Association, Foundation and Cooperative (CO-OP): Comparative table

ASSOCIATION

Organic Law 1/2002, of March 22^nd, regulating the Right of Association

FOUNDATION

Law 50/2002, of December 26^th, on Foundations.

It’s a form of society. Its purpose is to satisfy the economic and social needs of its members.

Basic principles:

• Voluntary and open membership.
• Management of partners via general assembly, by simple majority.
• Economic participation of the members in an equitable way.

Regulations: it has a regional character. If the company is based in more than one region, state law applies. This, unless the activity is carried out mainly in a region or with respect to Ceuta and Melilla.

Classification:

• State or regional
• First or second degree (if constituted by natural or legal persons, or by other cooperatives)
• Types: of workers, consumers and users, agri-food, credit, services, sea, etc.

Constitution:

• Public deed granted by all the promoting members
• Registration in the Register of Cooperatives Societies.
• Partners: if its first degree, a minimum of 3 is required (either natural or legal persons). If it is second degree (formed by Cooperative Societies) the minimum will be two.

Union of two or more persons for the purpose of achieving a goal or carrying out an activity that is not necessarily profitable.

The profits made from the

ir economic activities must be used exclusively for the fulfilment of their purposes. It cannot be distributed among the members, their spouses, or legal entities with a profit-making interest.

Specific types:

• Of shareholders.
• Of consumers and users
• Agricultural
• Labor

Incorporation agreement: they are constituted by agreement of three or more natural or legal persons legally constituted. They are committed to sharing knowledge, resources and activities to achieve legal goals.

These purposes may be common, of general or particular interest.The bylaws governing the operation of the association shall reflect these purposes.

It is a non-profit organization with an endowment and general interest purposes. From the moment it is registered, it acquires legal personality.

It is governed by the will of the founder, by its bylaws and, in any case, by the Law.

They must pursue aims of general interest.

The foundations will have legal personality from the inscription of the public deed of their constitution in the Registry of Foundations.

It may be constituted by acts “inter vivos” or “mortis causa”.

The endowment, which may consist of goods and rights of any kind, must be adequate and sufficient. An endowment with an economic value of up to 30,000 euros shall be presumed to be sufficient.

• Proof of having paid the minimum compulsory contribution and in the portion required by the statutes.
• Regulations of the Governing Council
• Auditors
• Certificate of name issued by the Registers of Cooperative Societies.
• Bylaws (minimum content)

o   Capital, form and terms of payment, right to reimbursement and transfer regime.

o   Types of members, admission requirements, voluntary or compulsory withdrawal, rights and duties, offences and penalties.

Pre-qualifications prior to the granting of the deed of incorporation by the Registry is possible (which allows for potential defects to be identified). This pre-qualification is binding.

Registration is mandatory and constitutive. With the registration the company acquires legal personality. The deadline for registration is 1 month since its constitution.

Register of Cooperative Societies: its purpose is to

• Qualify and register
• Legalize the books.

Acts and contracts prior to registration: the partners are jointly and severally liable. After registration, the cooperative assumes the consequences of such acts and contracts, as well as the registration costs.

Domicile: in the place where it mainly carries out its activity.

Corporate purpose: any lawful activity. Specific activities with management autonomy, separate assets and separate operating accounts may be established. This without prejudice to the general accounts of the Cooperative Society.

Capital:

Material or real: It is variable depending on the entry and exit of the members, as well as the allocation of losses to the contribution of members. Variability is permitted without the need to amend the bylaws. The fluctuation must be above the minimum capital figure.

Nominal or minimum: this is the minimum capital with which the entity is constituted and can operate. It must be fully paid up since its incorporation. The reduction of the material capital below the minimum is a cause for its dissolution.

Partners:

• Common partner: those who cooperate in the purpose of the company.
• Working member: for cooperatives that are not workers cooperatives or for community land use, the member must be a natural person. It entails the provision of personal work.
• Collaborating member: those who cannot fully participle. Their contribution cannot exceed 45% of the total capital contributions. And the total number of votes attributed to all of them cannot exceed 30%. They cannot be required to make further contributions. Their responsibility is limited to the contributions to the capital that they have subscribed.
• Fixed-term partner: cannot exceed five percent of the indefinite partners.

Casualties:

• Volunteer. Requires advance notice (there is a minimum period of stay)
• For just cause: cause that may be legal or statutory.
• Obligatory: for no longer meeting the requirements for membership

Rights:

• Political: right to information
• Economic: Cooperative returns (or profit sharing)

Obligations:

• To comply with the adopted agreements
• To participate in the cooperative activities in the minimum obligatory amount established in the bylaws.
• To keep secret
• To accept the positions for which he is elected.
• To comply with corresponding economic obligations (capital contribution, partial disbursements, income quotas, etc.)
• Not to carry out competitive activities.

Responsibility for social debts. It varies depending on the regulatory law, the type of co-op society and type of member.

The Cooperatives Act states that the member’s liability for corporate debts is limited to the contributions to the capital he or she has subscribed (whether or not they are fully paid up). Withdrawal means that the member is no longer liable for social debts after the exclusion of the social credit for 5 years from the amount reimbursed.

