The cooperative company
The cooperative company (CC) is currently defined as the company, “which has shareholders who vary in number and whose contributions are variable.” It is characterized by its very flexible format. The CC is a form of company with variable capital, enabling its shareholders to enter and exit on the basis of the corporate capital. In addition to this flexible entry and exit regime, the CC offers other significant advantages in terms of functioning of the bodies and organization of the securities, which make it particularly attractive, not only to companies in the cooperative sector but also in other sectors, namely for professional companies of liberal professions.
The new Belgian Company Code (BCC) maintains the CC as a distinct form of company but introduces some major changes.
The main innovation of the new BCC relates to the definition of the CC itself. The CC recovers its initial feature, which is the pursuit of an enterprise on the basis of the cooperative ideal, as characterized by the seven principles defined by the International Co-operative Alliance[1] (ICA).
In this context, the new BCC says that henceforth the CC will have as its main objective the satisfaction of the needs and/or the development of the economic and/or social activities of its shareholders and interested third parties.[2] [3]
Under this new and more restrictive definition, it will no longer be possible to use the CC outside the co-operative sector. Consequently, it will no longer be possible for professional companies of liberal professions to use this form and “fake” co-operatives, those which do not comply with the new definition, will have to adopt a new form. The limited liability company (besloten vennootschap – société à responsabilité limitée) (LLC) will most probably be the preferred form, given the flexible legal regime that will characterize this form of company.
In an aim to prevent the inappropriate use of this form of company, a specific sanction, i.e. the judicial dissolution, will be introduced against companies which would use the CC form when they do not or no longer conform to the cooperative collaboration forms as defined by law.
In addition, the new BCC provides for, regarding the legal regime of the CC, an autonomous set of rules based on the legal code of the LLC, which also takes into account the characteristics of the CC.
It also foresees the end of the unlimited liability cooperative company, which had, in practice, nearly fallen into disuse.
Finally, the new BCC maintains the current possibility for the CC to be accredited. It also introduces, henceforth, the possibility for the CCs, which fulfill certain conditions, to be accredited as a “social enterprise” and to benefit from the advantages of this status. Accreditation as an agricultural enterprise is also possible.
[1] (i) Voluntary and open membership, (ii) Democratic member control, (iii) Member economic participation, (iv) Autonomy and independence, (v) Education, training and information, (vi) Collaboration among co-operatives and (vii) Concern for community.
[2] This new definition of the CC is in line with the terminology used in the Council Regulation (EC) N°1435/2003 of 22 July 2003 on the Statute for a European Cooperative Society (SCE).
[3] The new BCC provides for that the CC can achieve these objectives namely by entering into agreements with its shareholders and interested third parties for the purpose of supplying goods or services or for the execution of work in the framework of the activity performed by the CC or which she or through a participation in one or several other companies and that it can also have as aim to respond to the need of its shareholders or of its parent companies and their shareholders or interested third parties, through subsidiaries or not.