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Thematic chapter

Labour and social economy in Italy: a composite legal framework

Emanuele Dagnino
p. 80-93
Cet article est une traduction de :
Travail et économie sociale dans un cadre juridique italien instable [fr]

Résumés

Cet article donne un aperçu du cadre juridique composite de l’économie sociale en Italie. Bien que la législation italienne n’ait pas encore introduit une discipline commune de l’économie sociale - se concentrant uniquement sur le tiers secteur à but non lucratif - l’auteur décrit les différentes réglementations et dispositions qui placent le système juridique italien à l’avant-garde de la promotion de l’économie sociale, et en particulier de sa « dimension travail », soulignant également la nécessité d’insister davantage sur la reconnaissance de la qualité des emplois en tant que caractéristique fondamentale de l’économie sociale.

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Texte intégral

  • 1 J. L. Monzòn, R. Chaves, « Recent Evolutions of the Social Economy in the European Union », Study f (...)
  • 2 See C. Borzaga, M. Calzaroni, E. Fontanari and M. Lori (eds.), « L’economia sociale in Italia. Dime (...)

1Italy is one of the countries with the strongest tradition of the cooperative movement and where social economy plays a major role in the overall economy1. According to a study issued by ISTAT (Italian National Institute of Statistics) and EURICSE, the Italian social economy was composed in 2015 by 379.176 entities providing an added value of more than 49 billion of EURO and employing one and a half million workers and more than 5 million volunteers. In the private sector of the economy, these figures accounted to the 8% of the private economy entities, the 6,7% of the added value and the 12,7% of the employees. Data from 2017 shows a growth trend both in terms of employment and number of entities: + 3,5% of employees and + 4,2% of social economy organisations2.

  • 3 As known, the Spanish legal system has been the first to adopt a specific legislation on social eco (...)
  • 4 See J. L. Monzòn, R. Chaves, « Recent Evolutions of the Social Economy in the European Union », Stu (...)

2Notwithstanding, the Italian legal system – differently from the French and Spanish ones3 - doesn’t provide for a common regulation of the social economy, and actually, the very notion of social economy only « enjoys a moderate level of recognition » in Italy, against the high level of recognition enjoyed not only in France and Spain, but also in Portugal, Belgium and Luxembourg4.

  • 5 Resolution concerning decent work and the social and solidarity economy, International Labour Confe (...)
  • 6 C. Borzaga, M. Calzaroni, E. Fontanari and M. Lori (ed.) « L’economia sociale in Italia. Dimensioni (...)

3Social economy –according to the ample definition provided recently by ILO (« The SSE encompasses enterprises, organizations and other entities that are engaged in economic, social, and environmental activities to serve the collective and/or general interest, which are based on the principles of voluntary cooperation and mutual aid, democratic and/or participatory governance, autonomy and independence, and the primacy of people and social purpose over capital in the distribution and use of surpluses and/or profits as well as assets »)5 - has received scarce attention as such in the Italian context since both scholars and the legislators have always preferred to keep two different components separated6, with only limited overlaps.

  • 7 Ibid.
  • 8 V. Zamagni, « Italy’s cooperatives from marginality to success, XIV International Economic History (...)

4On the one hand, cooperatives and, particularly, workers’ cooperatives which are subject to specific laws. They make up 15% of the social economy entities, but provide 60% of the added value7. The cooperative movement has very ancient roots: the first cooperative was founded in 1854 in Turin and since then the cooperative movement has strongly and increasingly grown, except for the fascist period when cooperatives were severely opposed by the regime. After the end of the fascist period, the movement had been relaunched by the new Republican Constitution where a specific reference (see infra) is included8.

  • 9 S. Patanè, « The Third Sector in Italy », EuroSET Report, Rome, 2003.

5On the other hand, other enterprises falling under the notion of Third Sector (associations, foundations, social cooperatives, social enterprises), which represent 75% of the social economy organisations producing 40% of the added value. These latter enterprises and organisations evolved in the course of the Twentieth Century according to the transformation of the Italian Welfare State, gaining importance once the welfare state have started its retreat9.

  • 10 See the delegation law no. 106/2016 which, building on guidelines subject to public consultation in (...)

6Starting from the Nineties, they have been progressively regulated and promoted in separated acts and even when, in 2016, the legislator decided to reform and bring together the different regulations for enterprises and social economy organisations in coordinated acts10, the reform focused on the non-profit sector, the so-called Third Sector, leaving aside the whole cooperative section except for those cooperatives that fit the restrictive definition of Third Sector.

7Against this backdrop, the Italian legal framework in the field of social economy can be defined as both a composite and an advanced one. Indeed, if the dissemination of different laws and provisions without a unitary framework has a negative impact on coordinated actions to promote social economy as a whole, different laws also establish a number of regulatory and economic incentives and limits to foster the social and economic impact of the entities of the social economy. This is of particular importance as far as the « labour dimension » is at stake and so with reference to the social purposes of economic activities (e.g. inclusion of disadvantaged people and stable jobs) as well as with reference to working conditions and the involvement of workers in the governance of entities.

8The contribution will be structured in three parts. First of all, an overview and analysis of this composite legal framework will be provided (I). Secondly, the « labour dimension » of the laws and provisions regulating the social economy will be assessed (II). Finally, the borders and interactions between the social economy and a form of responsible capitalism regulated in Italy since 2015, the so-called società benefit (B-Corp) will be briefly analysed (III).

