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La Ley de Asociaciones de 1887 fue esencial para el desarrollo del cooperativismo. El Consejo de Ministros, en su sesión de 29 de junio de 1886, asumió la necesidad de regular las asociaciones con un criterio liberalizador. Al mes siguiente, el ministro de la Gobernación leyó el proyecto de ley en el Congreso de los Diputados. El día 14 se constituyó la comisión que habría de dictaminarlo. Tras varios meses, el 1 de marzo de 1887 comenzó la discusión del dictamen, prolongándose hasta el 15, mientras en el Senado, después de nombrar la oportuna comisión dictaminadora, se desarrollaron los debates entre el 2 y 22 de abril. Días después se nombró una comisión mixta de diputados y senadores, donde destacó el papel de Santamaría de Paredes, quien propuso que se incluyera un nuevo párrafo en el artículo 1º dedicado, entre otros, a las cooperativas de producción, crédito o consumo. El 21 de mayo se aprobó el nuevo dictamen en el Congreso y más tarde en el Senado. Sólo restaba la firma de la ley, que se produjo el 21 de junio.

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COOPERATIVES IN THE PARLIAMENTARY PROCESSING OF THE ASSOCIATIONS LAW OF JUNE 30, 1887

At the end of the 19th century, cooperatives promoted by industrial and agricultural workers proliferated in various areas of Spain, especially in Catalonia, Valencia, Andalusia and Madrid. At that time, the legal framework that promoted the development of cooperativism was the law of associations of June 30, 1887. Hence, we consider it of interest to explain how the gestation process began, the opinions issued to the bill both in Congress of the Deputies as well as in the Senate, the amendments proposed on them and, of course, the moment in which it was deemed necessary to accommodate certain types of cooperatives in its regulation.

Just one year before the promulgation of the aforementioned association law, the project that Minister Eugenio Montero Ríos commissioned from the Galician sociologist and economist Joaquín Díaz de Rábago stood out with the intention of it being presented and debated in the Congress of Deputies. However, as the author himself declared years later, the politician’s dismissal caused his proposal to be “kept in a drawer”, although he returned to it at the beginning of the nineties, coinciding with the return of Montero Ríos to another Ministry. in this case that of Justice and Grace.

It is worth highlighting that this proposal by Díaz de Rábago for a specific law on cooperatives was immediately after the appearance of the Commercial Code of 1885 and, in a certain way, responded to the meager presence in the legal text of the figure of this type of companies. The Code contained a brief classification of cooperatives in its article 124 (production, credit and consumption), but it did not define the cooperative, nor did it catalog whether it was inside or outside the commercial sphere.

The experts of the time debated at that time whether cooperation should be the subject of a special law or rather be regulated in other regulatory branches. In that doctrinal discussion, Díaz de Rábago showed his open preference for the promulgation of a specific law that regulated cooperative societies. Conclusion he reached after analyzing various foreign legislations.

Having said this, it is appropriate that we focus on the law of associations of 1887. The first step for the law to see the light occurred when the Council of Ministers of June 29, 1886 dealt with the need to regulate associations with a criterion liberalizer. In accordance with this, at the beginning of July, the Minister of the Interior, Venancio González, read the bill in the Congress of Deputies, whose most essential bases were the following:

• No limitations would be opposed to the exercise of this right other than those that the Penal Code establishes as attacks on public order, institutions or morality.
• Those who proposed to establish an association would present their statutes to the civil governor of the respective province, who had to grant or deny approval within a period of ten days. After this, without having verified it, the company could begin to function.
• Once permission for its constitution was granted, no company could be temporarily dissolved or suspended, except by virtue of a final sentence proving the commission of a crime at the registered office. Only in exceptional cases of public order or when appropriate by the action of justice, could the temporary closure of an association be decreed.

All of this was clearly stated in the preamble of the aforementioned project. Thus it was indicated that, among the rights that the Constitution recognized to all Spaniards, the right to associate was, without a doubt, one of those that could contribute most effectively to the progress of the nation. Such a right responded to a need of human nature, with which society, in general, and the different State agencies had been formed. With the associations, the dissemination of education, the promotion of agriculture and industry, private charity, and the reform of legislation and customs were achieved. In short, “all the goals of life find in association forces and means for their fulfillment and development.”

The project in question was, in large part, a reproduction of the one presented in Congress during the session of November 17, 1881, inspired, in turn, by the principles of the decree of November 20, 1868, with three differences. fundamentals:

• 1st. The indication of the duties of the associations.
• 2nd. The powers that the public powers had on this matter.
• 3rd. The insertion of the content of articles 198 to 201 and 230 to 232 of the current Penal Code of 1870.

This new law sought to allow associations to be freely created without the need for permission or prior authorization. It was enough for them to be registered or registered in order to inform the government authority of their existence and mode of operation. On the other hand, for any association all purposes were lawful, as far as they referred to its relations with the State or, in other words, any act that was not expressly classified in the Penal Code had to be authorized. Furthermore, only by ruling of the ordinary courts could the associations be dissolved and, therefore, Spaniards deprived of the exercise of that right.

It was on July 14 when the commission that would rule on the project was formed. Two days later, it held its first meeting, appointing Antonio Garijo and Santamaría de Paredes as president and secretary, respectively.
After several months of inactivity, it was in February 1887 when the commission met again, with the then Minister of the Interior, León y Castillo, expressing that he fully accepted the project as his predecessor Venancio González had drafted it. The commission’s opinion reproduced the same, without any significant alteration other than suppressing article 17, which empowered the Government to prevent the Society of Jesus in Spain.

On March 1, the discussion of the entire ruling began in the Congress of Deputies, highlighting that in the session on the 4th the Republican minority presented various amendments. It was on March 9 when the discussion by articles of the commission’s opinion began, lasting until the 15th.

After finishing the debates in the Congress of Deputies, it was the turn of the Senate. In the session of March 18, it was realized in this House that the bill had been received. Five days later, the commission that was to rule on the bill elected president and secretary, respectively, Romero Girón and Aldecoa.

The commission carried out its work quickly. In fact, on the 6th, its opinion on the bill was read in the Senate. In its preamble, it explained the main alterations with respect to the text approved in the Congress of Deputies. Thus, the need for the Penal Code to clearly define which associations should be considered illicit. These would be those who committed or proposed to commit any of the crimes defined and punished by the Code. Likewise, it was considered necessary to establish the responsibility of the authorities that exceeded the execution or compliance of the law or prevented with their measures the broad exercise of the right of association, contrary to the provisions of article 14 of the Constitution of 1876.

On the other hand, it should be noted that the opinion submitted to the Senate for consideration dealt with the birth of the association, ways of establishing it, and formal requirements that had to be met. It determined, once constituted, the necessary precautions for its way of functioning, insofar as they could affect the surveillance rights that belonged to the State, ending with the powers with which the government authorities were vested to carry out those inspection functions.

The discussion in the Senate on the entire project lasted until April 14. The discussion of the articles began on the 16th, ending on the 22nd, so it was left on the table for a final vote.

On the 25th it was agreed in the Congress of Deputies to pass the bill approved by the Senate to a mixed commission. It was composed of Antonio González, Canalejas, Santamaría de Paredes, Mellado, Garijo Lara, Rosell and Sánchez Pastor. It was on May 14 when Congress was informed that the commission had appointed president and secretary. Two days later, its first meeting was held, highlighting, in accordance with the topic at hand, that, at the request of Santamaría de Paredes, a new paragraph was included in article 1, dedicated to unions, mutual aid societies, welfare, board of trustees and production, credit and consumer cooperatives.

Finally, in the session on May 21, it was approved without discussion in the Congress of Deputies and the same thing happened in the Senate three days later. All that remained was for the Minister of the Interior to take the decree for signature by the queen regent on June 21.

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El cooperativismo estuvo presente en las tres secciones de la Reunión de La Habana, en 1943, a saber: “problemas de educación y de cultura”; “problemas sociales”; y “problemas jurídicos y económicos”, si bien, no con la misma extensión. Entre los presupuestos de la Reunión celebrados en la capital cubana había dos fundamentales para entender el sendero por donde transcurrió el evento. El primero consistía en abordar los problemas necesarios para la reconstrucción de España y la reorganización de las Naciones, mediante un nuevo orden jurídico internacional, según la Carta del Atlántico. El segundo presupuesto es que los trabajos, en su parte económica, estarían orientados por una economía social.

