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Social enterprises in the EU (IVOR nr. 111) 2018/2.3.3
2.3.3 Comparative legal methodology
mr. A. Argyrou, datum 01-02-2018
- Datum
01-02-2018
- Auteur
mr. A. Argyrou
- JCDI
JCDI:ADS590440:1
- Vakgebied(en)
Ondernemingsrecht / Rechtspersonenrecht
Voetnoten
Voetnoten
D. Cabrelli and M.M. Siems, ‘A Case-Based Approach to Comparative Company Law’ in M.M. Siems and D. Cabrelli (eds), Comparative Company Law: A Case- Based Approach (Hart Publishing 2013) 16. M. Oderkerk, ‘The Importance of Context: Selecting Legal Systems in Comparative Legal Research’ [2001] 48(3) Netherlands International Law Review, 293-318; M. Van Hoecke, ‘Methodology of Comparative Legal Research’ [2015] Law and Method, 1-35. R. Michaels, ‘The Functional Method of Comparative Law’ in M. Reimann and R. Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford University Press 2006) 342.
Cabrelli and Siems note that ‘[a] strict version of functionalism has to assume that there is a clear sequential order: a social problem arises courts or legislators respond to it, which in turn has the effect of solving the problem. Yet such a view fails to consider the possibility that legal rules often arise in a complex process of historical path-dependencies, cultural preconditions and legal transplants, and that the legal rules also shape the problems of society. It is also not at all untypical that law operates to serve more than explicit function alone’. Cabrelli and Siems (n 52) 18.
R.R. Kraakman, P. Davies, H. Hansmann, G. Hertig, K.J. Hopt, H. Kanda, and E.B. Rock (eds), The Anatomy of Corporate Law: A Comparative and Functional Approach (2nd edn, Oxford University Press 2009) 2; Donald (n 50); H. Hansmann and R. Kraakman, ‘The End of History for Corporate Law’ [2001] 89(2) Georgetown Law Journal, 439-468.
In the Greek legal system, the civil cooperative is considered an idiosyncratic legal entity with legal personality and special characteristics. Areios Pagos, i.e. the Supreme Court of Greece, has accepted that civil cooperatives are special associations of persons who cooper-ate for the promotion of their economic and professional interests. Consequently, social cooperatives (i.e. Koinsep) are special associations of persons who cooperate primarily for achieving social objectives and subsequently for achieving economic objectives. Whether civil or social, cooperatives are legal entities of private law. They are treated as associations of persons, which differ from the two basic types of associations of persons stipulated in the Greek Civil Code of 1940, i.e. the partnership (also known as a ‘personal company’ in arts. 741-784 of the Greek Civil Code 1940; see also arts. 20-22 of the Greek Commercial Law 1835) and the union (arts. 78-107 of the Greek Civil Code 1940). A cooperative differs from a partnership in the sense that the partnership entails a strong personal relationship between the partners. This is reflected in the limited number of partners and in the right of entrance and exit from the partnership, which is not provided without the explicit consent of the partners. By contrast, in the case of the Greek cooperative, anyone can join as a member, and there is not necessarily any personal nexus and/or close bond between the members. Additionally, the Greek cooperative, and most importantly the Greek social cooperative, i.e. the Koinsep, is not a common ‘trading capital company’ in the Greek legal system that is subject to the national Company Law – nor a ‘commercial company’ stricto sensu – due to its objectives, which are not solely economic and for-profit but contain rather a mix of economic, social and cultural elements. Chrysogonos, a notable Greek scholar argues that the cooperative belongs to a unique sphere. Cooperatives cannot be characterised entirely as for-profit entities even if they exercise entrepreneurial or commercial activities. In particular, the Koinsep is generally treated as a sui generis entity but it has commercial capacity by operation of law (art. 2 in the Social Entrepreneurship Law of 2011). As a legal entity with legal personality and a com-mercial capacity, the Koinsep is subject to the provisions of Commercial Law in respect of issues, which are not regulated by the civil cooperative legislation as well as to provisions that can be found in the Greek Civil Code of 1940 regarding legal persons (arts. 61-77). Additionally, the Koinsep is subject to stipulated rules regarding the partnership and the union included in the Greek Civil Code of 1940 as well as to provisions regarding capital companies if there are legal gaps in the cooperative legislation. The application of company law provisions and rules to issues regarding cooperatives is only allowed on the basis of similarity and analogy and only if the rules do not conflict with the system of the Cooperatives Law or the nature of the cooperative (Areios Pagos Decision No. 684/2006; Greek Court of Audit, 6th Division, Decision No. 3/2014, para. IV; 2/2014, para. IV (2); and 557/2014, para. VI (B). KX Chrysogonos, Civil and Social Rights (Law Library Publications, 2006); See also S.A. Kintis, Law of Cooperatives: Introduction – General Part (Sakkoulas Publishing, 2004).
Nonetheless, we will address these considerations arbitrarily if supportive to clarify the elements of analysis. Donald (n 50) 120.
In the study that follows, we will elaborate on the research question asking how certain legal systems in the EU have regulated key elements of the ‘social enterprise’ concept. Indeed, in Sub-section 2.1, it was explained that the new social enterprise concept has emerged in different and various legal systems. However, it was also mentioned that the ‘social enterprise’ different legal systems have adopted different rules and measures. Thus, in principle, we seek to identify the legal provisions in the national legal systems (company and civil law) which regulate the social enterprise concept. We, subsequently, seek to provide an objective presentation of the ways in which tailor-made legislation regarding social enterprises in different legal systems address key elements of the social enterprise concept. However, it is not our objective to describe merely the relevant legislation by setting out the relevant provisions side by side. On the contrary, we aim to introduce similarities and differences in the specific content of the legal rules regulating the concept of social enterprise as well as to identify the problems that the different laws solve either differently or similarly. Elaborating upon the theoretical underpinnings of the comparative legal method, Cabrelli and Siems criticise the necessity for the application of the functional approach in comparative analysis. The functional approach, according to these two scholars, dictates that the comparatist ‘should not start with a particular legal topic’, i.e. legal rule, concept or institution which might differ substantially in various jurisdictions, but instead that he/she should start ‘with a functional question’ that allows the examination of: (i) ‘solutions’ provided by legal rules to specific factual situations; (ii) the reasons why they were produced; and (iii) what success they had.1 Whilst Cabrelli and Siems challenge the fundamental notion of functionalism, suggesting that the law serves various functions that might be similar or different in various jurisdictions,2 in order to avoid comparing seemingly different notions, we acknowledge the fundamental function of company law as a tertium comparationis. This is to enable enterprises and entrepreneurs to transact easily, with clarity and certainty and with legal forms which are regulated in accordance with certain key characteristics, such as legal personality, company purpose, limited liability, decision-making process, delegated management, financial structure, and accountability to stakeholders, to mention but a few.3 In this article, we aim to pinpoint and analyse similarities and differences in tailor-made legal provisions that cater for the legal key characteristics of social enterprises. We also discuss the elementary legal rules, which are necessary to support the legal forms and regulate such key characteristics.4 Even though the key characteristics of the legal forms for social enterprises may be related to other areas of law, in this article we will not focus on any considerations that arise from other areas of law, such as insolvency law and/or tax law.5