I – The great divide in the Italian social economy: cooperatives and the Third Sector

  • 11 While the legal recognition of Third Sector organisations started in the Nineties with the Law no. (...)
  • 12 See M. Romano, « Non-profit organizations following third sector reform in Italy », Il diritto dell (...)
  • 13 See A. Azara, « Profili sistematici del Terzo Settore », Variazioni su temi di diritto del lavoro, (...)

9As anticipated in the introduction, the social economy has been subject to a major reform in the last few years. The reform has been aimed at recomposing the different legal fragments which characterised the social economy in Italy. Starting from the Nineties11 and in the first decade of the Millennium, indeed, the Italian legal system has been at the forefront of the regulation of enterprises and organisations of the social economy, and specifically of the non-profit Third Sector12. This legislation, though, has been dispersed in a number of different acts without any attempt of coordination: social cooperatives, social enterprises, voluntary organisations, social promotion associations and other enterprises have been all regulated by different laws13.

  • 14 D. Garofalo, « Il lavoro nel Terzo Settore », Massimario di Giurisprudenza del Lavoro, no. 1, 2018, (...)

10The request for a consolidated act collecting and coordinating these different regulations has been raised by scholars and Third Sector advocates for years and finally implemented through the so-called Social Act14 which is composed by three legislative decrees adopted by the Government according to delegation law no. 106/2016. This very important reform process - which is still partly ongoing due to the need of secondary legislation for the implementation of specific aspects of the regulation - has confirmed the above-mentioned divide in the Italian understanding of the social economy: the one between the cooperative movement and the non-profit/Third Sector component of the social economy (which includes cooperatives only under certain conditions), which, since independently evolved and have been separately studied (supra), are still kept apart by the new legislation,

  • 15 Except for the specific regulations provided for by the laws listed below, single entities (associa (...)

11As a consequence, and without prejudice for the general regulation of the single entities (corporations or organisations) provided by the Civil Code15, the Italian social economy legislation is currently composed by:

  • a Code for the Third Sector, containing a common regulation for all Third Sector entities - also including specific provisions regarding workers and volunteers in these enterprises

  • and chapters devoted to the various categories of entities included in the definition of Third Sector (Legislative Decree no. 117/2017, known as Third Sector Code);

  • a separate but connected regulation of social enterprises, which are specifically included in the definition of Third Sector, and have specific rules regarding workers and their involvement in enterprise governance (Legislative Decree no. 112/2017). In addition, a special law on social cooperatives, whose regulation has not been collected in the Third Sector Code, is also in place (Law no. 381/1991);

  • specific laws and provisions regarding workers’ cooperatives (Law no. 142/2001) and workers’ buyouts (inter alia, Law no. 49/1985, as modified by Law no. 57/2001).

12This composite legal framework results in different regimes - notably for economic (i.e. tax regime) and regulatory incentives - between entities (enterprises, associations and organisations) falling under the definition of Third Sector and « traditional » cooperatives, with limited interactions between the regulations listed above as far as some cooperatives meet the substantial requirements to be considered Third Sector entities.

  • 16 Article 4 of the Legislative Decree no. 117/2017 establishes a mandatory registration for the Third (...)
  • 17 The distribution of profits is forbidden both directly and indirectly with a specific provision (ar (...)
  • 18 M. Romano, « Non-profit organizations following third sector reform in Italy », op. cit., p. 395.
  • 19 Art. 4, § 1, Legislative Decree no. 117/2017.

13Legislative Decree no. 117/2017 establishes substantial (and formal)16 requirements to enjoy the convenient regime for Third Sector entities. The definition of Third Sector entity is provided by article 4 of the Legislative Decree and, even if the feature remains pivotal17, it goes beyond « the lack of a profit-making purpose that, therefore, can no longer be considered a circumstance sufficient to qualify as a TSE »18. Under the notion of Third Sector entity fall « voluntary organisations, social promotion associations, philanthropic entities, social enterprises (including social cooperatives), networks of third-sector organisations, mutual aid societies, associations […] and any other private entity different from corporations and set up to pursue, without lucrative purpose, civic, solidaristic, and socially useful aims »19 by carrying out general interests activities (voluntary actions, free supply of goods and services or production and exchange of goods and services).

  • 20 M. Ranieri, « La nozione del “Terzo Settore” e la sua rilevanza per i rapporti di lavoro », Variazi (...)

14As it has been sustained by some authors, this complex definition shapes the category of Third Sector entities from a subjective, objective and teleological perspective20. From the subjective point of view, the definition is composed by a list of traditional Third Sector entities - whose majority is regulated by the same Legislative Decree - which is integrated by a general clause regarding any entity which respects the objective and teleological requirements. The objective requirements refer to the kind of activities which can be carried out by these entities: on the one hand, it is worth noting that they can be voluntary and out-of-the-market activities (free of charge) or entrepreneurial activities carried out without a lucrative purpose; on the other, the activities must be considered of general interests.

15To this regard, article 4 is complemented by article 5 and article 6 of the same Legislative Decree no. 117/2017: the former provides a long list of activities which are considered of general interests, ranging from social and sanitary services to educational activities, from cultural activities to social housing and social inclusion services and so on; the latter allows these entities to carry out other activities but only if secondary and ancillary to those of general interest. Finally, as far as the teleological dimension is considered, the law specifies that these activities should be aimed at pursuing civic, solidaristic and socially useful purposes.