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COOPERATIVISM AND EXILED PROFESSORS. LEGAL, ECONOMIC SOCIAL AND EDUCATIONAL PROPOSALS

In 1943, a gathering of exiled Spanish professors convened in Havana to strategize the reconstruction of Spain. María Zambrano was the only woman professor in attendance at the conference. The participants were optimistic that the end of fascism was on the horizon. The event, known as the First Conference of Exiled Spanish University Professors, was organized into three sections: 1. education and culture; 2. society; and 3. economics and law. During this conference, held between september and october 1943, the professors formulated a series of progressive proposals, including ideas related to social economy and cooperativism.

After the conclusion of the Spanish Civil War, numerous university professors found themselves in exile amidst great uncertainty. In 1939, the Union of Exiled Spanish University Professors (UPUEE) was established in Paris with the objective of opposing Franco’s regime. Among its academics were people of international reputation. They were part of an international cientific network. In addition, several of them had participated in the government of the republic, as ministers, diplomats, parliamentarians and other positions. These academics sought to exert pressure on the Allies in support of the Republic, anticipating the downfall of European fascism, which they believed would pave the way for the return of Spain’s legally constituted democratic regime.

Doctor Gustavo Pittaluga served as the president of UPUEE, with two vice presidents: Mariano Gómez and Honorato de Castro. Gómez was a professor of political law from Valencia who had served as rector of the same university and president of the Supreme Court during the war. Honorato de Castro was a physician, and the secretary was Alfredo Mendizábal, professor or philosophy law. Ignacio Bolívar, a botanist, assumed the chairmanship of UPUEE in 1941. Mariano Ruiz-Funes, serving as vice president. In the age of the Republic, he had been Minister of Agriculture and later Minister of Justice.

Due to the Nazi invasion, UPUEE relocated its base from Paris to Mexico, attracting a significant number of exiled professors. The Union established delegations in various Latin American countries, gaining substantial prestige and importance in Cuba, where its initial president, Pittaluga, sought refuge. The University of Havana hosted a crucial meeting that brought together more adhesions than attendees. While over 40 professors were invited, only 18 were able to attend, primarily due to financial difficulties. This conference resulted in the publication of a book a year later, detailing the agreements reached.

Among the conference principles, two emerged as fundamental for comprehending the event. First, there was a proposal to address the necessary issues for the reconstruction of Spain and to establish an international legal order that would facilitate the reorganization and cooperation of nations, in accordance with the principles of the Atlantic Charter. Second, the proceedings were guided by the principles of a “social economy,” defined as “the need for a fair and equitable distribution of the benefits of production.” Within this concept of a “social economy,” there was a critique of unbridled capitalism, and, as we will see, several proposals aimed at tempering its excesses. So, the objective of this work is to illustrate how exiled professors perceived cooperativism as a potential solution for the economic development of Spain.

The conference was orchestrated and executed by university professors; hence, academia, education, and research emerged as integral components of the solution to nearly every issue under consideration. For instance, addressing economic challenges necessitated the establishment of economics faculties, while tackling food-related issues called for the establishment of Nutrition Institutes. Similarly, the formation of cooperatives followed a logical course of action. Professor Luis Álvarez Santullano proposed the creation of student cooperatives within the university to familiarize students with these organizational structures, enabling them to replicate them in the future. Furthermore, he advocated for cooperatives to become the primary form of student organization.

Beyond their educational role, cooperatives were seen as a pragmatic alternative for addressing social and economic challenges. In the subsequent segment, Fernando de los Ríos Urruti, a professor of political law, socialist, minister of justice and member of parliament during the republic, presented a paper titled “Norms that Inspire Our Social Economy.” Within this discourse, he criticized the exclusive adherence to profitability in economic activities and advocated for a social economy aimed at rectifying the repercussions of a market-driven and profit-centric economy.

In this section, which focuses on social challenges, seven additional presentations were showcased. Two of these presentations addressed key topics: “The agrarian problem,” presented by Fernando de los Ríos, and “Food production and housing,” presented by the physician Augusto Pi Suñer. These discussions envisioned an economic system characterized by the collaborative involvement of three main entities: the State, cooperatives, and private enterprises.

In this section, seven additional presentations were featured, with two of them delving into “The Agrarian Problem,” authored by Fernando de los Ríos himself, and “Food and Housing,” presented by the physiologist Augusto Pi Suñer. De los Ríos asserted that 70% of the Spanish population was involved in agricultural activities. However, land ownership was concentrated in the hands of a few individuals. The peasants were, therefore, wage laborers who were only paid at very specific stages of agricultural production, leaving them unemployed for most of the time. He advocated for the creation of cooperatives and collective forms of production to facilitate extensive-intensive cultivation and fully harness the benefits offered by the new agricultural technique. Therefore, one of his main proposals was to carry out agrarian reform.

Pi Suñer proposed that the State should have institutions enabling it to conduct precise diagnoses of problems and to develop laws, institutions, and measures contributing to the resolution of these issues. He also suggested the establishment of cooperatives for both production and consumption, regulated by the State. Finally, he believed that individuals or private entities could participate in the production and distribution of food and housing construction but under the supervision of the State. The proposed framework aimed to strike a balance between governmental intervention and private sector innovation, fostering collaboration for the improvement of agricultural practices and residential infrastructure.

The last section addressed economic and legal problems. The professors in this section proposed a reconstruction plan aimed at enhancing Spanish economic development and, consequently, the general well-being of the population. To achieve this goal, a profound transformation was deemed necessary, emphasizing collective forms, particularly the promotion of cooperatives and social economy. They believed that increased economic growth in rural areas would expand the consumer base for industrial products.

This desire for greater development and well-being, laudable in itself, was part of the international movement promoted by the Allies, in which the exiles sought to position themselves, among other things, to seize the opportunity to restore the legitimate regime overthrown by Franco.

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Pese a que la adición de la fracción XXIX-N al artículo 73 de la Constitución Política de los Estados Unidos Mexicanos, publicada en agosto de 2007, establece la facultad concurrente del Congreso de la Unión y los Congresos Locales para emitir leyes de fomento cooperativo de ámbito estatal, hasta el día de hoy han sido escasos los avances logrados en esta materia, pues sólo cinco estados cuentan con una Ley propia. Tales resultados revelan el aún exiguo interés de los legisladores locales, la indiferencia de los gobiernos de los estados y la falta de propuestas y unidad de criterio del movimiento cooperativo en las distintas entidades federativas del país. Además, las leyes hasta ahora promulgadas, en tanto han imitado y reproducido el modelo legislativo de la Ciudad de México, no han logrado una adaptación creativa, realista, e innovadora a las condiciones locales de los estados en los que se emitieron.

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ADVANCES IN THE PROCESS OF FEDERALIZATION OF COOPERATIVE LEGISLATION IN MEXICO

Until before August 15, 2007, the date on which the Decree adding section XXIX-N to Constitutional Article 73 was published in the Official Gazette of the Federation (DOF), the Congress of the Union, constituted by the two federal Chambers of Deputies and Senators, lacked direct and express powers to legislate on cooperative matters, which is why the legislation that was issued prior to that date was supported by indirect powers that fell within the broad spectrum of commercial matters. and banking. In addition to the above, the non-participation of Local Congresses in the legislative processes aimed at the issuance of laws on cooperatives, caused a high level of centralization and uniformization in said legislative work.

In this way, the historical relevance of the aforementioned constitutional addition is that it establishes the explicit power of the Congress of the Union: to issue laws regarding the constitution, organization, financing and extinction of cooperative societies and adds that such laws will establish the bases for the concurrence in matters of promotion and sustainable development of the cooperative activity of the Federation, States and Municipalities, as well as the Federal District, within the scope of their respective powers, all of which is framed in a process of federalization of Mexican cooperative legislation.

However, to assess the meaning and significance of this constitutional reform fairly, it is worth taking into account, on the one hand, that its approach by the Congress of the Union was preceded by a series of failed experiences that occurred in several Local Congresses and, on the other hand, that its legislative process was not expeditious or easy to approve, since it required going through various stages in each of which it was the subject of intense debates, being finally approved by the Permanent Commission of the Congress of the Union, on June 13, 2007.

