The transfer of businesses in crisis for their workers, organized in cooperatives or labour societies, is a convenient option if it is feasible and seeks to its continuity and jobs. The public authorities must create the appropriate conditions for this.
The spanish legal system provides for appropriate measures (aid to the creation of cooperatives and employment, globalised societies unemployment or prioritizing proposals takeovers promoted by the workers), but not sufficient. We need to anticipate transmission; provide information on a more complete company workers and their representatives; train support with information and training on organizations of the social economy, and create funds and financing instruments and security, to facilitate the transmission. Successful experiences analysed, in both europe and Latin America should be able to inspire new measures.

Keywords: Transfer of businesses; business of workers, social economy enterprises; crisis, contest.

The transfer of companies in crisis to their workers, organized in cooperatives or labor societies, is a recommended option, if the company is viable and its continuity and that of jobs are sought. Public powers must create the appropriate conditions for this.
The Spanish legal system contemplates adequate measures (aid for the creation of cooperatives and labor companies, capitalization of unemployment or prioritization of the acquisition proposal promoted by workers) but insufficient. The transmission processes must be anticipated; offer more complete information about the company to workers and their representatives; train support agents with information and training on social economy organizations, and create financing and guarantee funds and instruments that facilitate transmission. Successful experiences analyzed, both in Europe and Latin America, should be able to inspire new measures.

We can define the crisis as a situation where a company is subject to closure, if not adopt extraordinary measures, such as its restructuring and/or sale.

The reasons why a company may be in crisis are varied. The most common are the lack of succession of the employer, a natural person, at the time of retirement; the stay of the activity of the business or social bodies in the case of societies, by differences among its partners in the majority or other grounds, which is a cause of dissolution (the item 363 Companies act); and the insolvency of the company, which often result in a bankruptcy. It is worth recalling at this point that, in spanish law, the debtor should request the declaration of a competition, as in the afternoon, two months after the date on which had known, or because of their state of current or imminent insolvency (the item 6 . 1 Insolvency Law).

The output of the crisis depends on many factors, among others, of the cause of the crisis and the status of economic and financial business. The potential opportunities are a business in crisis are likely to be:

• The closing of businesses, the dissolution of the owner of the same, and the clearance of goods, which means not only the cessation of economic activity and dismantling of their organization, but also the loss of jobs.
• The continuation of the company and its commissioner responsible, when applied measures make it possible. For example, after a refinancing plan, a corporate restructuring, etc.
• The transmission of the company to a third party. This assumption is sometimes the only alternative to closure. For example, when the employer retires without succession. The transmission of the company to a third party can be done in various ways:

a) through the disposal of the company, in which case the seller, you can start a new activity with the amount received by the sale, or may cease their activities and become extinct.
(b) the sale of the title of capital in the case of corporations (actions, shares, assessments). In this case, there is a renewal in social bodies and sometimes also in their statutes and legal form of the entity (transformation), but does not entail extinction of society as a legal person as it would remain.

The transmission of the company to others, are workers or not, is the solution come by recommending the european institutions to prevent the disappearance of companies in crisis.

In 2006 the european commission adopted the communication “ transfer of businesses – Continuity through renewal ” (COM ( 2006 ) 117 end) which recommends to the eu member states to create adequate conditions for the transfer of businesses.

The Commission reaches this conclusion by noting that when an entrepreneur retires is not easy to find a successor and, consequently, companies are transmitted more third parties from family members. Moreover, it also notes that, most europeans prefer to work for a third party and those who are entrepreneurs were considered to be more helpful to create a new company to acquire an existing one.

Despite this juncture, the commission considers that the transfer of a company offers many advantages for both the new owner, who get a disposable production structure and their clients, and the workers because, as recalled, on average, existing enterprises generate five jobs while new create only two.

