Mutualistic purpose and mutualistic Relationship in Italian Cooperative Company and in German Genossenshaft

by Roberto Ranucci* and Zoubida Hammadi**

ABSTRACT: This paper seeks to examine the mutualistic purpose in Italian cooperative companies comparing it with the German Genossenschaft model. Under Italian Law mutuality plays a fundamental role but it is poorly defined in law, emerging through practice and doctrine. Mutualistic relationships are the true vehicles of cooperative purpose, especially in production and labor cooperatives. The German system, on the other hand, explicitly, formally recognizes and regulates mutuality, offering greater clarity and institutional support. The paper concludes with an analysis on large consumer cooperative companies and the principle of mutuality.

SUMMARY: 1. Introduction – 2. The mutualistic purpose in Italian Civil Code – 3. The purpose of the Genossenschaft – 4. Function of contribution in lucrative and cooperative companies – 5. The two kinds of relationship in the cooperative company: corporate relationship – 6. And mutualistic relationship – 7. The mutualistic relationship in Genossenschaftsrecht – 8. Conclusion.

1. The origins of the cooperative model are traditionally found in mid-nineteenth century England and traced back to the initiative of the so-called ‘Rochdale Probate Pioneers’ who set up the Rochdale Pioneers Equitable Society, with the idea of making workers their own entrepreneurs[1] . The importance of cooperation, in the Italian legal system, is such that it is even included in the Constitution in art. 45, which recognizes the ‘social function of cooperation of a mutual nature and without ends of private speculation’^[2].

According to Art. 2511, Civil Code, ‘Co-operatives are companies with variable capital with a mutual purpose’. Therefore, there are two characteristics of the cooperative society. The first is the variable capital and, therefore, that the share capital varies without the bylaws being amended. This characteristic allows the so-called principle of the open door to enter the cooperative society, which represents the expression of a social and political moment of the cooperative, as it allows it to be available to any person who asks to join under the same conditions as shareholders already admitted[3]. Indeed, the possibility of allowing new shareholders to join, without a formal amendment of the memorandum of association, favours, at least from a societal point of view, accessions by third parties. The variability of share capital means that it is possible for the share capital to be increased by the directors’ acceptance of applications for the entry of new shareholders, unlike lucrative companies in which the increase in share capital (against payment) determines the amendment of the bylaws and, therefore, is approved by the shareholders’ meeting. It is, therefore, possible for the share capital of the cooperative society to increase gradually and almost inadvertently unlike in profit-making societies[4].

The second element characterising the cooperative company is the mutualistic purpose. The latter is the sole and necessary cause for all cooperative companies[5] and can only be pursued by using the cooperative company type.

In the Italian legal system, there is no notion of a mutualistic purpose. The Civil Code expressly refers to the mutualistic purpose, but no definition was given[6] . In fact, the mutual purpose was defined, outside the code, in the Guardasigilli’s report to the Civil Code (no. 1025) – thus in a non-binding text – as a ‘prevalently mutual purpose’ consisting of ‘providing goods or services or work opportunities directly to the shareholders of the organisation on more advantageous terms than they would obtain from the market’.

According to the orientation, also now to be considered the majority, the definition of mutuality provided in § 1025 of the Guardasigilli’s report to the Civil Code is ‘service management’[7] , i.e. a reciprocity of services between companies and shareholders, which is absent in ordinary profit-making companies[8].

The national legislator has a unitary vision of cooperative companies whether the activity consists in providing ‘goods’ or ‘services’ (as in consumer cooperatives) or in providing ‘work opportunities’ (as in production and work cooperatives). Thus, a common economic function is identified, i.e. to place the company’s enterprise at the service of its shareholders, so as to ensure that in their exchanges with the society (the so-called mutualistic exchanges), the latter are provided with more advantageous conditions than those practised by the market[9].

The mutualistic purpose, on the other hand, is not synonymous with altruistic purpose; in fact, the mutualistic purpose presupposes, in any case, the satisfaction of a need and, as such, is of a selfish nature on a par with the profit-making purpose[10] . The purpose of cooperative shareholders is the satisfaction of the mutualistic need.

The object of this paper is to understand how cooperative company’s shareholders are called upon to pursue the company’ scope: mutualistic purpose. In our thesis, the mutualistic purpose is pursued through the mutualistic relationship, which is an additional and distinct relationship to the corporate relationship but has the status of shareholder as a prerequisite.

2. Prior, it is necessary to definy che mutualistic purpose. In the Italian legal system, there is no notion of a mutualistic purpose. The Civil Code of 1942 expressly refers to the mutualistic purpose, but no definition was given[11] . In fact, the mutual purpose was defined, outside the code, in the Guardasigilli’s report to the Civil Code (no. 1025) – thus in a non-binding text – as a ‘prevalently mutual purpose’ consisting of ‘providing goods or services or work opportunities directly to the shareholders of the organisation on more advantageous terms than they would obtain from the market’.

According to the orientation, also now to be considered the majority, the definition of mutuality provided in § 1025 of the Guardianship Report to the Civil Code is ‘service management’[12] , i.e. a reciprocity of services between companies and shareholders, which is absent in ordinary profit-making companies[13].

The national legislator has a unitary vision of cooperative companies whether the activity consists in providing ‘goods’ or ‘services’ (as in consumer cooperatives) or in providing ‘work opportunities’ (as in production and work cooperatives). Thus, a common economic function is identified, i.e. to place the social enterprise at the service of its shareholders, so as to ensure that in their exchanges with the society (the so-called mutualistic exchanges), the latter are provided with more advantageous conditions than those practised by the market[14].