However, after nearly two decades of its entry into force, only the Local Congresses of the states of Coahuila (December 15, 2010), Hidalgo (April 11, 2013), Quintana Roo (June 19, 2013) and Sonora (February 18, 2021) have approved their respective Cooperative Promotion Law (LFC). Thus, given this apparently contradictory circumstance, the question that motivated the carrying out of this investigation was formulated in the following terms: what are the causes that explain the slow process of assimilation and appropiation of the concurrent power to legislate on development cooperative by the State Congresses of the country? Based on this, the general objective of this article, in addition to offering a tentative answer to the previous question, is to analyze the regulatory content of the legislation issued and evaluate its impact on the cooperative movement.

To fulfill the aforementioned objective, it was essential to carry out a detailed analysis of each of the legal systems that are the subject of this study, as well as carry out a comparative study in order to determine the strengths and weaknesses that they exhibit. Likewise, and with the purpose of identifying the background, socio-political context and details of the different legislative processes that gave rise to them, the Parliamentary Gazettes and the Diaries of the Debates of both the Congress of the Union and some Local Congresses were reviewed. . Finally, a critical and purposeful dialogue was established with various authors who have contributed to the debate on the development of cooperative law in Mexico.

As part of the results of the research carried out, it is possible to confirm that until now there has been little progress made in the issuance of Cooperative Promotion Laws based on the provisions of section XXIX-N of article 73 of the General Constitution of the Republic. which is attributable to the still meager interest of local legislators, the indifference and lack of political will of the state governments and the lack of proposals and unity of criteria of the cooperative movement in the different federal entities of the country.

Furthermore, the approved Laws have not addressed issues that are considered crucial for the proper development of the cooperative movement, such as those related to environmental protection, registration of cooperatives, registry of technical assistance institutions for cooperatives, promotion of cooperative integration processes , gender equality, reconstruction of the social fabric and incentives for the creation and control of value chains, among others.

Therefore, it can be stated that these Laws, while they have imitated and reproduced the legislative model of Mexico City, have not achieved a creative, realistic and innovative adaptation to the local conditions of the states in which they were issued.

In this same vein, the progress made in establishing the institutional infrastructure essential for the promotion of cooperatives is meager, because although it is true that the Secretariats of Labor or Economy are assigned the function of attending to this important task, there is any creation of specialized agencies on the subject and the same happens at the level of municipal governments. This same problem is reproduced in the case of spaces for dialogue and consultation with the cooperative movement, whose legislative formulation imposed various restrictions on them.

Even more serious is confirming that resistance also surfaced with regard to the items allocated to financing cooperative development, which is why the budgetary commitment of the state governments has been limited in the case of Mexico City and scarce or almost void in Coahuila, Hidalgo, Quintana Roo and Sonora. This circumstance explains, in turn, that cooperative promotion actions have limited coverage, become routine and do not exceed the narrow margins established in the Cooperative Promotion Law of the Federal District and, in some cases, even turn out to be regressive.

As a result of everything indicated above, it is evident that the impact that these legal systems may have on the cooperative movement will be scarce or limited, which demands that a new legislative cycle be produced that includes both the formulation of new Cooperative Promotion Laws in the 27 states that have not yet enacted them as comprehensive reforms in the five states in which such laws already exist.

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Francia es uno de los países líderes en Europa en materia de participación financiera de los trabajadores en la empresa. Cuenta con un sistema consolidado y arraigado en la sociedad que tradicionalmente ha estado focalizado en la distribución de los resultados empresariales.

Es el único país de la Unión Europea que obliga por ley a las empresas de más de cincuenta empleados) a distribuir beneficios entre los trabajadores. Para ello su ordenamiento contempla diversas fórmulas institucionalizadas (Interessement, Participation y Épargne salariale) acompañadas de incentivos de carácter fiscal y de Seguridad Social, tanto para los empresarios como para los trabajadores. No obstante, en la actualidad, se están realizando notables esfuerzos por ampliar ese enfoque y dar un mayor impulso al accionariado asalariado (actionnariat salarié) que ha tenido escasa implantación. Si bien sus orígenes se remontan a principios del siglo XX, los dispositivos de distribución de los beneficios empresariales, que en principio fueron concebidos para apoyar esa práctica, han tenido un desarrollo mucho mayor e incluso han incidido en su configuración actual. El objeto de estudio de este trabajo consiste, precisamente, en analizar y compartir algunas reflexiones sobre la experiencia francesa en materia de participación, poniendo de relieve sus potencialidades y los retos a los que se enfrenta en estos tiempos.

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FROM PROFIT SHARING TO EMPLOYEE OWNERSHIP IN FRANCE

Employee financial participation has been on the political agenda of the European Union since the 1990s (Pepper Report, 1991). However, despite the progress made, this objective is still far from being achieved, especially among SMEs. The European institutions are working to promote equity participation in particular, for which they have opted for the paradigm of the Employee Stock Ownership Plan (ESOP) in the United States. It is a model based on voluntariness and the principle of non-discrimination, which has worked well among SMEs and family businesses, helping to organise their transmission in the context of generational change, an area of concern in Europe. It has also served, to a lesser extent, to rescue companies in crisis, as a defence against hostile takeover attempts by other companies and, in some economic sectors such as technology, to protect against the flight of the most qualified employees.

The model is built around the trust, an intermediary entity that acquires the shares on behalf of the employees. Thus, the employees do not directly risk their own resources, as the acquisition is financed by a profit distribution to the employees or a loan from a financial institution. They assume some risk in the event of insolvency of the employer company, if the trust focuses investments on acquiring its shares rather than diversifying them. However, the trust is an institution easily transferable to common law legal systems, but not to civil law systems, which is why we have turned our attention to France, a country with a legal system similar to ours. We believe that an analysis of its experience, its potential and the challenges it is currently facing could be of interest and provide guidance for the further regulatory development of investee companies.

France, together with the United Kingdom, is one of the European countries with the strongest commitment to employee financial participation in the company. It has a consolidated system comprising various institutionalised forms (Participation, Intéressement, Épargne salariale) and is the only country in the European Union that makes it compulsory by law (for companies with more than 50 employees) to distribute profits to employees. The fact that its legislation provides a stable legal framework that encourages this type of participation, rather than leaving it to collective bargaining alone, is undoubtedly to be commended.

On the other hand, participation in the company’s share capital has not received the same impetus and has been less encouraged. Employee share ownership (actionnariat salarié), which allows for a variety of mechanisms and structures, is perceived as complex and costly. Therefore, in order to promote its projection, recent legislative reforms have included measures to simplify these processes and to encourage allocations from profit distribution to be used for investment in company shares, particularly in SMEs, as well as in cases of transfer of the company in situations of generational handover, two areas of concern to the French authorities and to the European authorities in general.

In Europe, France and the UK rank well above other countries in terms of employee ownership. According to the EFES (European Federation of Employee Share Ownership) 2022 Report, more than half (57%) of large European companies registered in its database have employee share plans for all employees. This proportion drops to 30% in most central, eastern and southern countries, but is higher than 40% in the Nordic countries, the UK and France. Differences are even more pronounced in the democratisation rate of employee share ownership, in the proportion of employee shareholders compared to total employees. The European average is around 20%, but ranges from 0% in Latvia to 35% in France (around 5% in Spain).

However, the data in the EFES Report 2022 are not encouraging. They corroborate the slow erosion and degradation of employee share ownership in Europe, which was already apparent in previous reports. In 2022, shareholding rose to record levels, but senior managers benefited the most while ordinary employees stagnated. A group of some 9,600 managers (an average of four in each large company) own more shares than the 34 million employees of large European companies. 23 million on average for each executive manager and €33,000 for each ordinary employee shareholder. The number of employee shareholders is declining, with the notable exception of the UK. The number of large companies in which employees have a significant shareholding is falling. All in all, the rate of democratisation has declined considerably over the last ten years.

Against this background, several questions can be asked about the causes of this deterioration: Are employee share ownership plans becoming less and less effective? Have tax incentives reached their limits? Have public policies to support employee share ownership been misused by managers? Why are employee share plans becoming less and less effective in large companies? Why is this due to labour relocation?

It should be noted that all public policies on participation are national in scope, while only one third of employees in large companies work in the company’s home country. Fifteen years ago, it was one in two employees. Thus, the proportion of workers who can benefit from public policies in these countries is decreasing. On the other hand, it seems that the time has come to take a critical look at employee shareholding policies and to be vigilant about the growing influence of senior management in companies. All of these are certainly issues that force us to reflect on the appropriateness and timeliness of measures to be taken in the future.

