351.12. 90 Officiai]ournai of the European Communities ^oCoBoE^l 
Opmionontheconununication from the Commission to the Council—Businesses in the 
Economic Sociale sector Europesfrontie^free market 
^90BCo5]2B2oE 
On26 January 1990the Commission, in accordance withArticle!98oftheTreaty establishing 
the European Economic Gommunity,asked the Economic and Social Committee to discuss^ 
— the diversity of legal forms of^economiesociale^enterprises in the Community, 
— the role which the European Economic Interest Grouping ^EEIC^ could play,given the 
above diversity,in encouraging cooperation between^economiesociale^enterprises, 
— the feasibility ofaEuropean Company statute for persons, maloing provision for mergers, 
theestablishmentofaholdingcompanyorcommonsubsidiaryby ^economic sociale^ 
enterprises^ and the possible nature of suchastatute^a framework statute oraspecihc 
statute reflecting theparticular characteristics of each areaor sector of the^economie 
sociale^, 
— the operating conditions foraEuropean nonprofit body statute which would permit the 
direct establishment of nonprofit associations not engaging in economic activity. 
The Section for lndustry,Commerce,Crafts and Services,which was instructed to prepare 
the Committee^sworlo on the subject, adopted its Opinion on eo September 1990. rapporteurs 
^IrRamaeloersP 
At its 2^9th plenary session ^meeting of 19 September 1990^ the Economic and Social 
Gommittee adopted the following Opinion with no votes against and^abstentions. 
1. Introduction 
1.1. Eirst of all, the Gommittee welcomes the Com 
mission^sGommunicationtotheCouncilofl^lOecemb 
er!989, recognizing the role which^economie social 
enterprises can play in the establishment ofafrontier-
free market. 
1.2. The Commission^hite Paper, presented at the 
AiilanSummitinl9^setthegoalofestablishing,bythe 
end of 1992,afrontierfree market for goods, services, 
capital and persons, in parallel withasocial Europe. 
1.2.1. Aframework is needed providing every com­
pany, irrespective of size, its sector of activity, its 
location or its legal form,with the resources needed to 
meet the challenge of the Internal ^iarl^et. 
1.2.2. The Commissions recognition of the special 
natureofthecooperative, mutual andnonprofit sectors 
^lonown in some European countries as the^economie 
sociale^ is welcomed the enterprises concerned are 
entitled to insist that their identity be preserved within 
the new legal frameworlo designed to improve transna­
tional cooperation and to promote economic inteD 
gration. l.o5 The cooperatives, mutual associations and non­
profit bodies,which have been an integral part of the 
economic and social history of Europe, particularly 
since the nineteenth century,bring together throughout 
theTwelve some tens of millions of persons who have 
chosen the path of shared responsibility and solidarity 
for the conduct of their business. 
1.^.1. Apart from their social civic significance, the 
major economic role played by these enterprises in 
the Community cannot be underestimated. One cannot 
ignorethecooperatives which, with theirs million 
members, notchup an annual turnover of more than 
^0 000 million ECU, nor the mutual provident funds 
with^million members and anannualturnoverof 
22 000 million ECU, the 2^ million families covered by 
insurancemutualsandcooperatives ^turnover^OOOO 
million ECU, thelO million members of jointly man 
aged provident institutions ^turnover 2^00 million 
ECU^ or the ^0 milhon members and ^ million 
employees who loeep the non-profit bodies in business. 
IBt. It is essential that enterprises belonging to this 
sector enjoy the same access as the Community^sother 
economic operators, to the appropriate cooperation 
and restructuring facilities and thesamefreedom to 
operate throughouttheGommunity and in all economic 
sectors. Such enterprises make an important contri­
bution to the building ofapeople^sEurope,aprerequi 
No C 332/82 Official Journal of the European Communities 31. 12. 90 
site of social cohesion and a vital ingredient in ensuring 
the success of the Single Market. 
1.5. Nevertheless, this clearly must be done without 
putting these enterprises at an advantage vis-a-vis other 
kinds of enterprise. 
1.6. It would also be desirable for cooperative, mutu­
al and non-profit sector enterprises to undertake joint 
initiatives with similar enterprises located outside the 
EEC. 
