ࡱ> $~7bjbj$4<@, iiiii}}}8LL}M)???ٛۛۛۛۛۛۛ$VNqiii??pnnn*^i?i?ٛnٛnn?q3.}Dy eś0{FچF,Fi8nnF  /:$COOPERATIVES AND THE EQUALITY OF LEGAL PERSONS BEFORE THE LAW: LESSONS FROM SLOVENIA Franci Avsec, Dolores Modic, High School of Business and Management Novo mesto, Slovenia Introduction The cooperative movement in Slovenia has a long history, with many ups and downs, mainly due to the changing legislation and attitudes of a broader public policy towards cooperatives. The first cooperatives on the Slovenian national territory emerged in the second half of the 19th century, mainly as financial (savings and loan) associations which were based on self-help of artisans in towns and of farmers on the countryside. The credit cooperatives managed to eradicate the usury preventing many a farm from coming under the auctioneer's hammer. On the other hand, they paved the way for supply and marketing, housing, insurance, workers' (manufacturing) and other cooperatives (Adami , 1999). The world economic crisis in the thirties of the XXth century pushed farmers, which still represented the major part among the Slovenian population, into great indebtness. The credit cooperatives found themselves in a difficult position towards their members. While farmers could not pay back their loans regularly, credit cooperatives could not pay out savings. The problem was mitigated by a government intervention, according to which credit cooperatives and similar banking institutions wrote off a certain part (in principle, a quarter) of farmers' debts against their own account, while another quarter of the credit institution's claim was transferred on the government sponsored enterprise - the Privileged Agrarian Bank (PAB, see, Lazarevi, 1994). After the Second World War, the whole cooperative system was radically reorganized. Credit cooperatives which were the backbone of the pre-war cooperative movement, were wound up by a governmental Order from 1947. Cooperatives in other sectors merged or were liquidated. Following the Soviet example, the cooperative system was officially defined as a support of the state sector of economy and the policy saw cooperatives as an appropriate tool to direct small and middle farmers, artisans and similar producers towards a voluntary socialization of the production means. Large industrial, banking and insurance enterprises as well as large agricultural holdings had been entirely or partially nationalized already in first years after the war (Prin i , 1996; Adami , 1999). The political campaign to establish agricultural worker cooperatives in private agriculture (after the model of the Soviet kolchose) from 1948 to 1953 failed. At its peak, this type of cooperatives encompassed only a tiny percent of all private agricultural land. The assets brought in these cooperatives were thereafter returned to their owners, but political pressure on farmers to join these cooperatives had compromised the image of cooperatives on the whole. Throughout the whole post-war period, the major part of agricultural land and forests remained to be private property. After the Yugoslavian break-off with the Soviet block in the end of the forties in XXth century, the so called self-management system based on the so called social ownership was introduced. The main features of this system were to a great extent borrowed from the cooperative movement and its ideas. However, the system was imposed politically and not chosen voluntarily. At first, cooperatives proved to be quite successful and flourishing business organisations, in particular in private agriculture. However, as the developing of social ownership presupposed the withering direct influence of the state as the founder of socially owned entreprises, the employees gradually assumed the main role in the formal governance not only in the non-cooperative entreprises, but also in cooperatives. The role of members began to weaken and cooperatives were gradually loosing their specific features, while their property was transformed into a socially owned capital. In this period several food processing and agricultural inputs producing entreprises became independent from the founding cooperative organizations and their unions (all cooperative unions even stopped their activity in the period from 1962 to 1972) and cooperatives were gradually deprived of all formal governance and property rights against these entreprises ( eferin, 1990; Adami , 1999). The period of transition from social ownership to market economy overlapped with the emancipation of Slovenia as an independent state in 1991. The new Slovenian Act on Cooperatives from 1992 reflects the political standpoint that a cooperative movement is a constituent part of the so called social market economy model (soziale Marktwirtchaft) and that adequate measures are necessary to enable cooperatives to resume a role they play in comparable foreign countries with market economy tradition, or a role they already played once in the Slovenian economy, respectively (Toplak, 1992). The Act on Cooperatives comprises not only organizational provisions, characteristical for corporation law, but deals also with some privatization issues in favour of cooperatives. According to Chapter X of the Act, cooperatives, in particular in agricultural sector, were granted up to a 45-percent share of the socially owned capital in 45 food processing enterprises, expressly listed in the Annex to the Act. On the other hand, cooperatives and their unions were entitled to claim the restitution of the former cooperatives' property which was nationalised or transferred without consideration on non-cooperative entities after the Second World War. Since at the time when the Act was adopted there were no credit cooperatives, but only savings and loan services as credit institutions founded by the agricultural and other cooperatives, the Act on Cooperatives provided that the rightful claimants for the property of former credit cooperatives and their unions were