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El pasado 26 de junio de 2023 el Parlamento del Mercosur aprobó la propuesta de Declaración de interés regional de un anteproyecto de norma en Economía Social y Solidaria.

En este artículo perseguimos tres propósitos: En primer lugar, se comentarán las características institucionales del MERCOSUR y las dificultades que se presentan para la armonización de sus normas. En segundo término, buscamos enmarcar esta propuesta en los diferentes dispositivos institucionales del MERCOSUR que aplican al campo de la Economía Social y Solidaria, así como en los esfuerzos realizados por parte de sus países integrantes para legislar en estas materias. Finalmente, será nuestro objetivo analizar el contenido de la norma dando cuenta de sus principales características, limitaciones y desafíos.

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SOCIAL AND SOLIDARITY ECONOMY PROPOSAL LAW IN THE MERCOSUR PARLIAMENT. SOCIO-LEGAL ANALYSIS

The Constitutive Treaty of the Common Market of the South (MERCOSUR), known as the Treaty of Asunción, signed in 1991 by the States of Argentina, Brazil, Paraguay, and Uruguay, establishes “the commitment of the member States to harmonize their legislation in the relevant areas to achieve the strengthening of the integration process.” Such a challenge has led to a recent proposal for a Social and Solidarity Economy norm for the countries of the block by the MERCOSUR Parliament, more specifically from its Commission on Work, Employment Policies, Social Security, and Social Economy.

The project we will analyze was included in the Agenda of the Plenary Session of May 29, 2023. However, given the difficulties in obtaining the necessary quorum for the approval of the norm, the representatives of the Commission changed the strategy and presented a Regional Statement of Interest Project, which was finally discussed in the Session of June 26, 2023. That day, the Plenary approved the “Proposal declaring the law that recommends the implementation, harmonization, and adoption of legislative mechanisms on Social and Solidarity Economy policies to achieve decent work with social justice,” a Resolution Proposal accompanied by the full text of the draft we will analyze.

The purpose of this article is triple. Firstly, we will comment on the institutional features of MERCOSUR and the difficulties that arise due to (a) the intergovernmental nature of its organs: as set out in the Ouro Preto Protocol, any norm will be incorporated “into national legal systems through the procedures provided for by the legislation of each country”; and (b) the fact that the MERCOSUR Parliament, created in 2005, while empowered to dictate “national norm projects, aimed at harmonizing national legislation in the member States,” has no decision-making power, but it will be national parliaments that will decide whether or not to convert them into own law. In this sense, only two harmonization norms have been adopted. Both are more than ten years old. One of them is precisely the one related to the Statute of Cooperatives of MERCOSUR in 2009, which still does not have the approval of the parliaments of Argentina and Paraguay.

Secondly, we seek to frame this proposal in the different institutional devices of MERCOSUR that apply to the field of Social and Solidarity Economy, as well as the efforts made by its member countries to legislate on these matters. Regarding the latter, at the moment, only Uruguay has a Social and Solidarity Economy Law (Law 19.848). Although Argentina has several provincial laws, it does not have a national law on the subject. Brazil also has several state laws (70% of its states have laws on the Social and Solidarity Economy), and a Federal Law on Social Economy is currently under legislative treatment. Regarding Paraguay, it is the only MERCOSUR member country that does not have specific legislation either locally or nationally.

Finally, our objective will be to analyze the content of the norm, highlighting its main characteristics, limitations, and challenges. In this sense, we will review each of the 8 articles that make up the norm: definition and principles; entities and nature; national policy; governance; National Council; National Conference; Public Contracts; and Project Financing. Let us examine each of them. Regarding the content of the norm, this article evaluates how, from a legislative point of view, it follows the trend of countries such as France or Uruguay, by legislating on a specific sector of the economy characterized by the centrality of social ownership, collective and democratic management, and orientation by principles and values. In the region, the reality is sometimes the prevalence of the term “solidarity economy” (used by social movements in Brazil and Uruguay, less frequet in Argentina; also by local legislation in Brazil), sometimes the prevalence of the term “social economy” (used by public policies in Argentina and Uruguay); finally, the “social and solidarity economy” (case of the Uruguayan law and some local legislation in Argentina).

As conclusions, it is noted that the current regional political context, with a MERCOSUR questioned for its limited impact in terms of real regional integration, does not seem to be the most appropriate to create harmonization draft laws. A new quota of skepticism arises when we observe the weak influence of the MERCOSUR Parliament in this type of norm or the limitations that arise when each national parliament must account for and vote affirmatively on those draft projects to convert them into law. A second limiting aspect has to do with the different degrees of development in public policies for the sector, which cast doubt on the potential of a project of this type. Finally, within civil society, different visions coexist about the scope of the social and solidarity sector, in such a way that it is not always possible to detect a predisposition of the actors to account for a shared identity.

Even so, there are other more encouraging aspects, such as the recent prominence that Social and Solidarity Economy has acquired on the global agenda, with respective Resolutions and Recommendations by the ILO (2022) and the United Nations (2023). Nationally, a recent Uruguayan law in the matter (2019) is highlighted, together with an advanced bill in Brazil that joins a strong legislative presence at the local level in both Argentina and Brazil.

In this context of lights and shadows, the proposal for a harmonization draft law for the MERCOSUR member States, which has become a Statement of General Interest, is welcome for the potential effects it could generate in the political system of our countries.

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El objetivo de este trabajo es valorar el régimen jurídico de la normativa de cadena alimentaria que se aplica a las cooperativas agrarias españolas. Desde 2013 contamos con una ley que ha ido evolucionando y modificándose, siendo de especial interés para el sujeto de nuestro estudio la última modificación de 2021. Como se verá, la norma ha pasado de excluir completamente del régimen contractual de la ley a las relaciones internas de los socios con su cooperativa a una dispensa parcial, con un régimen especial para la formalización de estas relaciones. Es por ello que trataremos de exponer el papel de las cooperativas agrarias y las obligaciones a las que están sujetas de acuerdo con la vigente normativa de cadena alimentaria, sobre todo en materia de contratación, incidiendo en aquellos aspectos que pueden suscitar conflictos societarios o bien una posición de desventaja competitiva respecto a otros operadores.

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IMPACT OF THE FOOD CHAIN LAW ON SPANISH AGRICULTURAL COOPERATIVES

The objective of this paper is to evaluate the legal framework governing food chain regulations as they apply to Spanish agricultural cooperatives. As demonstrated, these regulations have evolved from a complete exclusion of internal member-cooperative relations from the contractual legal framework to a partial dispensation, incorporating a special regime for formalizing these relations. The focus of this paper is an analysis of the obligations imposed on agricultural cooperatives under the current food chain regulations related to contracting, with a specific emphasis on aspects that may lead to corporate conflicts or create a competitive disadvantage compared to other market operators.

The paper begins with a concise review of the legislative progression of the food chain in Spain. Originating with Law 12/2013, of 2 August, on measures to improve the functioning of the food chain (Food Chain Law), adopted to strengthen and balance commercial relations in the Spanish agri-food sector, subsequent significant reforms in 2020 and 2021. The original law exempted members’ relationships with their cooperative or associative entity from the general scope of the law and the contractual regime, considering these relationships as non-commercial. In 2020 it was established the obligation that each operator had to pay the previous operator a price equal to or higher than the cost of production. In this amendment, cooperatives maintained the exemption from entering contracts for non-commercial relations with their partners. The latest legislative modification from 2021 extended the scope of application of the contractual regime to all relations in the food chain (not only dependency relations) and included relations between members and their agricultural cooperatives. This last amendment has generated a great deal of criticism due to the mandatory formalization of these relationships, either through a contract or a corporate agreement as it is developed in the article. Finally, in 2022 the Register of Food Contracts was created, and it requires the registration of food contracts with primary producers and producer groups.

The second major section of the paper delves into the scope and minimum content of food contracts under the current Food Chain Law. The food contract refers to the sale of agricultural or food products (sale, supply, and integration), establishing exceptions such as transactions with final consumers and those of smaller amounts. The minimum content of the contract, outlined in Article 9 of the Law, ensures transparency and clarity in contracts, covering identification of parties, contract object, price determination, payment conditions, product delivery, rights and obligations, business secrets, contract duration, termination causes, dispute resolution, and force majeure. In addition, we propose to include additional clauses, such as confidentiality agreements.