The mutualistic purpose, on the other hand, is not synonymous with altruistic purpose; in fact, the mutualistic purpose presupposes, in any case, the satisfaction of a need and, as such, is of a selfish nature on a par with the profit-making purpose[15] . The purpose of cooperative shareholders is the satisfaction of the mutualistic need.

3. In the German legal system, the cooperative company has the purpose of promoting not only the economic interests, but also the social and cultural interests of its shareholders[16]; these different purposes can also be pursued simultaneously[17]. And indeed, according to case law, it is precisely the promotional purpose (förderzweck) that is the ‘characteristic of the legal form’ of the cooperative[18]. Following the 2006 amendment, in accordance with the regulations for the European Cooperative Company (art. 1 paragraph 3 of the SCE regulation), it was established that, in addition to the promotion of employment and economic interests, the cooperative can also have the promotion of social and cultural interests as its aim.

Before the amendment, therefore, a cooperative could not be established for the promotion of purely idealistic purposes, although it was possible to pursue them as secondary objectives, provided they did not cause harm to company. Since 2006, therefore, the promotion of the social or cultural interests of the shareholders can constitute the main purpose of the cooperative[19]. Moreover, the terms soziale and kulturelle are very general and, as such, must be interpreted broadly, as they can cover the entire ideal area of the shareholders’ interests[20].

 ‘Promotion’ (fördern) means a service or other support of any kind aimed at achieving an advantage for the satisfaction of material and immaterial needs[21], regardless of whether the advantage actually materialises and whether a third party may obtain a greater advantage[22].

The promotional purpose may consist of better working conditions (including from an economic point of view) or a reduction in the expenses incurred by the shareholders in carrying out their business activities[23].

The promotional purpose may therefore also consist of reducing costs for shareholders by increasing earnings in individual activities carried out by shareholders and independent of the cooperative[24].

Paragraph 1, GenG also establishes the ways in which the objective can be achieved: durch gemeinschaftlichen Geschäftsbetrieb (Genossenschaften). The German legislator makes explicit what is argued here with reference to the national legal system: that the mutualistic purpose (förderzweck – promotion purpose, in the German legal system) is pursued through cooperative company commercial operations (the mutualistic relationship)[25]. It is not necessary for the relationship to be established with all shareholders, it is sufficient that the opportunity has been offered to each shareholder[26]. On the other hand, the purpose of the cooperative presupposes that each shareholder establishes a commercial relationship with the cooperative by participating in its entrepreneurial life. Without such a relationship with the company, membership loses its meaning, unless it is a question of membership for investment purposes pursuant to § 8 paragraph 2, GenG (investierende Mitglieder). And in fact, if the cooperative shareholder (other than the investor shareholder) has the sole purpose of obtaining the dividend, in return for the contribution made and to which he is obliged, he may be excluded (§ 68, GenG)[27].

Indeed, in addition to the shareholder-company relationship, the latter may also have commercial relationships with third parties, which, in turn, are functional to making commercial relationships with the shareholders ‘less burdensome’. As highlighted by German doctrine, the cooperative may have the purpose of making a profit and may also generate profits, but not for itself, but only to achieve its own purpose[28]. The notion of profit in a cooperative company differs from that of profit-making companies. In fact, company profit is not an end in itself and the division of profits in favour of the shareholders, but a means to achieve the förderzweck[29]. Therefore, the cooperative must orient its commercial operations towards making a profit to the extent that this is necessary to guarantee the long-term survival of the company in a competitive market. In principle, this means that profits should not be distributed, but retained to strengthen equity capital, or they should not be generated with the primary aim of dividing them among the shareholders[30].

4. The first form of contribution to which all shareholders in capital companies are called upon is the contribution. Cooperative companies take the form of limited liability companies or joint-stock companies. What changes from the so-called profit-making companies is the purpose pursued: the mutual purpose. In the lucrative companies, the shareholders contribute to the pursuit of the company’s purpose, mainly by means of contribution, i.e. by permanently allocating their assets to the performance of the company’s business activities.

For cooperative companies, the code does not provide for specific forms of contribution. Therefore, by reason of the reference made by Art. 2519, Civil Code, it must be considered that the reference disciplines are those provided for joint stock companies or limited liability companies, since they constitute the most articulated and evolved structure, compared to any other, for the organization of both internal and external relations[31].

It follows that, like lucrative companies, in cooperative societies, the main form of contribution is money, to which the investment limits set forth in Art. 2525, Civil Code, apply. Moreover, contributions, in both mutual and lucrative companies, have a productive function (or rather the financing of production), since, in both categories of company, contributions are used to finance the company enterprise[32] . What varies is the purpose pursued by the contributing shareholders. In fact, in cooperative companies, the shareholders contribute to finance the company, in order to obtain the desired mutualistic benefits, but not in proportion to the contribution; on the other hand, in profit-making companies, the contribution allows the shareholders to receive income (dividends)[33] . In other words, there is a difference in the function of the contribution between cooperative and lucrative companies, the latter designed and regulated for ‘yield management’, the former to better pursue ‘service management’[34].

5. In cooperative companies, even before the Italian company law reform of 2003, the contribution was considered merely instrumental and the share capital merely virtual[35] , while centrality was recognised to the ‘mutualistic exchange’, considered to be in the DNA cooperation and as a pendant of the mutualistic advantage [36]. The mutualistic relationship is the means by which mutualistic exchange can be realized.

