contracts and the number of companies, with respect to the total number of companies which the Catalan autonomous administration contracts. The percentages are generally around 1%, depending on the year.
The specific results of the work indicate that the percentages of public procurement (both major and minor) to cooperatives by the Government of Catalonia are low, both in terms of billing and the number of contracts and number of companies, compared to the total number of companies which the Catalan autonomous administration contracts. Specifically, the evolution of major contracts to cooperatives of the Generalitat of Catalonia between 2017 and 2021 was as follows: 78 contracts in 2017, 126 in 2018, 105 in 2019, 86 in 2020 and 102 in 2021. Regarding the total amounts of the contracts, these were as follows: 7,548,087.74 euros in 2017, 24,898,695.17 euros in 2018, 15,832,396.25 euros in 2019, 5,113,715.24 euros in 2020 and 13,898,458.16 euros in 2021. The year with the highest proportion of contracting compared to the Generalitat’s total public contracting was 2018, with 1.73% (in terms of total billing). In the other years this was always below 1% (0.53% in 2017, 0.66% in 2019, 0.19% in 2020 and 0.46% in 2021). Overall, considering the five years analysed, the percentage achieved is 0.61% (67.29 million euros out of a total of 10,943.34 million euros of major contracting in the Generalitat). In this period 2017-2021, a total of 497 major contracts were carried out for cooperatives (in the Generalitat overall, 56,768 contracts were carried out).
In the next part of the work, there is the list of the cooperatives that have a greater contract, in terms of billing, with this administration in the period analysed.
After the specific analysis of the case of public procurement (major and minor) to cooperatives by the Government of Catalonia, the work offers comparisons with the data of the autonomous communities of the Comunitat Valenciana (Valencian Community) and Illes Balears (Balearic Islands).
The possible impact of the COVID-19 pandemic on public procurement of cooperatives is also addressed. This is contracting through emergency means derived from COVID-19. Thus, in the Generalitat of Catalonia this amounted to a total of 54 contracts (to 11 different cooperatives) for a global amount of 2,171,543.50 euros. If we look at total public procurement through emergency means, we see how the total amount in the Generalitat of Catalonia amounted to 790,024,635.68 euros (in a total of 6,734 contracts). Therefore, the percentage of contracting from cooperatives represents 0.27% of the total emergency public contracting due to COVID-19. These contracts were made between March 2020 and March 2021. It would appear that the COVID-19 pandemic, and the consequent emergency route in public contracting, did not mean a significant increase in the proportion of public procurement to cooperatives by the Generalitat of Catalonia.
As final conclusions, it is worth noting that, although it is estimated that cooperatives in Catalonia employ 45,417 people and obtain a joint annual turnover of 4,500 million euros (2.2% of the Catalan GDP), the percentages of public contracting , both major and minor, of this autonomous administration are clearly below that percentage of 2.2%. The same is observed in the compared cases of the Valencian Community and the Balearic Islands. Despite the political commitment to promoting the social economy, and particularly cooperativism by the Generalitat of Catalonia, especially since 2016 (through successful initiatives such as the Network of Cooperative Athenaeums or the Singular Projects), there is a pending issue regarding public procurement for cooperatives, which remains very insignificant. The reservation of contracts for cooperatives or the exploration of other possible measures by the administration to promote contracting with this type of companies is presented as a future challenge that can help in compliance with the United Nations 2030 Agenda for Sustainable Development.
Implicaciones de los últimos cambios normativos en la obligación de auditoría de las sociedades cooperativas de Euskadi
Amaia Zubiaurre GurruchagaDescargar Ver resumen
La obligación de auditoria de las sociedades cooperativas en Euskadi ha sufrido cambios tras las últimas modificaciones introducidas tanto por la Ley 11/2019, de 20 de diciembre, de Cooperativas de Euskadi, como por el Real Decreto 2/2021, de 12 de enero, por el que se aprueba el Reglamento de desarrollo de la Ley 22/2015, de 20 de julio, de Auditoría de Cuentas. Este trabajo se centra en analizar dichos cambios y las razones que han empujado a adoptar dichos cambios. Tras varios años en los que se ha aplicado una regla diferente a las sociedades de capital y a las sociedades cooperativas, se ha unificado el criterio decisorio de la obligación de auditoría por el tamaño en ambos tipos de sociedades a través del cambio operado por el nuevo Reglamento que desarrolla la Ley de auditoría de cuentas al que se remite la Ley de sociedades cooperativas. La nueva Ley de Cooperativas de Euskadi obliga, además, a los socios solicitantes de la auditoría de cuentas a hacer frente a los costos de la auditoría y prevé que el consejo rector pueda acordar el sometimiento de la cooperativa a la auditoría de cuentas. Todas estas cuestiones y sus implicaciones serán objeto de estudio en este trabajo.