The third section analyzes the application regime concerning the relationship between a member and their agricultural cooperative. Special provisions exempt deliveries made by members to cooperatives and associative entities from the law’s general scope. However, a written individualized food contract (with the legal minimum content) or a corporate agreement is required when a member delivers their production to the cooperative. In these circumstances, if there is no individual contract, bylaws, or agreements of the cooperative must previously establish the procedure for determining the value of the product and the liquidation schedule, and these elements must be approved by the corresponding governing body and known by all the members. This special regime does not apply only to cooperatives, but also to other associative entities, defined in the law as cooperative societies, agricultural transformation societies, producer organizations recognized under Community regulations, and civil or mercantile entities whose majority of the capital belongs to cooperatives or other agricultural entities. The text points out that the differential treatment towards cooperatives and other associative entities is justified by the corporate and internal nature of the deliveries of food products, which are not commercial operations, but part of a relationship of belonging between the members and the entity. The importance of establishing these obligations in the bylaws of cooperatives and associative entities to ensure their compliance is emphasized, and therefore the need to review and update these bylaws to reflect the reality of the cooperative is warned.

Additionally, the 2021 law discusses the equivalence between corporate agreements and bilateral contracts for contributions of food products to cooperatives or associative entities. The paper suggests that both systems, contractual and corporate agreements, should achieve similar objectives. For this reason, we analyze the similarities and differences between the minimum content of the food contract and the corporate agreement, such as the identification of parties, the signing of the contract, the object of the agreement, the price and payments, the products delivery, the rights and obligations of the members, the information to be provided, the duration and termination, the modification and non-conformity regime, the resolution of conflicts and the exceptions due to force majeure. It is necessary to ensure transparency in the relationship with the partners, so it is proposed the agreement to be approved at the assembly. The complexity of the requirement of reliable communication is also addressed, suggesting that the approval or ratification of the agreement at the assembly should be sufficient to inform the members of the value determination and the liquidation schedule.

The final section analyzes the cooperative’s relationship with non-member third parties within the context of the Food Chain Law, focusing on two key aspects. Firstly, it examines the situation where the cooperative acquires food products from non-members, emphasizing the obligation to register these contracts digitally if the seller is an associative entity or a producer group. Secondly, it addresses the cooperative’s role as a seller of food products, exploring conflicts arising from obtaining cost information from their members, and considering implications of business secrets and data protection. We also discuss the board of directors’ liability in case of sales below the cost of production and explores the competition law implications of the obligation to register food contracts.

To conclude, the paper highlights how the regulation aspires to protect both individual producers and producer associations. Nevertheless, it is necessary for a thorough evaluation of its actual effectiveness and the potential adverse effects, specifically concerning bureaucracy and associated costs. For these reasons, we advocate for a comprehensive review of the regulatory framework, rectifying and clarifying the aspects succinctly outlined in this study.

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El objetivo del presente trabajo es conocer de qué manera se abordan las competencias emprendedoras sociales en los procesos de enseñanza de la educación universitaria y describir qué se está haciendo en los grados de la Universitat de València. Este artículo muestra los resultados de i) el análisis de contenido de los planes de estudio de grados universitarios, a través de la revisión de las memorias de verificación; ii) el pase de un cuestionario entre el alumnado universitario para conocer su percepción en el currículum realizado. Los resultados principales muestran que i) los indicadores menos mencionados son aquellos que mejor definen al emprendimiento social; ii) la distribución de indicadores por áreas de conocimiento es dispar; iii) la cantidad de formación recibida en emprendimiento social es escasa; iv) sin embargo, consideran que esta formación es importante. Finalmente, v) existe un bajo porcentaje de alumnado que se plantea emprender o emprender socialmente.

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EDUCATE IN SOCIAL ENTREPRENEURIAL SKILLS. ANALYSIS OF UNDERGRADUATE STUDIES AT THE UNIVERSITY OF VALENCIA

Different international organizations have demonstrated the need to promote social entrepreneurship as a possible means of economic and social recovery. The University, as a transmitter of knowledge to society, can promote entrepreneurship among its students, providing them not only with knowledge but also with skills and attitudes that allow them to transfer their learning into an economically and socially profitable product (Sánchez, Caggianno and Hernández, 2011). The incorporation of social entrepreneurship in university training programs can be the mechanism that serves as a union between two of its missions: teaching and social commitment (Bautista y Escofet, 2013). However, although Spanish universities have specific training in social economy (including an official degree in related fields), around 45% have training only in some postgraduate subjects and specific degrees (CIRIEC, 2023). Therefore, it is observed that social entrepreneurial skills, a priori, are not an aspect that is addressed transversally in the study plans of Spanish universities.

In this sense, the objective of this work is to know how social entrepreneurial skills are addressed in the teaching processes of university education and to describe what is being done in the degrees of the University of Valencia. The typology chosen for this study is exploratory-descriptive; for this, two instruments for collecting and analyzing information are used. On the one hand, the content analysis of the university degree study plans, through the review of verification reports. In this case, an approach to research has been developed based on the prescribed curriculum of the different degree verification documents of the University of Valencia. This is a study focused on semantic messages, a set of research methods and techniques intended to facilitate the systematic description and interpretation of the semantic and formal components of all types of messages and the formulation of valid inferences about the data collected. For this research, the verification documents of UV university degrees have been chosen, with respect to sampling units, a total of 60 degrees. Furthermore, this analysis is based on the distribution of indicators based on the delimitation made in previous phases of the research (Delphi Method), where three recording units were specified for distribution: Information processing (PI), Personal Aspects (AP) and Social Interaction (SI) (López, 2021). On the other hand, the passing of a questionnaire among university students, designed ad hoc, to know their perception of the training received in entrepreneurship and social entrepreneurship during their university academic career. Secondly, to know if they consider such training useful for their professional future, regardless of whether they have received more or less training and, thirdly, to know the entrepreneurial intention of university students. For this last purpose, the entrepreneurial intention questionnaire by Liñán and Moriano (2007) has been used, which measures the probability of effectively carrying out the entrepreneurial behavior based on the Theory of Planned Action (Ajzen, 1991). Therefore, the total population of said study corresponds to students who have exceeded 75% of the credits in the university degree courses of said university between the 2019-2020 academic year (4,009 students). To determine the sample, the stratified random sampling method was chosen between the different areas of knowledge that make up the University of Valencia. Finally, 470 surveys were collected representing the different areas of knowledge.

The main results of the research show that: firstly, the least mentioned indicators are those that best define social entrepreneurship, an issue that could be justified due to the convergence of indicators between entrepreneurship and social entrepreneurship, with only some being linked in any way. exclusively with this second term (altruism, solidarity, commitment to others, social responsibility, understanding of others and participation). Secondly, the distribution of indicators by areas of knowledge is uneven, mainly due to the lack of coherence between the plans. of study for its realization, an aspect that denotes a different interest depending on the branch of knowledge. Thirdly, the amount of training received in social entrepreneurship is scarce, an aspect that is observed in the study plans, but is more evident in the results of the surveys. Fourthly, the students consider that the training received by the university on this topic is important, especially that which is most associated with social entrepreneurship, according to the surveys collected. Finally, there is a low percentage of students who consider entrepreneurship or social entrepreneurship and a correlation is observed between those who have received more training in entrepreneurship and decide to start a business as a possible professional opportunity. The fear of entrepreneurship could be a possible justification given the search for job stability among the young group, including the scarce Spanish entrepreneurial culture compared to other neighboring countries. In any case, it is evident that its promotion and training can influence changing the entrepreneurial culture in higher education and make this option more attractive among university students (Sáenz y López, 2015 & Bravo et al., 2021).

After all the conclusions drawn from this study, the need to work to develop a strategy that unifies criteria and efforts in relation to the promotion of social entrepreneurship in the university environment, from all academic levels, is evident. It is true that in some area of knowledge there is a greater amount of training in relation to these competencies, but it is not known if it really resides in the identity of said degrees, given that all the degrees that had the best results in this regard were associated with Social and Legal Sciences. Regarding the opinion of the students who have participated in said study, the training need is observed in those social entrepreneurial skills, or at least, among the indicators that best define them (López, Palomares-Montero, 2019), an aspect that denotes the awareness among students about the need to integrate this knowledge into the curriculum. It should not be forgotten that the promotion of entrepreneurship through education can be a strategy incident to entrepreneurial intentionality (Azqueta and Naval, 2019). However, this study shows that addressing this training from its social approach is still an issue that the university, and in this specific case, the University of Valencia, could rethink.