For this, and because it is expected that the transfer of businesses for the next few years, mainly by the retirement of a large part of employers of the european union, the commission considers that member states should create adequate conditions for the transfer of businesses. Among other improvements, the eu countries should:

• Systematically promote business transfers as an alternative to the creation of These ex novo, wondering if each measure of support for the establishment of enterprises is applicable to their broadcasts.
• Sensitize transmissions to prepare in advance by contacting those entrepreneurs who have reached a certain age, and promoting mentoring systems to assist employers in transit.
• Facilitate changes of status of companies, through contracts of succession, constitution of society by the individual entrepreneur legal or restructuring of a company prior to its transmission.
• Improve the financing of broadcasting, because the transmission of an enterprise requires more capital than the creation and the planned financial facilitades creation is insufficient. Therefore, the committee recommends to the eu countries establish suitable financial conditions, such as launch aid, loans and guarantees. So for example recommends that the guarantees for its own funds smes include investment of local or regional funds to provide seed capital or launching and financing of sows (combination equity borrowing and capital).
• Promote fiscally transmissions of companies. The Commission recognizes that in many countries have been facilitated family transmissions, but it is not enough to be encouraged, and transmission to third parties through tax exemption of the proceeds of the company, special reductions on the profit reinvest in an enterprise or exemptions for the investments of wage earners in your own company
• Create support infrastructures to reach all stakeholders, providing mediation services between buyers and sellers; disseminating information to support; training trainers and developing teaching materials.

The 2 july 2013 the european parliament adopted a resolution on the contribution of cooperatives to exit the crisis. In that resolution assesses cooperatives, together with other social economy enterprises, to create quality jobs, strengthen social cohesion, economic and regional levels, and build social capital. But it also underlines the creation in recent years hundreds of cooperatives in industry and services due to restructuring of companies in crisis or no successor, saving and revitalization of economic activities and jobs at the local level. That resistance of the cooperative model is due in large part, according to the Parliament, its particular model of governance, based on joint ownership, participation and democratic control and the organization and management by interested partners; the commitment assumed with the community and its characteristic method of capital accumulation, and of its reservations, in part and parcel, which makes it less dependent on the evolution of the financial markets.

All this helps to ensure that cooperatives take a long-term approach that handed down from generation to generation and strengthening the local economy, contributing to a sustainable local development.

But it also underlines the resolution that cooperatives are not immune to failure, and that workers acquire a significant financial risk to the acquisition of ownership of the company you are employed, so its intrinsic ability of resistance must be strengthened. On this point, parliament regrets that the action Plan on entrepreneurship 2020 the commission does not comment on the role of social economy enterprises, “ merely recall its contribution to job creation and social innovation and its greatest challenges of financing compared with smes ”. For this reason, parliament asked the Commission to strengthen its services through the creation of a unit responsible for cooperatives and other organizations of the social economy in order to pay greater attention to measures to guarantee an adequate level of resources, and urges it specifically to“ respond appropriately to restructuring in the form of cooperatives of industrial enterprises and services in crisis or no successor, through the creation of services dedicated to this task ”.

Later in the section devoted to “ broadcasting and restructuring of companies ”parliament believes that the transmission of a company employees through the establishment of a cooperative and other forms of ownership of workers, could be the best way to ensure the continuity of the company, and emphasizes that must be to support this type of business transfers to employees, especially in relation to cooperatives, through a specific budget allocation of the eu budget that will also include financial instruments; urgently requests is created, with the participation of the european investment bank (EIB), the social partners and stakeholders of the cooperative movement, a european mechanism designed to encourage the creation of cooperatives and, in particular, in the form of cooperative, using funds also mutualisation as exist in Italy.

The problems facing business transmissions to employees are often, as parliament, the duration of proceedings in question; the lack of knowledge of these business models of the social economy by professionals (lawyers, advisers) and the lack of financial support. For the latter, it exposes the difficulties that cooperatives by their nature and organization, for access to risk capital and credit on the capital markets, and concludes that must be the appropriate financial instruments to these entities, through the granting of credits and specific funding, to strengthen its fund, although limited in time (upon formation or operation of purchase of the company), without any state aid, and accompanied by fiscal advantages.

More recently, in november 2023 the eu council approved the recommendation on the development of framework conditions for the social economy, which is aimed at promoting access to the labour market and social inclusion, guidance to member states on how to promote the political and regulatory frameworks facilitators of the social economy and measures to facilitate their development.

In the chapter dedicated to promoting access to the labour market through the social economy, the council recommends to the member states to ensure a facilitator for companies to their employees, in order to form cooperatives and take other legal forms of relevant social economy, with the aim of avoiding loss of employment and safeguarding the economic activity, while providing counselling and information on costs and potential benefits of webcast production companies to employees ( 5 (f).