  • 21 This praesumptio iuris et de iure is motivated by the historical development of social enterprises (...)

16Given this definition, cooperatives fall under the application of the Legislative Decree no. 117/2017 only when they are also social enterprises according to the substantial requirements set by Legislative Decree no. 112/2017 which, in the context of the reform, has been specifically devoted to the regulation of social enterprises. While social cooperatives - namely those pursuing general interests for the society through socio-educational services and the work integration of disadvantaged persons - are considered iuris et de iure social enterprises by the law (article 1, § 4)21, all other cooperatives (as well as all other corporations regulated by the Civil Code) are to be included in the category of social enterprises when they meet the following requirements (article 1, § 1): carry out an economic activity of general interest on a permanent basis and as the main activity; the lack of a profit-making purpose and the pursuit of civic, solidaristic and socially useful aims; a transparent and responsible governance, with the involvement of workers and other stakeholders.

17As for the Third Sector entities, also the definition of social enterprise specifies the activities considered of general interest (article 2). They resemble the activities listed by the Third Sector Code, but with a specific declination on entrepreneurial activities. Other operational requirements are also set and if respected they allow cooperatives and other corporations to be entitled to the regime of social enterprise.

  • 22 « In regards to their mutual exchanges, cooperatives under prevailing mutuality (art. 2512): conduc (...)
  • 23 See S. Laforgia, La cooperazione e il socio-lavoratore, Milano, Giuffré, 2009, p. 20.

18Traditional cooperatives which do not fall within the definition of social enterprises, do not respect the operational requirements or anyhow are not registered as social enterprises are not totally excluded from economic or regulatory incentives, since specific incentives are foreseen especially in cases of prevailing mutuality22 and of workers’ cooperatives. The legislator, indeed, acknowledges and incentivise the social role that cooperatives can play, and particularly with reference to the labour dimension under investigation (i.e. workers’ cooperatives)23, even if in the last decades the abuses in the sector have increased. Indeed, cooperatives - or, better said, false cooperatives lacking any mutualistic purpose - have been established in order to exploit the promotional regime for cooperatives and unfairly compete in the market, by lowering the costs of their activities.

19Notwithstanding the constitutional coverage of the social function of the cooperative movement (article 45), cooperatives have been split in the context of the Italian social economy, in contrast with the European trends (and definitions).

  • 24 See Building an economy that works for people: an action plan for the social economy, COM(2021) 778 (...)
  • 25 Promote sustained, inclusive and sustainable economic growth, full and productive employment and de (...)
  • 26 Cfr. INT/925-EESC-2020-5266, rapporteur Giuseppe Guerini, adopted April 27th 2021.

20Although the lack of a general understanding of the social economy as composed both by (non-profit) Third Sector and the whole cooperative movement might be, as anticipated in the introduction, detrimental for coordinated actions - especially if the EU-level actions are considered24 - and for the social recognition of the social economy, the regulations contained in the Italian legal system are set to foster the positive impact of the social economy. With specific reference to the labour dimension, these regulations are toned up to promote decent work, coherently with the sustainable development goal no. 8 of the un agenda 2030 for sustainable development25 and in line with « the role of social economy in the creation of jobs and in the implementation of the European Pillar of Social Rights », as explained in the opinion issued by the European Economic and Social Committee in April 202126.

II – The labour dimension of the social economy in the Italian legal system: incentive regulation, legal tools and standards

21In the investigation of the labour dimension of the social economy in the Italian legal system we can distinguish: how « labour » is considered in the identification of the social function/social objectives that justify the promotional regimes provided by the legal system for the cooperatives and for Third Sector entities (A); how labour is regulated to in the context of the social economy in order to ensure the pursuing of the social aims of the economic activity consistently with the definitions accepted at the European level (B).

A - Labour and the social aims of the social economy

  • 27 See the social economy principles provided by Social Economy Europe, the EU-level association repre (...)
  • 28 Ibid.
  • 29 « Their activities are not primarily geared towards the creation of profits to be distributed to th (...)

22According to the Charter of the Social Economy issued by Social Economy Europe, which provides a definition of the social economy as interpreted by its own members27, social economy entities are « characterised principally by their aims and by their distinctive model »28. Building on the definition provided by the same charter and on the other definitions mentioned above, we can say that the aims of social economy enterprises and organisations entail the primacy of people and of social objectives over capital and should satisfy a general interest, which may consist in satisfying members’ needs (mutuality) or the needs of the society at large29.

  • 30 For example, work integration social cooperatives are exempted from the payment of social security (...)
  • 31 According to M. Biagi, Cooperative e rapporti di lavoro, Milano, Franco Angeli, 1983, p. 27: « In t (...)

