Spørgsmål 41:

Ministeren bedes redegøre for eksempler på lande (f.eks. Frankrig ogItalien), hvor der findes en statslig lovgivning for kooperativ drift ogbedes herunder præcisere de kooperative selskabers ejendomsform, de-res bestyrelsers sammensætning, forrentning af kapitalindskud, over-skuddets anvendelse og beskatningsforhold.

Svar:

Jeg har i et tidligere foreløbigt svar til Erhvervsudvalget anført, at denfaste danske repræsentation i Bruxelles er anmodet om at indhente evt.udtalelse fra de enkelte EU-landes repræsentanter vedrørende spørgsmå-let. Da udtalelserne nu foreligger, skal jeg hermed vende tilbage med enendelig besvarelse af det stillede spørgsmål.Der er modtaget svar fra repræsentanter fra Belgien, Irland, Litauen,Slovakiet, Spanien, Sverige, Tjekkiet, Tyskland og Østrig. Alle disselandes repræsentanter har oplyst, at de enkelte lande har lovgivning omkooperative selskaber. Irland har dog ikke lovgivning, som direkte om-fatter kooperative selskaber, men de omfattes derimod af anden lovgiv-ning.Erhvervs- og Selskabsstyrelsen, som har indhentet svarene fra den fasterepræsentation i Bruxelles, har oplyst, at det ikke fra dansk side er mu-ligt at sige noget mere konkret om indholdet og variationen i disse lan-des lovgivning, da der ikke findes en samlet opdateret oversigt over ind-holdet af lovgivningerne inden for dette område.Desuden er det vurderet, at der af hensyn til informationsværdien ikkeforetages en nærmere gennemgang af det modtagne materiale, da det eraf meget konkret karakter samt af meget forskelligt indholdsmæssigtomfang. En sammenligning på tværs af landene er således problematisk,da den grundlæggende struktur i erhvervsreguleringen varierer betyde-ligt mellem landene.Der er til denne besvarelse til Erhvervsudvalget vedlagt en række bilag,

som indeholder de nærmere oplysninger, der er indkommet fra de enkel-te lande, som har besvaret de stillede spørgsmål.Ud over de vedlagte bilag kan det oplyses, at Spanien, Sverige og Østrighar tilkendegivet, at de har lovgivning om kooperative selskaber. Da deikke har medsendt yderligere oplysninger, men blot kopi af eller link tilselve lovgivningen, er de indsendte svar ikke medtaget som bilag tildenne besvarelse.Det kan desuden oplyses, at EU-kommissionen i 2001 har fået udarbej-det en oversigt over de enkelte daværende EU-landes lovgivninger omkooperative selskaber. Dokumentet er af ældre dato, og det er oplyst, atoplysninger for flere landes vedkommende kan være forældede. Desu-den er nye EU-lande ikke med på listen. På den baggrund vedlægges detpågældende dokument ikke, men det kan findes på EU-kommissionenshjemmeside på følgende adresse:ec.europa.eu/enterprise/entrepreneurship/coop/consultation/index.htm.Med hensyn til den specifikke reference til Frankrig og Italien i spørgs-målet har Erhvervs- og Selskabsstyrelsen særskilt anmodet disse landesrepræsentanter om oplysninger. Der er dog på trods af rykkerskrivelserikke modtaget oplysninger fra disse lande, og der er derfor ikke medta-get oplysninger om disse lande i dette svar.Såfremt der efterfølgende modtages oplysninger fra Frankrig eller Itali-en, vil disse blive eftersendt til Erhvervsudvalget så hurtigt som muligt.Oversigt over de vedlagte bilag:1.2.3.4.5.6.7.Spørgsmål stillet til de enkelte landes repræsentanterBidrag fra BelgienBidrag fra IrlandBidrag fra LitauenBidrag fra TjekkietBidrag fra TysklandBidrag fra Slovakiet

1) Is there in your member state legislation concerning co-operatives?A co-operative is a form of business or organisation that is owned anddemocratically controlled by its shareholders/members. A co-operative isalso known as a 'mutual organisation' or a 'co-op'. The organisation is runfor the mutual benefit of its shareholders/members.2) If the answer to the first question is yes, we would like to know moreabout these co-operatives concerning ownership, the composition of theboard of directors, return on capital contributions, use of profits andtaxation.