Organs:

• Assembly: (equivalent of the General Meeting of shareholders)
• Governing Council (equivalent to the Board of Directors)

o   Collegiate body that manages and represents the company.

o   If the cooperative has less than 10 members, it can have a single administrator. The same must be a natural person and have the quality of a member.

o   The governing board is composed of a minimum of 3 members. The President, Vice-President and Secretary must be appointed. When the company has two partners, the governing council can be formed by two members.

o   Their appointment corresponds to the assembly.

o   The members of the governing council must be partners unless the bylaws allow otherwise.

o   Resolutions are adopted by simple majority.

o   The members of the council do not lose their right to be remunerated.

o   Liability: according to Corporate Enterprise Act

• Controller (auditor): internal control body. It is chosen from among the partners.

Economic regime

• Capital contributions: mandatory and voluntary.

o   Disbursement: in respect of compulsory contributions, 25% at the time of constitution. With respect to voluntary contributions, in full at the time of subscription. In the case of voluntary contribution to replace losses, the council will set the term of payment (minimum of 2 months and maximum of 1 year)

o   Remuneration: may bear interest (if foreseen and there are sufficient resources)

o   Reimbursement: the member who leaves the company has the right to be liquidated or to have his contribution to the capital reimbursed

o   There are contributions that do not make up the capital: subsidies, goods given by the partners, special participations, etc.

• Social funds: these are special reserve funds: i) mandatory ( undistributable in the event of dissolution and liquidation), they have a guarantee function and ii) voluntary.

Transmissions:

• For acts “inter vivos”: only to other partners and to those who acquire such quality within three months after the transfer.
• By succession “mortis causa”: to the beneficiaries if they are partners and they request it. If they are not, prior admission as such made in accordance with Article 13 of the Law.

Application of the surpluses:

Of the surpluses, after deducting losses from previous years and before the Corporation Tax, at least 20% will be allocated to the mandatory reserve fund and 5% to the education and promotion fund.

Of the extra-operational and extraordinary profits, after deduction of prior years’ losses and before the Corporation Tax , at least 50% shall be allocated to the mandatory reserve fund.

The agreement to set up the association must be formalized in the founding act, in a public or private document. With the granting of the act, the association will acquire its legal personality and full capacity to act.

The bylaws will also contain

• The requirements and types of admission and withdrawal of members;
• Sanction and separation of the associates and, where appropriate, the classes of these.
• Rights and obligations of the associates and, if applicable, of each of their different types.
• The initial patrimony and the economic resources that may be used.

The associations regulated by the Law must be registered in the corresponding Register, for the sole purpose of publicity.

The promoters of non-registered associations shall be personally and jointly liable for the obligations they have entered into with third parties.

The associates will respond jointly and severally for the obligations contracted by any of them towards third parties. This is provided that they have stated that they are acting on behalf of the association.

The General Assembly is the supreme governing body. It adopts its agreements by the principle of majority or internal democracy.

This body must meet at least once a year.

There shall be a representative body to manage and represent the interests of the association. Only members can be part of the representative body.

Liabilities of the registered associations:

The registered associations are responsible for their obligations with all their present and future assets.

The associates do not answer personally for the association’s debts.

The members of the governing and representative bodies, and other persons who act in the name and on behalf of the association, will respond to the association, to the associates and to third parties for damages caused and the debts contracted by fraudulent, guilty or negligent acts.

The condition of associate is non-transferable, unless: the bylaws provide otherwise, by reason of death or for free.

Duties of the associates:

• To share the aims of the association and to collaborate to achieve them.
• To pay the quotas, supplementary members’ calls and other contributions that, according to the bylaws, can correspond to each associate.
• To fulfill the rest of the obligations that result from the statutory dispositions.
• To abide by and comply with the validly adopted agreements:

Separation:

The associates have the right to voluntarily separate from the association at any time.

The bylaws may establish that, in the event of voluntary separation of associates, they will receive the initial patrimonial participation or others. This is understood as long as the reduction of assets does not imply any damage to third parties.

When the endowment is of lesser value, the founder must justify its adequacy and sufficiency for the purposes of the foundation. To this end, the following must be presented: the first program of action, together with an economic study that accredits its viability using exclusively these resources.

If the contribution is monetary, it may be made in succession. In this case, the initial payment will be at least 25%. The rest must be paid out within a period not exceeding five years.

Every foundation must have a governing and representative body under the name Board of Trustees.

The Board of Trustees will adopt its agreements by majority, in the terms established in the bylaws.

The Board of Trustees must comply with the foundational purposes and diligently administer the assets and rights that make up the patrimony. Among its obligations is the maintenance of its returns and usefulness.

The Board of Trustees will be made up of minimum of three members. They shall elect a Chairman from among them, if it is not provided another way for its election. The Board of Trustees shall also appoint a Secretary

The trustees will exercise their position free of charge. However, they have the right to be reimbursed for any justified expenses that the position may cause.

The trustees shall be severally and jointly liable to the foundation for any damages:

• caused by acts contrary to the Law or the bylaws,
• or for those performed without the diligence with which they should perform their duties

They shall be exempt from liability:

• those who have voted against the agreement, and
• who prove that, not having been involved in their adoption and execution, they were unaware of their existence,
• or, knowing it, they did everything possible to avoid the damage or at least expressly opposed it.

At least 70% of the operating result must be allocated to the achievement of the foundational purposes. The rest will be destined to increase the endowment or reserves, according to the agreement of the Board of Trustees.

The deadline for the fulfilment of this obligation will be 4 years from the moment the respective results have been obtained