the Union of savings and loan services of Slovenia (founded already in 1971) and the newly founded (in 1990) Slovenian Cooperative Agricultural Bank. Several entreprises where cooperatives were granted a part of their socially owned capital, were not satisfied with these specific provisions. Not less than 18 entreprises mentioned on the list in the Annex to the Act, challenged the constitutionality of these provisions already in 1992. Five years later, a similar proceeding before the Constitutional Court dealt exclusively with the restitution of property which had belonged to the former credit cooperatives. On the other hand, after Commercial Companies Act (ZGD, 1993) which contained detailed provisions about commercial companies entered into force and the privatization of the economy was practically accomplished, several provisions were adopted which regulated the conditions for carrying out certain activities, for membership or shareholding in certain corporations and for granting of state aid, which ignored cooperatives or discriminated cooperatives against commercial companies. Therefore, cooperatives initiated several proceedings before the Constitutional Court to challenge these provisions. The paper briefly summarizes the standpoints developed by the Constitutional Court backing the legislative solutions (part 2) and provides some critical remarks (part 3) before conclusion (part 4). The constitutional review of specific provisions treating cooperatives differently than other economic subjects, above all, commercial companies 2.1. Participation of cooperatives in privatization of certain entreprises The entreprises which were affected by the specific provisions in the Act on Cooperatives granting cooperatives up to a 45-percent share of socially owned capital (on the basis of the business transactions, for instance, volume of the milk or grain sales between individual entreprise and cooperatives in the five-years period, from 1986 to 1990) claimed that these provisions were not in accordance with article 14 of the Constitution (equality before law) as well as with the ɫ Pact on economic, social and cultural rights. The Constitutional Court found out that the impugned provisions had been adopted in order to repair injustices to cooperatives and their members, created with the equating of cooperatives with socially owned entreprises, amd that the legislator when adopting these solutions was lead by the common aim of greater economic efficiency (Constitutional Court, 1994, p. 128). In conclusion, the Court meant that basic constituional principles and provisions were not violated stating: The State of Slovenia is in a transitional period in which both political and social systems are being adopted, and, in this connection, it is also in transition from a social ownership to a private ownership concept, with an associated market economy. The legal basis for arranging ownership-legal relations is article 67 of the Constitution. In accordance with this constitutional provision, the legislator determines with individual laws, the ways and conditions of the privatisation of companies. The Act on cooperatives, or the impugned section X of this act, must be considered in this category of law. Since the impugned provisions of the act refer to the Act on the privatisation of companies, it is also necessary in judging the constitutionality of these legal provisions to consider the entire legislation which arranges this matter. Since the search for ways and conditions for privatisation is, according to the Constitution, in the competence of the legislature, it must have in the transitional period, insofar as it relates to society, sufficient space to implement and establish its legal, economic, social and political aims in a way which it itself considers the most suitable, though it may not, of course, violate basic constitutional principles or constitutional provisions, including the right to equality before the law. It must be stressed, however, that equality before the law is not absolute, but only relative, otherwise it would not be possible to imagine an effective legal system, since the legislature would have no possibility of distinguishing among subjects and situations. The principle of equality binds the legislature to deal equally with related situations, which is not a bar to treating differences differently. () In this case different subjects and different circumstances are concerned and from this point of view, it is not possible to conclude that the legislature violated the principle of equality, or article 14 of the Constitution. The level of ownership share is a matter of relativity which the Constitutional Court is not competent to judge. (Constitutional Court of the Republic of Slovenia, 1994, p. 129). Rightful claimants regarding the restitution of property belonging to former credit cooperatives The Act on Cooperatives defined the Union of savings and loan Services and the Slovenian Cooperative Agricultural bank as two rightful claimants to denationalisation of property belonging to the former credit and insurance cooperatives as well as their unions. One of the companies which was liable to restitute a part of property according to the Act, challenged the constitutionality of the provision arguing that the rightful claimants were not the legal heirs of the former credit and insurance cooperatives or their unions, having obtained a specifically favourable position since they showed no continuity with credit cooperatives and cooperative insurance companies and their associations whose assets were nationalised. The proposer was of the opinion that the legislator had not had a constitutional basis for legislating a special position of rightful claimants under this provision of the Act. The Court stated that: the legislator derived from the objective fact that cooperative credit companies ceased to exist without legal successor. In determining the Union of savings and loan services