PROPOSAL FOR A COMMERCIAL CODE AND COOPERATIVE SOCIETY.

Abstract

The Proposal for a new Commercial Code prepared by the Legal Codification Commission establishes the mercantile nature of cooperatives and other entities such as mutual insurance and mutual guarantee societies. It also stipulates the inscription in the Registry of Commerce. In case that proposal is finally passed by the Parliament this new approach would overtake the provision of section 124 Comm. Code and opt for the criterion of merchantability by form. Cooperatives would then become a merchant according to section 1 Comm. Code, and here must be remembered that the Spanish Constitutional Court has repeatedly declared the competence of Central State for regulating private legal subjects. The question that arises is how to combine the exclusive competence of the Central State in Commercial Law (section. 149.1.6 of the Spanish Constitution) and the exclusive competence of Autonomous Communities in cooperatives shaped during decades by our Constitutional Jurisprudence. The legal reasoning around this topic should not ignore the proposals and solutions set out in the Warranty of Market Unity Act, intended to prevent or minimize distortions caused by territorial distributions of powers since this Act may hold mechanisms and criteria that will help to harmonize regional competence and state competence when it comes to regulate cooperative societies.