Page 122 - Albanian law on entrepreuners and companies - text with with commentary

b) paying interests or dividends to members;
c) distributing the company's assets;
ç) letting the company continue to do business when it should be foreseen that it
will not be able to pay its debts;
d) granting loans.
(5) Paragraph 6 of Article 92 applies to pursuing claims deriving from previous
paragraphs. These claims must be brought within 3 years starting from the day when
the breach of duty is discovered.

Comments:

1. The Law adds special requirements to the general fiduciary duties of Articles 14 to 18 in
order to strengthen the fiduciary duties of LLC for Managing Directors. As the same duties
apply to members of the Board of Directors, Managing Directors and members of the
Supervisory Board in JSCs, we will treat these duties in this chapter together. The fiduciary
duties of (Managing) Directors can roughly be divided into two interconnected forms of duty:

 the duty of loyalty towards the best interest of the company established by Articles
98 (1), 163 (1); and
 the duty of care and skill, which the (Managing) Directors must apply during in the
frame of their time of appointment.

2. With respect to the duty of loyalty, it is important to note the enlargement of
management duties connected to the concept of the “best interest of the company as a
whole” expressed by Articles 14, 98 and Article 163. This legal concept has become the main
gateway for the ‘internalization of corporate social responsibility’ into European Company
Law which we mentioned in Chapter B.I.
Here we should emphasize the importance of fiduciary duties and care and skills owed
to the company by the management in the context of environmental sustainability. Articles
98 (1) and 163 (1) explicitly refer to ‘environmental sustainability’ of operations as being part
of the ‘best interest of the company as a whole’. 118 In order to be manageable by
jurisprudence, the ‘environmental sustainability’ of the company’s activities usually refers to
the current legislation on environmental protection which defines environmental protection
rules, like rules on packaging, waste disposal and sewage water treatment, and special risk

118 See in this respect, Recommendation 2001/453/EC of 30 May 2001 on the Treatment by Undertakings of
Environmental Aspects in Annual Accounts and Reports and see the Human Rights Council Resolution on Human
Rights and Environment, A/HRC/19/L8.1 Promotion and protection of all human rights, civil, political, economic, social
and cultural rights, including the right to development Albania*, Bosnia and Herzegovina*, Botswana, Cambodia*,
Chad*, Congo, Costa Rica, Côte d’Ivoire*, Croatia*, Democratic Republic of the Congo*, Dominican Republic*,
Ecuador, France*, Georgia*, Germany*, Greece*, Honduras*, Hungary, Ireland*, Israel*, Kenya*, Latvia*,
Liechtenstein*, Lithuania*, Luxembourg*, Maldives, Mauritania, Mauritius, Montenegro*, Morocco*, Nigeria,
Palestine*, Panama*, Paraguay*, Peru, Poland, Portugal*, Romania, Serbia*, Slovenia*, Somalia*, Spain, Sudan*,
Switzerland, the former Yugoslav Republic of Macedonia*, Timor-Leste*, Tunisia*, United Republic of Tanzania*,
Uruguay, Zimbabwe*:
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