2. Diversity of legal forms 
2.1. Just like all other enterprises, cooperative, mutu­
al and non-profit sector enterprises have the right to 
be recognized and to enjoy the same access as other 
economic operators to the entire Single Market and to 
gear their size to the demands of that market. These 
enterprises also play a beneficial role in the construction 
of the European market by: 
— helping to stimulate and promote social and 
regional balance in the economy, 
— developing the qualitative aspect of consumption, 
— involving their members personally, in the people's 
Europe. 
2.2. Given the scale and specific nature of these 
enterprises, the manifest diversity of their legal forms 
in the Twelve is not surprising. The Committee draws 
attention to its 1987 comparative study which highlight­
ed the national (or even regional or sectoral) legal 
disparities affecting these three forms of enterprise. 
2.2.1. The diverse legal forms are evidence of their 
vigour and their adaptability. 
2.3. But despite their different forms, all these enter­
prises have a common history or at least common ideals 
and are today based on those common principles which 
make them a third option alongside joint stock and 
public-sector enterprises. 
2.4. Although it is impossible to arrive at a single 
legal definition of the 'economie sociale' enterprise, the 
undertakings concerned are nonetheless part of a movement which gives high priority to the individual 
and which freely embraces the following principles: 
— free association, 
— a democratic management structure, 
— solidarity, 
— fulfilment of members' potential and/or promotion 
of the general interest. 
3. The role of the EEIG and the European Company 
3.1. The EEIG is at present the only Community 
legal instrument governing transfrontier links. This 
extremely flexible legal structure enables enterprises 
(joint stock companies, cooperatives, mutual associ­
ations or non-profit bodies pursuing an economic 
activity) to develop jointly certain types of activity 
whilst retaining their legal and economic autonomy. 
3.2. Nonetheless, the EEIG has considerable limi­
tations: 
— its objective is ancillary to the economic activity of 
its members, i.e. the grouping's activity cannot be 
substituted for that of its members, 
— the unlimited joint liability of its members, i.e. 
members have unlimited joint responsibility for the 
grouping's debts (without being able to limit duch 
responsibility to any money which may or may not 
have been paid in by members), 
— its inability to raise public funding, i.e. the impossi­
bility of issuing securities or bonds for sale to the 
public, 
— legal persons based outside the EC cannot join an 
EEIG, 
— the tax status of EEIG remains unclear in several 
Member States. 
3.2.1. In order to overcome these limitations, the 
Commission has drafted another Community legal 
instrument which entails (i) a higher degree of inte­
gration and (ii) reduced autonomy of members. This is 
the European company statute which will be available 
to all firms operating on a Community scale. 
3.3. The Committee feels it would be wrong to offer 
the mutual/cooperative-sector enterprises only this 
vehicle for European integration. 
3.3.1. Mutual/cooperative sector enterprises can 
only set up a European company by way of a joint 
31. 12. 90 Official Journal of the European Communities No C 332/83 
subsidiary, i.e. they cannot do so via a holding com­
pany, merger or the conversion of a national company. 
3.3.2. The use of this instrument would strip these 
enterprises of their specific characteristics insofar as 
they would no longer be able to apply principles such 
as: 
— the precedence of people over capital, 
— free association, 
— one person, one vote, 
— solidarity, 
— the non-availibility of reserves for distribution, 
— the devolution of assets on liquidition. 
3.3.3. The European Company is closed off to natu­
ral persons, which is tantamount to denying them the 
right to organize on a Community scale; this is a 
particular problem for frontier-area residents. 
3.4. Given that the European Company is a very 
flexible, but also limited, cooperation instrument and 
that some mutual/cooperative-sector enterprises will 
have great difficulty (in terms of both access and com­
patibility with their principles) in using this vehicle, the 
Committee feels that there is still no legal instrument 
enabling these enterprises to improve their international 
cooperation and satisfactorily promote their integration 
into the Community. 
3.4.1. It is essential to set up an alternative, optional 
European legal framework for mutual/cooperative-sec­
tor enterprises, as they have features which need to be 
preserved, and which are not adequately catered for by 
the EEIG or the European community. 
