A REGULATORY FRAMEWORK FOR SOCIAL ENTREPRISES IN SPAIN TO CURB INEQUALITY

Abstract

The distinction between persons, at the individual level and within any organization, is inherent in the human being. The diversity in the enforceability of rights and the fulfilment of obligations is assumed to be inherent in the social structure itself. Within the liberal framework, the concept of equality between men is confined to a mere question of formal, non-material or real equality. Inherent in the capitalist system is formal legal equality and economic inequality among the subjects. However, from very early on, around the second industrial revolution, currents of economic, philosophical and legal thought have been emerging to temper the inequality that is created. This structural inequality is being widened by the events that have occurred so far this century, which have had a particularly serious impact on a country like Spain, as well as the financial and real estate crisis of 2009; the 2020 pandemic; and the manifest and expected effects of the invasion of Ukraine. Any measures to promote wealth generation that have a special impact on the social environment must be a priority for the national legislator. At the legislative level, Spain was the first State of the Union to publish a law that valued the entities of the social economy that generated wealth with non-capitalist parameters, Law 5/2011, of March 29 (LES). And this legislative initiative started, basically, following the consolidation of a concept that emerged in France, and that was extended to the European level, although it was outlined in the last quarter of the twentieth century, which has been evolving at the institutional and legal level. At the same time, however, other concepts and terms than the social economy have been constructed for the development of economic activities reactive to the capitalist conception, in the search for values such as equality, solidarity, social or environmental commitment. One of these legal and economic constructions is that of social enterprises, which, in Europe, is mainly developed in Italy, where they are widely regulated and enhanced at the institutional level. However, in Italy where social enterprises have received the most legislative attention, in other countries of the European Union structures and support measures have been collected for entities pursuing a positive social impact, beyond the self-interest of the organization’s ownership, making them an instrument for reducing the social and economic inequality of particularly vulnerable sectors. Scientific attention on the term and content developed from the last decade of the last century, almost parallel, in Europe and the United States, although hardly interrelated. In Europe, the impetus for social enterprise appeared at the end of the 1980s in Italy, with cooperative initiatives to meet unmet needs, especially in the field of labour integration and personal services. Thus, at the scientific level in October 1990, the journal Impresa Sociale, which is still published, was published for the first time in order to answer the fundamental question: Is it possible and desirable to organise the production of goods and services of collective interest on an entrepreneurial but non-profit basis? In this country, Italy, Law 381 of 1991, created a new class of cooperative: the Social Cooperatives. With the Legislative Decree 24 March 2006, n. 155 “Discipline dell’impresa sociale” Italy abandons the specific cooperative social type for the social enterprise, accommodating any entity, whatever its structure, it pursues an economic activity on a permanent and principal basis with a view to achieving objectives of general interest, focusing on the activity and not on the social form. Currently, the social enterprise in Italy is regulated by Legislative Decree 3 luglio 2017, n. 112, where it is determined that “social enterprise” is a legal qualification, a legal status, not a type of entity. While, at European institutional level, in 1996 the international network of university research centres and individual researchers in social enterprises EMES was formed, who set the identifiers of the three dimensions of social enterprise economic/business, social, and property/governance, which served as a European institutional criterion for the formation of the legal framework for social enterprises. The European Union’s resolutions and regulations on the need to regulate and strengthen social enterprises have been numerous. But only a conception of what it should be has been achieved, of the parameters that must be met for its consideration as social enterprises (the same as those established by the EMES network), and the need for its promotion in the leg-islations of the Member States of the Union. With the study commissioned by the European Commission on Social Enterprises and their Ecosystems in Europe. Comparative Synthesis report, of 2020, a map has been obtained of the conceptions that the different States of the European Union have of those entities that can meet the parameters of social enterprises, as well as their respective legal regulation, and their impact on the economy and employment. In Spain only social initiative cooperatives, foundations and associations of general interest with economic activity, special employment centres, occupational centres and insertion enterprises may be classified as social enterprises. All these legal structures are recognised as social economy entities in the LES, thus providing a legal framework for recognition and promotion measures, although scarce, which the European Union encourages. However, in the absence of any general rules which contemplate them for their purpose, not for a predefined structure, many of the entities which have a positive social impact and which act within the parameters set by the European Union, they lack national legislative recognition, as well as adequate promotional measures that are reciprocated by the impact they have on the social environment, apart from the members of the structure. An example of legal regulation of legal structures based on the purpose they pursue, regardless of what the types of companies or entities may be, we have with Law 2/2007, of 15 March, professional societies, which, without determining a particular form or type of company, on the basis of the teleological criterion of the purpose pursued by it, shall classify the entity as professional. With a legislative model similar to the Italian one, Spain could expand the legal instruments of entities for the fight against inequality, which is one of the possible purposes of the social economy. Once they have been legally recognized, they could fit into the general framework of the Social Economy Act, given that they are entities that pursue the general economic or social interest (art. 2 LES), and this in two ways: by the updating of the so-called, although still non-existent, Catalogue of entities of the social economy by the Ministry of Labour (art. 6 LES), or by modifying the LES by incorporating social enterprises as entities of the social economy in its article 5, taking advantage of its reform to incorporate new promotion and promotion measures that are really effective. What is proposed is:-To regulate, individually, social enterprises in Spain with a framework law whose subjective scope is teleological, covering any legal structure that pursues the objectives of general interest and complies with the European dimensions that qualify them.-To determine in the special rules for social enterprises the provision of aids and measures for their promotion, of a fiscal nature and of financial endowment, calculated in so far as they involve public savings in improving the common general interest which these entities generate.-Establish a regime providing for forms of public control to ensure that the status of social enterprise is used only by entities that are actually such, that is to say, they act in accordance with the law.-The reform of the Law on the Social Economy with the incorporation of new cross-cutting measures for the promotion, promotion and financing of its entities, beyond those currently mentioned.-The proposed reform of the Law on the Social Economy should include social enterprises as entities of the social economy once they have been legally recognized in a single rule, recognizing, on the one hand, the promotion measures to be established for these entities, and extending it to all incentive measures laid down in the general law.