Page 17 - Albanian law on entrepreuners and companies - text with with commentary

writing, would have to follow the previously mentioned interpretation standards and interpret
Company Law provisions in the ‘word and spirit’ of their European ‘partner provisions’. The
European legal acts which were taken into account when creating the Company Law are listed
in Annex 1 and were updated in 2014.
When analysing a Company Law provision in the light of its ‘partner provision’ in one
of these European legal acts, the European provision may require interpretation. In many
cases, the ECJ has already commented on the interpretation of the relevant provision. If this is
not the case, Albanian jurists will apply the usual interpretation methods (grammatical,
historical, systematical and teleological interpretation). In the European context. the
following criteria have to be considered:

 the wording of the regulations, directives or recommendation;
 the reasons for its creation as explained by any preamble;30
 the reasons given by comunications of the EU Commission and other participants in
the process of law making;
 the position of the legal act in the context of others in the same and in adjoining
fields;
 the position of each single rule in the regulation’s, directive’s or reccomendation’s
regulatory context;
 the regulation’s, directive’s or recomendation’s regulatory purpose, and
 the abovementioned priority of the interpretation which guarantees maximum force
and effect to the EU regulations directives or recommendation’s rules and purpose
on the national level.

This Commentary will take the jurisprudence of the ECJ and its interpretation
instruments into account. Other guidance on interpretation of the law may also come from the
courts of a Member State if the provision in question was taken from the corresponding
Member State laws. For example, some provisions of the Albanian Company Law follow
German company law. In this case, it may be useful to know how the German Federal Court
or German Courts of Appeal interpreted the ‘partner provision’. It is often crucial to
understand where some provision originated. In the Company Law some provisions were
written especially for the Albanian context using many provisions from European
jurisprudence. Always, when legislating, compatibility with the relevant European legal acts
and ECJ jurisdiction must be kept in mind. As the ECJ cases show, it cannot be taken for
granted that Member State courts are interpreting the European legal order correctly. Because
the EU is a complex institution the legislation is often a compromise between special interests
in Member States. Where this happens the legislation is a messy compromise and the text may
be very difficult to interpret. We will see in the Company Law that there are particular
insistences where the EU legislation is obscure; an example is in interpreting the EC Directive

30 They are part of the legal act; cf. Article 296 of the Treaty of Functioning of European Union (TFEU) (ex-Article 253
TEC).
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