3.4.2. It is essential that, as soon as the Single Market 
is completed, the 'economie sociale' enterprises should 
enjoy the same access as capital-based firms to the 
entire Community market, as well as the right to choose 
a legal vehicle for doing business in the Community 
which is compatible with their principles. 
3.4.3. The Committee draws attention to its Opin­
ions of 24 November 1988 and 28 March 1990 (J) on 
the European company statute recommending a special 
statute for 'economie sociale' enterprises, given the need 
to preserve their salient features and the European 
company statute's failure tot provide an appropriate 
legal framework. 
4. Feasibility of a specific European statute 
4.1. The fact that mutual/cooperative sector enter­
prises will increasingly be competing in the Internal 
(!) Opinion of 24 November 1988, OJ No C 23, 30. 1. 1989 and 
Opinion of 28 March 1990, OJ No C 124, 21. 5. 1990. Market with conventionally capitalized firms, while 
sticking to their principles, clearly reinforces the need 
for an optional subsidiary legal statute. The Committee 
notes that, despite the similarities referred to above, 
these enterprises also have structural and operational 
differences, whose existence cannot be denied without 
forcing them into a single, uniform mould. 
4.1.1. The Committee therefore calls on the Com­
mission to take account of the differences between the 
various components by drafting separate statutes for 
cooperatives, mutual associations (including insurance 
mutuals) and non-profit bodies; these could perhaps be 
incorporated into a single instrument with a common 
preamble or a common core. 
An analysis of the legal forms of these enterprises 
reveals certain clear similarities: 
— All the enterprises which could benefit from a draft 
statute are operating in the Internal Market. They 
are directly involved in their respective economic 
sectors, in competition with joint stock companies. 
— Generally they are deeply attached to their guiding 
principles: 
— precedence of people over capital, 
— satisfaction of members' needs and/or operation 
in the general interest, 
— solidarity between members. 
— Each of the three sectors has national legal forms 
which are converging via a process of adapting 
existing legal instruments to market mechanisms. 
In the light of these considerations, the Commission 
should draft statutes bearing in mind the following key 
points: 
— the objective of a European company with the fea­
tures of an 'economie sociale' enterprise, 
— financing (establishment of own funds—participat­
ing securities or other techniques), 
— management bodies (one person, on vote principle 
with possible derogations in the case of legal per­
sons), 
— the possibility of devolving assets (not between 
members, but rather to another body with the same 
objective) in the event of liquidation. 
The cooperative, mutual and non-profit sectors have 
each contributed to the debate by drafting European 
statutes. 
4.2. The Community legal statute or statutes drawn 
up for the sector should be open to legal as well as 
No C 332/84 Official Journal of the European Communities 31. 12. 90 
natural persons. It should allow for the setting up of a 
European company ex nihilo or by merger, the estab­
lishment of a subsidiary or the conversion of a national 
company. 
4.3. The Committee also urges that it be consulted 
again when the Commission has drawn up one or more 
legal statutes for the mutual/cooperative sector. 
4.4. At all events, the adoption of this European 
statute must remain subsidiary and optional and neither 
require nor prevent any future harmonization of 
national laws governing the mutual/cooperative sector. 
5. The problem of non-profit bodies (*) 
5.1. It should be noted that the Commission intends 
to interpret the expression 'profit-making', as used in 
the second paragraph of Article 58 of the Rome Treaty, 
in the broad sense, i.e. participation in economic life 
by legal persons other than companies whose main or 
subsidiary purpose is an economic activity normally 
pursued for profit. 
5.1.1. In this regard, it is noted that all non-profit 
bodies pursue (or are likely to pursue) an economic 
activity as defined by the Commission, because in order 
to achieve their social objectives these bodies need to 
engage in economic activities which are to a greater or 
lesser degree subsidiary. 
5.2. More generally, all non-profit bodies (e.g. non­
governmental international organizations) wish to be 
recognized and to enjoy freedom to operate throughout 
the Community. 
5.3. At all events, the Committee urges the Com­
mission not to create artifical divisions in the non­
profit movement which has the right to lobby for its 
integration into the Single Market and its involvement 
in the social Europe and people's Europe. 