of Slovenia and Slovene Cooperative Agricultural Bank as rightful claimants to denationalisation, the legislator thus respected the purpose of the assets which these had prior to nationalisation, and the fact that these two institutions are intended to encourage cooperative forms. (Constitutional Court of the Republic of Slovenia, 1997, p. 3656). The Constitutional Court justified the adopted legislative solution also with the teleological argument derived from the principle provision about the promotion of cooperative movement (Art. 3 of the Act on Cooperatives): Effects of cooperative organisation contribute to the success of the whole national economy, while members of cooperatives and their organisations have direct benefits from cooperative organisation. With denationalisation, which the legislator legislated with the special provision of article 67 ZZ to the advantage of the Union of savings and loan services of Slovenia and Slovenian Cooperative Agricultural Bank, the nationalised assets again obtained their original purpose and in terms of extent, will again significantly contribute to the development of cooperative association. (1997, p. 3657). Access of cooperatives to shares of management companies The former Act on Investment Funds and Management Companies from 1994 was adopted to provide a legal basis for a special method of privatization which was carried out through exchange of ownership certificates (issued by the government to each citizen) for shares of investment funds. Investment funds were managed by the management companies. These funds could buy-out on public auctions from the government a certain percent of shares issued during the privatization of socially owned enterprises. Pursuant to Art. 8 of the former Act, only capital companies or natural persons were allowed to hold shares in a management company and no other legal person was allowed to hold a share directly or indirectly in a management company. Exceptionally a bank or saving institution was allowed to be a shareholder of management company, although its owners were legal persons, which would have been otherwise excluded from direct or indirect shareholding in a management company. The Cooperative Union of Slovenia and a cooperative challenged the provision before Constitutional Court arguing that the Act violated the Constitutional principle of equality discriminating cooperatives against capital companies regarding the shareholding in management companies. The Constitutional Court repeatedly stated that the equality before law did not mean a general equality of all subjects and therefore does not prevent legislator to treat differently positions of legal subjects, but prevent it to do so arbitrarily, without a sufficient and objective ground. For a different treatment must exist a reasonable, from the nature of thing originating ground. The legislator is authorized in the boundaries of its competence to lay down criteria for the decision what factual circumstances are similar to such an extent that equal legal consequences will apply and what factual cirumstances are different so much that by their legislative regulation must be distinguished from others. the economic function of cooperatives is compared with other (sic! - remark of the author) capital companies (shareholders companies, limited liability companies), the legislator was authorized to exempt cooperatives from being authorized to found or held a share of management companies. If cooperatives, besides capital companies, had taken part in establishing the management companies, interest conflicts may have arisen in the governance of the management companies. This situation would create not only conflicts of interests between the shareholders, but would also infringe interests of small investors. The mingling of private property with cooperative property and the nature of a cooperative may lead to situations in which cooperatives may enforce different business and ownership interests through management companies, and make benefits for their members to the detriment of other shareholders. Because the legislator had a reasonable and objective grounds for discrimination, no infringement of principle of equality principle is found, as the plaintiff submits (Constitutional Court, 2000, p. 7799). The Constitutional court also refused to find the challenged regulation incompatible with the constitutional provision of free economic initiative, which is restricted by the public welfare: Public welfare requires that a certain economic subject performs its activities in conformity with the intention for which it was established. The economic activities of cooperatives, on the one hand, contradicts or is in conflict with the economic activities of management companies and the economic activities of their founders, i.e. capital companies, on the other hand (Constitutional Court of the Republic of Slovenia, 2000, p. 7799). Access of cooperatives to different activities After the WWII, the credit cooperatives in Slovenia were wound up, their property was transferred to state banks. For a short period, a specific form credit cooperatives as a second level associations of agricultural cooperatives was allowed in the 1950s, but their activities had to stop soon after the new legislation on municipal banks entered into force. In 1969, the agricultural cooperatives and forestry enterprises were allowed by a special Act to organize the so called savings and credit services which were at first established as organizational units of agricultural cooperatives. Their business consisted of gathering savings from farmers, cooperative employees and other rural inhabitants as well of lending the money so collected for investments on agricultural holdings and for other purposes. In 1980, the savings and credit services became independent legal persons governed by agricultural cooperatives, forestry cooperative organizations and similar entities as their founding members. No