Realities and myths surrounding the right of voluntary withdrawal of cooperative members

Abstract

The paper addresses the study of the right of voluntary withdrawal of members in Spanish cooperative legislation and in Comparative Law. In Spain, traditionally the doctrine and legislation since General Law 52/1974 of Cooperatives, has considered that the right of the member to separate from the cooperative at any time from the entity, without the need to allege any cause or reason and with the consequent reimbursement of the contributions to the share capital made, is a fundamental and inalienable right of its legal status. However, as the paper demonstrates, the terms in which the International Cooperative Alliance pronounces on the first cooperative principle of voluntary and open membership is not as categorical as it is usually interpreted. Furthermore, the comparative law study carried out shows that the regime of Law 27/1999 on Cooperatives, which is followed by several autonomous laws, is one of the most radical in recognizing, against the possible interests of cooperatives, the right of voluntary withdrawal, which can only be limited by imposing a period of permanence in the statutes that, in general, can be a maximum of one year in duration. However, in some of the autonomous cooperative laws enacted in the last decade (Castilla-La Mancha, Aragón, Extremadura and Andalusia) a clear trend is perceived in favor of being able to severely limit, through the social statutes, the conditions of departure of partners, to extend in certain circumstances the mandatory permanence periods and, in particular, to extend the possible responsibilities of people who leave due to debts and investments made and not amortized by the entity. As a closing of the paper, the case of an agricultural cooperative that wants to close as much as possible the right of separation of its members is presented and it is resolved by applying different Spanish laws and comparative law of cooperatives and an approach is made to the possibility of articulating permanence commitments through shareholder agreements.