Page 13 - Albanian law on entrepreuners and companies - text with with commentary

supported by the jurisprudence of the European Court of Justice (ECJ) and its extensive
interpretation of the Freedoms of Establishment and of Capital. Still part of the same strategy
are the creation of the supranational forms of the European Company (SE), the European
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Cooperative (SCE) and the proposed European Private Company (SPE), proposed in 2008,
the establishment of the 2005 Directive on Cross-Border Mergers and the forthcoming
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Directive on the Transfer of the Company’s Registered Office. The flourishing cross- border
development of previously separated financial markets provoked the EU Commission’s
regulatory shift. Before the shift the focus was to regulate listed companies strictly, now the
EU’s focus is on regulating corporate governance. With respect to the regulatory concepts
involved, this is a shift from mainly French-German regulatory models prevalent during the
mentioned ‘first phase’ to the rather Anglo-American focus on capital markets and corporate
governance in the ‘second phase.’ On the other hand, however, due to the developments
described in the previous paragraph, the understanding of corporate governance has
increasingly shifted to economic accountability and corporate social responsibility (CSR), a
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concept which can be called ‘the constitution of the firm.’
The ‘constitution of the firm’ recognizes that the twin privileges of legal personality
and, for corporations, of limited liability are socially accepted and promoted as long as such
self-ruled economic entities are committed to take into consideration the ‘interests’ of their
social, human and natural environments. Such commitment involves, both, external and
internal corporate duties and liabilities: the ‘external’ commitment refers to the legally
defined interaction but also to contractual interactions with other ‘stakeholders’ (creditors,
employees, local communities, environmental groups, the ‘public’); the ‘internal’
commitment refers to the establishment of organizational rules that envisage the consideration
of those other ‘interests’ as part of the company’s decision-making and risk-management
structures. This requires a legal company ‘constitution’ which assigns procedural
responsibilities for the inclusion of such interests. It can easily be understood that an
appropriately designed company law is crucial for the enforcement of such public-private
regulatory strategies. It therefore becomes an indispensable prerequisite for modern social
market societies. The Albanian Company Law was written to clearly follow these European
and international regulatory developments in its entire structure.

21 http://ec.europa.eu/internal_market/company/modern/index_en.htm.
22 See a list of relevant EU company law acts, in force and in preparation, in Annex 1.
23 See EU Commission Green Paper ‘Promoting a European Framework for Corporate Social Responsibility’, COM
2001, 366 final, Brussels, 18.07.2001. ‘CSR’ covers, among others, the creation of appropriate technical safety
standards, environmentally sustainable management, and the respect of human rights. Also see the UN’s ‘Global
Compact’ under www.un.org and the Guiding Principles on Business and Human Rights,
http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf ‘Codes’ mentioned in footnote 8.
Also see J. Dine Co-Author Kirsteen Shields, Nina Boeger, Rachel Murray and Charlotte Villiers (eds) “Corporate
Social Responsibility: Do Corporations have to trade fairly? Can the Fairtrade movement deliver the duty?” in
Perspective on Corporate social Responsibility, (Edwards Elgar, 2008).
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