Page 16 - Albanian law on entrepreuners and companies - text with with commentary

must be part of the transitional period’s first stage as company law is indeed one of the
“fundamental elements of the Internal Market Acquis”, Article 70 (3).
As implementation—Article 70 (1) of the SAA—and respective judiciary reform—
Article 78 of the SAA—are part of the approximation process, this could also include the
responsibility of courts and the public administration in Albania to apply the EU standards of
interpretation, above all those developed by the ECJ for the application of EU law by Member
State institutions. The ECJ ‘tools’ are meant to guarantee that:

 Any application of national law, whether the provisions in question were adopted
before or after the relevant European legal act, must be interpreted by national
institutions in the light of the wording and purpose of the same European legal act in
order to achieve the result preferred by the latter; 27
 National institutions are obliged to provide the full practical effectiveness (‘effet
utile’) of the EU law provisions, if necessary avoiding application of any conflicting
national legislation, even if adopted subsequently. In other words, the realization of
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EU law may not be impaired by any legislative, administrative or judicial practice.

For the time being, Albanian courts do not have any access to the ECJ to achieve a
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binding decision on EU compatibility of their interpretations. This is due to the fact that full
compliance with the EU acquis practice is only required at the end of the transitional period,
Article 70 (1) and (2). However, if an Albanian provision is explicitly approximated, it must
be applied ‘the European (ECJ) way’, because an important aspect of successful
approximation established by the law-makers would otherwise not be implemented. Albanian
courts (and the public administration) will basically be responsible for the application of the
aforementioned interpretation rules and have to follow the ‘word and spirit’ of the relevant
provisions of European legal harmonization at least in the case where the provisions of new
Albanian law have been clearly based on the European legal set-up. Certainly, until the end of
the transitional period, courts and other institutions can use the argument that some regulatory
aspects have not (yet) been adopted or that the current stage of institutional development and
preparation is unfortunately still lagging behind. However, on the other hand, if a court or
public administration does not apply a national legal provision which it considers
incompatible with the ‘approximated provision’, it would not be in breach of the Law and the
Constitution.

IV. Some Interpretation Rules Regarding Approximated Company Law Application

The Company Law was explicitly developed as an approximated piece of legislation.
Therefore, the application and interpretation of this Law, including the Commentary we are

27 Case 106/89, Marleasing.
28 Case 106/77, Simmenthal II; Case 213/89, Factortame; Cases 143/88 and 92/89, Zuckerfabrik.
29 The denial of such access of associated candidate countries has been sharply criticized by many legal experts in
Member and candidate States.
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