Bilag 2: Bidrag fra Belgien

In Belgium, we know two different cooperative companies: the coopera-tive company with illimited responsibility, and the cooperative companywith limited responsibility, whether the associates answer personally andjointly of the social debts or until the amount of their contribution (art.350 to 436, of the companies Code).The ownership:They must be at least 3 persons with a variable contribution in capital.The ‘parts’ are nominatives. The owners are registered in the companyregister hold at the seat of the company.The parts are freely transferable to other owners or to third person if hecomplies the conditions established in the statutes. Every share gives avoting right.The owners are able to resign or take back some of their parts despiteother provisions in the statutes. This must take place only within the firstsix months of the social year.An owner can be excluded by the general assembly.The general assembly makes its decision following the public limitedcompany rules.Return on capital contributions:Every resigned owner, excluded owner, or an owner who took back someof his parts, has the right to receive the value of his parts which wouldhave came out from the accounting balance sheet hold at the end of theyear in which these facts took place (art. 374, CC).Board of directors:The company is directed by an administrator, associated or not, named bythe general assembly, unless other provision in the statutes (art. 378 CC).Use of profits:The general assembly decides of the appropriation of the profits and thelosses on the base of the provisions of the statutes (art. 355 and 384, CC).Taxation:The cooperation company is ruled by the corporation tax.Some cooperatives can ask for an “approval” which gives many financialadvantages, as reduction on corporation tax, on withholding tax on in-come from movable assets (tax on capital incomes), on social security, …These cooperatives must comply different conditions, in particular:-Joining the company must be free from any element of constraint,-the aim of the company must get to associated economic or socialadvantage, in the satisfaction of their professional or privateneeds,

Bilag 3: Bidrag fra Irland

The table published by the Commission as Annex 1 of the 2001 consulta-tion document "Co-operative in Enterprise Europe" needs some updatingregarding Ireland. Therefore the information it contains regarding Irelandmay not be fully accurate. As a result, I have provided some further in-formation below which may assist you with your research.It is important to first point out that under Irish legislation there is no le-gally recognised entity known as a "Co-operative". In practice most Irishco-operative organisations, especially in the Agriculture sector, registeras Industrial and Provident Societies (IPS) under the Industrial andProvident Societies Acts (IPS Acts). A co-operative may also use thecompany legal form. Both legal forms confer the benefits and protectionsof limited liability and incorporated status.The main legislation in Ireland regarding IPS is as follows:

Primary Legislation applying to Industrial & Provident Societies

1.Industrial & Provident Societies Act – 56 & 57 Vict. Ch. 39 18932.Industrial & Provident Societies (Amendment) Act19133.Agricultural Co-Operative Societies (Debentures) Act19344.Industrial & Provident Societies (Amendment) Act19785.Competition Act20026.Investment Fund, Companies and Miscellaneous Provisions Act 2005

Credit Unions are subject to specific legislation (not dealt withhere)The most significant legislation regarding IPS are the 1893 andthe 1913 Acts. However, the legislation in this regard says verylittle in the areas you identified, such as ownership, board of di-rectors, return on capital contributions, use of profits and taxation.

Schedule II of the 1893 Act

provides that certain matters must beprovided for by the rules of a society and it is left largely up to theindividual society what these contain and how it operates. All thelegislation requires is that rules must be put in place on the fol-lowing maters:

3. Mode of holding meetings, scale and right of voting, and of mak-ing, altering, or rescinding rules.4. The appointment and removal of a committee of management, bywhatever name, of managers or other officers, and their respectivepowers and remuneration.5. Determination of the amount of interest, not exceeding two hun-dred pounds sterling, in the shares of the society which any mem-ber other than a registered society may hold.6. Determination whether the society may contract loans or receivemoney on deposit subject to the provisions 'of this Act frommembers or others; and, if so, under what conditions, on what se-curity, and to what limits of amount,7. Determination whether the shares or any of them shall be trans-ferable; and provision for the form of transfer and registration ofthe shares, and for the consent of the committee thereto; determi-nation whether the shares or any of them shall be withdrawable,and provision for the mode of withdrawal and for payment of thebalance due thereon on withdrawing from the society.8. Provision for the audit of accounts and for the appointment ofauditors or a public auditor.9. Determination whether and how members may withdraw from thesociety, and provision for the claims of the representatives of de-ceased members, or the trustees of the property of bankrupt mem-bers, and for the payment of nominees.10. Mode of application of profits.11. Provisions for 'the custody and use of the seal of the society.12. Determination whether, and by what authority, and in what man-ner, any part of the capital may be invested.Therefore the rules a society adopt largely determine how it oper-ates regarding the areas you identified. However, below are somepoints to note in this regard:

Board of Directors:

Under schedule II:4 the legislation requiresthat a society has certain rules regarding a 'management commit-tee'.