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O presente trabalho pretende analisar criticamente o Projeto de alteração ao regime jurídico dos ramos do setor cooperativo em Portugal, da iniciativa da Cooperativa António Sérgio para o Setor da Economia Social (CASES). De forma inovadora, o Projeto concentra a legislação dos doze ramos cooperativos num único diploma e adota como critério de organização dos mesmos o critério de participação dos membros na atividade da cooperativa, agrupando-os em cooperativas de produtores, utentes e mistas. As preocupações centrais do projeto são a definição de um estatuto jurídico para o cooperador trabalhador e a regulação das operações com terceiros. Quanto à proteção social dos cooperadores trabalhadores, defendemos uma intervenção legislativa que assegure o necessário equilíbrio entre um regime protetor e a natureza autogestionária da cooperativa. Quanto às operações com terceiros, impõe-se a eliminação da obrigatoriedade do caráter complementar de tais operações e a necessidade de repensar a solução prevista no projeto quanto os limites impostos às mesmas. A fixação de limites quanto ao montante da joia é adequada e fundamental para a preservação da identidade cooperativa.

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A CRITICAL ANALYSIS OF THE DRAFT AMENDMENT TO THE LEGAL FRAMEWORK FOR BRANCHES OF THE COOPERATIVE SECTOR IN PORTUGAL

This paper aims to critically analyse the draft amendment to the legal framework for the branches of the cooperative sector in Portugal, an initiative of the António Sérgio Cooperative for the Social Economy Sector (CASES).

CASES, created by Decree-Law no. 282/2009 of 7 October, is a public interest cooperative that brings together the State and various social economy organisations. It is the centrepiece of a system of relations between the State and the cooperatives. It intends to both deepen cooperation between the State and these entities and also to create the institutional conditions favourable to achieving the common goals of strengthening and boosting the role of the social economy, always protecting and respecting the principles that guide the activities of cooperatives.

Within the scope of the competencies provided for in Article 4(2)(m) of this Decree-Law -relating to the drafting of opinions and proposals for legislation-, in 2022, CASES presented a proposal for the reform of the sector’s legislation (from now on Project) to the representatives of the different branches of the cooperative sector, for subsequent presentation to the government.

It is essential to understand the specific circumstances in which this Project arose in 2022.

A new Cooperative Code was approved in Portugal in 2015 (Law no. 119/2015, of 31 August). This process of amending the Cooperative Code was the result of a requirement set out in Article 13 of the Basic Law on the Social Economy (Law 30/2013, of 8 May), which demanded the approval of “legislative instruments to implement the reform of the social economy sector”, in the light of the provisions of the law above and, in particular, the “guiding principles” set out in Article 5 of the Basic Law.

Since 2015, the urgently needed revision of cooperative sector legislation has been awaited. This revision must align with the changes introduced in the Cooperative Code and respond to the main problems and challenges facing the various branches of the cooperative sector by creating appropriate legal frameworks.

This CASES proposal aims to respond to and concretise this need for revision.

The changes proposed in the Project can be structured along four fundamental lines: the organisation of cooperatives, the types of cooperators, the economic regime common to all branches, and the specificities of the cooperative branches’ regime.

The purpose of this paper is not to critically analyse the entire Project but only the most critical aspects of the legal regime contained therein, as well as the most relevant legislative innovations. Specifically, the aim is to understand whether the proposed changes respond to the main challenges facing the branches of the cooperative sector and whether they align with the innovations introduced in the 2015 reform of the Cooperative Code.

In addition to concentrating the legislation on the various branches of cooperatives in a single law, the Project presents the criterion for organising the 1st-degree cooperatives of the twelve cooperative branches based on the participation of the members in the cooperative’s activity, grouping them into producers’, users’ and mixed cooperatives. This innovative criterion in the Portuguese legal system makes it possible to reconcile the Portuguese legislative tradition of organising the cooperative branches into twelve branches with modern European trends of grouping cooperatives according to how the cooperator participates in the cooperative’s activity.

The Project represents a significant improvement in defining a legal status for the producer cooperator. It adopts the “cooperative work agreement” thesis, which is the one that correctly characterises the complex relationship that exists between the cooperative and the worker cooperator.

We note as very positive the concern about defining an adequate system of protection for worker cooperators/producer cooperators about the duration and organisation of working time and how the work contribution and withdrawals on account are made. However, the Project contradicts itself because, although it states that the cooperative work agreement does not presuppose a subordinate legal-labour relationship, it mandates applying basic legal-labour regulations and the social protection and security regime for salaried workers.

The Project should have regulated the protection of worker cooperators in a more general way, respecting the self-managed nature of these entities, giving the cooperative the power/duty to stipulate internally (either in its bylaws or through internal regulations) the rules that govern the activity of worker cooperators and their protection regime. Concerning the social protection of worker cooperators, legislative intervention is required to ensure a balance between the need to define, in the statutes and internal regulations, a protective regime for the worker cooperator and the self-managing nature of the cooperative.

Regarding operations with third parties, the compulsory complementary nature of such operations should be eliminated. The solution set out in the Project to rigidly set limits on operations with third parties (25% of the total operations carried out by the cooperative, which could be raised to 50% in users’ cooperatives) could pose problems for the management of the cooperative, particularly in the unforeseen event of an increase in the volume of activity or the withdrawal of a significant number of cooperative members.

It’s unclear why raising the limits on transactions with third parties to 50% only applies to users’ cooperatives.

Other solutions should be considered, such as: (i) setting such limits in the cooperative’s bylaws or, on an annual basis, by resolution of the general meeting; (ii) opting for a solution similar to that provided for in the current Legal Framework of Crédito Agrícola, setting a limit of 35%, which could be raised to 50%, with the permission of CASES, in its position as supervisor of the cooperative sector in Portugal, at the justified request of the cooperative.

Finally, we consider it appropriate and fundamental for the preservation of the cooperative identity, namely the cooperative principle of voluntary and open membership, to set limits on the amount of the admission fee, which, under the terms of the Project, must take into account criteria of proportionality, adequacy and necessity, and may not exceed three times the value of the cooperator’s capital contribution.

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O artigo 96.5 do Código Cooperativo português estabelece que se os prejuízos do exercício de uma cooperativa forem superiores ao montante da reserva legal a diferença pode, por decisão da assembleia geral, ser exigida aos cooperadores, proporcionalmente às operações realizadas por cada um deles – não impondo aos membros da cooperativa essa participação na cobertura das perdas, que podem discricionariamente deliberar. Caso não o deliberem, os montantes correspondentes aos ganhos que esses membros tenham indevidamente auferido através das transacções realizadas com a cooperativa, à custa do património desta, serão muito provavelmente suportados pelos credores da cooperativa. Neste artigo, analisa-se a possibilidade de o recurso à desconsideração da personalidade jurídica da cooperativa poder constituir solução para a tutela dos seus credores – e, ainda, se essa será a melhor solução.

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PIERCING THE COOPERATIVE VEIL – A PRELIMINARY APPROACH OF A SPECIFIC CASE

Piercing the corporate veil is a jurisprudential technique that consists in ignoring the existence of the separate identity of a legal entity. It is commonly used in relation to companies, but its application to cooperatives can and should be considered, whenever justified. Any business organization that provides limited liability to its partners can be subject to the piercing of the corporate veil technique if those partners act in order to threaten the integrity of the protection of their limited liability: it means that the creditors of this business organization will want to achieve the judicial piercing of the corporate veil in order to ensure the maximum satisfaction of their credits. So, the question we must ask at this point is whether it is adequate to extend the piercing of the veil technique to cooperatives, in order to find out if in the case groups established for companies –material undercapitalization, interference destroying the company, and the commingling of the assets of the company and the shareholder– it would be possible or even reasonable to pretend such a result: make the cooperative members answer with their personal assets before the cooperative’s creditors. Material undercapitalization exists when a company does not have enough capital to conduct the business activity it is meant to, because its shareholders would not provide it nor guarantee the necessary recourse to credit, thereby transferring all the risk of the business activity to the market. Interference destroying the company is usually described as a situation where the shareholders strip funds, productive resources and business opportunities from the company, transferring then to another company in which they have a direct or indirect interest (they can be its shareholders, but often the shareholders are their relatives; not infrequently they are its directors or shadow directors). Commingling of the assets of the company and the shareholder exists if the shareholders act in such a way as to confuse the assets of the company and their own, not respecting the separation of assets that characterizes the legal entity of the company, his behaviour compromising the satisfaction of the company’s creditors and leading to an unjustified enrichment of his own assets.