minimum capital was prescribed for the establishment and activity of an savings and credit service, since tha Act provided that the founders of a service were jointly and severally liable. After Slovenia signed and ratified the Association Agreement with the European Union and began to harmonize its legislation with the EC banking directives, which provided for minimum capital of credit institutions, the Banking Act from 1999 prescribed that the savings and credit services had to adjust their business and organization with the requirements regarding the minimum capital, risk management, liquidity risks, books and annual reports, internal auditing, large exposures, reporting and deposit-guarantee schemes. The National bank (Bank of Slovenia) issued a special Decision on adjustment of serving and loan services, providing for a five year period during which these services had to adjust themselves entirely with the new requirements. Several options were discussed. Several services merged with the central Union which had itself the status of a savings and loan service. However, also the Union did not decide to continue its activity as a credit institution, but transferred all its assets and banking activity on the Slovenian Cooperative Agricultural Bank in return for shares in this Bank. The Banking Act from 2006 which is currently in force provides that a bank may be established only in the form of shareholding company and does not contain any provisions about savings and loan services, which ceased their activity. In 2005, the Union of saving and loan services of Slovenia transformed itself into a cooperative whose aim is, on the basis of relatively major capital share (45,82%) in the cooperative bank (now renamed as Country Bank Ltd), to contribute to as favourable as possible access of cooperatives to credit and other banking services. Cooperatives altogether hold shares slightly exceeding 50% of the banks capital. According to the Directive 2006/48/EC a Member State of the European Community is bound to provide that any credit institution authorised and supervised by the competent authorities of another Member State may carryout banking activities within its territory, either by the establishment of a branch or by way of the provision of services, provided that such activities are covered by the authorisation (Art. 23). That means that credit instituions established as cooperatives in other Member States may carry out their business on the territory of Slovenia although in Slovenia, credit cooperatives are not allowed. The list of foreign credit institutions authorized for banking activities in Slovenia (published on the internet site of the National Bank) states 33 credit cooperatives from the neighbouring Austria and 2 credit cooperatives from the neighbouring Italy (Banka Slovenije, 2009). Since cooperatives have not been allowed to deal with banking activities, there has been neither initiative nor request to put this restriction to test before the Constitutional Court. However, some activities previously allowed were after transition prohibited to cooperatives. According to the Construction Act from 1984, cooperatives could carry out construction activities (ZGO, 1984, with subsequent amendments). After the Act on Cooperatives from 1992 and Commercial Companies Act from 1993 entered into force, the Amendments of the Construction Act from 1996 laid down that the constuction activity might be carried out only by commercial companies and independent entrepreneurs registered for this activity. Three cooperatives which had to stop their construction activity in 15 months after the Amendment entered into force, challenged the constitutionality of this provision before the Constitutional Court. The proposers justified their initative that the exclusion of cooperatives violated the principle of equality before the law (Art. 14 and 74 of the Constitution). The Court, however, stated that the first sentence of Art. 74.2 of the Constitution had to be understood in a sense that in determining the conditions there were not only substantial conditions to be considered for establishing companies but also the conditions to define legal-organization forms to carry out commercial activities and the basic characteristics of these forms. The Court added that neither the principle of equality was not violated because the legislature had sound reasons for such discrimination due to the fact that the economic function and the purpose of cooperatives differ from other commercial subjects. The judgment quotes following differences between cooperatives and commercial companies: a cooperative has a specific aim to promote the economic interests of its members and that is the main reason why it is recognized as a special type of legal persons, for a cooperative, the Act provides neither minimum capital nor unlimited liability of the members, while the commercial companies are based either on unlimited liability or on minimum capital, a cooperative is governed by the members who have in principle equal voting rights, while the number of votes is differently distributed among shareholders in commercial companies, the aim of a cooperative is to promote the economic interests of its members primarily and prevalently on the basis of transactions made with a cooperative, while the commercial companies distribute profit proportionally to the passive, i. e. capital participation of their shareholders (Constitutional Court, 2002). Critical remarks to the opinions of the Constututional Court regarding the discrimination of cooperatives against commercial companies As it could be seen from the judgments cited above, the Constitutional Court generally backed the the legislative solutions in terms of positive as well as negative discrimination of cooperatives compared to other legal forms in which economic subjects may be established. All cases of positive as well as negative discrimination of cooperatives were justified by the