In the reflections made by Verrucoli, one of the first author to deal extensively and systematically with the Italian cooperative companies, with reference to the duties of shareholders, he distinguished, among others, ‘obligations connected to the acquisition (originally) of the shareholding’ in which he included: ‘a) the obligation of contribution and b) the obligation of ancillary services’[37] . The author, in fact, noted how in the cooperative company ‘the benefit of the individual shareholder is determined precisely by the collaboration of the other shareholders, to whom he must lend his own’[38] . Therefore, in addition to the contribution, which is even only possible[39] , the author placed on the cooperative shareholder a duty towards the company that is more significant than the contribution, insofar as it is necessary for the achievement of the mutual purpose itself[40] . In his reconstruction, Verrucoli pointed out how, with the establishment of the company relationship, alongside the obligation of contribution, the shareholder had a further obligation towards the company; there is a second level of contribution in the company relationship[41] : the mutualistic relationship.

In order for the mutualistic relationship to be implemented, the status of shareholder is necessary[42] and the obligation to perform services other than the contribution does not have to find its source in the bylaws but is a direct consequence of being shareholder and arises from the mutualistic purpose[43] . As doctrine has affirmed, the ‘company relationship would have little meaning if it were not accompanied by the mutualistic relationship that perpetuates and vivifies the company relationship over time and gives it its own meaning’[44] .

The existence of a further relationship between the shareholder and the cooperative company – through which the mutualistic purpose can be realized – was recognised by the legislator of the reform who, for the first time, mentions the mutualistic relationship (among others, in Articles 2512, 2513, 2516 and 2532, Civil Code) attributing centrality to it in the cooperative phenomenon[45] and highlighting how this relationship is distinct from the company relationship .[46]

In other words, in the cooperative companies, there are two kinds of relationship between company and shareholders.

The shareholder must make the contribution, has the right to control the actions of directors, to participate and vote in shareholder’s meeting, to obtain dividend. In this aspect, the relationship company/shareholder is equal to lucrative companies – joint-stock companies and limited liability companies – even if there are some variations due to the kind of company and, also, to the existence of mutualistic relationship. Art. 2538, Civil code attributes one vote to each shareholder regardless the number of shares or of the amount of quota detained, but the same article allows to attribute a measured voting right “by reason of participation in the mutual exchange”; art. 2545-sexies, Civil code requires that the bylaws determine the criteria for distributing reversions (“ristorni”) to shareholders in proportion to the quantity and quality of the mutual exchange. Thus identifying the essence of the reversion (“ristorni”) and its difference from dividends, i.e. the typical method of profit distribution in lucrative companies[47].

6. The second kind of relationship is the mutualistic one. The shareholder contributes to the activity of the cooperative company and establish the mutualistic relationship insofar as he or she is the bearer of the mutualistic need[48] and able to implement the relationship. The mutualistic relationship is different from company relationship and do not come from bylaws or memorandum of association.

Infact, the mutual relationship is a contractual relationship, distinct from the corporate one, that is established between the company and the cooperative shareholders. The report on the reform of company law in art. 2516 Civil Code qualifies the mutual relationship with the shareholders ‘as a contractual relationship distinct from the corporate one’. Confirmation of the diversity between mutualistic and corporate relationship is found in the regulation of withdrawal. In fact, Article 2532, Civil Code expressly takes into consideration the two types of relationship that are established between the cooperative company and the shareholder, regulating the withdrawal from the company. In particular, the provision affirm that the termination of the corporate relationship takes effect at the time of the communication of the decision to accept the request, while the mutualistic relationships – unless otherwise provided for bylaws – cease with the close of the current financial year if communicated three months earlier, and, if not, with the close of the following financial year.

The content of the relationship varies according to the type of activity carried out by the cooperative company[49] and, therefore, the manner in which the shareholder pursues the mutualistic advantage[50].

In cooperative companies, the shareholder pursues the mutualistic purpose if and to the extent that the company and the shareholder cooperate for the implementation of the corporate purpose. Indeed, the mutualistic purpose consists in the attainment of an economic advantage that requires subjective coincidence between the organizers of the entrepreneurial activity and the users of the goods or services produced by the enterprise itself[51] . This implies that the entrepreneurial subject, i.e. the cooperative company, is different from the subjects – the shareholder – who benefit from the goods or services produced by the enterprise itself[52] . Ultimately, the mutualistic purpose indicates the aim that the organizers of the enterprise, i.e. the cooperative shareholder, set themselves.

Therefore, the cooperative company pursues its purpose – i.e. the management of services in favor of its shareholders – precisely through the mutualistic relationship, which is established between society and shareholder. In lucrative companies, instead, the shareholder contributes so that the society carries out its activity with profit distribution.

The mutualistic relationship is the instrument through which the cooperative company pursues the mutualistic purpose[53] and the mutualistic advantage for the shareholder [54].

The mutualistic relationship thus presents a two-way flow, inthat in the cooperative reality, the shareholder must work to allow, facilitate or in any case contribute to the performance of the company’s activity. This obligation to perform services – different from the initial contribution – in implementation of the mutualistic relationship is an indispensable condition for the performance of the company’s activity and, therefore, for the very life of the company[55] . In other words, the shareholder pursues the mutualistic advantage[56] insofar as and to the extent that he or she contributes to the conduct of the company’s business.

Therefore, the participation of the shareholder in the company’s activity that is expressed in the mutualistic relationship may vary depending on the type of activity carried out by the cooperative[57] but it can never become irrelevant, since in that case one would be outside the cooperative activity. In fact, the existence of the mutualistic relationship fulfils the very function of the company contract, for the implementation of which the parties are obliged[58].

If the essence of the cooperative phenomenon is the so-called management of service to the shareholder (in the sense that the shareholder are the natural recipients of the company’s activity)[59], on the other hand, it is precisely the management of service that necessarily postulates the participation of the cooperative shareholder in the company’s activity[60]. In production and labour cooperatives, the implementation of the mutualistic relationship takes place precisely through the work of the shareholder in favor of the company and not only through the service provided by the company in favor of the shareholder.

