Einde inhoudsopgave
Social enterprises in the EU (IVOR nr. 111) 2018/2.3.2
2.3.2 The background studies
mr. A. Argyrou, datum 01-02-2018
- Datum
01-02-2018
- Auteur
mr. A. Argyrou
- JCDI
JCDI:ADS589276:1
- Vakgebied(en)
Ondernemingsrecht / Rechtspersonenrecht
Voetnoten
Voetnoten
Lambooy et al. (n 23).
The special characteristics of tailor-made legal forms for social enterprises were determined based on the SBI definition for social enterprises. SBI Communication of 2011 (n 36) 2-3. The Earth Charter is a multi-stakeholder declaration, which comprises an ethical framework of norms and principles for sustainable development. Further details on the Earth Charter are available at:
Lambooy and Argyrou (n 30) 71-76. The necessity for the development of a more comprehensive approach in policy and legislation is featured in Cafaggi and Iamiceli (n 8) 71 and in Esposito (n 12) 679. See also A. Fici, ‘A European Statute for Social and Solidarity-Based Enterprise’ (Policy Department for Citizens’ Rights and Constitutional Affairs, 15 February 2017) available at: <www.europarl.europa.eu/supporting-analyses> accessed 30 April 2017.
Belgian Companies Code of 1999, arts. 661-669, Boek X, Hoofdstuk I, Wetboek Van Vennootschappen van 7 mei 1999 (BS 06.08.1999). In citing D. D’Hulstère and J.-P. Pollénus, F. Fecher-Bourgeois and W. Ben Sedrine-Lejeune note that the VSO legislation aimed to introduce a corporate legal form which is ‘a middle path between the status of commercial company (including that of the cooperative society) that supposes a profit motive, and the status of non-profit-making institution which [is] not allowed to pursue a commercial activity’. See D. D’Hulstère and J.-P. Pollénus, La Soci é t é à Finalit é Sociale en Questions et R é ponses (Edipro 2008) 26 quoted in CIRIEC, ‘Measuring the Economic Value of Cooperatives, Mutual Societies and Companies with social purposes in Belgium: A Satellite Account approach’ (2013) CIRIEC N° 2013/11 at 12.
Law 4019/2011 on the Social Economy and Social Entrepreneurship 2011 (Social Entrepreneurship Law of 2011), Official Government Gazette No. 216/30.09.2011 and its amendment in Law 4430/2016 concerning Social and Inclusive Economy and Development of its Institutions and Other Provisions, Official Government Gazette Α’ 205/31.10.2016 and Law 1667/1986 concerning Civil Cooperatives 1986, Official Government Gazette No. 196/ 08.12.1986. The Social Entrepreneurship Law of 2011 was introduced into the Greek Parliament as a tailor-made legal framework to promote new policies regarding opportunities for employment and sustainable growth through social entrepreneurial activities. Permanent Commission of Social Affairs of the Greek Parliament: Discussion of the draft Social Entrepreneurship Law of 2011 (23 August 2011) available at: <www.hellenicparliament.gr/Vouli-ton-Ellinon/ToKtirio/Fotografiko-Archeio/#480f211f-6b17- 41b4-b6b7-28840447511b> accessed 24 September 2017. The Social Entrepreneurship Law of 2011 belongs to a body of legislation, i.e. Greek Cooperative Law comprising also legislation concerning civil cooperatives and agricultural cooperative organisations.
In 2002, the UK Government initiated a dialogue regarding the development of a favourable legislative environment for social enterprises. Subsequently, the UK Department of Trade and Industry published a strategy document, which suggested:(i) the creation of an enabling (legislative) framework for social enterprises in the UK and(ii) the improvement of the quality of business of social enterprises through training, the improvement of business networks, and management skills. See H. Haugh and A.M. Peredo, ‘Chapter 1 Critical Narratives of the Origins of the Community Interest Company’ in R. Hull, J. Gibbon, O. Branzei and H. Haugh (eds), The Third Sector (Dialogues in Critical Management Studies, Volume 1, Emerald Group Publishing Limited 2011); A. Nicholls, ‘Institutionalizing Social Entrepreneurship in Regulatory Space: Reporting and Disclosure by Community Interest Companies’ (2010) 35(4) Accounting, Organizations and Society, 396; Social Enterprises: A Strategy for Success 2002 (n 35). See Part 2 of the Companies (Audit, Investigations and Community Enterprise) 2004 Act and the Community Interest Company Regulations 2005 (SI 2005/1788).