Return on capital contributions:

Not specifically covered by thelegislation (see schedule II:10 above)

Use of profits:

Not specifically covered by the legislation (seeschedule II:10 above)

Taxation:

At the moment I am unsure of the difference betweenthe tax law covering IPS and Companies.

Bilag 4: Bidrag fra Litauen

The answer to the first question is yes. Lithuania has special law on co-operatives – the Law on Co-operative Societies (Co-operatives), whichwas adopted on 1 January 2003.Notably this law does not regulate the taxation questions, which are regu-lated by special tax laws (Law on Personal Income Tax, Law on Corpo-rate Income Tax, Law on Value Added Tax, Law on Immovable PropertyTax and others). It is necessary to note that according to the tax reform inLithuania these laws will be amended starting 1 January 2009.

Bilag 5: Bidrag fra Tjekkiet

Yes, the Czech Republic has legislation concerning co-operatives – thisissue is regulated mainly by Act no. 513/1991 Coll., Commercial Code("CC") in the part on commercial companies (however, the co-operativeis not considered a commercial company in the Czech law).Main characteristics of co-operatives in the Czech law:- it is an association of a variable number of persons (at least five orat least two legal entities)- it has a variable capital created by members’ contributions (sub-scribed capital has to be at least CZK 50.000 = approx. EUR 1900and the amount of the real capital, i.e. the total of current contri-butions, cannot be reduced under this amount); the CC does notregulate “a share” or its size in relation to a co-operative, rather itusually uses the expression “members’ rights and duties”- contributions in cash, as well as in kind are both possible; the sta-tutes may state that in case of termination of membership themember can request to be returned the provided consideration inkind- every member has one vote (if not stated otherwise in the statutes)- membership is conditioned by payment of a member’s contribu-tion or of its part determined by the statutes, it can be further con-ditioned by the fact that a member is an employee of the co-operative- members of a co-operative are not liable for its obligations (how-ever, the statutes may determine that all members or some of themhave a compensation duty for economical losses of a co-operativeupon the decision of the members’ meeting)- members’ rights and duties (membership) can be transferred toanother person if the statutes do not prohibit it- object of activity of a co-operative may be a business activity or anon-commercial activity (i.e. to ensure economical, social andother needs of its members; e.g. housing co-operatives are oftencreated)Foundation and creation of a co-operative- a co-operative is founded upon decision of the foundation mem-bers’ meeting which also adopts the statutes, determines theamount of subscribed capital and elects the first members of theboard of directors and of the control commission- a co-operative is created upon registration in commercial registryBodies of a co-operative (structure)a)members’ meeting(parallel to the general meeting in a commer-cial company)- all members have a right to participate, it shall take place atleast once a year

b)board of directors- is authorized to represent a co-operative and to decide on allaffairs of a co-operative which are not assigned to other bodyby the legislation or by the statutes- shall have at least 3 members- members are elected by members’ meeting for a period deter-mined by the statutes which may not exceed 5 years fromamong the members of the co-operative fulfilling prescribedconditions (age at least 18 years, full legal capacity, without acriminal record, not subject to an insolvency procedure)c)control commission- is authorized to control the activity of a co-operative and todeal with the complaints of members- shall have at least 3 members- is responsible only before the members’ meeting- the function in the control commission is incompatible withthe function in the board of directorsd)director of a co-operative- the statues may state that the ordinary management of a co-operative is executed by a director appointed by the board ofdirectors; this function shall be executed by an employee ofthe co-operativee) “small co-operative”- in case of a co-operative with less than 50 members the sta-tutes may state that this co-operative does not create the boardof directors and the control commission; it is then representedby a president or other member of the co-operative-competition is forbidden for the members of the board of di-rectors and of the control commission and for the director –they cannot pursue the business or be members of the man-agement or supervisory body of other legal entities with thesame or similar object of activity

Use of profit- if a co-operative creates a profit (i.e. revenues are higher thancosts), the members’ meeting during the discussion on annual bal-ance sheet report decides upon the proposal of the board of direc-tors whether it shall be distributed or how it shall be used (as a co-operative may pursue a non-commercial activity and therefore theprimary aim would not be a regular realization of the profit); pro-vision on use of profit is an obligatory element which has to beregulated in the statutes

the amount of the member’s share in profit depends on the propor-tion of its paid contribution to the total amount of all paid contri-butions (if the statutes do not state otherwise)before distributing the profit a co-operative shall supplement theindivisible fund which has to be constituted during the creation ofa co-operative in the amount of at least 10% of subscribed capitaland shall be supplemented annually by at least 10% of the netprofit (profit after tax deductions) up to the amount of the half ofsubscribed capital

