CHANGES AND CHALLENGES FOR COOPERATIVE LAW IN BRAZIL

Abstract

Cooperatives are societies with their own nature and structure, with social and economic utility. They are social economy entrepreneurs who must follow cooperative principles and values such as mutuality and concern with the community and with cooperation between cooperatives. International organizations (ICA, UN, ILO) encourage countries to reaffirm the principles and values of the ICA/1995 Declaration and to promote cooperatives (Recommendation 193/ ILO). In the regional spheres (European Union and MERCOSUL), there is also concern about spreading cooperativism. The conferences and meetings of agents specialized in cooperatives in Ibero-America suggest the harmonization of laws, public policies and the regional integration of cooperatives, with the legal recognition of MERCOSUR cooperatives. The policies involve actions through which cooperatives are able to carry out their activities, meet the demands of the market and their members, and obtain space in the competitive market. Therefore, it is recommended that cooperatives be promoted and protected at regional levels, with instruments and programs for integration between different countries and without obstacles to their expansion. The model of insertion of the cooperative society in Latin American countries comes from the European experience and has had a heterogeneous evolution, with different origins and degrees of state intervention, in addition to the lack of access to credit. Taking into account the economic importance that cooperatives have in the region, institutional mechanisms are still being sought with the task of consolidating and strengthening the cooperative model, as well as the development of cooperatives in the national and regional market. In Brazil, cooperatives are still governed by Law 5,764/1971 and by the Civil Code (with the 2002 reform). They are conceptualized as a society of people, of their own form and nature, of a civil nature, characterized by the principles and values of the ICA. Currently, there are also special laws in Brazil, such as the law on social cooperatives (law 9,868/99), the law on work cooperatives (law 12,690/12) and the law on credit cooperatives (Complementary Law 130/09) that improve the concept of society of people, moving away from the commercial nature of cooperative societies. By express provision of the law, cooperatives are equated to non-business companies, that is, simple companies, and are not subject to the commercial bankruptcy regime. It is clear in Brazil that the legal regime of cooperatives is old and conventional, disconnected from the economic reality of the market and also that it is necessary to make changes to improve corporate aspects and the economic regime of cooperatives. In addition, there are social and cultural obstacles against the cooperative in Brazil, with a lack of knowledge of the community and the judiciary about the characteristics of cooperatives, localized problems in the management of cooperatives and in the relationship with cooperatives, difficulties of capitalization and credit for the cooperative and the prejudice that exists about this type of company. These aspects add to the institutional setting that is difficult for Brazilian businessmen, with the disregard of the legal personality without criteria, the bureaucracy, the fiscal costs and charges of the employment relationship. Two general bills on cooperatives are being processed in the National Congress (Bill Nos. 153/07 and 03/07). Recently, a new standard of the Accounting Committee (ICP 14) has come into force with provision for financial instruments for cooperatives. Despite establishing changes in the matter, concerns about the adequacy of the rules in view of the nature and needs of cooperatives persist. Despite the legislation not following the real legal and economic nature of cooperatives, they have great importance for the Brazilian economy. By virtue of the lack of support, in reality cooperatives are associated with other companies or even remain economically unviable. This 50-year time lapse represents a generation gap –two generations more specifically– of jurists who no longer think about cooperativism. In other words, the legal knowledge of jurists from the 50s, 60s and 70s was not continued by the next generation and, consequently, was transmitted to the subsequent generation, which is why, currently, cooperative law is not debated. This is reflected in the absence of scientific publications on cooperative law, organization of scientific events or even scientific associations. In class bodies, few actions are performed. At universities, the picture is the same, with very few exceptions, no professorships of cooperative law being offered. The research carried out by the graduate program is minimal, with few researchers or research groups dedicated to the topic, with little Brazilian participation in international organizations and associations. In the absence of critical mass, the task of a major change in cooperative law remains for the next generations, and the current generation must overcome the difficulty of training new professionals in cooperative law. Overcoming structural issues such as the cooperative act or the mandatory intercooperation, uniqueness of representation, depends on the formation of a critical mass, which is yet to come. For this, the role of universities in training the next generation of jurists is essential, either by resuming and rebuilding the existing knowledge on cooperative law-and introducing new themes, such as postgraduate studies with the discovery and organization of frontier themes that should be answered by the next generations, going through extension, working with existing cooperatives, in a process of double learning. It is a long-term work that will demand a broad institutional articulation, involving political, economic and theoretical themes. This will challenge the government, civil society, companies, universities and research centers to form national, regional and international networks in pursuit of these common goals and make it possible to recover Cooperative Law in Latin America and respond to the new challenges of contemporary society. This will allow new challenges to be faced, such as the democratization of cooperatives and their expansion to the most popular spheres of society, which make up what is called in Latin America the solidarity economy, which rescues the old principles of Rochdale’s cooperativism. These challenges will only be overcome with the interaction between theory –carried out by universities and research institutes– and practice, which involve court decisions, legal entities and social movements.