Page 14 - Albanian law on entrepreuners and companies - text with with commentary

II. Constitutional Aspects of Albanian Commercial and Company Law

The economic operations of establishing and running a business organization as
entrepreneur or company find their constitutional guarantee in the provisions of Article 11 of
the Albanian Constitution. Property rights are guaranteed by Article 41.
However, the principles and freedoms regarding the economic system must be seen in
connection with other rights and freedoms, above all those established by Part Two, Chapter
IV of the Constitution, on Economic, Social and Cultural Rights and Freedoms (Articles 49–
58) and with the “Social Objectives” established by Chapter V (Article 59). Chapter IV goes
beyond ‘classical liberal’ constitutions, and provides rights to social security, health services,
sickness insurance and education in addition to the protection of labour, family, children,
youth, pregnancy and mothers. These social rights are rhetorically strengthened by the
Preamble’s “determination to build a democratic and social state” and by the “pledge for (…)
social solidarity”. Article 3 lists “social justice” among the “foundations of the State and his
duties to respect and protect them. Last but not least, there is the commitment of the state to
pursue the social objectives expressed by Article 59. This provision mentions that private
initiative and responsibility should be supplemented by state action improving the social and
natural environment as listed by letters a) to j). One could read this provision also in the sense
that the Albanian Constitution recognizes here a basic social responsibility of private (natural
and legal) persons that the state would need to supplement due to the limited means of such
private persons to take sufficient care of ‘community aspects’.
Even if there is recognition of a private social responsibility, only a law could make
those objectives mandatory, Article 59 (2). And this brings us back to the rule of Article 17(1),
which requires that, any limitation of (economic, etc.) rights and freedoms provided by the
Constitution must be established by law for public interest or for the protection of other
persons’ rights and it must be proportional. It may never touch the essence of those rights and
freedoms and must comply with the European Human Rights Convention, Article 17 (2).
Likewise, economic freedom and property rights may be limited only for “important public
reasons” or “public interests”, Articles 11 (3), 41 (2). But certainly the promotion of the rights
and freedoms listed in Chapter IV and V could easily fulfil the criterion of such reasons or
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interests.
Although the Company Law certainly establishes restrictions for company formation and
conduct, above all with respect to joint stock companies. However, these restrictions and the
duties and liabilities established by the Company Law aim at a functioning and socially
responsible economic system and could hardly be considered disproportional in the above
mentioned constitutional balance of interests.

24 See on the founding process and the structure of the Albanian Constitution, G. Frankenberg, Verfassungsgebung
zwischen Hobbesianischem Naturzustand und Zivilgesellschaft. Die Verfassung der Republik Albanien in Jahrbuch für
öffentliches Recht 2000.
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