Furthermore, chapter devoted to the development of enabling frameworks for the social economy, the council encourages member states to take measures on access to public financing and taxation. In particular, los member states should provide specific financial support and capacity-building to facilitate the transfer of businesses to workers through cooperatives and other forms of social economy, while providing the workers, counselling and information on their potential costs and benefits( 14 (h). In terms of fiscal measures, suggests tax exemptions on unemployment benefits received as a lump sum payment to facilitate the transfer of businesses to workers' cooperatives ( 19 b, (iii).

The transmission of the company to another owner plausible solution as it allows to maintain economic activity and jobs; however, as we have seen, is not the preferred option for workers, who prefer to work for an employer, or by entrepreneurs, who prefer to create new businesses. Therefore, should stimulate this option and that the european institutions and states establish conditions for such transfer is possible and attractive. Must encourage it to support measures, awareness-raising, financing and financial, among others.

The usual challenges for the transmission of company is involved in the transmission to the workers, which, although the main part of the company, they generally do not have enough information to predict the future of the company and the intentions of the entrepreneur, neither the necessary capital to purchase.

Despite this, the transfer of businesses to workers has been provided for and nurtured in our legislation.

The Law 45 / 1960 , 21 july, inter alia, established a national fund for the Protection of labour (FNPT), which are awarded annually grants to unemployed workers, in the form of concessionary loans, to provide the social capital of cooperatives or new procedures. The investment plan FNPT of 1964 added a new line of investment: loans to workers wishing to be a “ company partnership regime ”. Its aim was to promote the company workers in difficulties could buy it and save their jobs. The beneficiaries were no longer necessarily unemployed and could take the form cooperatives or any type of legal form of associations. Precisely, from FNPT of loans 1963 and other channels of financing, workers in the transportation company and railways Valencia (CTFV) were able to create the first labour society of history, the joint stock company of urban Transport Valencia (SALTUV), and to acquire the assets of the failing CTFV.

Both workers' cooperatives as labour societies have in common the fact that most of its capital and their voting rights belong to partners in the same. Were models of business of the social economy (the item 5 Law Social Economy), which promote, inter alia, stable employment and promotion ¹ The constitution. 1978 , orders the authorities his promotion when he says, the item 129 . 2 : “The public authorities shall promote effectively the various forms of participation in the company and promote with adequate legislation, cooperative societies. It Also means that facilitate access to ownership of the means of production ”.

Since then, and through successive laws cooperatives and employment societies, and the actions of public policy in favour of employment, support was expressed for both the constitution of cooperative societies, also as successors of companies in crisis RD. 818 / 2021 when regulating activation programmes for the use of national employment System, provides for a programme to support the creation and employment in labour cooperatives and societies, which, in addition to supporting the incorporation of women who work as partners, supports the development of projects of establishment and modernization of these entities of the social economy, including those “originating in a business project that is undergoing transformation, relay or succession by persons employed or unemployed persons, in partnership” (item 82 ) - The assistance could include subsidies per person incorporated partner; grants for investment (four-point reduction in the interest of bank loans, and direct support to the establishment and operationalization of cooperatives or labour society); subsidy for the provision of technical assistance (feasibility studies, organization, marketing, etc.) and subsidies for the provision of training activities directly linked to the promotion of employment (the item 83 ). This aid can be improved and complemented by the autonomous communities. Thus, for example, in the case of the Generalitat Valencia na, there is support for the acquisition of fixed assets, new or used, directly linked to a prison, after it has closed, or you had not been acquired, in the following assumptions ² :

1. When the company and co-beneficiary labour society had been made of persons affected by a record in employment regulations in the owner of the aforementioned establishment.
2. When the beneficiary was created by people affected by retirements of individuals holding the above-mentioned establishments.
3. When the beneficiary is integrated to people from the company in crisis whose assets are to seek to acquire (the item 16 . 5 and 18 order 11 / 2019 support for the promotion of cooperative enterprises and labour societies, and resolution 13 may 2024 by the summoned the previous assistance 2024 ).

During the financial crisis 2008 - 2013 later, and the health crisis 2019 - 2021 no new promoted measures to promote the transfer of businesses in crisis to its workers organized in cooperatives or labour societies, despite the constitutional mandate, from our experience, and the successful solutions that during that period had been taken in various countries of europe and latin america, to facilitate the transition of companies in crisis to its workers organized in cooperatives. In this regard include: the law Marcora, italy, which creates a fund to finance the creation of cooperatives formed by workers of companies in crisis ³ ; the steps taken by the law on Social and cooperative economy of france to facilitate the transfer of businesses to employees ⁴ ; or the mouvement des entreprises Recovered by workers (ERT), as practical experience that won the initial support of the justice and shortly after the legislator, in countries like Brazil, Uruguay and Argentina.