Court on the ground of substantial differences between the legal status of cooperatives and of commercial companies. The Court argued that public welfare might impose not only substantial requirements, but also a certain legal form an individual economic subject (entreprise) must assume in order to carry out certain activity. A critical assessment of the Courts argumentation seems to be more necessary in cases of negative discrimination. The positive discrimination is related to provisions which had a temporary character (although they might have also long-term consequences) and affected only cooperatives fulfiling certain conditions, while the provisions restricting shareholding in management companies and carrying out of construction activities affected all cooperatives simply due to their legal form. Secondly, cooperatives represent a minority among the legal forms assumed by economic subjects in Slovenia, so they are more vulnerable to cases of negative discrimination. Table  SEQ Table \* ARABIC 1: Registered economic subjects in Slovenia according to their legal form (2006-2008, at the end of calendar year) Business type / Year2006200720082006Cooperatives479488417319Commercial companies48300521275573945330Individual entrepreneurs64297671177090359692Source: AJPES, 2007b -2009b. Table 2: Active economic subjects in Slovenia (which submitted annual accounts) according to their legal form (2006-2008) Business type / NumberTurnover (million of )Average number of employeesYear200620072008200620072008200620072008Cooperatives319315301734778861369534653457Commercial companies453304878151997668567796085555478839499465510754Individual entrepreneurs596926293067322498656105926596926154863371Source: AJPES, 2007-2009; AJPES, 2007a -2009a. The grounds for the judgment relating to the alleged public interest preventing cooperatives from holding a shares in management companies are very general and vague that it is difficult to be understood and analized in detail. First of all, the Court, while stating that cooperatives as shareholders might bring conflicts in the governance of a management company, started from a hypotesis that individuals and capital companies as shareholders did not introduce such conflicts overlooking that the management of conflicts between shareholders was a matter of general provisions in Act on Commercial Companies as well as special provisions relating to management companies. The restriction proved to be valid until 2002 since it was abolished by the current Act on investment funds and management companies, which introduced administrative control over the acquisition of qualified shares (it is interesting that the Constitutional Court did not aknowledge that a low share of cooperatives could not provoke conflict of interest of intensity that would threaten the alleged public welfare). After Slovenia joined European union on May 1st, 2004, the restriction could violate the principle of free movement of capital according to the Treaty founding the European Community. The arguments of the Constitutional Court were explained in a more detailed way in the judgment concerning the exclusion of cooperatives from construction activities and can be discussed in the same order as were quoted above. Regarding the different aims that are pursued, according to the legislation, by cooperatives on one side and by commercial companies on the other side, it must be said that the seemingly substantial and mutually exclusive differences follow from different approach of legal definitions. While the commercial companies are defined from the viewpoint of their gainful activity on the market (Art. 1(1) of the Act on Commercial Companies), a cooperative is defined entirely from viewpoint of its internal characteristics relating to promotion of economic interests of the members as the aim of a cooperative, od the transaction relationships between a cooperative and its members as well as of the members' governance of the cooperative. So, the Slovenian Act on Commercial Companies defines a commercial company as a legal person which independently pursues an activity with a view to profit in the market as its exclusive activity (Art. 1(1)). However, if the Act on cooperatives provides that one of distinct features of a cooperative is its aim to promote the members' economic interests (Art.1(1)), these aim does not negate the fact that a cooperative carries out its activity in the market. On the contrary, the specific aim of a cooperative is concretized by the transactional relationship between members and their cooperative as the typical way to realize the cooperative's aim (Art. 2(2)). Like commercial companies, also cooperatives must strive that their revenues exceed expenses, i. e., that the difference beween revenues and expenses is rather positive than negative. The negative difference would mean that more value was spent than created for the services a cooperative offered to its members. The loss as a negative difference between revenues and costs must be, if the reserves of the cooperative are not suffficient, ultimately covered so that the members' shares are whola or partly lost, and in addition, members may even incur liability for the obligations of a cooperative, if so provided. Therefore it could be said that compared with commercial companies, cooperatives really have a more narrowly defined, member-centred purpose. However, one can not claim that cooperatives have an aim completely different from that of commercial companies. The realization of the cooperative's aim in principle excludes a loss as a negative difference between revenues and expenses, favouring, if not even presupposing a profit, as the accounting principle of prudence must be taken into account. In a market economy based on competition, a cooperative with a greater surplus would regularly be capable to satisfy the members' economics needs better than its competitors, so that the efficiency of a cooperative may be a factor of its