23As far as we investigate the relevance of jobs and employment in the context of the social aims of the social economy, two different socially-relevant interests can be identified: a more general one, which is the promotion of full and stable employment; a more specific interest, that is the promotion of work integration of disadvantaged persons. Both these interests are taken into account by the Italian legislation regarding the social economy, which tries to promote and maximise the impact of social economy entities in the field by means of economic and regulatory incentives. Nevertheless, two different regimes apply. Work integration activities can benefit of specific incentives30 and of the incentives foreseen for Third Sector entities; the promotion of full, stable and quality jobs through mutuality - which is the aim of workers’ cooperatives31 - is promoted by laws and specific provisions and is not relevant to get access to the Third Sector regime. Indeed, by splitting the social economy into two sub-sectors, the non-profit Third Sector and the cooperative for-profit movement, the Italian legal system has separated the social function of the cooperatives expressed by mutuality from the social objectives pursued by Third Sector entities.

  • 32 Art. 1, § 1, lett. b), Law no. 381/1991.
  • 33 Art. 1, § 1, lett. a), Law no. 381/1991.
  • 34 Art. 2, §§ 4 and 5, Legislative Decree no. 112/2017.
  • 35 Respectively art. 2, § 1, lett p), Legislative Decree no. 112/2017 and art. 5, § 1, lett p), Legisl (...)

24In the context of the Third Sector regulation, mutuality is not considered the satisfaction of a general interest in itself, but only when mutualistic enterprises pursue socially relevant aims through one of the activities identified by Legislative Decree no. 112/2017, they can be considered social enterprises and benefit from the inclusion among Third Sector entities. Contrariwise, work integration is considered an activity of general interest, thus matching one of the criteria required to be identified as a Third Sector entity and to get access to the related special regime. On the one hand, work integration social cooperatives32 and social cooperatives providing work integration services33 (e.g. training support) are iuris et de iure social enterprises and Third Sector entities. On the other hand, any enterprise that employs at least 30% of disadvantaged or severely disadvantaged workers34 and any enterprise or organisation35 providing work integration services can be considered as a Third Sector entity when the other requirements are met.

25Notwithstanding the exclusion of workers’ cooperatives as such from the Third Sector regime, Italy can be considered at the forefront of the promotion of the capacity of workers’ cooperatives to promote stable employment, both in terms of creating and maintaining jobs. In this regard the Italian legal system provides for different legal tools and incentives, some of them with a strong tradition.

  • 36 See, for example, art. 8, § 1, Legislative Decree no. 22/2017 regarding unemployment benefits recip (...)
  • 37 See, for instance, art. 8, § 4, Law Decree no. 4/2019, converted by Law no. 26/2019, referred to gu (...)

26As far as new and stable employment is to be promoted, for example, the legislation on social security is closely linked to active labour market policies promoting self-entrepreneurship. Recipients of unemployment benefits as well as recipients of other social security benefits (e.g. guaranteed minimum income and other benefits provided to workers whose employment contract is suspended due to economic issues) are admitted to a total or partial one-time payment of the monthly cheque if the money is used to join a workers’ cooperatives as a shareholder36 or if the worker starts a new business, including a cooperative37.

  • 38 An Infringement procedure against Legge Marcora was initiated by the European Commission for violat (...)
  • 39 Cfr. among the latest interventions, the Budget Law 2022 (Law no. 234/2021) providing a total exemp (...)

27Even more interestingly, the Italian legal system can be considered a very interesting case study with regard to the measure to promote the maintaining of jobs. Indeed, workers’ buyouts have been promoted in the Italian legal system since 1985 with the so-called legge Marcora. The law - which has been amended in 2001 because of the contrast with EU competition law38 - is aimed at promoting workers’ buyouts through subsidised loans to workers who are interested in re-launching the business activities. Legge Marcora has been and is still complemented by other laws and provisions aimed at promoting workers’ buyouts through economic incentives39 and is usually taken as an example at international level in the promotion of workers’ buyouts.

  • 40 Accordo per la promozione e lo sviluppo dei workers buyout, January 21, 2021.

28This practice has been recently relaunched also by the Italian social partners. On January 2021, indeed, the employers’ associations representing the cooperative movement (AGCI, Confcooperative andLegacoop) stipulated with CGIL, CISL and UIL (the three main Italian trade unions confederations) a collective agreement where they take the obligation to promote workers’ buyouts40 by organising awareness raising campaigns and consultation services on workers’ buyouts at different levels. This agreement has already produced interesting outcome: for example, the social partners at territorial level in Bologna have promoted the institution of an Observatory on workers’ buyouts which will organise training courses and seminars, issue informative material but also analyse the economic trend in the Bologna area in order to identify cases where the use of workers’ buyout may prove useful.

  • 41 Art. 11, § 2, Law Decree no. 145/2013, converted in Law no. 9/2014.
  • 42 Art. 1, § 224 and ff., Law no. 234/2021. The regulation only applies to companies with more than 25 (...)

29While originally devoted to the restructuring of companies in crisis - which is still the main focus, promoted also through a pre-emption mechanism41 - workers’ buyouts extended their scope of application during the last years. If the agreement stipulated by social partners in 2021 highlighted the importance of workers’ buyouts also for easing the generational turnover in the company, managing assets confiscated from organised crime groups, but also to contrast transfer of enterprises not motivated by crisis, it was the law that recently provided a more favourable legislative framework for workers’ buyouts through a procedure which implies more information rights in case of business termination decisions and a procedure that requires a plan to maintain employment, also considering workers’ buyouts42.