Therefore, the mutualistic purpose of cooperatives consists of an obligation of the company and correlative rights of its shareholder to provide goods, services, and employment opportunities to its shareholder at conditions more favorable than market conditions and in preference to third parties outside the company[61].

In conclusion, the mutualistic relationship is a contractual relationship – other than company relationship – that is established between the shareholder and the company through which the ‘mutualistic exchange’ takes place and the shareholder, in the final analysis, obtains the so-called mutualistic advantage[62]. Thus, the mutualistic relationship is the instrument through which the contractual cause of the cooperative company is realised, i.e. the mutual purpose[63] understood as the differential advantage achieved by the mutualistic, consisting in the possibility of obtaining an appreciable economic benefit in terms of cost savings, over remuneration for the good or service provided by the mutualistic, or over remuneration for the provision of labour, depending on whether in the mutual relationship the mutualistic assumes the position of consumer (in the broad sense), producer or worker[64].

7. In Genossenschaftsrecht (GenG) one of the general principles is the Prinzip der Selbstförderung und der Identität von Mitgliedern und Kunden, by virtue of which the shareholders promote themselves by concluding transactions with the cooperative; in this sense, the shareholder are customers of the cooperative company, but at the same time they are identical to the owners of this company (Doppelfunktion)[65].

The legislature identifies in the contractual relations with the cooperative company (mutualistic relationship) the instrument through pursues the purpose of the cooperative company. In fact, § 1, GenG establishes the modalities by which this purpose can be achieved: durch gemeinschaftlichen Geschäftsbetrieb (Genossenschaften). The German legislator explicits the mutual purpose (Förderzweck) is pursued through cooperative business transactions (the mutualistic relationship)[66] . It is not necessary that the relationship is established with all shareholders, it is sufficient that the opportunity was offered to each shareholder [67] . On the other hand, the purpose of the cooperative companies presupposes that each shareholder establishes a commercial relationship with the cooperative by participating in its entrepreneurial life. Without such relationship with the company, the affiliation loses its meaning, unless it is an affiliation for the purpose of investment in the sense of § 8 para. 2, GenG (investierende Mitglieder).

8. The above considerations make it possible to affirm the mutualistic purpose is pursued through mutualistic relationship, even if in Italian Civil Code this link is not clearly expressed. Nevertheless, the centrality of the mutualistic relationship in cooperative companies can, also, be found in the regulation of the exclusion of the cooperative shareholders, which differs from the regulations for lucrative companies. In joint-stock companies and limited liability companies, exclusion is expressly provided for in the event of a shareholder’s defaulting on the contribution, on the assumption that such a default would severely affect the functioning of the company, whereas in partnerships, the hypotheses of exclusion are mostly linked to the possession of certain personal characteristics of the shareholders and the fulfilment of the obligation to collaborate in the achievement of company objectives[68] . In cooperative companies, on the other hand, the grounds for exclusion include serious breaches of obligations arising from the law, the company contract, the regulations or the mutual relationship and the lack or loss of the requirements for participation in the company (Art. 2533, Civil Code). The explicit reference to the mutualistic relationship, inserted by the legislator of the 2003 reform, emphasizes the close link between the mutualistic cause and the mutualistic relationship, so much so that this breach is equal to that of the company contract[69] . Again, the last paragraph of Art. 2533, Civil Code specifies that “the dissolution of the company relationship also determines the termination of pending mutual relationships”[70] .

In production and labour co-operatives, the company operates by availing itself of the work and labour of individual co-operating shareholders, as the objective is to place the work or products of the co-operating shareholders at the best conditions and to procure, through the company’s activities, direct and immediate benefits for the individual shareholders. Thus, there may even be a right of the company to require the shareholder to establish a mutualistic relationship insofar as it is necessary for the life of the company[71] . Indeed, in this hypothesis, the mutualistic purpose is recognizable precisely in the reciprocity of services between the shareholder and the company[72].

Different considerations must be made when analysing the phenomenon of consumer co-operatives. In consumer co-operatives, the objective is to provide goods to shareholders at more favorable conditions than those available on the market. In this type of co-operative it is very difficult to identify a right of the company to the establishment of the mutualistic relationship.

Indeed, on an economic level there is no difference between consumer and production cooperation[73], since the economic result is that of the elimination of the intermediary and the consequent enjoyment of the good or service offered by the company at conditions that tend to be more advantageous than those offered by the market[74].

However, what varies is the mechanism through which the economic result can be pursued. In fact, in consumer cooperatives the mutualistic relationship is an exchange, whereas in production and labour cooperatives a typically associative mechanism predominates[75].

This determines that in labour and production companies the satisfaction of the mutualistic need imposes a two-way flow of rights/duties between the company and the shareholder: not only the company is obliged to the shareholder but also the latter is obliged to the company[76] . However, in this case the mutualistic relationship and the satisfaction of the mutualistic need is subordinate to the shareholder’s demand to the company to receive the mutualistic service.

It is well known how consumer cooperatives have grown and operate on the market with third parties without giving shareholders any preferential treatment over customers in general[77]. Therefore, the consumer co-operative company may well be made up of inert shareholders [78] , i.e. individuals who do not ‘actively’ contribute to the company’s activity.

Hence, the consumer cooperative would be characterised as a lucrative company and not characterised by service management with shareholders, as exchanges between the company and shareholders are not subject to a different discipline from those between companies and third parties[79].