survival and development in the market. However, the profit or non-existence of the loss is only a necessary, but not sufficient condition that the basic aim (mission) of a cooperative, i. e., promotion of members' interest through various transactions between members and their cooperative, is fulfiled. Therefore, it could be said, that profit is not the exclusive motive of cooperative business, but serves as a basis for realization of the main aim of a cooperative. The difference between the revenues and expenses is in accounting and taxation legislation commonly called profit. The Slovenian cooperative legislation defines the positive difference between revenues and expenses of a cooperative as a surplus, since it mainly stems from business the cooperative does with its members. It is interesting that the Corporations Tax Act does not provide any special provisions for cooperatives compared to commercial companies, placing the cooperatives in corporate taxation of profit (not surplus) on the same level as commercial companies. On the other hand, cooperatives may to a certain extent enter also into transactions they primarily conclude with their members, also with third persons (non-members). This part of business may attain a considerable volume, but may not outweigh the typically cooperative's transactions with members. Transactions with non-members in cooperatives are carried out in the same way as in commercial companies. The difference between the legally defined aim of commercial companies and cooperatives seems to be not so insurmountable also if we take into account that it is legally admissible that a commercial company concretizes its aim in a way which is typical for cooperatives, namely to promote the economic needs of its shareholders by doing business exclusively or primarily with them. There is no explicit or implicit prohibition against such aim of a commercial company in the Slovenian Commercial Companies Act. There is also no mandatory provision in the law imposing that each legal person whose aim is to promote the economic needs of its members through doing business with them is bound to incorporate as a cooperative. Also the German and Austrian corporation law, which served as an example for the Slovenian legislation in this area, are interpreted in the same way. The standpoints of literature emphasize that a cooperative is not a mandatory legal form for an association aiming at promoting the economic interests of its members (Rechtsformzwang). On the contrary, commentators of the German Coopeatives Act emphasize, that besides the registered cooperatives (eingetragene Genossenschaften) there are also non-registered cooperatives, i. e. associations, which may have the same promotional aim like cooperatives but are registered as shareholders' companies, companies limited liability and other corporations (Beuthien, 2004). The newer theory about profit and non-profit corporations emphasizes that a continuous approach to the profit/nonprofit issue is closer to reality than a dichotomous one, taking into account: 1) the distribution of surplus; 2) the remuneration of capital and 3) the economic and social value (Levi, 2005). The standpoint that cooperatives do not have a sufficient capital base due to the non-existence of unlimited personal liability of their members (compared with partners' unlimited liability for partnerships) and to the non-existence of the fixed amount of the share capital (the minimum level of which is, in the Slovenian legislation prescribed for joint stock companies and companies limited by shares) seems to overestimate the importance of these requirements and not to take into account other factors by which cooperatives could increase and maintain their capital on a certain level. While the unlimited liability is practically limited to the value of disposable assets of partners, the statutorily prescribed amount of minimum capital for the so called capital companies is fixed at such a low level, that it represents rather a criterium for seriousness than a sufficient guarantee for a certain business and risks connected with its type and volume (Schmidt, 1997). On the other hand, discussing about the risky capital variability of cooperatives, the Constitutional Court overlooked some provisions of the Slovenian Act on Cooperatives which contribute to a greater capital base of cooperatives. One of them lays down the permanent obligation of a cooperative to increase the legal reserves by a certain percentage, at least 5 % of the net income (capital companies are bound to increase obligatory reserves only until the they achieve a certain amount in comparison with the share capital). The Constitutional Court neither took into account a wider scope of cooperative auditing, at least partly compensating the risky variability of capital. Finally, cooperatives have also non distributable reserves which may not be divided among members before the winding up of a cooperative or even in the case of winding up, so that the assets which value corresponds to these part of capital keeps its destination, being assigned, through a cooperative union, to another cooperative, primarily in the sector and on the territory where the former cooperative was active. Recent statistical research has revealed that on average a cooperative is equipped with more equity than a commercial company, while the major part of cooperatives' equity originates from the intergenerationally accumulated property which may not be divided among members even in the case of winding up of a cooperative. The equal voting rights are really a characteristical feature of cooperatives, but even the ɫ Cooperative Alliance (2009) requires the equality of voting rights only for primary cooperatives, while the legislation mostly permit that the articles of incorporation may depart from this principle on an objective basis either without further restrictions (so, for instance, Art. 18 of the Slovenian Act on