Other members’ rightsa) right to distribution share- it arises upon termination of membership when a co-operativecontinues its existence- it depends on the amount of paid member’s contribution, yearsof membership and the total amount of all paid contributionsb) right to share in liquidation balance- in case of winding-up a co-operativeTaxation- profit created by a co-operative is subject to the corporate incometax (in 2009 20%, in 2010 19%)- share in profit paid to a member of a co-operative is further sub-ject to a special tax rate of 15%

Bilag 6: Bidrag fra Tyskland

The German Co-operatives Act (Genossenschaftsgesetz [GenG]) deter-mines the cooperative’s organizational rules including their business con-duct. It was first adopted in 1889 and reformed inter alia in 1973 and2006.Ownership:Under German law a registered co-operative (Genossenschaft) is a mem-ber-oriented and a member-controlled organization, cp. para. 1 (1) GenG.The membership basically includes the share of the co-operative(Geschäftsanteil), the right in the pro rata deposit (Geschäftsguthaben,cp. para. 7 no. 1 [1] ) and in joint management (Mitverwaltung, cp. para.43 ff. GenG) as well as the right to use facilities of the co-operative. Ad-ditional rights and regulations can be conceded by the articles of the co-operative.Composition of the Board of Directors:Under German law a co-operative consists in addition to the general as-sembly of the members (Generalversammlung, cp. para. 43 ff. GenG) ofan executive board (Vorstand, cp. para. 24 ff. GenG) and a supervisoryboard (Aufsichtsrat, cp. para. 36 ff. GenG). The executive board (Vor-stand)manages the co-operative. Except extraordinary decisions theboard is responsible for all day-to-day business activities. The executiveboard has at least two directors who have to be members of the co-operative (cp. para. 9 [2], 24 [2] GenG). The supervisory board (Auf-sichtsrat)consists of at least three persons who also have to be membersof the co-operative (cp. para. 9 [2], 36 [1] GenG). If the co-operative hasnot more than twenty members, only one director is required and a super-visory board is not necessary (cp. para. 9 [1], 24 [2] GenG). Additionallyan audit by a co-operative auditing association is mandatory every year,for smaller co-operatives every two years (cp. para 53 ff. GenG).Return on Capital Contribution and Use of Profits:Each member can basically claim for the pro rata profits of the co-operative corresponding to a decision of the general assembly of themembers. Exceptions may apply due to the Cooperatives Act (e.g. non-payment of capital contributions) or due to the articles of the cooperative.TaxationA co-operative is subject to corporate tax, trade tax and – depending onits types of activities – VAT.

Bilag 7: Bidrag fra Slovakiet

My answer to your first question is YES, there is such legislation. Mostof it forms a part of our Commercial Code, although some parts can befound also in other Acts and regulations. Because of the EC Regulationon European Cooperative Society, SCE legal form (though consideredalso cooperative) has certain features distinctive from Slovak coopera-tives. Nevertheless, most of these are well known from the Regulation it-self, therefore my answers will focus on Slovak cooperatives pursuant toour Commercial Code.1) Ownership: In general, a cooperative is owned by its members (notfewer than 5). Cooperative is a legal entity and its members shall not bearliability for the obligations of the cooperative. However, the articles ofassociation may provide for certain exceptions. Both individuals and le-gal entities may become members. Articles may subject the membershipto certain other conditions (e.g. employment relationship with the coop-erative, etc.)2) The composition of the board of directors: in Slovakia, we provide fora dual board structure– i.e. each cooperative shall have a managementbody and a supervisory body.

3) Profits (after taxation) to be distributed among members are deter-mined by general (members) meeting. The creation of reserves is obliga-tory up to 10% of share capital. Unless the articles provide otherwise, amember’s share in the profits to be distributed is the ratio between theamount of that member’s paid-up contribution and all the members’ paid-up parts of contributions. The share of members whose membershiplasted less than one year shall be reduced pro rata. The articles or a reso-lution of the general (members’) meeting may provide for other methodof distributions.

Endelig besvarelse af spørgsmål 41 alm. del stillet af Erhvervs-

udvalget den 8. december 2008 efter ønske fra Line Barfod (EL).