Large consumer cooperatives, in which the phenomenon is most easily perceived, stand at the ‘limits’ of the cooperative phenomenon, as do popular banks. In the absence of a precise notion of mutualistic purpose, the doctrine has come to affirm that those cooperatives that recognise the right of shareholders to be preferred to third parties, on equal terms, in exchanges with the company are also mutualistic. In this hypothesis, indeed, mutuality appears to become external mutuality[80] declined as social mutuality. In fact, the extension to non- shareholders of the supply of goods and services at more advantageous conditions than those practiced by the market, would contribute to lowering prices, fulfilling tasks in the public sense, in favour of the less well-off classes. In other words, in large consumer cooperatives, mutuality would take on a sociological connotation[81], in which, therefore, service management and the consequent centrality of the shareholder would diminish significantly. Even in this hypothesis, however, it is possible to identify, if not a right, at least an expectation on the part of the company. Indeed, the mutualistic exchange relationship makes it possible to identify a right of the company vis-à-vis the shareholder: the right to the counter-performance, i.e. that the good rendered by the company to the shareholder be paid for.

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[1] A. Bassi, Delle imprese cooperative e delle mutue assicuratrici, in Cod. civ. Comm. Schlesinger, Milan, 1988, p. 3.

[2] A. Nigro, sub art. 45 Cost., in Rapporti economici: art. 45-47, in Commentario della Costituzione. edited by G. Branca, t. III, Bologna-Roma, 1980, pp. 4 ff.; V. Buonocore, Diritto della cooperazione, Bologna, 1997, pp. 47 ff; A. Bassi, Delle imprese cooperative e delle mutue assicuratrici, cit., pp. 103 ff; more recently see G. Capo, Le cooperative di comunità, in Giur. comm., 2021, I, pp. 616 ff. G. Bonfante, Profili tipologici e causali, in Trattato delle società, directed by V. Donativi, t. IV, Milano, 2022, p. 1345; P. Verrucoli, La società cooperativa, Milano, 1958, passim; G. Minervini, La cooperazione e lo Stato, in Riv. dir. civ., 1969, I, pp. 620 ff.

[3] B. Lavergne, Il socialismo cooperativo, in Riv. coop., 1955, p. 1108.

[4] See S. Fortunato, Patrimonio, capitale sociale e mutualità (a margine del saggio di Umberto Belviso), in Mutualità e capitale nelle cooperative, edited by A. Bassi and S. Fortunato, Milano, 2017, p. 16; A. Bassi, Le società cooperative, Torino, 1995, pp. 221 ff.

[5] A. Bassi, Scopo mutualistico, in Trattato delle società, directed by V. Donativi, t. IV, Milan, 2022, p. 1359, ‘The mutualistic purpose, in fact, characterises today a particular type of company (which means that not all companies can aim to achieve this purpose; and in fact, Art. 2515, Civil Code states that the cooperative indication cannot be used by companies that do not have a mutualistic purpose)’.

[6] According to U. Belviso, Le cooperative a mutualità prevalente, in Il nuovo diritto delle società. Liber amicorum Gian Franco Campobasso, directed by P. Abbadessa and G.B. Portale, vol. IV, Torino, 2007, p. 655, how the lack of a definition in the code of cooperative mutuality was not due to the legislator’s forgetfulness or inexperience but to his precise choice not to cage in a normative definition a phenomenon that in the economic reality was in continuous evolution and had taken on different configurations.

[7] According to the terminology adopted by G. Fauquet, Il settore cooperativo, trad. it., Milano, 1948, pp. 69 ff.; P. Verrucoli, La società cooperativa, cit., p. 90; G. Oppo, L’essenza della società cooperativa e gli studi recenti, in Riv. dir. civ., 1959, I, p. 374; F. Scordino, La società cooperativa, Napoli, 1970, p. 82, nt. 213; A. Bassi, Delle imprese cooperative e delle mutue assicuratrici, cit., p. 30; V. Buonocore, Diritto della cooperazione, cit., p. 150; G. Bonfante, Imprese cooperative, in Comm. c.c.. Scialoja e Branca, Bologna-Roma, 1999, p. 18; M. Di Rienzo, I criteri di gestione nelle società cooperative, Milano, 1999, p. 195; G. Tatarano, L’impresa cooperativa, in Tratt. dir. civ. comm. Cicu and Messineo, vol. XXX, t. 3, Milano, 2002, p. 46; F. Casale, Scambio e mutualità nella società cooperativa, Milano, 2005, p. 11; in jurisprudence, Court of Cass. 8 September 1999, no. 9513, in Foro it., 2000, I, 3285; Court of Cass. 4 January 1995, no. 111, ivi, Rep. 1995, Cooperativa e cooperazione, no. 34.

[8] A. Bassi, Delle imprese cooperative e delle mutue assicuratrici, cit., pp. 30 f.

[9] U. Belviso, Le cooperative a mutualità prevalente, cit., pp. 653 f.

[10] According to G. Oppo, L’essenza della società cooperativa e gli studi recenti, cit., p. 410; W. Bigiavi, La professionalità dell’imprenditore, Padova, 1948, p. 74; G. Marasà, Problemi della legislazione cooperativa e soluzioni della riforma, in Riv. dir. civ., 2003, II, p. 649; Id., Le società: profili sistematici e funzioni, in Trattato delle società, directed by V. Donativi, t. I, Milano, 2022, p. 101.

[11] According to U. Belviso, Le cooperative a mutualità prevalente, in Il nuovo diritto delle società. Liber amicorum Gian Franco Campobasso, directed by P. Abbadessa and G.B. Portale, vol. IV, Torino, 2007, p. 655, how the lack of a definition in the code of cooperative mutuality was not due to the legislator’s forgetfulness or inexperience but to his precise choice not to cage in a normative definition a phenomenon that in the economic reality was in continuous evolution and had taken on different configurations.