cooperatives) or to a certain extent (so, for instance, Art. 59 of the Regulation 1435/2003/EC about the statute of Europoean Cooperative Society). The number of votes belonging to a shareholder in commercial companies are regularly based on the number of paid-in shares, but the legislation allows the articles of incorporation to introduce non-voting shares or to establish maximum number or percentage of all votes belonging to a single shareholder. This restrictions may, in an extreme case, result in the equal voting rights of shareholders. Table 3: Liabilities and structure of equity capital in annual accounts of commercial companies and cooperatives for 2008 (thousand of ) Commercial companiesCooperativesAccounting itemAll companiesAverage companyAccounting itemAll cooperativesAverage cooperativeLIABILITIES1042981742006LIABILITIES5720491900A. Capital36342883699A. Capital269381895I. Called-up capital13567891261I. Indivisible cooperative capital1868086211. Obligatory shares15944532. Voluntary shares553018II. Capital reserves9207692177II. Capital reserves2884596III. Profit reserves486920594III. Profit reserves2815494IV. Revaluation surplus162028431IV. Revaluation surplus1885663V. Net profit brought forward6882487132V. Net profit brought forward1629154VI. Net loss brought forward129604425VI. Net loss brought forward1301243VII. Net profit in the accounting period287264455VII. Net profit in the accounting period614120VIII. Net loss in the accounting period138127527VIII. Net loss in the accounting period27039Source: AJPES, 2007-2009. The distribution of profit proportionally to business with members in a cooperative and proportionally to capital shares in commercial companies is not a mandatory rule which would bind all cooperatives and all commercial companies without exception. So, for instance, the articles of incorporation of a cooperative may exclude the distribution of profit among members (see, for instance, Art. 67(3) of the Regulation 1435/2003/EC) and may also lay down other criteria for the profit distribution (see, for instance, Art. 45 of the Slovenian Act on cooperatives). Conclusion There are some inconsistencies in the cooperative legislation as well as in the broader public policy towards cooperatives in Slovenia since its transition. They can be briefly summarized resumed as fostering the cooperative movement by some measures (restitution of the former cooperative property) and restricting access of cooperatives to certain activities and shareholdings or memberships in comparison with other economic subjects, above all commercial companies. Although some restrictions have been abolished, new ones have emerged in some other areas. So, for instance, the new Act on Economic Chambers (2006) grants newly established cooperatives only a associated and not full membership. The full membership is open only for commercial companies and individual entrepreneurs. The Constitutional Court justified such a discrimination again with the alleged difference between cooperatives and other economic subjects (Constitutional Court of the Republic of Slovenia, 2009). The arguments the Constitutional Court developed to justify more restrictive provisions against cooperatives in comparison with commercial companies seem not to be sufficiently persuasive, since the legislation leaves a broad field of internal autonomy to both cooperatives as well as commercial companies for a more detailed regulation of their aim (mission), allocation and distribution of profits and governance. Thus, a cooperative may, at least to a certain extent, introduce solutions typical for commercial companies (investor members, for instance), while the commercial companies may, at least some of them, follow some cooperative principles regarding the distribution of profit, governance and even the basic mission, characteristical for cooperative. Since the cooperative aim and the cooperative way of doing business may be realized in different legal forms, the opinions of the Constitutional Court that restrictions provided for cooperatives are due to insurmountable difference between cooperatives and commercial companies are not convincing. The viewpoints of the Constitutional Court could be critised also for neglecting of the proportionality principle, which is inherently connected with the rule of law. In analysed cases the Court never checked if the restrictions for cooperatives were really necessary and proportional to their aim or whether the aim could be achieved with less burdensome restrictions. The third critical remark may refer to the reasoning dealing exclusively with theoretic and formal aspects, although, as the statistical evidence shows, the reality could be different from that what can be concluded only from interpretation of legal provisions actually in force. References Adami , F. (1999). Razvojna obdobja slovenskega zadru~niatva in njegovi nosilci. In `uatar, M. (ed.), Zadru~niatvo v eraj, danes, jutri (pp. 53-63). Dobrepolje: Ob ina; Ljubljana: Ministrstvo za kmetijstvo, gozdarstvo in prehrano: Ministrstvo za znanost in tehnologijo. Agencija za javnopravne evidence in storitve (AJPES). (2007). Informacija o poslovanju gospodarskih dru~b v Republiki Sloveniji v letu 2006. Retrieved June 15, 2009 from  HYPERLINK "http://www.ajpes.si/Statisticno_raziskovanje/" http://www.ajpes.si/Statisticno_raziskovanje/ AJPES. (2007a). Informacija o poslovanju samostojnih podjetnikov posameznikov v Republiki Sloveniji v letu 2006. Retrieved June 15, 2009 from  HYPERLINK "http://www.ajpes.si/Statisticno_raziskovanje/" http://www.ajpes.si/Statisticno_raziskovanje/ AJPES. (2007b). Podatki o tevilu poslovnih subjektov, vpisanih v Poslovnem registru Slovenije na dan 31. 12. 