Particular attention should be given to the argentine experience by the numerous and effective measures taken by the law 26 . 684 , 29 july 2011 amending the competitions and Bankruptcies (Law 24 . 522 of 7 august 1995 ) in order to promote the acquisition by workers, organized in cooperatives, their businesses, both in pre-concurso phase, such as bankruptcy ⁵ . The measures taken by the law include:

• The offer to cooperatives comprising workers, including cooperatives in training, of the possibility of acquiring the stocks and shares social capital of concursada, in order to formulate preventive settlement proposal with creditors that will enable them to continue with the company (the item 48 ).
• For the acquisition of these actions or contributions are taken into account any compensation provided for under the law 20744 of the contract of employment (arts. 232 , 233 and 245 ), that is, by reason of dismissal, lack of notice and seniority of the contract. All of these claims and others who could have workers shall be transferred to the cooperative and assessment of their social capital (the item 48 bis).
• The bank of the argentine nation and the Federal administration of public revenues, if the creditors of concursada shall issue the motion of the cooperative and facilitate the refinancing of debts to assume, in the most favourable conditions existing in their respective portfolios (the item 48 bis).
• At this stage, the cooperative pre-concursal formed by workers of the company in crisis should not make the deposit of 25 per cent of the value of the offer, nor the deposit of 5 % of share capital (the item 48 bis).
• Already in the process of bankruptcy, between the functions of the trustee is the conservation and management of assets of the concursado, but is also empowered to agree on its lease (rent contract) for cash income. At this time, the cooperative working group formed by workers in the company, they can propose a lease on the company, which shall be secured with the cooperative credit outstanding, in the bankruptcy (the item 187 ).
• Alternatively, the syndic can continue with the exploitation of the bankrupt enterprise or one of its facilities, termination could trigger serious harm to the interests of creditors and heritage preservation, if it decides that the undertaking it is economically viable. But will also continue the exploitation of the enterprise or establishment, if requested by the syndic or the judge, two thirds of the staff of the company or the creditors, organized in cooperative, even in training. In the latter case, the cooperative formally and should be established within 40 days, and may be extended if accredited causes beyond its responsibility (the item 189 ).
• In any bankruptcy, the receiver must inform the judge on the possibility of continuing the exploitation of the enterprise or establishment of the failed, and the desirability of disposal. The former shall take into consideration the formal request made by the workers representing two thirds of serving staff, or the creditors, who will work to act in the period of continuity in the form of cooperative, and submit within 20 days, a project, on which the syndic. In case of dissidence or doubts about the continuation of the exploitation of workers, the judge may convene a hearing with them and with the receiver (the item 190 ).
• In any bankruptcy has ensured the continuity of the exploitation of the enterprise or establishment by two thirds of serving staff or the creditors, organized in cooperatives, including in training, “the state shall provide the necessary technical assistance in pursuing the turn of business ” (the item 191 bis).
• In case of continuation of the company, mortgage creditors and prendarios may not enforce their rights on the property needed for exploitation in the cases contemplated in item 195 ; but, in addition, at the request of the cooperative of workers, the bankruptcy judge may suspend foreclosures and/or by pledges for a period of up to two years (the item 195 ). This has been crucial to enable workers to implement the enterprise, ensure a minimum wage and obtain the necessary funding to acquire the means of production ⁶ .
• In case of purchase of the company gorge, the transferee of the same will only be considered “ successor of the competition ” and therefore responsible for the payment of wage claims, with respect to workers whose ratio has remained in the period of competitive examinations; and not for the amounts due prior to the bankruptcy, which should be paid to the contest. If the transferee is the cooperative, will be, the law says in his item 199 , as envisaged in the cooperatives act, No. 20337 . This Law provides for the distribution of surpluses not until offset the infringement and outstanding losses (the item 43 ).
• In liquidation, the property by the syndic. At the moment, however, there is still a chance that the cooperative group could achieve continue with the exploitation of the enterprise or establishment, if the judge admitted (the item 203 ).
• In this case, gathered in cooperative workers may apply for the purchase of the company or establishment, and may use set-off with the failed. May use all or part of the claims of those mandate-holders and workers who voluntarily give up the cooperative (the item 203 bis).
• In terms of procedure of the disposition of the company, after appraisal by the designated person, shall be communicated to the cooperative workers and the syndic. The sale must be ordered by the judge and may be effected by public auction or not, but in any case, the cooperative may make an offer by the company and require adjudication by the value of valuation (the item 205 ).
• Finally, it was also envisaged that the judge has the direct sale of goods to the cooperative, following notification of the trustee, in the event that that is the continuation of exploitation, when, by its nature, low value or failure of another form of disposition will prove useful for the contest (the item 213 ).