[12] According to the terminology adopted by G. Fauquet, Il settore cooperativo, trad. it., Milano, 1948, pp. 69 ff.; P. Verrucoli, La società cooperativa, cit., p. 90; G. Oppo, L’essenza della società cooperativa e gli studi recenti, in Riv. dir. civ., 1959, I, p. 374; F. Scordino, La società cooperativa, Napoli, 1970, p. 82, nt. 213; A. Bassi, Delle imprese cooperative e delle mutue assicuratrici, cit., p. 30; V. Buonocore, Diritto della cooperazione, cit., p. 150; G. Bonfante, Imprese cooperative, in Comm. c.c.. Scialoja e Branca, Bologna-Roma, 1999, p. 18; M. Di Rienzo, I criteri di gestione nelle società cooperative, Milano, 1999, p. 195; G. Tatarano, L’impresa cooperativa, in Tratt. dir. civ. comm. Cicu and Messineo, vol. XXX, t. 3, Milano, 2002, p. 46; F. Casale, Scambio e mutualità nella società cooperativa, Milano, 2005, p. 11; in jurisprudence, Court of Cass. 8 September 1999, no. 9513, in Foro it., 2000, I, 3285; Court of Cass. 4 January 1995, no. 111, ivi, Rep. 1995, Cooperativa e cooperazione, no. 34.

[13] A. Bassi, Delle imprese cooperative e delle mutue assicuratrici, cit., pp. 30 f.

[14] U. Belviso, Le cooperative a mutualità prevalente, cit., pp. 653 f.

[15] According to G. Oppo, L’essenza della società cooperativa e gli studi recenti, cit., p. 410; W. Bigiavi, La professionalità dell’imprenditore, Padova, 1948, p. 74; G. Marasà, Problemi della legislazione cooperativa e soluzioni della riforma, in Riv. dir. civ., 2003, II, p. 649; Id., Le società: profili sistematici e funzioni, in Trattato delle società, directed by V. Donativi, t. I, Milano, 2022, p. 101.

[16] See H.H. Münkner, in International Handbook of Cooperative law, edited by D. Cracogna, A. Fici and H. Henry, Heidelberg, 2013, pp. 413 ff.

[17] M. Henssler and L. Strohn, § 1 GenG, Gesellschaftsrecht, 6th ed., Munich, 2024, Rn. 6.

[18] G. Ringle, Der genossenschaftliche Förderauftrag: Missverständnisse und Präzisierungsversuche, ZfgG, 2010, pp. 176 ff.

[19] M. Henssler and L. Strohn, § 1 GenG, op. cit., Rn. 6; J. Lang and L. Weidmüller, § 1 GenG, Genossenschaftsgesetz, 40 ed., Berlin, 2022, Rn. 34; V. Beuthien, § 1GenG, Genossenschaftsgesetz, 16 ed., München, 2018, Rn. 14, which brings these interests back into the realm of ‘economic promotion’ in the broadest sense, including the satisfaction of non-material needs. Depending on the case, theatre, museum, school and sports cooperatives are possible (BT-Drs. 16/1025, 80).

[20] V. Beuthien, § 1GenG, cit., Rn. 15; A. Althanns, B. Buth and A. Leßl, § 1GenG, Genossenschafts-Handbuch, Munich, 2023, Rn. 10.

[21] J. Lang and L. Weidmüller, § 1 GenG, cit., Rn. 34.

[22] Beuthien, § 1GenG, op. cit., Rn. 23.

[23] M. Henssler and L. Strohn, § 1 GenG, op. cit., Rn. 4.

[24] Ibid.

[25] J. Lang and L. Weidmüller, § 1 GenG, op. cit., Rn. 26.

[26] Ibid., Rn. 29.

[27] Ibid., Rn. 32.

[28] KG, 23.10.2020, in BayObLG DB 1985, 749; J. Lang and L. Weidmüller, § 1 GenG, cit., Rn. 28; P. Pöhlmann, M. Geschwandtner and A. Fandrich, § 1GenG, Genossenschaftsgesetz: GenG, 5th ed., Munich, 2024, Rn. 5.

[29] J. Lang and L. Weidmüller, § 1 GenG, op. cit., Rn. 28; R. Henzler, Der genossenschaftliche Grundauftrag, Förderung der Mitglieder, Veröffentlichung der Deutschen Genossenschaftskasse, Frankfurt am Main, 1970, pp. 92 ff.

[30] J. Lang and L. Weidmüller, § 1 GenG, op. cit., Rn. 28.

[31] G. Santini, Tramonto dello scopo lucrativo nelle società di capitali, cit., p. 154.

[32] U. Belviso, Scopo mutualistico e capitale variabile nelle società cooperative, Milano, 2012, p. 22.

[33] U. Belviso, Scopo mutualistico e capitale variabile nelle società cooperative, cit., pp. 20 ff.; P. Spada, La tipicità delle società, cit., p. 432; G. Racugno, La società cooperativa, in Tratt. dir. comm. Buonocore, sec. IV, t. IX, Turin, 2006, p. 34

[34] U. Belviso, Scopo mutualistico e capitale variabile nelle società cooperative, cit., p. 20.

[35] V. Buonocore, La società cooperativa riformata: i profili della mutualità, in Riv. dir. civ., 2003, I, p. 520; P.  Verrucoli, La società cooperativa, cit., p. 268.

[36] V. Buonocore, La società cooperativa riformata: i profili della mutualità, cit., p. 520.

