Page 154 - Albanian law on entrepreuners and companies - text with with commentary
P. 154

   To help draft the Statute it might be useful to consider the Model Statutes published
                    in the website of the NBC.

                 In the one-tier system, all power is concentrated in the hands of one single Board. This
            Board  unites  managing  and  supervisory  functions  as  Article  154  (1).  If  no  additional
            (executive) Managing Directors are appointed, some Board Members may act as such. In this
            case it is important to assure that a sufficient number of independent non-executive Directors
            are appointed to the Board to oversee the managers’ powers as required by the supervisory
            functions of Article 154. The Law therefore provides that, if Board members are nominated
            (executive)  Managing  Directors,  it  must  be  guaranteed  that  the  majority  of  the  Board  is
                                                                         145
            composed of independent non-managing (non-executive) Directors, Article 158 (1).
                 The Board of Directors of a single member company is subjected to the same rule as any
            Board in the one-tier system: it must be composed of at least three Directors. Moreover, the
            mentioned  majority  requirement  of  Article  158  (1)  must  be  applied:  in  case  one  of  the
            Directors, for example the single member, is also managing the company, the other two must
            be  independent  non-Managing  Directors.  Therefore,  also  in  a  single-member  company
            managed by the single member, the supervisory functions should be guaranteed.
                 In the two-tier-system, Managing Directors lead the company and decide on the manner
            of  implementation  of  the  business  policy  while  the  Supervisory  Board  assesses  the  policy
            implementation and controls its compliance with the Law and the Statute, Article 166 (1). The
            Statute may extend the functions of the Supervisory Board by subjecting certain important
            management decisions to its approval, Article 167 (2) last sentence. 146

            2.   Article 134 (2) sets a new transparency standard for JSCs in accordance with European
            and International best practice. JSCs must disclose their corporate governance structures and
            practices in a special statement provided together with the annual accounts. Consequently,
            each interested person can obtain the relevant information on the company’s organization and
            decision making. The statement must also contain a profile of Managing (executive) Directors
            and Board members and explain why individual directors or supervisors are qualified to serve
            in  the  light  of  this  profile.  It  goes  without  saying  that  ‘Board  members’  also  includes  the
            Supervisory Board members of the two-tier system.

                                          CHAPTER I
                                      GENERAL MEETING

            Comments:

            145  See on this point Albania’s Corporate Governance Code, especially Principle 1 “Shareholders of companies should
            establish an appropriate constitution and governance framework” http://www.qkr.gov.al/nrc/documents/Codeang.pdf.
            146  In the German system, such approval requirements may also be introduced by the Supervisory Board itself, Article
            111 (4) of the German Law on Shares. In spite of the rule that the Supervisory Board should not generally participate in
            management, the Federal Court has been in favour of an extension of these ‘approvals’ as they have proved to be an
            adequate device of corporate control, last but  not  least because employee representatives are part of the Supervisory
            Board and enlarge the interests reflected by corporate decision-making.
                                                                             153
   149   150   151   152   153   154   155   156   157   158   159