For several legal forms of incorporation, European statutes exist (European Company Statute, European Cooperative Society Statute, European Economic Interest Grouping) or are under consideration (European Foundation Statute, European Private Company Statute for SMEs).
Cooperative insurers are therefore able to use the European Cooperative Society Statute (see below). In contrast, despite related work going on since the early 1990’s, there is still no Statute for a European Mutual Society to date.
Objectives and main characteristics of an EMS
In the short term, the main objective of an EMS as seen by AMICE is to provide equal competitive conditions between limited liability, cooperative and mutual insurance companies: the EMS should enable the mutual insurance sector to compete on an equal footing, both at national and cross-border levels. In the longer term, an EMS could also become a valuable tool to promote the mutual society model in countries where the model does not or barely exists.
AMICE sees the main characteristics of an EMS as follows:
Like the other existing European statutes, the EMS is non-compulsory; mutuals should be able to avail themselves of this legal form if they wish but it should not be imposed. The EMS is not intended to change or replace the national legal framework(s) for mutuals, diversity all over Europe being one of the strengths of the model.
All draft texts have been designed to be activity neutral; they could be used for insurance mutuals, health mutuals or indeed mutuals providing any other type of activity.
Its object is to provide a European framework for undertakings that want to provide goods and services in the interest of their clients who are their members. Mutuals are owned and/or controlled by their client-members and have no share capital as such. Under going concern, members do not have a right to the net assets (but see below for liquidation principles). Mutuals have a governance model based on democracy.
Among the numerous ways an EMS can be formed the most important ones are: by creation by at least two mutuals or by a number of natural persons in more than one country; by conversion of an existing mutual; or by the merger of mutuals in different EU jurisdictions
The rules for the distribution of the net assets upon liquidation of a mutual differ among the European countries. For an EMS, such distribution should follow the arrangements set out in the national legal framework and/or in the statutes of the EMS. The distribution may follow the principle of disinterested distribution, or, where permitted or foreseen by the law of the Member State in which the EMS has its registered office, any alternative arrangement set out in the statutes of the EMS.
Efforts to develop a European Mutual Statute date back to the early nineties. A Commission proposal of 1992 (revised with EP amendments in 1993 and by the Council in 1996) was discussed in Council, but never got beyond that discussion stage.
In 2003, the Commission launched a consultation document on “Mutuals in an Enlarged Europe”. In the feedback summary, the Commission states that (with one exception) “all replies to the question on the need for a European statute for mutual societies ... consider that such a statute is necessary”. (Commission webpage, AISAM response, ACME response)
In September 2005 the draft Regulation on a European Mutual Society Statute (EMS), whose legislative process was seen by the European Commission as lacking substantial progress, was removed from the European agenda. (Commission Communication).
Between 2005 and 2007, AMICE (at the time its two predecessor organisations, ACME and AISAM) and AIM jointly prepared a new draft regulation for an EMS with the aim of convincing the European Commission to relaunch its work on such a statute. The ACME-AISAM-AMICE draft was accompanied by an Explanatory Memorandum.
In 2010/2011, the European Parliament’s Committee for Employment and Social Affairs commissioned a study “The role of mutual societies in the 21st century ”. The researchers concluded that “mutuals should be better recognised as a distinct and important actor within the European economy and society” and that “(f)or this purpose, an appropriate instrument could be a statute for European mutuals”.
Following and based on this study, the same research team was asked by the European Commission’s DG ENTR to produce an in-depth “Study on the situation and prospects of mutuals in Europe” (with an annex) which was published in November 2012. The study recognises that a Statute for European Mutuals “could help mutual-type organisations to gain recognition, to increase the understanding concerning mutual-type organisations in the countries and to better respect mutual-type organisations’ interests at European level”.
After already having requested on numerous occasions that the Commission resume its work on an EMS, the European Parliament adopted in March 2011 a Written Declaration, calling on the Commission “to take the necessary steps to introduce (a) proposal(s) for (a) European statute(s) for ... mutual societies."
In the autumn of 2012, the EP Committee on Legal Affairs (JURI) decided to produce an Own-Initiative Report with recommendations to the Commission on the Statute for a European Mutual Society (rapporteur: Mr Luigi Berlinguer MEP). This report, which was approved by the EP Plenary in spring 2013, was accompanied by an impact assessment by the European Parliament’s own European Added Value Unit.
In spring 2013, the Commission started a consultation on the results of the study and on possible follow-up (see Commission webpage and AMICE response). In the synthesis report of the answers received, Commission services stated that “there is strong support amongst the majority of respondents ... to promote an EMS statute as a possible solution to the ... problem(s)” that were identified as barriers for mutuals in their (cross-border) development. A minority of respondents, though “do not see the need or show no interest in, or are negative towards, the idea of an EMS statute”.
In an impact assessment completed at the end of 2013, Commission services recommended the creation of the legal framework for the European Mutual Society through a recast of the European Cooperative Statute. A draft of this Regulation was sent into inter-services consultation in April 2014. Work on the accompanying Directive with regard to the involvement of employees has not so far begun.
Within AMICE, the work on the EMS is covered by the EMS Working Group, part of the Advocacy Commission.
The European Cooperative Society
The Statute for a European Cooperative Society was adopted in 2003 and came into force in 2006 and enables cooperative societies in Europe to undertake cross-border activities more easily as well as ensuring their recognition in European legislation.
In 2004, the European Commission adopted a Communication on the promotion of co-operative societies.
In 2009, the Commission launched a Study on the Implementation of the Regulation 1435/2003 on the Statute for a European Cooperative Society. The study (with its annex), carried out by Euricse, Cooperatives Europe and the EKAI Center was published in October 2010. The study was followed by a Consultation on its results (see Commission webpage for the questionnaire and the summary of responses, and the AMICE response).
In February 2012, the European Commission submitted a Report to the Parliament and the Council on the application of the SCE Regulation.