IMPLICATIONS OF THE LATEST REGULATORY CHANGES ON THE OBLIGATION TO AUDIT COOPERATIVE SOCIETIES IN THE BASQUE COUNTRY
The auditing obligation of cooperative societies in the Basque Country has undergone changes following the latest amendments introduced both by Law 11/2019, of December 20, on Cooperatives in the Basque Country, and by Royal Decree 2/2021, of January 12, approving the Regulations for the development of Law 22/2015, of July 20, on Account Auditing. This paper focuses on analyzing these changes and the reasons that have led to the adoption of these changes. One of the issues on which the paper focuses is the audit obligation due to the size of the company. After several years in which different regulations have been applied to capital companies and cooperative societies, the decision criterion of the audit obligation by size has been unified in both types of companies through the change operated by the new Regulation that develops the Account Auditing Law. In the case of capital companies, Capital Companies Act, which contains specific regulations on the auditing of accounts, applies to capital companies and the specific rule about this issue is contained in Article 263. The cooperative law applies to cooperative societies. However, in order to resolve this issue, the regulation set forth in the First Additional Provision of the Regulation on the auditing of accounts is applied to cooperative societies, by express reference of the Basque Cooperatives Act of 2019. This First Additional Provision of the Audit Regulation always made the audit obligation dependent on the impossibility of presenting an abridged balance sheet. Although until the 2013 Support for Entrepreneurs Act amended Article 263.2 of the Capital Companies Act, this provision also made the audit exception dependent on the possibility of drawing up an abridged balance sheet regulated in Article 257 of the Capital Companies Act, after the amendment the reference to the abridged balance sheet was eliminated and certain quantitative parameters were introduced in Article 263.2 of the Capital Companies Act that should not be exceeded in order to be exempted from the audit obligation. In addition, the Entrepreneurs’ Support Act modified the limits established in Article 257 to be able to formulate an abridged balance sheet, raising them, which are higher than those established for the audit exception in the new wording of Article 263.2, since these new figures coincide with those established in the previous version of Article 257 to be able to formulate an abridged balance sheet. All this implied that, from the Entrepreneurs Support Act of 2013 to the Regulation of 2021 that develops the Account Auditing Law, the audit obligation of capital companies to which the Capital Companies Act applied and cooperative societies depended on different figures. This is because the obligation to audit cooperative societies, to which the First Additional Provision of the Regulation on Account Auditing of 2011 applied, depended on not being able to formulate an abridged balance sheet in accordance with Article 257 of the Capital Companies Act and, in the case of capital companies, it depended on not exceeding the figures set forth in Article 263.2. Thus, cooperative companies had to exceed higher figures than capital companies in order to be obliged to audit their accounts. For a few years, from the changes introduced by the Law to Support Entrepreneurs in 2013 in the Capital Companies Act until the Regulation on Account Auditing of 2021 came into force, it could happen that cooperative companies of a larger size than capital companies did not have an auditing obligation, when the latter did. In addition, although the number of capital companies that had to audit their accounts did not change, taking into account the reference limits, the number of cooperative societies that had to be audited did change as the limits taken into account were raised. By not relying on the power to formulate an abridged balance sheet and maintaining the figures that required the audit, this implied that the capital companies had to be audited with lower figures than those that were cooperative societies. This has changed as of the 2021 Audit Regulation, whose First Additional Provision provides that companies that do not meet the conditions of Article 263.2 of the Capital Companies Act will be obliged to audit their accounts. This means that, at this time, the quantitative limits that apply to cooperatives and capital companies are the same and there are no distinctions or differences. Another regulatory change is related to the obligation of cooperative societies to submit their accounts to audit when requested by a sufficient minority of partners to demand the convening of the general meeting, because it has been added that such applicants must pay the costs of the audit, without prejudice to their reimbursement if substantial vices or irregularities are detected in the accounting. The main purpose of this measure is to avoid the request for unjustified audits, and the partners must be very sure that there are substantial defects or irregularities in the accounting that, if found, would imply the reimbursement to the applicant for the audit. Audits are expensive and the company may not have sufficient resources to pay for them. In the event of any doubtful cases, it would have been practical to follow the same criteria currently used in Article 40 of the Code of Commerce, which states who bears the cost of the audit depending on the type of opinion issued by the auditor in the audit report, thus avoiding any doubts of interpretation that might arise. Another regulatory change analyzed in the paper consists of the fact that the Law on Cooperatives in the Basque Country of 2019 in Article 76.1 c) introduces as a novelty that the governing board may decide that the cooperative society must submit its accounts to audit. Although it does not seem to be common for those who prepare the annual accounts and are controlled to decide on the appointment of an auditor, the purpose of this power granted to the Board of Directors is to enable the governing body to obtain assurance that the accounts have been correctly prepared and, if not, to take the appropriate measures. It appears that the introduction of this amendment is intended to facilitate the governing board’s management and administrative role. The truth is that there are already many Resolutions of the General Directorate of Registries and Notaries that admit that the Board of Directors can appoint an auditor, provided that it considers it necessary for the good running of the company, taking into account that it is an act with the nature of an act of management and good administration when the company is not obliged to audit its accounts.