These measures were completed in 2019 with the creation of the national registry of companies, which is Collected and kept up to date the information collected companies throughout the country, and the national directorate of Recovered, which seeks to facilitate access to public policies, provide legal assistance and training, technical, technological and accounting ⁷ .

In Spain, during these times of crisis, and despite the vast destruction of businesses and jobs ( 5 millions of people were left unemployed in the crisis 2008 - 2013 ), the committee did not take specific measures that could favour the transmission of the company in crisis for their workers, organized in cooperatives or labour societies, or otherwise ⁸ . The insolvency law referred only to workers as subjects whose rights, they must have a special protection, especially when it comes to the appropriations of the estate and qualified privilege general; and their representatives, as have the right to information and consultation to certain decisions to be taken by the judge of the competition ⁹ . But in no way envisaged that they could obtain the purchase of the company or production units of the company in crisis, which, not being prohibited, was not feasible without legal measures to promote, as we have seen in argentine legislation and union. It is noteworthy that the council to foster the Social economy, created by the law of the Social economy of 2011 , and entrusted with inter alia, the role of informing and collaborate in developing projects on any law or regulation affects entities of the social economy (the item 13 I), was not considered nor formed until 2015 .

It is precisely one of the tasks it has been pending this council since the adoption of the law 2011 it was the updating of the labour act (additional provision 7 Th. 3 I). 14 october 2015 it adopted the new Labour act and Investees No. 44 / 2015 . In addition to updating and revision, the act incorporates, as reflected in its title, a new category of society: society participated by their workers. These are defined as public or private limited companies that do not meet the requirements for labour societies (majority-owned capital workers into society under an employment relationship indefinitely, and no partner worker may have more than one third of the capital), but promote access to the status of partners of workers in terms of the equity in society and in the decisions of its Social partners (the item 19 ). The little regulation of this is contained in the cited act, because the absence of regulatory development required by the final disposition fifth LES, led to the weak implementation of this rule. It should be noted, however, its promotion by the basque government, through support for the participation of women who work in enterprises (Order of 13 july 2021 ).

Juan Escribano, 2019 (op. cit, p 29 ), after a thorough review of our legislation concluded that It had not yet faced with the mandate of the european parliament that the member states were urged to: create a framework to facilitate business transfers to workers; to include financial mechanisms designed to help them to invest in companies in crisis; and grant preferential rights workers, in order to create better conditions for a takeover bid by the company in crisis.

In recent years, however, the situation seems to have changed. On the one hand, because, within the framework of the recovery Plan, transformation and Resilience, the government adopted the Comprehensive Plan for the promotion of Social economy, and since 2021 subsidizes Projects “ force-generation and maintenance of employment in viable businesses that are in difficulty or without current generation system or predictable, by being turned into business formulas of the Social economy managed by their workers and workers ” (TRANSFORMS _ en) ¹⁰ . On the other hand because, on the occasion of joining the spanish law of the directive (EU) 2019 / 1023 the european parliament and the council, 20 june 2019 on restructuring frameworks should be retained in custody, the bankruptcy act and took the opportunity to incorporate some measures that could favour the transfer of businesses in crisis organized workers in labour cooperatives and societies.

The Law 16 / 2022 the spanish law reflected the directive (EU) 2019 / 1023 that is aimed at introducing frameworks or restructuring procedures detention in order to ensure continuity of viable businesses but facing financial difficulties, which may threaten their solvency and lead to the resulting competition.

It alters the bankruptcy act and the law on social economy, among others.

