El concepto legal de economía social y la empresa social

Abstract

The recent law no. 5/2011 regarding Social Economy, following the Recommendation of the European Parliament of February 19th, 2009, defines social economy for the first time in our law. Up until now, the European Institutions had offered no concept of social economy but only the aims and main characteristics (principles) of social economy entities. The law devotes four articles to identifying what is to be understood by social economy. Despite the commendable effort, the norm gives rise to certain doubts and gaps for which a solution needs to be found. Thus, social economy, rather than a "set of activities" is a "business model" which aims to serve its partners, general interest or both. Voluntary, open adherence is a principle which, in spite of its omission, is present by law in all mutualtype entities. Entities that pursue aims of general interest must apply their results to "purposes of a social nature" rather than to "the entity's social purpose". Unfortunately, the law has not considered the same principles of social economy adopted by the entities themselves and by the European institutions. Social economy entities are characterized, in some cases, by a legal form and, in others, by their administrative qualification. The law provides for the possibility of extending social economy entities on considering the incorporation of new categories and of singular entities in the Catalogue of social economy entities. This catalogue (which is not of a substantive nature) must fulfil the function of control, which guarantees that the entities contained in it comply with the ends and principles that identify social economy. Social entities, which form part of the social economy according to the European Parliamentary Resolution of 2011 could be included in the catalogue of social economy entities if our legislator finally opted to acknowledge it, as called for by the Commission.