B - Regulating employment relationship in the social economy: fair competition rather than quality jobs

30Beyond how labour and employment are considered with reference to the social function/social aims of social economy enterprises, labour regulation is to be analysed with reference to the role played to guarantee that these aims are pursued coherently with the social and solidaristic nature of these enterprises. Considering again the principles of the social economy, we can assess that the « ways » in which economic activities are conducted are not less important than their purposes and aims. The primacy of people and social objectives over capital, the democratic governance, the defence and application of the principles of solidarity and responsibility - just to name a few if the principles -imply that, when the labour dimension is considered, fair competition and quality jobs have to be guaranteed.

  • 43 See E. Dagnino, « Diritto del lavoro ed economia sociale: appunti per una ricerca », in Diritto del (...)

31While the Spanish and French law on the social economy seems to have expressly recognised both these aspects in their regulation - for example, by extending the notion of democratic governance into democratic and participative governance or clearly stating and by including quality jobs among the operational conditions of social economy entities43 - the Italian legal system seems to have focused on the tension between promotional legislation and fair competition.

  • 44 According to the Law no. 142/2001, the worker-shareholder has two different relationships with the (...)
  • 45 M. G. Garofalo, « Prefazione », in S. Laforgia, La cooperazione e il socio-lavoratore, op. cit., p. (...)
  • 46 See art. 7, § 4, Law Decree no. 248/2007, converted by law no. 31/2008.

32As far as we consider workers’ cooperatives, the law is mainly aimed at regulating the complex relationship between the worker-shareholder and the cooperative44 and to avoid that workers’ cooperatives carry out their activities unfairly competing with other enterprises by lowering labour standards. To contrast dumping practices, which have gained momentum over the last decades45, a provision46 has been introduced to force the application of the salaries set by qualified collective agreement (those stipulated by the comparatively more representative social partners). The quality of employment is not directly addressed by the legislation regarding workers’ cooperatives and could only emerge implicitly from the participative governance of the cooperative. The latter, though, cannot be taken for granted, as the dumping problems outlined above.

  • 47 See A. Riccobono, Diritto del lavoro e Terzo settore. Occupazione e welfare partenariale dopo il d. (...)

33A more complex scenario can be found in Third Sector labour regulation, which is composed by a number of provisions but, even after the reform, lacks of that special status promoted by scholarly reflection47. While the quality of employment remains something implicitly (and hopefully) linked to the nature of the enterprises and organisations, labour law provisions are set to manage the promotional nature of the legal intervention and the need to ensure a fair competition.

  • 48 Art. 8, § 3, lett. b), Legislative Decree no. 117/2017 for Third Sector entities in general; art. 3 (...)

34First of all, since the access to the promotional regime for enterprises in Third Sector is closely linked to the non-profit nature of the entities, labour law is used to guarantee that even the indirect distribution of profits is avoided. To this aim, the law establishes that indirect distribution is considered a salary that is more than 40% higher than that set by the sector collective agreement for the specific job position, unless the job position implies skills higher than those normally required48.

  • 49 See art. 16 Legislative Decree no. 117/2017, and art. 13 Legislative Decree no. 112/2017.
  • 50 This extension has raised some concerns in the scholarly debate since it seems to establish an erga (...)

35Two other provisions refer to workers’ salaries49: one is aimed at ensuring fair competition with other enterprises in the market; the other to strengthen the solidaristic and social nature of the entities. The former applies the mechanism set for workers’ cooperatives in terms of application of qualified collective agreements, but extends the scope of application from salary to the whole economic and regulatory contents of these agreements50. The latter introduces a salary cap determined in terms of comparison between different employees: the most paid employee cannot be paid more than 8 times the least paid employee.

  • 51 For example, according to art. 17, § 6-bis, Legislative Decree no. 117/2017, volunteers are entitle (...)
  • 52 Art. 17, § 2, Legislative Decree no. 117/2017.

36Another important provision contained in the regulation of Third Sector entities, including social enterprises, is the one devoted to volunteering. Volunteering is at the core of the functioning of many Third Sector entities and, while promoting this role51, the law is also aimed at defining conditions and limits to voluntary activity in order to avoid false volunteering masking employment relationships and to ensure fair competition with other enterprises. In these regards, the Third Sector Code has introduced a new definition of volunteering and a short regulation of this activity. The definition of volunteer stresses the free choice of the person, the altruistic and solidaristic nature of the activity and the lack of any lucrative purpose, even if indirect52.

37To ensure the free choice and to avoid false volunteering, the law establishes that volunteers cannot be remunerated and that they can only be restored of the expenses sustained (and demonstrated). Moreover, volunteers cannot be employed by the same enterprise or entity where they provide their volunteering activities.

  • 53 Art. 18 and 19, Legislative Decree no. 117/2017.
  • 54 Art. 32 and 33, Legislative Decree no. 117/2017.
  • 55 Art. 35 and 36, Legislative Decree no. 117/2017.
  • 56 Respectively art. 13 Legislative Decree no. 112/2017, and art. 2 Law no. 381/1991.