In the case of insolvency lawthere is a broad change in the right pre-concursal (Book II) in order to allow preventive restructuring of the company in crisis (whether probability, as in imminent insolvency or current insolvency), to ensure the continuation of the company if feasible (the item 585 LC). In this book contains no specific measure to provide for the participation of workers in the possible restructuring (changes in the structure of the assets and liabilities of the debtor, its own funds webcast production assets in productive units or all of the company in operation or any other change the item, 614 LC), in the absence of the status of creditors, and as such, may participate not only in decision-making but also, to submit a restructuring plan, in accordance with art 612 LC, which requires among other things that make up more than 50 per cent of the liabilities which may be affected by restructuring plan.

The measures taken to promote the transmission company workers in crisis are located in the regular phase of the competition, where the debtor has already been declared in a contest, and the trustee in bankruptcy: developing an inventory of assets and rights of the debtor or contest active (chapter II), and to hold them (chapter III). In principle, to the adoption of the convention or the opening of the liquidation phase, the assets and rights that are members of the active mass cannot be alienated or encumbered without judicial authorization; with some exceptions available under the law, necessary for the continuous professional activity or the debtor's business (the item 205 and 206 LC). Within the section 2 º of this chapter regulates the disposition of assets and rights of the estate, and active in a subsection 3 Second, the specialties of the disposition of productive units (arts. 215 to 224 .bis). In this subsection are the two articles that interest us: the item 219 and the item 224 bis. Both articles incorporated with the above-mentioned act 16 / 2022 but not formed part of the draft law, but included during the parliamentary procedure in congress. In particular through the amendments no. 330 and 332 the Confederal Group of Nations Podemos-En Podem- Common Galicia in common. The proposed text still was reorganized before its adoption by the plenary of the Congress ¹⁰ .

According to the item 219 LCentitledRule preference:

" 1 In case of an auction, the judge, by a decision, may agree to the award the offerorwhose supply does not differ by more than 15 per cent of senior supply when it further guarantees the continuity the company as a whole or, if any, of the productive unit and jobs, as well as the best and quickest satisfaction of the claims of creditors.
2 . This rule also applies to offers of working people interested in the succession of business by means of the constitution cooperative society or labour”.

This article allows the judge, in the case of auction, can make a proposal that, while offering lower prices for the acquisition of productive unit, considers that better guaranteed continuity of the company and jobs. The amendment no. 330 he proposed that the judge could agree on the award to the workers' rights, but his offer a 20 % lower than the offer higher, and was grounded on the promotion of the social economy. As finally adopted the item 219 . 2 one might imagine it adds nothing to the first paragraph, because nothing prevents the offeror to be a cooperative or labour society formed by workers, and that concursada benefit also of such preference. An alternative interpretation of the item 219 . 2 it could be drawn from its reading jointly with item 224 bis.

According to thethe item 224 LC bisentitledApplication of competition with presentation of takeover of one or several production units:

" 1 . The debtor may submit, together with the request of declaration of competition, a written proposal secured or binding a third party for the acquisition of one or more productive units.
In the proposal the creditor or third party shall have the obligation to continue or restart the activity with the unit or production units to which it relates to a minimum of three years. The non-compliance with this commitment will lead to any affected to the buyer can claim the compensation for damage caused.
2 . Of the declaration of examinations, the judge shall grant a period of fifteen days so that creditors who appear before they can make to the proposal 'comments and appropriate for anybody can submit alternative binding proposal. In order, the judge will require the bankruptcy administration so that, within that period, issue evaluation report of the submitted.
3 . The written proposals binding acquisition may be conducted by working people interested in the succession of business by means of the constitution cooperative society, working or shared.
4 . If you tabled a number of proposals or alternative procurement, the judge will require the bankruptcy administration so that, within five days, issue evaluation report.
5 . In the report the bankruptcy administration will assess the proposal or proposals submitted in response to the interests of the contest, and report on the effects that might have on active and passive masses resolution of the contracts that it is for each topic.
6 . Once issued the report or reports by the bankruptcy administration, the judge if they had submitted several proposals, granted simultaneous within three days the bidders to ensure that, if they so wish, to improve that each of them had submitted. Within three days after the end of that period, the court shall proceed to the adoption of the most advantageous for the interest of the competition. In case had been presented a proposal along the lines of paragraph 3 and the offer is equal to or higher than other alternative proposals presented, priority shall judge this proposal if it attends to the interest of the contest, considering in the same continuity of the company, the productive unit and jobs by, inter alia ”.

