Abstract
Colombia has a special legislation for cooperatives and a specific legal structure for these types of entities. The general law that regulates cooperatives is Law 79 of 1988. However, there are other laws and regulations that apply to cooperatives, dealing primarily with the economic activity of cooperatives and in other cases pertaining to the type of cooperative. The specific legal entity known as “cooperative” is a non-profit associative enterprise, different from civil and commercial corporations, as well as from other non-profit private legal persons.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
This law may be found at www.supersolidaria.gov.co (normativa/normas de gobierno/leyes).
- 2.
In Colombia we refer to solidarity economy (economía solidaria) instead of social economy (economía social). There is a limited number (numerus clausus) for commercial corporations (solely those allowed by the legislature may be organized) and an unlimited number (numerus apertus) for non-profit entities (any may be organized, provided they meet certain general characteristics, regardless of the fact that they may not be expressly foreseen by the law).
- 3.
The Political Constitution of 1991 introduced the Social Rule of Law (Estado social de derecho). The former Constitution of 1886 did not include any special provision for cooperatives. These entities could be organized under art. 44, which enshrined in a general manner the right of association. According to art. 1 of the Political Constitution (Constitucion Politica) (C.P.) “Colombia is governed by a Social Rule of Law, organized as a unitary republic…democratic, participative and pluralist, based on the respect for human dignity, on the work and solidarity of the people integrating it and the prevalence of the general interest”.
- 4.
Art. 58, item 3, C.P., expressly provides that, “the State shall protect and promote property associative and solidarity forms”. Art. 60, C.P. states that, “the State shall promote, pursuant to law, access to property. Whenever the State alienates its interest in an enterprise, it shall take measures to democratize the ownership of its shares, and shall offer its workers, solidarity and worker organizations, and special conditions that allow access to such shared property. This matter shall be regulated by the law”. Art. 333, item 3, C.P. provides that, “the enterprise, as the basis for development, has a social function that implies obligations. The State shall strengthen solidarity organizations and shall encourage entrepreneurial development”.
- 5.
The solidarity sector is integrated by cooperatives and other non-profit associations with characteristics similar to those of cooperatives. Solidarity economy organizations include, besides cooperatives, employees and mutual associations. During 2011 the number of cooperatives was 7,848, 2,012 employee funds (Fondos de empleados) and 292 mutual associations (asociaciones mutuales), according to CONFECOOP’s 2012 report. The support bodies are FONES (Solidarity Economy Development Fund -Fondo de Fomento de la Economía Solidaria) and the CONES (Solidarity Economy National Council -Consejo Nacional de la Economía Solidaria), which in practice have not shown special relevance, since the national integration bodies CONFECOOP (for cooperatives) and ANALFE (for employee funds) have become the spokespersons of their respective organizations. State supervision and development entities are mainly comprised by the Superintendence of Solidarity Economy (Superintendencia de la Economía Solidaria), FOGACOOP (Guarantee Fund for Cooperatives) and the Special Administrative Unit for Solidarity Organizations (which forms part of the Ministry of Labor and is in charge of strengthening and promoting the solidarity sector).
- 6.
Regarding the manner to fill the gaps in cooperative law, art. 158 of Law 79/88 establishes that: “Those cases not foreseen hereunder or in its regulations shall be resolved mainly pursuant to the doctrine and to generally accepted cooperative principles. The last resource for their resolution shall be the general provisions on associations, foundations and corporations that due to their nature may apply to cooperatives”.
- 7.
Savings and credit cooperatives (cooperativas de ahorro y crédito) may only collect savings and provide credit to its members. These cooperatives are supervised by the Superintendence of Solidarity Economy. Financial cooperatives (cooperativas financieras) may extend their services to non-associate third parties and develop more operations than savings and credit cooperatives: among others, they may perform international exchange operations, collect fixed term deposit certificates (CDT) and grant endorsements. They are supervised by the Financial Superintendence, which supervises commercial banks. Cooperative banks (bancos cooperativos) can render services to non-associate third parties, in furtherance of the operations allowed to other types of cooperatives; they can hold banking accounts and develop all the operations authorized to commercial banks. The Financial Superintendence supervises cooperative banks. Cooperative banks (three in 1995) disappeared due to the financial crisis of the 1990s, but at least three of them will soon be authorized to operate as cooperative banks.
- 8.
Likewise, a juridical culture has developed within the solidarity sector, in such a way that when a new regulation is issued, all the organizations of the sector are informed and they seek to adjust as soon as possible to the new regulation. Thus, this has not prevented the existence of the so called “pseudo-cooperatives”; namely companies disguised as cooperatives pursuing profitable or illicit purposes, which take advantage of tax and other advantages granted by the regulations to cooperatives, for interests alien to those pursued by authentic cooperatives.