38Beyond the regulation concerning the insurance coverage of the volunteers and the promotion of the volunteering culture53, a system of quotas has been introduced based on the specific nature of the Third Sector entity. In some cases, indeed, volunteering should prevail over the activities provided by the workers, which must be limited to those necessary to the functioning of the entity and no more than 50% of the volunteers54: this is the case of voluntary organisations, that by nature imply volunteering as the basis of their action. Similar quotas are introduced for social promotion associations55. In these cases, the quotas are set with the specific aim of guaranteeing the voluntary nature of the service provided. An opposite aim is pursued by introducing quotas for social enterprises and social cooperatives. While promoting volunteering also in enterprises that are characterised by the lack of profit-making purpose, the legislator had to limit the use of « free » work provided by volunteers in order to limit their use to compete with enterprises in traditional markets. In this regard, the number of volunteers is limited in social enterprises and in social cooperatives and their activity should be included in the organisation to complement and not to substitute the workers needed to provide the services56.

  • 57 Art. 1, Legislative Decree no. 112/2017.
  • 58 Art. 11, Legislative Decree no. 112/2017.
  • 59 Art. 11, § 4, let. b) Legislative Decree no. 112/2017.

39Finally, it is worth mentioning the different legal framework for democratic and participative governance between social enterprises and social cooperatives, on the one hand, and the different Third Sector entities, on the other. Participative governance is specifically required for enterprises that want to be considered entities of the social economy: it is a default condition for social cooperatives (since they are cooperatives) and it is a condition explicitly established for all social enterprises, which by definition must involve workers and other stakeholders57 and where at least consultation and information procedures must be put in place58. Under certain conditions, workers are also entitled to elect a representative in the corporate bodies59.

III – Società benefit: insights from responsible capitalism legislation

  • 60 See, inter alios, R. M. Henderson, « Changing the purpose of the corporation to rebalance capitalis (...)
  • 61 R. T. Esposito, « The Social Enterprise Revolution in Corporate law: A Primer on Emerging Corporate (...)

40Building on experiences of promotion of responsible capitalism60 overseas (i.e. benefit corporations)61, the Italian legislator regulated in 2016 the so-called società benefit. The aim of the intervention was to create a legal framework for corporations pursuing objectives of social utility among the aims of economic activities and in addition to profit.

  • 62 Art. 1, § 376, Law no. 208/2015.

41Being for profit companies, società benefit fall outside the notion of social economy. According to the law, these corporation are characterised by the pursuing of social objectives as well as by a business activity that is « responsible, sustainable and transparent towards persons, communities, territories and environments [...] and any other stakeholder »62.

  • 63 G. Marasà, Imprese sociali, altri enti del terzo settore, società benefit, Torino, Giappichelli, 20 (...)
  • 64 See INT/972-EESC-2022-00144, rapporteur Guerini, § 2.7, where the action on the regulation of worki (...)
  • 65 Art. 1, § 278 and 380, Law no. 208/2015.

42As a consequence, these experiences are to be taken into account in order to understand the borders and the cost-opportunity of deciding between setting up a social enterprise or a società benefit. The latter, although not supported by a promotional regime, allows it to be considered as a socially responsible corporation on the market, something increasingly more valued by the consumers63. But even more, they are to be analysed for the understanding of the connection between pursuing (also) a social aim and quality jobs, a connection that the same Action Plan for the Social Economy is trying to stress64. Indeed, if this link was missing - or at least taken from granted - in the context of the social economy regulation, the regulation of società benefit details the operational criteria mentioned above also with specific reference to workers. Workers are not only included among the stakeholders whose interests must be taken into account in the conduct of the business65; their position is particularly relevant also in the reporting activity required for società benefit: salary and benefits, training, work environment quality, internal communication, flexibility and health and safety are considered in the context of the impact assessment of the company.

43If quality employment is pivotal for responsible capitalism, it seems reasonable to set a similar standard also for those enterprises and organisations that decide to pursue social objectives as their main aim. As anticipated, the Spanish and the French legal systems have already introduced mechanisms, which can be assessed and considered for future reforms.

44The Italian legal system should take the occasion of the Action Plan promoted by the European Union and of the ILO Resolution for re-assessing its understanding of the social economy and its borders, filling the gaps outlined above and fostering the social economy at national level.

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Notes

1 J. L. Monzòn, R. Chaves, « Recent Evolutions of the Social Economy in the European Union », Study for European Economic and Social Committee, 2017, p. 37.

2 See C. Borzaga, M. Calzaroni, E. Fontanari and M. Lori (eds.), « L’economia sociale in Italia. Dimensioni, caratteristiche e settori chiave », ISTAT, 2022.

3 As known, the Spanish legal system has been the first to adopt a specific legislation on social economy (Ley 5/2011, de 29 de marzo, de Economía Social). The French legal system followed the example a few years later with Loi n°2014-856 du 31 juillet 2014 relative à l’économie sociale et solidaire (so-called Loi ESS).

4 See J. L. Monzòn, R. Chaves, « Recent Evolutions of the Social Economy in the European Union », Study for European Economic and Social Committee, 2017, p. 34.

5 Resolution concerning decent work and the social and solidarity economy, International Labour Conference, 110th Session, 2022, 9 June 2009, § 5.

6 C. Borzaga, M. Calzaroni, E. Fontanari and M. Lori (ed.) « L’economia sociale in Italia. Dimensioni, caratteristiche e settori chiave », ISTAT, op. cit.

7 Ibid.

8 V. Zamagni, « Italy’s cooperatives from marginality to success, XIV International Economic History Congress », 2006, p. 1.