5.3.1. It would therefore be appropriate to draft a 
single Community legal statute for all Community non­
profit bodies (whose activity is, or is likely to be, 
economic in the broader sense). 
The Commission or the Court of Justice can always 
exclude certain non-profit activities which do not meet 
the criterion of the second paragraph of Article 58 from 
application of this statute. 6. Beyond the legal problems 
6.1. In the light of the general nature of the Com­
mission's Communication to the Council of 18 Decemb­
er 1989 on the mutual/cooperative sector, the Commit­
tee would point out that the legal framework is only 
part of the problem facing this sector. 
6.1.1. The European institution's attention is drawn 
to other problems encountered by these enterprises 
arising from the fact that, whilst they are economic 
operators to be treated without discrimination (either 
positive or negative) they also have a specific role in 
the economy. 
6.2. First and foremost, mutual/cooperative sector 
enterprises by their very nature have a specific and 
important role to play in the promotion of social dia­
logue, and more generally in the establishment of the 
social Europe (2). 
6.3. Irrespective of the legal form adopted or the 
nationality of the enterprise, these entreprises must 
enjoy the right of access to all economic sectors in all 
Member States if the concept of the Internal Market 
and the principles on which it is based (legal freedom 
of movement, establishment and freedom ot provide 
services) are not to be jeopardized. Similary, legal per­
son's freedom of association cannot be achieved until 
all economic activities are open to all forms of enterprise 
in every Member State. These cooperative, mutual and 
non-profit enterprises should therefore at the earliest 
opportunity be enabled to pursue any economic activity 
throughout the Community. 
6.4. The financing of many mutual/cooperative sec­
tor enterprises is a real problem given the specific nature 
of their business plans and the quantitative increase in 
their financial needs caused by international compe­
tition. The financial support available from their mem­
bers alone is often insufficient, and these enterprises 
are obliged to seek external funding. 
However, recourse to the financial world can be con­
templated only if it allows these enterprises tot preserve 
their specific characteristics, i.e. to maintain the funda­
mental principle that people take precedence over capi­
tal. They must therefore call on forms of financing 
which both meet this requirement and attract suppliers 
of capital (e.g. use of participating securities, guarantee 
and participation funds). 
6.4.1. Apart from securing the reciprocal recognition 
of the financing instruments available in the various 
Member States, consideration should be given to the 
(J) See page 12 of Commission document SEC(89) 2187 final. (2) OJ No C 126, 23. 5. 1989. 
31.12. 90 Official Journal of the European Communities No C 332/85 
possibility of establishing European participating 
securities negotiable throughout the Community for the 
use of these enterprises established under Community 
law. 
6.5. In parallel with this, the seventh Directive on 
consolidated accounts should be extended to the 
mutual/cooperative sector. 
6.6. The specific nature of these enterprises and their 
different objectives require that their members be able 
to act and react appropriately. 
Particular attention should be paid to the training of 
members and staff of cooperatives, mutual associations 
and non-profit bodies. 
6.6.1. Steps should be taken to ensure that these 
enterprises have sufficient information on, and access 
to, (specific or non-specific) subsidies for the appropri­
ate training of their members and staff. 
6.7. A permanent representative coordinating body 
attached to the Commission should also be set up. This 
Done at Brussels, 19 September 1990. liaison body could open a constructive dialogue on the 
sector with the European institutions, with a view to 
initiating specific action programmes, e.g. on training. 
6.8. Similarly, the Commission could promote the 
establishment of a European training and research insti­
tute for the 'economie sociale'; several already exist at 
national level. 
6.9. The continuing discussions initiated by the ESC 
conference on the cooperative, mutual and non-profit 
sector should enhance the importance of these enterpris­
es for non-EC countries. They could be more effectively 
involved in the existing cooperation instruments and 
policies by means of: 
— a contribution to the training of managers (in-ser­
vice training, swap arrangements, etc.), 
— the exchange of experience (seminars, information, 
etc.), 
— the setting up of joint enterprises and the undertak­
ing by Community enterprises of projects.transcend-
ing the Community's borders. 
The Chairman 
of the Economic and Social Committee 
Alberto MASPRONE