[37] P. Verrucoli, La società cooperativa, cit., p. 267.

[38] P. Verrucoli, La società cooperativa, cit., p. 269 and nt. 30.

[39] P. Verrucoli, La società cooperativa, cit., p. 268.

[40]P. Verrucoli, La società cooperativa, cit., p. 271.

[41] P. Verrucoli, La società cooperativa, cit., p. 271.

[42] G. Tatarano, L’impresa cooperativa, cit., pp. 69 ff. but also of eventuality in that the shareholder may not require the good or service offered by the cooperative.

[43] V. Buonocore, Rapporto mutualistico e parità di trattamento, cit., p. 599; on this topic see also F. Casale, Scambio e mutualità nella società cooperativa, cit., pp. 16 ff.

[44] V. Buonocore, Rapporto mutualistico e parità di trattamento, cit., p. 605 “also because it reminds forgetful cooperatives intent only on producing profits that the company is still established to procure its shareholders an advantage other than money, i.e. the interest on the investment, and many times responding to the satisfaction of a primary need for existence”; Id., La società cooperativa riformata: i profili della mutualità, cit., p. 520.

[45] V. Buonocore, Rapporto mutualistico e parità di trattamento, cit., p. 587; observes A. Cetra, Tutela delle minoranze e dei soci nell’impresa cooperativa, in Riv. dir. civ., 2016, II, p. 1517

[46] Jurisprudence clearly affirms the distinction between the social relationship of participation in the organisation and the mutualistic relationship aimed at achieving the cooperative advantage, see, most recently, Cass., ord. 9 August 2023, 24242, in Ced Cass. civ., rv. 66864601; and ex multis, Cass., 07 March 2008, no. 6197, in Società, 2008, p. 697; Cass., 28 March 2007, no. 7646, in Foro it, Rep. 2007, entry Cooperative and cooperation, no. 59; Cass., 2 April 2004, no. 6510 and Cass., 23 March 2004, no. 5724, in Società, 2004, p. 1241; Cass., 16 April 2003, n. 6016, in Giur. comm, 2003, II, p. 384, with a note by V. Buonocore, Rapporto sociale e rapporto mutualistico: una distinzione ineludibile; Cass., 18 January 2001, no. 694, in Giust. civ., 2001, I, p. 2433; Cass., 6 December 2000, no. 15489, in Arch civ., 2001, p. 3145. In doctrine, V. Buonocore, Rapporto mutualistico e parità di trattamento, cit., 595 f. and p. 607; G. Bonfante, La società cooperativa, cit., pp. 136. R. Sacchi, Il principio di maggioranza nel concordato e nell’amministrazione controllata, Milano, 1984, p. 218 ff.

[47] G. Marasà, Le società: profili sistematici e funzione, cit., p. 101.

[48] F. Galgano, Il ruolo dell’impresa cooperativa nel quadro delle istituzioni dell’economia, in Riv. giur. comm., 1976, p. 335.

[49] V. Buonocore, Rapporto mutualistico e parità di trattamento, cit., p. 595.

[50] Cass., 16 April 2003, n. 6016, cit.

[51] G. Marasà, L’Imprenditore, in Cod. civ. Comm. Schlesinger, Milano, 2021, pp. 22 f.

[52] Ibid, p. 23.

[53] A. Bassi, Cooperazione e mutualità: contributo allo studio della cooperazione di consumo, Napoli, 1976, pp. 20 ff. and 86 ff.; V. Buonocore, Diritto della cooperazione, cit., pp. 141 ff; G. Tatarano, Scambio e mutualità nella cooperazione edilizia, Napoli, 1984, pp. 97 ff.

[54] see V. Buonocore, Rapporto mutualistico e parità di trattamento, cit., p. 599, nt. 52.

[55] V. Buonocore, Rapporto mutualistico e parità di trattamento, cit., p. 597.

[56] V. Buonocore, Rapporto mutualistico e parità di trattamento, cit., 596; G. Marasà, Le società: profili sistematici e funzioni, in Trattato delle società, directed by V. Donativi, t. I, Milan, 2022, p. 101.

[57] V. Buonocore, Rapporto mutualistico e parità di trattamento, cit., p. 595; A. Bassi, Cooperazione e mutualità: contributo allo studio della cooperazione di consumo, cit., pp. 9 ff.

[58] V. Buonocore, Rapporto mutualistico e parità di trattamento, cit., p. 598.

[59] V. Buonocore, Diritto della cooperazione, cit., p. 127.

[60] V. Buonocore, Rapporto mutualistico e parità di trattamento, cit., p. 598; P. Verrucoli, La società cooperativa, cit., p. 101; M.C. Tatarano, La nuova impresa cooperativa, in Tratt. dir. civ. comm. Cicu and Messineo, Milano, 2011, p. 93; A. Bassi, Cooperazione e mutualità: contributo allo studio della cooperazione di consumo, cit., p. 26.

[61] V. Buonocore, Rapporto mutualistico e parità di trattamento, cit., 603.

[62] V. Buonocore, La società cooperativa riformata: i profili della mutualità, in Riv. dir. civ., 2003, I, p. 521 ‘mutualistic advantage, which is of an exchange type for consumer and credit cooperatives, and of an exquisitely associational type in the more modern branch of service cooperation’.

[63] G. Marasà, Problemi della legislazione cooperativa e soluzioni della riforma, in Riv. dir. civ., 2003, II, p. 649.