In this article recognizes that workers organized in cooperative labour society or -owned society may also, as any third party, submit a sound proposal for the acquisition of one or more productive units concursado. The measure of interest can be found in the section 6 º when he says that,if the submission of the workers is equal to or bottom (and not “ senior ” as the norm, which should be interpreted as an error ¹¹ )other proposals, the judge “ priority ”,not just “ may ” prioritize (as the item 219 . 2 ), provided it attends to the interest of the competition, namely that will contribute mainly to the continuity of the productive unit and jobs. The application of the rule could cause problems in putting proposals submitted by corporations owned, which in principle and, until it is properly regulated, only they are required to meet any of these requirements: with workers from taking part in the capital (could be two workers); who have a right decision in society; that any society to adopt a strategy for promoting the incorporation of workers as partners or promote principles such as: the commitment to local development, equality of opportunity between men and women, social cohesion, the generation of stable employment, etc. (art 19 Labour law Societies and Investees). In short, any company outside the social economy could have the same preferential right to acquire the productive unit of the concursado.

Of a joint reading of the item 219 . 2 and 224 bis, interprets Ascension Gallego Córcoles preference, which referred to in item 219 . 2 apply whenever the takeover bid performing organized working people, regardless of whether the disposition in an auction or not, or the scope of the price difference, with the sole condition that the proposal is compatible with the interest of the competition ¹² . However, this interpretation, we believe that these rules are also vague and insufficient to provide the necessary legal certainty is needed. It is also taken into account that, despite being the by public auction the formula in case of disposal of the company or productive units until the adoption of the convention or setting up the liquidation phase (the item 215 ); also provides that the judge can authorize another way of implementation, as it could be the disposition or direct sales,as we saw that provided for argentine legislation. Moreover, as said Rafael Sebastian Quetglas, the process of disposal of company or productive unit is best suited to a direct sales to auction ¹³ .

Another provision that reflected the bankruptcy act and the purchase of the company or productive unit by workers organized in cooperatives or labour societies is the item 224 . In principle, in case of disposal of a productive unit, it is considered that there is a succession of company for the purposes of employment and social security (item 221 . 1 ) and, therefore, the transferee will be surrogate contracts of employment subject to the continuity of business (the item 222 . 1 ). Furthermore, the Act also said that the transmission of the productive unit not to be accompanied by the payment obligation of credits not satisfied before transmission, whether of bankruptcy or against destruction, unless succession of company in respect of wage claims and social security for workers in the productive unit whose contracts is surrogate for the procurer. However, in this case, the judge of the contest may agree on this provision, that the transferee not subrogue on the part of the amount of wages or pending claims prior to disposition, which will be borne by the Wage guarantee fund (the item 224 . 1 ). This possibility shall not apply when the purchasers of productive units are persons, especially relating to the concursado (the item 224 . 2 ), but the workers of an enterprise, by the mere fact of work at the same do not related persons, especially the concursado. Instead, it could be considered especially related to the concursado: if they were managers concursada society or partners with a participation in social capital, directly or indirectly, at least 5 % if listed in the secondary market, or 10 per cent in another case. The act expressly excludes the “ creditors ” that exceed those limits if as a result of having failed to capitalize on all or part of its claim, as a result of an agreement adopted in phase pre-concursal or under the convention. However, if not excepciona fund evading the crisis has been carried out by the workers, if you do not have the status of creditors of the concursado. This can cause problems if workers pre-concursal phase have provided funding to the holder of the company, acquiring or adhering to its claim or shares, percentage, which may be seen as related persons, especially the concursado.

The previous rules establish a special regime applicable in case of disposal of productive units (arts. 215 to 224 bis). This regulation, as we saw, is located within the common phase, but also applies express referral item 324 . 2 LC, at the stage of the convention, when the transmission of the productive unit is contained in the draft convention with assumption of the commitment of business continuity. In view of Nuria Orellana (op. cit, p. 1222 ), these rules would apply in case of disposal of productive units into liquidation, although it is not stated expressly by law. And, finally, one might also ask to what extent these rules would apply when the restructuring plan submitted to its adoption in phase pre-concursal contemplates the transmission of productive units or all of the company in operation (the item 614 ). We understand that, if at any time prior to this stage there are various proposals for the purchase of the company or production units, these special rules should apply if it is best guaranteed continuity of the company and jobs. Let Us Remember that the purpose of the directive on restructuring frameworks, which incorporates preventive law 16 / 2022 it is “to ensure continuity of companies and businesses that are “ feasible ”.