9 S. Patanè, « The Third Sector in Italy », EuroSET Report, Rome, 2003.

10 See the delegation law no. 106/2016 which, building on guidelines subject to public consultation in 2014, delegates the Government to adopt different legislative decree to reform Third Sector, social enterprise and servizio civile universale (universal civil service, a form of voluntary action for the communities promoted by the State).

11 While the legal recognition of Third Sector organisations started in the Nineties with the Law no. 266/1991 regarding voluntary organisations and the Law no. 381/1991 on social cooperatives, the turning point for the social economy was in 1988 with the decision by the Constitutional Court no. 396/1988 that declared unconstitutional the Law no. 6972/1890, where it established that welfare activities could have been carried out only by public entities. See U. De Siervo, « La tormentata fine della IPAB », Giurisprudenza costituzionale, no. 3, 1988, p. 1757.

12 See M. Romano, « Non-profit organizations following third sector reform in Italy », Il diritto dell’economia, no. 2, 2020, p. 387.

13 See A. Azara, « Profili sistematici del Terzo Settore », Variazioni su temi di diritto del lavoro, no. 4, 2019, 4, p. 998; A. Riccobono, Diritto del lavoro e Terzo settore. Occupazione e welfare partenariale dopo il d.lgs. no. 117&2017, Napoli, ESI, 2020, p. 20.

14 D. Garofalo, « Il lavoro nel Terzo Settore », Massimario di Giurisprudenza del Lavoro, no. 1, 2018, p. 91.

15 Except for the specific regulations provided for by the laws listed below, single entities (associations, foundations, cooperative etc.) are regulated by the general provisions mainly contained in the Civil Code.

16 Article 4 of the Legislative Decree no. 117/2017 establishes a mandatory registration for the Third Sector entities in order to enjoy the promotional regime.

17 The distribution of profits is forbidden both directly and indirectly with a specific provision (article 8) which also specifies what can be considered as indirect distribution under the law. The article will be further analysed infra for its implication on workers’ remuneration.

18 M. Romano, « Non-profit organizations following third sector reform in Italy », op. cit., p. 395.

19 Art. 4, § 1, Legislative Decree no. 117/2017.

20 M. Ranieri, « La nozione del “Terzo Settore” e la sua rilevanza per i rapporti di lavoro », Variazioni su temi di diritto del lavoro, no. 1, 2019, p. 1055.

21 This praesumptio iuris et de iure is motivated by the historical development of social enterprises in Italy. As pointed out by Borzaga, « The concept of “social enterprise” was introduced in Italy earlier than elsewhere to designate the first “social solidarity cooperatives”, which emerged from the voluntary initiative of groups of citizens to undertake economic activities that formed part of a social project. In 1991, after more than 10 years of unregulated development, these organisations were recognised by law as “social cooperatives ». See C. Borzaga, « Social enterprises and their ecosystems in Europe. Country Report Italy », EU Commission, 2019, p. 10.

22 « In regards to their mutual exchanges, cooperatives under prevailing mutuality (art. 2512): conduct their activity primarily in favour of members and/or consumers or users of goods or services; rely primarily on the work services of their members to carry out their activities; rely primarily on the contributions of goods or services by members to carry out their activities ». See S. Rago, R. Villani, Glossary of Social Economy, Faenza, Homeless Book, p. 25.

23 See S. Laforgia, La cooperazione e il socio-lavoratore, Milano, Giuffré, 2009, p. 20.

24 See Building an economy that works for people: an action plan for the social economy, COM(2021) 778 final.

25 Promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all. See UN, Transforming our world: the 2030 Agenda for Sustainable Development, Resolution adopted by the General Assembly on 25 September 2015. Adde Resolution concerning decent work and the social and solidarity economy, op. cit.

26 Cfr. INT/925-EESC-2020-5266, rapporteur Giuseppe Guerini, adopted April 27th 2021.

27 See the social economy principles provided by Social Economy Europe, the EU-level association representing social economy entities in the so-called Charter of the social economy: primacy of people and of the social objective over capital; democratic control by the membership; voluntary and open membership; the combination of the interest of members/user and/ society (general interest); the defence and application of the principles of solidarity and responsibility; autonomous management and independence from public authorities; reinvestment of the essential surplus to carry out sustainable development objectives, services of interest to members or of general interest.

28 Ibid.

29 « Their activities are not primarily geared towards the creation of profits to be distributed to their owners. Rather, they pursue the interests of their members (as in the case of mutualistic organizations like traditional cooperatives and mutuals) and of the community at large (as in the case of social enterprises » (ILO, Social and Solidarity Economy and the Future of Work, July 2017).

30 For example, work integration social cooperatives are exempted from the payment of social security contributions for employed disadvantaged workers (art. 4, § 3, Law no. 381/1991).

31 According to M. Biagi, Cooperative e rapporti di lavoro, Milano, Franco Angeli, 1983, p. 27: « In the cooperative enterprise we observe an inversion between objectives and constraints compared to the capitalistic enterprise. Profit, which is the prominent purpose of the latter, is for the cooperative a mere efficiency condition, contrariwise, aspects considered as restraints in the capitalistic enterprise (more jobs, professional enhancement, better working conditions etc...) are deemed as specific purposes of the mutualistic enterprise ».

32 Art. 1, § 1, lett. b), Law no. 381/1991.

33 Art. 1, § 1, lett. a), Law no. 381/1991.

34 Art. 2, §§ 4 and 5, Legislative Decree no. 112/2017.

35 Respectively art. 2, § 1, lett p), Legislative Decree no. 112/2017 and art. 5, § 1, lett p), Legislative Decree no. 117/2017.