[64] G. Marasà, Problemi della legislazione cooperativa e soluzioni della riforma, cit., p. 650; Id., Le società: profili sistematici e funzioni, in Trattato delle società, directed by V. Donativi, t. I, Milan, 2022, p. 101. While the mutualistic exchange is remunerated with reversions in proportion to the quantity and quality of the mutualistic exchanges (art. 2545-sexies, Civil Code), by virtue of the social relationship the shareholder can receive profits (art. 2545, Civil Code), see V. Buonocore, Rapporto mutualistico e parità di trattamento, cit., p. 607.

[65] M. Henssler and L. Strohn, § 1 GenG, Gesellschaftsrecht, 6. ed., München, 2024, Rn. 43; this approach is expressed by French doctrine with the principe de double qualite, i.e. that the shareholders are the customers of the cooperative but are also those who make it function, D. Hiez, Sociétés coopérative, 3° ed., Paris, 2023, p. 5.

[66] J. Lang and L. Weidmüller, § 1 GenG, 40 ed., Berlin, 2022, Rn. 26.

[67] Ibid., Rn. 29.

[68] cf. R. Weigmann, Società di persone e consorzi, in Tratt. dir. comm. Cottino, vol. III, Padova, 2004, pp. 269 ss.; see also G. Auletta, Il diritto assoluto di esclusione nelle società di persone, in Scritti giuridici in onore di Francesco Carnelutti, vol. III, Padova, 1950, pp. 667 ff; M. Perrino, Le tecniche di esclusione del socio dalla società, Milano, 1997; P. Piscitello, Recesso ed esclusione nella società a responsabilità limitata, in Il nuovo diritto delle società. Liber amicorum Gian Franco Campobasso, edited by P. Abbadessa and G.B. Portale, vol. III, Torino, 2007, p. 736; M. Perrino, La “rilevanza del socio” nella s.r.l.: recesso, diritti particolari, esclusione“, in Giur. comm., 2003, I, p. 837 M. Speranzin, Clausole di esclusione e patti parasociali: giurisprudenza tedesca e art. 2473 bis c.c. (Nota a BGH, 14 March 2005 and BGH, 19 September 2005), in Riv. dir. soc., 2007, p. 147; V. Salafia, L’esclusione del socio nelle società commerciali, in Società, 2020, p. 553.

[69] G. Bonfante, La società cooperativa, cit., 246.

[70] A. Bassi, Delle imprese cooperative e delle mutue assicuratrici, cit., pp. 631 ff.

[71] V. Buonocore, Rapporto mutualistico e parità di trattamento, cit., p. 597.

[72] A. Bassi., Delle imprese cooperative e delle mutue assicuratrici, cit., p. 27, ‘the dominant thesis, which despite its various nuances we could define as classic, is that the mutualistic purpose consists in the reciprocity of services between the company and its shareholders’.

[73] A. Bassi, Cooperazione e mutualità: contributo allo studio della cooperazione di consumo, cit., p. 20.

[74] The legislator shows a unified vision of cooperative societies whether the activity consists in providing ‘goods’ or ‘services’ (as in consumer cooperatives) or in providing ‘work opportunities’ (as in production and work cooperatives). Therefore, a common economic function is identified, i.e. to place the company enterprise at the service of the shareholders, so as to ensure that the latter, in their exchanges with society (the so-called mutualistic exchanges), enjoy more advantageous conditions than those practised by the market, cf. U. Belviso, Le cooperative a mutualità prevalente, cit. pp. 653 f.

[75]V. Buonocore, Rapporto mutualistico e parità di trattamento, cit., p. 595.

[76] A. Bassi, Cooperazione e mutualità: contributo allo studio della cooperazione di consumo, cit., p. 24; V. Buonocore, Rapporto mutualistico e parità di trattamento, cit., 603; G. Oppo, L’essenza della società cooperativa e gli studi recenti, cit., 392 ff; P. Verrucoli, La società cooperativa, cit., pp. 103 ff, 209 ff, 276.

[77] The phenomenon was already noted by A. Bassi, Cooperazione e mutualità: contributo allo studio della cooperazione di consumo, cit., 38.

[78] A. Bassi, Cooperazione e mutualità: contributo allo studio della cooperazione di consumo, cit., p. 43.

[79] A. Bassi, Cooperazione e mutualità: contributo allo studio della cooperazione di consumo, cit., p. 46.

[80] By external mutuality is meant a service management that is also open to non- shareholders who benefit from the same services offered to shareholders. Thus, the mutualistic benefit would be attributed outside the boundaries marked by the company contract, thus affirming the idea of the cooperative as an instrument for satisfying the needs of all those, whether shareholders or not, who dealt with the cooperative society, with the consequent accentuation of the corrective function of wealth inherent in the cooperative tradition, A. Bassi, Scopo mutualistico, cit., p. 1365; G. Bonfante, La legislazione cooperativa. Evoluzione e problemi, Milano, 1984, pp. 42, 55 and 92; P. Verrucoli, La società cooperativa, cit., p. 113; contra E. Simonetto, Il lucro dell’impresa cooperativa: profitti e risparmio di spesa, in Riv. soc., 1970, pp. 255 f.; A. Graziani, Società cooperativa e scopo mutualistico, in Riv. dir. comm., 1950, I, p. 282.

[81] A. Bassi, Scopo mutualistico, cit., p. 1365.

Author

* Roberto Ranucci is Associate Professor of Corporate Law at Mercatorum University.

** Zoubida Hammadi is Ph.D. in Monetary and Banking Economics at Abbas Laghrour University – Khenchela.

Although the work is the result of a shared reflection, paragraph 1 is attributable jointly to Prof. Roberto Ranucci and to PhD Zoubida Hammadi while paragraphs 2, 3, 4, 5, 6, 7, 8 to Prof. Roberto Ranucci.