Page 131 - Albanian law on entrepreuners and companies - text with with commentary

Articles 32 and 36 Business Registration Law includes all the necessary information on the
capital structure required by the Second Company Law Directive. Founders must therefore
carefully adopt and sign the Statute and submit it to the NBC when applying for registration
in accordance with Article 28 (3).

2. According to Article 12 Securities Law, JSC ‘shares’ are securities. The second
sentence of this provision leaves the definition of types and classes of shares to the Company
Law, which so provides in Article 116. Therefore there is a natural interlink between the
provisions of the Company Law and those of the Securities Law, regarding the share emission
process.
The law No. 7638 on Commercial Companies, now repealed by the Company Law,
regulated the incorporation of joint stock companies with both private and public offering of
shares. In 2008 during the drafting process of the Company Law, also the new law On
Securities was being prepared. 129 It was than agreed between the responsible ministries 130 that
the Company Law should not address different incorporation procedures and requirements for
JSCs with public or with private offer (other than for the minimal capital 131 ), as such matters
would be deal with under the new Securities Law. Therefore, the Company Law contains
coordination references to the Securities Law. 132 As such, the Company Law fully coordinates
with the Law on Securities as it does not deal with matters related to securities of listed JSCs
that fall under the scope of application of Article 2 of the Securities Law.
It must however be clarified that the approved text of the Securities Law requires the
company planning to emit securities (irrespective if the emission is through a private or
private offer), must have been previously registered at the NBC. 133 Therefore, there is no
legal or practical difference under the Company Law between JSCs with private and public
offer, as the differences (which are only operational and regulatory, and do not related to the
corporate structure) will apply only once the company attempts to become a listed company
and issue securities. Due to the fact that the Securities Law does not provide, as envisaged
during the drafting process of the Company Law, for any differences in the corporate structure
of JSC, being with private or public offer, the provisions of Article 228 (b) on the
transformation of JSCs from private to public offer, or vice versa, also become totally
redundant and not applicable.
It must be also clarified that under Article 41 of the Securities Law, securities emission
provisions do not apply for newly formed JSCs.
The Company Law (and the Business Registration Law) applies to the process of the
initial foundation process of a JSC, irrespective of whether its bodies plan to later on become

129 Approved with Law No. 9879, dated 21.02.2008.
130 Ministry of Economy, Trade and Energy for the Company Law, and the Ministry of Finance for the Securities Law.
131 3.5 Million Lekë for JSCs with private offer, and 10 Million for Lekë for JSCs with public offer.
132 For example Article 119 (3) of the Company Law provides that paragraphs 1 to 3 of that Article regarding the
company’s share registry shall not interfere with the obligation of the company to register their shares at the share
registry, when required by the Law ‘On Securities’.
133 Article 29 b) of the Securities Law requires, between others, the following data of the issuer, to be included in the
share emission prospectus: Name, seat, date of incorporation, registration number at NBC.
130