Page 15 - Albanian law on entrepreuners and companies - text with with commentary

III. The Impact of the SAA Commitment to Approximate Albanian Legislation and
Practice with the EU Acquis

The first sentence of Article 122 (1) of the Albanian Constitution provides that “any
international agreement that has been ratified shall constitute part of the internal juridical
system after its publication in the Official Journal of the Republic of Albania”. Paragraph 3
declares that “an international agreement that has been ratified by law shall take priority over
laws of the country that are not compatible with it”. These provisions establish the impact of
the ratified Stabilization and Association Agreement (SAA) of 2006, on the Albanian legal
and institutional system. This impact does not go as far as subjecting Albanian institutions
(and citizens) immediately and directly to EU law and its doctrines of ‘supremacy’ over
national law and the ‘direct effect’ of treaty provisions, regulations and directives. These
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doctrines fully apply only to Member States. They do not apply to ‘candidate countries’
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under the regime of an association agreement.
However, European Law has an impact on the Albanian legal and institutional system
through the mandatory approximation requirements of Articles 70 et seq. of the SAA. Article
70 (2) provides that Albania’s legislation—including implementation and enforcement,
Article 70 (1)—must be fully approximated to the Acquis by the end of the 10 year
transitional period established by Article 6 of the SAA. The Company Law approximation

25 The ECJ developed the doctrine of the ‘supremacy of EU law’ as a consequence to the consideration that the EU is a
‘supra-national organization’ (See Case 26/62, Van Gend & Loos), i.e. a new legal order which has become greater than
the sum of all its parts, and where the founding treaties have a different significance compared with other international
treaties. As a consequence, the classical concept of ‘national sovereignty’ has definitely lost ground in the EU. The
concept has been replaced by a kind of ‘multilevel constitutionality/sovereignty’ which has led to a new kind of
integrative ‘governance’ which mixes hierarchy and coordination and is composed of EU norms and standards, member
state norms and standards and legally accepted norms and standard setting by ‘private’ associations. The main tools used
for harmonization and approximation are the treaty Articles, the regulations, the directives and the recommendations as
interpreted by the ECJ and applied by national courts.
The doctrine of ‘direct effect’ means in this context that any measure held to be directly effective affects the rights of
individual citizens who may base their claims on the respective provision of EU law. If a treaty Article is found to be
sufficiently clear, precise and unconditional it will be directly applied in a member state and will affect the rights of
individuals. Regulations are, by Article 288 of TFEU (ex-Article 249 EC Treaty), ‘directly applicable’ into the law of the
member states, so they will equally affect individual rights. The status of Directives is more equivocal as member states
may choose the ‘form and method’ of implementation. However, the ECJ applies the direct-effect doctrine also in this
case, if a member state fails to implement a directive in national law by the end of the period prescribed or fails to
implement it correctly and wherever its provisions appear unconditional and sufficiently precise to define rights which
individuals are able to assert against the state (See Case 8/81, Becker, and Case 152//84, Marshal). Moreover, The ECJ
allows individuals to ask compensation for damages which arise from a member state’s breach of EU law including the
non-timely transformation into national law (See joined Cases 6 & 9/90, Francovich; Cases 6 & 48/93, Brasserie du
Pecheurs/Factortame). Recommendations are not binding, Article 288 of TFEU (ex-Article 249 (4) EC Treaty).
However, national courts must interpret national legislation which implements EU Law in the light of such
Recommendations; see ECJ Case 322/88. All major ECJ Cases can be found on the Court’s website under
http://www.curia.eu.int).
26 As regards the preparation of the first group of East European candidate countries, full alignment with the ‘acquis
communautaire’ became imperative during the final pre-accession stage under the regime of the so-called ‘accession
partnerships’. The ‘acquis’ means the entire set of principles and policies of the treaties, of the primary and the
secondary legislation, of the international obligations of the Community and includes the application of this legal order
by the European Court of Justice (ECJ). After the failure of the ‘Constitution for Europe’, the main European treaties
(Rome 1957, Maastricht 1992, Amsterdam 1997 and Nice 2000) are now ‘re-aligned’ by the new ‘Reform Treaty’
adopted during the Lisbon European Council in 1 December 2007 and which entered into force on 1 December 2009. All
treaties mentioned as well as the draft constitution can be found on the EU website mentioned in footnote 1 (official
documents —treaties).
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