The Law 16 / 2022 also changed theLaw on Social Economyin order to incorporate an article 10 bis, entitled: “Capitalization of unemployment benefit for the granting of labour society or transformation in cooperative by corporations in contest ”.

It should be noted that the possibility of obtaining the unemployment benefit in their mode of payment to join as a worker in a cooperative of work associated labour or society is a long tradition (born with the Royal Decree 1044 / 1985 ) and has enjoyed Success and international recognition ¹⁴ With the law. 31 / 2015 this measure is incorporated into the Social economy as art 10 under the title “Capitalization of unemployment benefit recipients of benefits when seeking to join workers or as partners in cooperatives or labour in societies”. In these cases, the payment of the provision will be carried out only once in the amount that corresponds to the capital contribution to make the person, including the entry fee, in the case of cooperatives, or of the acquisition of shares or shares of social capital in a society in labour necessary for access to the status of partner.

This measure would promote the incorporation of workers in the society in crisis, to a new cooperative or labour society formed with the purpose of presenting proposals for the purchase of the company or production units of the same,without the legal status of unemployed.

The new item 10 bis extends this measure, in the event of concurrence, with the purpose of favouring the transformation of companies in a contest, workers' cooperatives or labour societies.

Thethe item 10 bisstates that:

“ 1 . The operator may be required to provide the people who meet all the requirements to be beneficiaries of the contributory unemployment benefit ¹⁵ except for be legally unemployed, the present value of the amount of such provision, when seeking purchase shares or shares of a society in providing servicespaid workers as people with an employment contract for an indefinite period so that,with such procurementalone, or considered procurement which carry out other people, workers or not society, this meets the legal conditions necessary to acquire the status of work or society become cooperative.(…)
2 . The payment of the provision capitalized, require the firm bein a contest declared and that the judge has commercialthe transformation decidedof society in a cooperative society or society in the context of the provisions of articles 219 or 224 bis and concordant articles of the revised text of the Bankruptcy Act. (…) ”.

What this article provides, is very different from what seen in the item 10 . In this case the provision is not directed to the capitalization of the cooperative society or work, but of the corporate entity in a contest, with the purpose of taking its control and transform it from within or in a cooperative society, taking labour in principle the property, rights and obligations of the company in crisis. This option is certainly a lot more risky for workers that the constitution of a cooperative or labour society becomes productive unit and not its liabilities, as well as a condition that puts the company has already been declared in a contest, and the chance of avoiding liquidation are few more of; 90 per cent of the competitions end up in liquidation. Neither must we forget the risk that can run the worker whose scope the investment 5 or 10 % of the society in crisis (as listed in the secondary market), to be considered as person the concursado, exacerbating significantly its status within the competition.

We have seen so far as the legislation provides for aid to cooperatives and employment for societies its constitution, for its capitalization on the part of workers, for investments, training or technical assistance. We have also seen as reformed the bankruptcy act to establish some settings when the company workers in crisis, organized in cooperatives, labour societies, societies and even owned by those who hope to acquire the company or production units.

But these measures are not enough. If the plan seeks to prevent the disappearance of viable businesses, it is necessary to anticipate, much more, as i said in the European Commission 2006 , prepare business transfers in advance.

Furthermore, additional steps, it also recommended by the institutions of the european union and who are practicing countries around us, as the establishment of funds that can feed into public resources (european, national, regional and local), and the social economy sector (as the funds of mutualisation); and other specific instruments for funding and security.

It must also be reviewed to what extent the transfer of businesses receive similar support in spain to the creation of new firms. It is clear that this is not the case, but we must remind the authorities that the operating businesses generate more jobs of media that new, and spain has the highest rate of unemployment of the European Union ( 11 , 7 per cent in december 2024 ).

The transfer of businesses should also be promoted fiscally, the european commission proposes the discharge of the embargo imposed by the true added value generated by transmitter, on investments made by the workers in the company itself, or profits that are reinvested.

Special attention should be given to the creation of infrastructure; information support to training; to learn about the business models of the social economy; services for workers and updated information on costs and potential benefits of transmission. To achieve these objectives, it is essential to the intervention, not only of the public authorities, also of representative organizations of cooperatives and employment societies and, above all, trade unions, because it is crucial to inform and motivate employees to raise awareness and to engage in these processes ¹⁶ .