36 See, for example, art. 8, § 1, Legislative Decree no. 22/2017 regarding unemployment benefits recipients.

37 See, for instance, art. 8, § 4, Law Decree no. 4/2019, converted by Law no. 26/2019, referred to guaranteed minimum income recipients .

38 An Infringement procedure against Legge Marcora was initiated by the European Commission for violation of the EU competition law on State Aids in the Nineties.

39 Cfr. among the latest interventions, the Budget Law 2022 (Law no. 234/2021) providing a total exemption from social security contributions for a maximum of 24 months (within certain limits and under conditions).

40 Accordo per la promozione e lo sviluppo dei workers buyout, January 21, 2021.

41 Art. 11, § 2, Law Decree no. 145/2013, converted in Law no. 9/2014.

42 Art. 1, § 224 and ff., Law no. 234/2021. The regulation only applies to companies with more than 250 employees and in case of dismissal of at least 50 employees.

43 See E. Dagnino, « Diritto del lavoro ed economia sociale: appunti per una ricerca », in Diritto delle relazioni industriali, no. 4, 2021, p. 1058.

44 According to the Law no. 142/2001, the worker-shareholder has two different relationships with the cooperative: an employment relationship and an associative relationship. The Law establishes how these different relationships interact.

45 M. G. Garofalo, « Prefazione », in S. Laforgia, La cooperazione e il socio-lavoratore, op. cit., p. 15.

46 See art. 7, § 4, Law Decree no. 248/2007, converted by law no. 31/2008.

47 See A. Riccobono, Diritto del lavoro e Terzo settore. Occupazione e welfare partenariale dopo il d.lgs. no. 117&2017, op. cit., p. 69.

48 Art. 8, § 3, lett. b), Legislative Decree no. 117/2017 for Third Sector entities in general; art. 3, § 2, let. b), Legislative Decree no. 112/2017 for social enterprises.

49 See art. 16 Legislative Decree no. 117/2017, and art. 13 Legislative Decree no. 112/2017.

50 This extension has raised some concerns in the scholarly debate since it seems to establish an erga omnes application of sectoral collective agreements which - absent the legislative framework required by the Italian Constitution - cannot be introduced by the legislator. See, inter alios, B. De Mozzi, « Terzo Settore e contrattazione collettiva », Variazioni su temi di diritto del lavoro, no. 4, 2019, p. 1031.

51 For example, according to art. 17, § 6-bis, Legislative Decree no. 117/2017, volunteers are entitled to flexible working and time schedules that ease their voluntary work, under the conditions set out collective agreements and without prejudice to the employer’s organisation.

52 Art. 17, § 2, Legislative Decree no. 117/2017.

53 Art. 18 and 19, Legislative Decree no. 117/2017.

54 Art. 32 and 33, Legislative Decree no. 117/2017.

55 Art. 35 and 36, Legislative Decree no. 117/2017.

56 Respectively art. 13 Legislative Decree no. 112/2017, and art. 2 Law no. 381/1991.

57 Art. 1, Legislative Decree no. 112/2017.

58 Art. 11, Legislative Decree no. 112/2017.

59 Art. 11, § 4, let. b) Legislative Decree no. 112/2017.

60 See, inter alios, R. M. Henderson, « Changing the purpose of the corporation to rebalance capitalism », Oxford Review of Economic Policy, no. 4, 2021, p. 838.

61 R. T. Esposito, « The Social Enterprise Revolution in Corporate law: A Primer on Emerging Corporate Entities in Europe and the United States and the Case for the Benefit Corporation », William & Mary Business Law Review, no. 4, 2013, p. 639.

62 Art. 1, § 376, Law no. 208/2015.

63 G. Marasà, Imprese sociali, altri enti del terzo settore, società benefit, Torino, Giappichelli, 2019, p. 106.

64 See INT/972-EESC-2022-00144, rapporteur Guerini, § 2.7, where the action on the regulation of working conditions is particularly appreciated, despite the need to further promote the quality of work.

65 Art. 1, § 278 and 380, Law no. 208/2015.

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Emanuele Dagnino, « Labour and social economy in Italy: a composite legal framework »Revue de droit comparé du travail et de la sécurité sociale, 4 | 2022, 80-93.

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Emanuele Dagnino, « Labour and social economy in Italy: a composite legal framework »Revue de droit comparé du travail et de la sécurité sociale [En ligne], 4 | 2022, mis en ligne le 15 décembre 2023, consulté le 17 juillet 2025. URL : http://journals.openedition.org/rdctss/4686 ; DOI : https://doi.org/10.4000/rdctss.4686

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Emanuele Dagnino

Researcher at the University of Modena and Reggio Emilia.
Research topics : Labour Law, Industrial Relations, Health and Safety at Work, New Technologies, Labour Regulation in the Social and Solidarity Economy, Responsible Capitalism.

Publications :
~ E. Dagnino, Dalla fisica all’algoritmo: una prospettiva di analisi giuslavoristica, ADAPT University Press, 2021.
~ E. Dagnino, « Diritto del lavoro ed economia sociale: appunti per una ricerca », Diritto delle relazioni industriali, no. 4, 2021

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