New Frontiers in the Legal Structure and Legislation of Social Enterprises in Europe

Abstract

This paper aims at presenting and discussing policy issues regarding the legal structure and legislation of the social enterprise through th e lenses of recent law reforms in Europe. The legislation of seven countries is analy sed: Portugal, France, Poland, Belgium, the United Kingdom, Finland and Italy. Nat ional models are compared distinguishing them according to the legal form and the main rules concerning asset allocation, governance and responsibility. Aware ab out the specificity that the legal, social and economic context may entails in each leg al system, the authors conclude that, in order to promote a distinctive role for social e nterprise in Europe, the law should guarantee: a control mechanism over the social natu re of the finality pursued by the organisation, as defined at least per broad princip les by the law; the enforcement of a positive (although not total) assets lock to ensure the achievement of social goals; the possibility for the enterprise to sustain its own a ctivity through remunerated financing; a certain degree of stakeholders’ interests represent atio inside the governance of the enterprise, with specific but not necessarily exclu sive representation with regards to beneficiaries and employees; the enforcement of a n on-discrimination principle concerning the composition of membership, if any; t he enforcement of a democratic principle inside the governing bodies which allows pluralism, fair dialogue and no emergence of controlling rights, unless in favour o f n n profit organisations which share the social goals and the democratic nature of the s ocial enterprise; an adequate degree of accountability which allows sufficient information disclosure, also in favour of third parties, about the governance and the activity of t he social enterprise.