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
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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.
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