In the cases of undercapitalization, interference destroying the company, and the commingling of the assets of the company and the shareholder we can generally reject the use of the piercing the cooperative veil technique, because of the specific characteristics of the cooperative regime concerning its capitalization and the democratic participation of the members. So, protection of the creditors’ interest can and shall be ensured by recourse to the directors’ liability regime. But there is a particular situation, under cooperative Portuguese law, that would require the specific liability of members of the cooperative.

A cooperative is a legal person (having autonomous legal subjectivity and, generally, patrimonial autonomy -therefore justifying limited liability of the members, who are almost always not liable for the cooperative’s debts)- that carries on any economic activity without having profit as its ultimate purpose. Although a cooperative may be established to carry out an activity in the general interest of the community (in the special case of a general interest cooperative), its activity is regularly carried mainly in the interest of its members (as consumers, providers, or workers of the cooperative enterprise). The cooperative’s objective consists of, firstly, developing an economic activity, mainly through cooperative transactions with their cooperator members for the provision of goods, services, or jobs. In that sense, the cooperative is an enterprise, and cooperatives may engage in non-member cooperative transactions – unless otherwise defined by their status – as long as that activity is not their main activity; and second, the cooperative must develop such activity in the interest of its members, i.e., to the direct satisfaction of the members’ needs. Members have obligations and rights. Concerning obligations, it is worth emphasising the duty to participate in cooperative transactions to a minimum extent, to make the applicable capital contributions, and to participate in the cooperative’s governance (except for the case of investor members, who are neither obliged to participate in cooperative transactions, nor in the governance of the cooperative). The economic results of a cooperative’s transactions with members may be either cooperative “surpluses” or cooperative losses. The allocation of an eventual “surplus” is decided by members’ meeting: it can either be distributed to the cooperator members as cooperative refunds or allocated to divisible and indivisible reserves. It is in cases where those transactions result in cooperative losses that we can identify, under the Portuguese cooperative law, a serious and specific creditors’ protection problem.

Article 96.5 of the Portuguese Cooperative Code states that if a cooperative’s annual losses are greater than the amount of the legal reserve, the difference may, by decision of the general meeting, be demanded from the cooperative members, in proportion to the operations carried out by each of them – not imposing this participation in covering the losses on the cooperative members, which they can decide at their discretion. If they don’t, the amounts corresponding to the gains that these members have unduly made through transactions with the cooperative, at the expense of the cooperative’s assets, will most likely be borne by the cooperative’s creditors.

Piercing the cooperative veil if the cooperative members decide to not cover the cooperative’s losses with their contributions, when those losses are caused by the transactions that took place between the cooperative and these members, may be an answer to the need to protect the interests of the cooperative’s creditors – but it is not the most appropriate solution.

The adequate solution should derive from the law – and from an internal responsibility, meaning that the Article 96.5 of the Portuguese Cooperative Code should only confer the power on the assembly to freely decide if the members are not obliged to make contributions to cover the cooperative’s losses in the described situation when the cooperative’s statutes state the liability of the members for the cooperative’s debts. In all other cases, in the existence of the limited liability principle, the board of directors should be obliged to claim from members the sums corresponding to the losses that resulted to the cooperative from the transactions with those members. If they did not, they would personally answer for the damages caused by such omission, in accordance with the directors’ liability legal system.

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O presente trabalho pretende refletir sobre a natureza da intervenção de membros investidores no funcionamento da assembleia de fundadores e no processo de elaboração dos estatutos, à luz da lei portuguesa. O estudo conclui que o Código Cooperativo português aceita que os futuros membros investidores participem no processo de constituição da cooperativa, integrando a assembleia de fundadores. O respeito pela identidade cooperativa reclama que seja “limitada” a participação dos futuros membros investidores na assembleia de fundadores, cingindo-a aos direitos de estar presente e de discutir as propostas apresentadas. Também se conclui que não ofende a identidade cooperativa privar os futuros membros investidores de voto na deliberação de criação da cooperativa e de aprovação dos respetivos estatutos. O estudo defende que a criação da cooperativa e a aprovação dos estatutos dependem, pelo menos, de três votos favoráveis de fundadores-cooperadores. Por fim, conclui-se que os estatutos da cooperativa aprovados em sede de assembleia de fundadores moldam as “condições e limites da existência de membros investidores” (art. 16.º, 1, g), do Código Cooperativo) e devem respeitar as normas legais imperativas destinadas a acomodar o poder económico e políticos destes sujeitos ao núcleo essencial da iniciativa cooperativa, em particular no que diz respeito à atribuição de voto plural.

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INVESTOR MEMBERS AND THE CO-OPERATIVE INCORPORATION PROCESS

Cooperatives are a century-old reality in Portugal. The first law regulating them dates back to 2 July 1867, although the first cooperatives only appeared in 1871. Repealed, this law, cooperatives were integrated in the Commercial Code of 1888 which inserted, in Book II, Title II, Chapter V, entitled “Special provisions for cooperative societies” (Articles 207 to 225 of the Commercial Code). Almost a century later, the Cooperative Code of 1980, approved by Decree-Law No. 454/80, of 9 October, brought a new legal framework of formal autonomy of the cooperative regime relative to that of companies, which was maintained by the current Cooperative Code approved by 119/2015, of 31 August.

The formal autonomy of the cooperative regime relative to companies did not erase the debate around the legal nature of cooperatives. Portuguese doctrine and jurisprudence are divided, despite the formal distinction between the Commercial Companies Code (and other corporate legislation) and the Cooperative Code.

It is true that the current Portuguese Cooperative Code does not expressly state that cooperatives are not companies. However, several arguments can be put forward to the effect that cooperatives are not companies: a) cooperatives are “autonomous legal persons” (Article 2 of the Cooperative Code); b) cooperatives are entities of “variable capital and composition” (Article 2 of the Cooperative Code) – this solution departs markedly from corporate regulation concerning both the entry and exit of members and changes in share capital; c) the purpose of cooperatives may be the satisfaction of economic needs as well as social or cultural needs (Article 2 of the Cooperative Code) – the purpose of cooperatives may be the satisfaction of economic needs as well as of social or cultural needs (Article 2 of the Cooperative Code). Article 2 of the Cooperative Code) – the object of the company is limited to economic activities that are not of mere fruition; d) Article 2 of the Cooperative Code states that cooperatives are not for profit – according to Article 980. e) the organisation and functioning of cooperatives are framed by the cooperative principles (article 2 of the Cooperative Code) which are substantially different from the rules regulating companies; f) finally, article 111 of the Cooperative Code determines the nullity of the transformation of cooperatives into companies.

This hermeneutic result that cooperatives are not companies is not hindered by the provisions of Regulation (EC) 1453/2003 of 22 July 2003 on the Statute for a European Cooperative Society (SCE) which states that it is a “company with the subscribed capital divided into shares” (Article 1(2)).

The concept presupposed here is the “Community” concept that already results from Article 54(2) of the Treaty on the Functioning of the European Union, according to which “companies” means companies or firms constituted under civil or commercial law, including cooperative societies, and other legal persons governed by public or private law, save for those which are non-profit-making”, which is a relevant concept for the purposes of freedom of establishment.

The constitutional principle of freedom of cooperative initiative (Article 61(2), (3) of the Constitution of the Portuguese Republic) is in force in Portugal and the freedom to establish cooperatives is one of its most prominent dimensions. The exercise of this “personal freedom (of collective exercise)” (Gomes Canotilho/Vital Moreira) implies, on the one hand, the free decision to create or not to create a cooperative and, on the other hand, within the limits imposed by law, the power to conform the content of its statutes.

The Constitution of the Portuguese Republic ensures that cooperative initiative is not disrupted by forms of public interference and requires that the promotion of cooperatives be carried out within the framework of respect for the principles of equality, impartiality and non-discrimination. Less clear is the answer to the question as to the power of intervention of the investor members in the decision to create the cooperative and in the shaping of its statutes.