2006. Retrieved June 15, 2009 from  HYPERLINK "http://www.ajpes.si/Statisticno_raziskovanje/" http://www.ajpes.si/Statisticno_raziskovanje/ AJPES. (2008). Informacija o poslovanju gospodarskih dru~b in zadrug v Republiki Sloveniji v letu 2007. Retrieved June 15, 2009 from  HYPERLINK "http://www.ajpes.si/Statisticno_raziskovanje/" http://www.ajpes.si/Statisticno_raziskovanje/ AJPES. (2008a). Informacija o poslovanju samostojnih podjetnikov posameznikov v Republiki Sloveniji v letu 2007. Retrieved June 15, 2009 from  HYPERLINK "http://www.ajpes.si/Statisticno_raziskovanje/" http://www.ajpes.si/Statisticno_raziskovanje/ AJPES. (2008b). Podatki o tevilu poslovnih subjektov, vpisanih v Poslovnem registru Slovenije na dan 31. 12. 2007. Retrieved June 15, 2009 from  HYPERLINK "http://www.ajpes.si/Statisticno_raziskovanje/" http://www.ajpes.si/Statisticno_raziskovanje/ AJPES. (2009). Informacija o poslovanju gospodarskih dru~b in zadrug v Republiki Sloveniji v letu 2008. Retrieved June 15, 2009 from  HYPERLINK "http://www.ajpes.si/Statisticno_raziskovanje/" http://www.ajpes.si/Statisticno_raziskovanje/ AJPES. (2009a). Informacija o poslovanju samostojnih podjetnikov posameznikov v Republiki Sloveniji v letu 2008. Retrieved June 15, 2009 from  HYPERLINK "http://www.ajpes.si/Statisticno_raziskovanje/" http://www.ajpes.si/Statisticno_raziskovanje/ AJPES. (2009b). Podatki o tevilu poslovnih subjektov, vpisanih v Poslovnem registru v letu 2008. Retrieved June 15, 2009 from  HYPERLINK "http://www.ajpes.si/Statisticno_raziskovanje/" http://www.ajpes.si/Statisticno_raziskovanje/ Banka Slovenije. (2009). Kreditne institucije dr~av EGP v Sloveniji. Retrieved April 14, 2009, from http://www.bsi.si/nadzor-bank-r.asp?MapaId=523 Beuthien, V. (2004). Genossenschaftsgesetz mit Umwanfdliung und Kartellrecht sowie Statut der Europischen Genossenschaft. Mnchen: C. H. Beck. Constitutional Court of the Republic of Slovenia. (1994). Judgment U-I-46/92 from December 1993. Official Gazette of the Republic of Slovenia, Nr. 3., pp. 126-130. Constitutional Court of the Republic of Slovenia. (1997). Judgment U-I-142/93 from June 11, 1997. Ur. l. (Official Gazette of the) RS, Nr. 40, pp. 3653-3657. Constitutional Court of the Republic of Slovenia. (2000). Judgment Nr. U-I-398/96 from June 15th, 2000. Ur. l. (Official Gazette of) RS, Nr. 61, pp. 7997-7800. Constitutional Court of the Republic of Slovenia. (2002). Judgment Nr. U-I-306/98-27 from April 11th, 2002. Ur. l. (Official Gazette of) RS, Nr. 37, pp. 3699-3702. Constitutional Court of the Republic of Slovenia. (2009). Judgment Nr. U-I-155/07-10 from April 9th, 2009. Ur. l. (Official Gazette of) RS, Nr. 32, pp. 4535-4539. Council Regulation (EC) No 1435/2003 of 22 July 2003 on the Statute for a European Cooperative Society (SCE). (2003). Official Journal Of the European Union, L 207, 18.8.2003, p. 124. 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(2006). Official Journal of the European Union, L 177, 30.6.2006, pp. 1200. ɫ Cooperative Aliance. (2009). Statement on the Co-operative Identity. Retrieved June 15, 2009 from  HYPERLINK "http://www.ica.coop/coop/principles.html" http://www.ica.coop/coop/principles.html Lazarevi, }. (1994). Kme ki dolgovi na Slovenskem: socialno-ekonomski vidiki zadol~enosti slovenskih kmetov 1848-1948. Ljubljana: Znanstveno in publicisti no sredia e. Prin i , J. (1996). Tri nacionalizacije zasebnih gospodarskih podjetij. In Slovenska kronika XX. stoletja. Ljubljana: Nova revija, p. 146. Schmidt, K. (1997). Gesellschaftsrecht. 3rd edition. Kln: Karl Heymanns. The Treaty Establishing the European Community (consolidated text). (2006). Official Journal of the European Union, C 321E of 29 December 2006, pp. 37-331. Toplak, L. (1992). Predgovor. In (ed. Toplak, L.) Zakon o zadrugah s komentarjem. Ljubljana: Gospodarski vestnik, Kme ki glas. Zakon o ban niatvu (ZBan, Banking Act). (1999). Ur. l. (Official Gazette of) RS, Nr. 7. Zakon o ban niatvu (ZBan-1, Banking Act). (2006). Ur. l. (Official Gazette of) RS, Nr. 131. Zakon o gospodarskih dru~bah (ZGD, Commercial Companies Act). (1993). Ur. l. (Official Gazette of) RS, Nr. 30. Zakon o gospodarskih dru~bah (ZGD-1, Commercial Companies Act). (2006). Ur. l. (Official Gazette of) RS, Nr. 42. Zakon o graditvi objektov (ZGO, Construction Act). (1984). Ur. l. (Official Journal) of RS, Nr. 39. Zakon o investicijskih skladih in dru~bah za upravljanje (ZISDU, Act on Investment Funds and Management Companies). (1994). Ur. l. (Official Gazette of ) RS, Nr. 6. Zakon o investicijskih skladih in dru~bah za upravljanje (ZISDU-1, Act on Investment Funds and Management Companies). (2002). Ur. l. (Official Gazette of) RS, Nr. 110. Zakon o zadrugah (ZZad, Act on Cooperatives). (1992). Ur. l. (Official Gazette of) RS, Nr. 13. Yair, L. (2005). How nonprofit and economy can co-exist: A cooperative perspective. Paper presented at the ICA XXI ɫ Cooperative Research Conference, Cork, Ireland, August 2005. Retrieved on June 15, 2009 from  HYPERLINK "http://www.uwcc.wisc.edu/info/theory/yairica05.pdf" www.uw*j*|********* +2+8+:+@+l+t+x+++,f,,H--..`///#0Z000 111111114%4&4P7Q7R7T7U7W7X7Z7[7]7ԼԴԭԴԞh}jh}UhE;SUhrh\D0J hh\Djh\DUh h\D6h=Jh\D6hAh\D6h\Dhh\D6hh\DmH sH h\DmH sH h0h\D6mH sH 7cc.wisc.edu/info/theory/yairica05.pdf Abstract The paper discusses four cases of positive and negative discrimination of cooperatives against other economic operators, above all commercial companies, in Slovenia. The Constitutional Court has so far backed all legislative provisions about such discrimination stating that cooperatives and commercial companies differ regarding their aim and the way of doing business to such an extent, that different treatment did not violate the principle of equality before law. However, since commercial companies may adopt, in their articles of incorporation, some substantial features of cooperatives, and both legal forms of enterprise compete in the same market, the viewpoints of the Court do not seem to be very persuasive. Key words: commercial companies, cooperatives, equality before law.      PAGE \* MERGEFORMAT 27 )4+45477L7M7N7O7P7Q7S7T7V7W7Y7Z7\7]7z7{7|7}7~7$a$gdudgd\D $da$gd\D$a$]7^7u7v7x7y7{7}7~7hE;Sh}h~AmHnHuhujhuU21h:pE;S. 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