M.M. Siems, ‘Legal Origins: Reconciling Law & Finance and Comparative Law’ (2007) 52(1) McGill Law Journal, 55-81; H. Spamann, ‘Contemporary Legal Transplants: Legal Families and the Diffusion of (Corporate) Law’ (2009) 6(11) Brigham Young University Law Review, 1813-1878; E.L. Glaeser and A. Shleifer, ‘Legal Origins’ (2002) 117(4) The Quarterly Journal of Economics, 1193-1229; D.C. Donald, ‘Approaching Comparative Company Law’ (2008-2009) 14(1) Fordham J Corp & Fin L, 83-178.
Siems (n 50) 67; Donald (n 50) 92.
We started our research activities by conducting a preliminary and exploratory study in which we investigated tailor-made legal frameworks for social enterprises in an international context; this was done for the UK, Belgium, Greece, South Africa, Canada and the Netherlands.1 In the preliminary study, we examined whether the special characteristics of tailor-made legal forms identified in the various jurisdictions align with the concept of sustainable development as outlined in a set of norms in the civil society document entitled ‘The Earth Charter of 2000’.2
In Sub-section 2.1, the emerging development of policy and legislation tailor- made to social enterprises was noted at both the EU and national level. Acknowledging the Commission’s objective to improve the legislative environment applicable to social enterprises within the EU, and aiming to foster the development of a more comprehensive approach in policy and legislation regarding social enterprises, in a following study we extracted key legal variables from the Commission’s definition of social enterprises. The exploration of these factors comprised an inquiry on whether and to what extent, these legal variables feature within three selected tailor-made legal frameworks for social enterprises. This was done for Belgium, Greece and the UK.3 Meanwhile, the objective of this article is to furnish a doctrinal analysis of the legal provisions included in three national tailor-made legal forms for social enterprises in order to: (i) discover the way in which the legal variables discussed within the scope of our research are embedded in such provisions; (ii) systematically analyse the findings in a comparative way to the extent that similarities and differences are discernible; and (iii) to emphasise similarities and differences in the examined rules and help further the development of a more sophisticated and harmonised idea of a tailor-made legal framework for social enterprises in the EU. This comparison examines legal areas and corresponding types of social enterprise, which include:
provisions in the Belgian Companies Code of 1999 regarding companies with a social purpose;4 the legal label/legal status type of social enterprises.
provisions in the Law on the Social Economy and Social Entrepreneurship 2011 (Social Entrepreneurship Law of 2011) and in the latest amendment of 2016 in Greece as well as in the complementary Law concerning Civil Cooperatives 1986; the cooperative type of social enterprises5 and
provisions in the Companies (Audit, Investigations and Community Enterprise) Act of 2004 (the ‘2004 Act’) and in the Community Interest Company (CIC) Regulations of 2005 in the UK;6 the company type of social enterprises.
We will indicate the similarities and differences in the content of the legal rules at a national level. However, it is not the purpose of this article to discuss the correlations between the similarities and differences in the substantive rules of tailor-made legal frameworks for social enterprises and the ‘legal families’ to which they belong, i.e. common law versus civil law. Neither do we aim to discuss the ‘legal origins’ of the examined rules by producing conclusions with respect to the economic effectiveness of their legal content and/or implementation.7 Such an attempt would require not only a perilous categorisation of the legal rules into ‘legal families’ and/or ‘legal origins’, but it would also require a meaningful understanding of the legal traditions and legal cultures that surpass the content of statutory provisions.8 Therefore, the comparison will be limited to the following main objectives:
to unravel the different understandings of the legal concept of social enterprise in various national tailor-made legal frameworks and to identify fundamental similarities and differences in its function;
to acknowledge the very existence of tailor-made legislation for social enterprises, something which has so far been neglected by legal theorists and scholars; and
to incentivise the formation of future in-depth comparative studies that will provide an extensive explanation of the similarities and differences in the function of this legal concept on the basis of their legal traditions, legal cultures and legal origins.