Innovatively, the Cooperative Code of 2015 accepted that investor members are admitted as “members of the cooperative”. If the cooperators want to establish the cooperative as an entity through which they will cooperate with each other to meet their economic, social and cultural needs, the investor members are subjects who are not intended to provide goods or services to the cooperative. Under the Cooperative Code, it is legitimate to form a cooperative without investor members, but it is unfeasible and illegal to form a cooperative without cooperators. Such an entity cannot be qualified as a cooperative because the identifying features of Article 2 of the Cooperative Code are missing.

The nature of the intervention of investor members in Portuguese cooperatives must be reconciled with the preservation of the cooperative as a non-profit cooperative and mutual aid entity, with the mutualistic scope of this organisation and with respect for the cooperative principles. Article 12 of the Cooperative Code of 2015 maintained the traditional legislative option of rooting the creation of the cooperative in a resolution of the founders’ assembly and, in an innovative manner, seems to admit that the investor members integrate such founding assembly. However, the nature of the participation of the investor members in this founding assembly for the creation of the cooperative and the approval of its statutes is not clear.

Article 12(3) of the Cooperative Code stipulates that “for a cooperative to be considered as established, the minimum number of interested parties who voted in favour of the creation of the cooperative and its statutes must reach the legally required minimum number, the number of those who voted against being irrelevant. Article 11 of the Cooperative Code, entitled “Minimum number of cooperative members”, stipulates that in first degree cooperatives the minimum number of “members” cannot be less than three. Paragraph 2 of the same provision is clearer when it states that “complementary legislation concerning the cooperative branches may require a higher minimum number of cooperative members”.

In view of this literal fluctuation – “cooperators”, “members”, “interested parties”, “founders” – it is important to determine which parties have the power to decide on the creation of a cooperative and the approval of its statutes. Is the cooperative initiative, in terms of the creation of the cooperative, still rooted in the cooperators or does it result from the concurrence of the will of other subjects?

The paper concludes that the Cooperative Code of 2015 allows future investor members to participate in the process of establishing the cooperative by integrating the “assembly of founders”. Respect for the cooperative identity claims that the participation of future investor members in the founders’ assembly is “limited”, being limited to the rights to be present and to discuss the proposals presented. It also concludes that it does not offend the cooperative identity to deprive future investor members of voting on the decision to create the cooperative and approve its statutes. The paper argues that the creation of the cooperative and the approval of the bylaws depend on at least three votes in favour from the founder-cooperators. Finally, it concludes that the cooperative statutes approved at the founders’ meeting shape the “conditions and limits of the existence of investor members” (Article 16(1)(g) of the Cooperative Code) in the cooperative and must respect the mandatory legal rules designed to accommodate the economic and political power of these subjects to the essential core of the cooperative initiative, particularly with regard to the allocation of plural votes.

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O estímulo e o desenvolvimento da economia social são reconhecidos como valores de interesse geral em Portugal, razão pela qual se encontra legalmente prevista a necessidade de fomento deste setor de atividade por parte dos poderes públicos, designadamente por via da consagração de um estatuto fiscal mais favorável para as entidades que o integram. O objetivo fulcral do presente trabalho dirige-se a analisar e a refletir de forma crítica sobre este estatuto fiscal ao nível da tributação do rendimento, do consumo e do património, de forma a compreender se a respetiva estrutura e principais regras vão de encontro às especificidades organizacionais, jurídicas e contabilísticas das diferentes entidades que compõem este setor, sem ferir os princípios da justiça e da igualdade tributárias.

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THE SOCIAL ECONOMY TAX REGIME IN PORTUGAL

The main objective of this work is to critically analyze and reflect on the Portuguese tax regime applicable to the non-profit entities, in order to understand if the structure and the main rules provided in this regime – mainly, in what concerns to the corporate income taxation (in Portuguese, “Imposto sobre o Rendimento das Pessoas Coletivas”: IRC), to the value added taxation (“Imposto sobre o Valor Acrescentado”: IVA) and to the real estate taxation (“Imposto Municipal sobre Imóveis”: IMI and “Imposto Municipal sobre as Transmissões Onerosas de Imóveis”: IMT) – take into account the organizational, legal and accounting specificities of the different non-profit entities and if they respect the fundamental principles of tax justice and tax equality (which are tax principles embedded in the idea of generality or universality, according to which all the citizens and legal persons are bound to the duty to pay taxes, and in the idea of uniformity, which requires that this duty shall be measured by one only criteria: the ability to pay’ criteria).

In fact, the encouragement and development of the social economy are recognized, in Portugal, as values of general interest; therefore, the promotion of the social economy by the Portuguese public authorities is legally foreseen, namely through the provision of a more favorable tax status for the non-profit entities. However, it shall be stressed that the use of tax benefits must always be in line with the fundamental principles of tax justice and equality referred above, which means, in the case of the non-profit entities, that the use of those benefits must take into account the substrate and the nature of each beneficiary entity, in order to assess the degree of intensity with which it pursues objectives of general, public or mutual interest (which can be measured, for example, by analyzing whether the entity carries out activities with a scope aimed to the development of these purposes).

To this extent, we understand that the Portuguese legislation currently in force is adequate when it prioritizes the attribution of tax benefits to the non-profit entities that do have a qualified legal status, such as the status of the Private Institutions of Social Solidarity (in Portuguese, “Instituições Particulares de Solidariedade Social”: IPSS) or the status of public utility persons that pursue, exclusively or predominantly, scientific, cultural, charity, assistance, beneficence, social solidarity, defense of the environment or agro-food interprofessionalism’ purposes (although the use of tax benefits by other types of non-profit entities is not completely prohibited). Since the administrative attribution of such status depends on the effective pursuit of purposes of public or general interest by the beneficiary entities, this circumstance seems to be adequate to reveal that the corresponding attribution of tax advantages to those entities is effectively aimed to protect and promote relevant public interests (e.g., extra-tax interests), in compliance with the aforementioned principles of justice and equality in taxation.

On the contrary, we understand that the Portuguese tax legislation currently in force regarding the cooperatives must be revised, as in this context (and particularly in what concerns to the income taxation) there is a mismatch between the tax regime and the aim to protect the cooperative’ mutuality zone, which calls for the introduction of legislative changes. In fact, and highlighting some of the most significant aspects, the obligation to globally subject cooperative surpluses to taxation, i.e., without any measurement regarding their effective return to cooperators, is not in line with the mutualistic and non-profit purpose pursued by those entities. Likewise, the tax regime provided in the article 66.º-A of the Portuguese Statute of Tax Benefits (in Portuguese, “Estatuto dos Benefícios Fiscais”: EBF) not only does not promote the protection of the cooperative’ mutuality zone, as it introduces legal uncertainty in what concerns to the interpretation of the types of cooperative’ gains or results that shall be considered as included within the scope of the tax benefit (being even possible to verify that this regime ends up promoting the “demutualization” of certain types of cooperatives).

We are also concerned about the existence of several exceptions to the “basic” tax regime built by the Portuguese tax legislator for the social economy sector, including the wide scope of the real estate exemption applicable to specific entities (as it is the case of the Santas Casas da Misericórdia), the value added tax exemptions provided in “ad hoc” legislation (as it happens with the transfers of goods and the provision of services made by youth associations registered in the National Register of Youth Associations (in Portuguese, “Registo Nacional do Associativismo Jovem”), and the possibility of total or partial reimbursement of the value added tax incurred by the Private Institutions of Social Solidarity, without providing the same possibility to the legal persons with public utility status (for example), not to mention the apparent inapplicability of autonomous taxation on the costs incurred by social economy entities with cars up to five seats and motorcycles (unlike most companies based in Portugal for tax purposes). It is therefore important to rethink the existence and the extent of these exceptions, considering that their legal provision, combined with the legislative dispersion that currently is verified amongst the tax legislation applicable to the social economy in Portugal, naturally harms the unit of the legal system, the purpose for which the benefits are granted and the observance of the fundamental principles of taxation.

Finally, and in what concerns to the tax mechanisms and benefits created by the Portuguese tax legislator in order to promote the attribution of donations by corporations to non-profit organizations (which are called, in Portuguese, “mecenato empresarial”), while recognizing its vital importance for the financing of the non-profit sector, we believe that it is important to keep this system immune from abusive tax planning. In our opinion, the provision of a closed list of beneficiary entities in the Portuguese Statute of Tax Benefits and the requirement to comply with various declarative obligations would be very important in this context.