- 9.
Depending on whether they are worker cooperatives or cooperatives of services to members, these cooperative acts can be classified as work cooperative acts (providing jobs to their members) or services cooperative acts (for instance, trading, consumption, credit, housing, and education).
- 10.
Regarding the cooperative as a social legal type, it is necessary to clarify that in a general manner, legal entities of Colombian private law are comprised of foundations, associations and uni-personal entities. Foundations are defined as equities having a specific destination. Associations are groups of individuals joined through a common interest. Uni-personal entities are legal persons created by a sole entity, as in the case of simplified public companies with one sole shareholder (Sociedad por Acciones Simplificada—S.A.S.), or those called “assistant institutions” (instituciones auxiliares) of cooperative and solidarity economy, which are organized by one cooperative or another type of solidarity organization. Within the gender of associations, there is a difference between corporations (civil and commercial), which are deemed profit entities, and associations in strict sense, which are non-profit associations. Non-profit associations include enterprises (as in the case of cooperatives and other organizations of solidarity economy) and non-enterprises (such as Guild associations, unions or political parties). Thus, cooperative legislation deems cooperatives to be non-profit associative enterprises (empresas asociativas sin ánimo de lucro).
- 11.
Sarmiento Reyes (1994), p. 20.
- 12.
With the passing of the aforementioned regulations and the implementation of greater controls, the purging effect was immediate. Prior to their passage, worker cooperatives in the country had reached nearly 13,000 (the majority were pseudo-cooperatives where the worker cooperatives (the employer) did not have autonomy, but after the new regulations the number was reduced to less than 2,000.
- 13.
The former legislation (Decree-Law 1598/63 allowed two types of limited liability: limited and supplementary, similar to Prussian Cooperative Law).
References
Sarmiento Reyes AJ (1994) Unterschiede und Gemeinsamkeiten zwischen der gesetzlichen Betrachtung der Genossenschaften in Deutschland und Kolumbien [Differences and similarities in the legal treatment of cooperatives in Germany and Colombia]. Trabajo de Magister, Magna cum Laude, Universidad de Marburg, Alemania RF, Marburg
Further Reading
Guarín Torres B (1991) La Autonomía del Derecho Cooperativo [The autonomy of cooperative law]. Ponencia Presentada en el I Encuentro Nacional de Abogados sobre Derecho Cooperativo. Santafé de Bogotá, DC
Katime AO, Sarmiento Reyes AJ (2005) Hacia la construcción del Derecho Solidario en Colombia [Towards the construction of solidarity law in Colombia]. Universidad Cooperativa de Colombia, Medellín
Márquez Correal I (1981) Reseña Histórica de la Economía Solidaria en Colombia [Historic review of solidarity economy in Colombia]. Fondo Editorial Cooperativo, Ediciones Coocentros, Bogotá, DC
Sarmiento Reyes AJ (2009) Curso de Derecho de la Economía Solidaria [Course on solidarity economy law]. Universidad Cooperativa de Colombia. Conferencias, Bogotá, DC
Sarmiento Reyes AJ (2010) Las asambleas generales de las cooperativas [General meetings of cooperatives]. Pontificia Universidad Javeriana, Bogotá, DC
Sarmiento Reyes AJ, Guarín Torres B (2003) Aspectos Legales de la Gestión Cooperativa [Legal aspects of cooperative management]. Pontificia Universidad Javeriana, Bogotá, DC
Superintendencia de la Economía Solidaria. Circular Básica Contable y Financiera No 004 de 2008 [Superintendence of Solidarity Economy. Basic Accounting and Financial Circular Letter n. 004 of 2008]
Superintendencia de la Economía Solidaria. Circular Básica Jurídica No 007 de 2008 [Superintendence of Solidarity Economy. Basic Legal Circular Letter n. 007 of 2008]
Uribe Garzón C, Francisco de Paula J, Guarín Torres B (1991) Crítica de la Legislación Cooperativa [Critical assessment of cooperative legislation]. Fondo Nacional Universitario, Bogotá
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2013 Springer-Verlag Berlin Heidelberg
About this chapter
Cite this chapter
Reyes, A.J.S. (2013). Colombia. In: Cracogna, D., Fici, A., Henrÿ, H. (eds) International Handbook of Cooperative Law. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-30129-2_15
Download citation
DOI: https://doi.org/10.1007/978-3-642-30129-2_15
Published:
Publisher Name: Springer, Berlin, Heidelberg
Print ISBN: 978-3-642-30128-5
Online ISBN: 978-3-642-30129-2
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)