Einde inhoudsopgave
Social enterprises in the EU (IVOR nr. 111) 2018/2.5.2.2
2.5.2.2 Managing committee
mr. A. Argyrou, datum 01-02-2018
- Datum
01-02-2018
- Auteur
mr. A. Argyrou
- JCDI
JCDI:ADS584611:1
- Vakgebied(en)
Ondernemingsrecht / Rechtspersonenrecht
Voetnoten
Voetnoten
Social Entrepreneurship Law of 2011, arts. 3(9) and 6; Law concerning Civil Cooperatives 1986, art. 7(5); See also art. 20 of the Law 4430/2016 concerning Social and Inclusive Economy and Development of its Institutions and Other Provisions.
Social Entrepreneurship Law of 2011, art. 6(1) and art. 20 of the Law 4430/2016 concerning Social and Inclusive Economy and Development of its Institutions and Other Provisions.
ibid.
Law concerning Civil Cooperatives 1986, art. 7(5).
See the general requirements for any Koinsep’s registration (n 75).
Art. 4(7) of the Social Entrepreneurship Law of 2011 and art. 17(9) of the Law 4430/2016 refer to art. 713 of the Greek Civil Code 1940 regarding services provided by Koinsep members who are not in an employment relationship with the Koinsep and who aim to serve the purpose of the Koinsep. Those should be carried out without remuneration. Thus, it can be understood from the wording of those articles that the directors of Koinsep belong to this category of members without having an employment relationship with the Koinsep for which they should not be remunerated (ibid art. 4(7) and art. 17(9)). However, art. 7(5) in the Law concerning Civil Cooperatives 1986 stipulates that the general meeting musthave the competence to decide whether the members of the managing committee can be remunerated for the provision of services that they provide (see art. 8(5) of the Law concerning Civil Cooperatives 1986). The newer legal regime, i.e. the Social Entre-preneurship Law of 2011 in its art. 4(6) and art. 17(8) of the Law 4430/2016 concerning Social and Inclusive Economy and Development of its Institutions and Other Provisions provides to employees the legal right to acquire membership and assume ownership of Koinsep’s cooperative shares. The rule applies vice versa by also permitting Koinsep members to be employed by the Koinsep. Therefore, it is generally understood that this general rule also applies to Koinsep members who should constitute the managing committee. This can be deduced from art. 3(1) of the Social Entrepreneurship Law of 2011 and art. 17(1) in the Law 4430/2016. Both articles refer to those provisions applicable to the Koinsep from the Law concerning Civil Cooperatives 1986. Art. 7 of the Law concerning Civil Cooperatives 1986 is an applicable article to the Koinsep.
Additionally, in larger Koinseps with more than 20 employees, the legislation provides a legal right to the employees who are non-members to appoint also one of the members of the managing committee. Law concerning Civil Cooperatives 1986, art. 7(1).
ibid art. 4(3).
Such as the responsibility for complying with possible restrictions on the right of representation that are included in the Koinsep’s SoA, and which may be conferred upon them in the decisions of the general meeting; ibid art. 7.
ibid art. 7(4).
ibid.
Social Entrepreneurship Law of 2011, art. 6(3) and art. 20(5) of the Law 4430/2016 concerning Social and Inclusive Economy and Development of its Institutions and Other Provisions.
The daily management and administration of the Koinsep is exercised by the managing committee.1 The managing committee comprises at least three members and an equal number of substitute members elected by the general meeting.2 The entire managing committee is appointed for a period of two to five years.3 The office of its members is honorary and unpaid.4It is also alegal requirement that only the Koinsep’s members are appointed as members of the managing committee.5 The relationship between the members of the managing committee and the Koinsep is not contractual or based on a pre- arranged employment contract, but emanates from the membership relationship with the Koinsep. In this sense, the members of the managing committee are not considered Koinsep employees. However, it is questionable whether the members of the managing committee are entitled to enter into any employment relationship with the Koinsep and receive remuneration for the provision of services that are not related to their managing duties. The Social Entrepreneurship Law of 2011 does not impose any explicit restriction in either respect.6
Equally, the employees who are Koinsep members enjoy the rights that membership and ownership of cooperative shares confers. Initially, employees enjoy the right to participate in the highest decision-making organ, i.e. the general meeting, by providing either verbal or written statements, by conferring opinions and by voting with one vote. The employees who are Koinsep members also enjoy, equally to the other members, the right to appoint the members of the managing committee and/or to be appointed as members of the managing committee.7
Amongst other duties, the members of the managing committee bear duties and responsibilities that apply equally to the other Koinsep members, such as: (i) to participate in the activities of the Koinsep with good faith; (ii) to cooperate in the operation of the Koinsep; and/or (iii) to refrain from actions that may harm the interests of the Koinsep or oppose the social objectives and the basic cooperative principles.8 They are also obliged to comply with the provisions of the SoA and with the legitimate and valid decisions of the general meeting aimed at protecting the Koinsep’s interests.9 The applicable standard of responsibility and diligence in managing the affairs of a Koinsep is the same standard of diligence that members of the managing committee would apply to their own personal affairs.10 The managing committee is the body that manages and represents the Koinsep and decides any matters relating to its affairs, with the exception of those that fall within the exclusive competence of the general meeting.11 Any decisions made by the managing committee that either are contrary to the applicable laws or to the legitimate and valid decisions of the general meeting and/or to the SoA are voidable.12 Unlike the unlawful decisions of the general meeting, which do not produce any legal effect, the illegitimate decisions made by the managing committee produce legal effects until the moment they are finally declared void by a Greek court.