Page 18 - Albanian law on entrepreuners and companies - text with with commentary

on representation of management of companies. This is because the EC First Company Law
Directive was a compromise between Germany, Italy and France making the interpretation of
the text extremely difficult to interpret (see Article 12 and the 2013 amendments).

V. The Special Relationship with the Civil Code

In legal systems which provide a written Civil Code, the Civil Code provisions
represent the basic rules for the legal and contractual relations between natural and juridical
persons in the civil and commercial law sector. This obviously also includes company law
relations, be they internal or external. However, although contractual matters are extremely
important for enterprises, there are also public concerns which impact the whole of the
community. Enterprises, whether they are entrepreneurs, partnerships or companies are
regulated by law for the public interest.
The foundation of a commercial entity is not an individual decision since it concerns
society as a whole. Enterprises should have an ethical culture; they are not only profit
maximizers but also part of a polity binding the population with cultural values. Therefore all
of the commercial enterprises in Albania are regulated by law including constitutional,
administration, tort, contract or employment law.
As a private law entity, an enterprise, whether owned by an entrepreneur or organized as
a company, shall be subject to the Civil Code of the Republic of Albania. The most important
provisions of the Albanian Civil Code with respect to company foundation and conduct are
those on legal persons (Article 24 et seq.) because they comprise the main basis for
recognising a company as a private law entity.
Thus, the Company Law enjoys exclusive scope in relation to the foundation,
organisation and internal functioning, and the dissolution of a company, and this exclusivity
derives from the Civil Code, since the Civil Code itself delegates those provisions to a special
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Law. Therefore, the mandatory procedural actions, within the meaning of the Civil Code
32
provisions on the invalidity of legal actions in relation to the foundation, internal
33
organisation and dissolution of companies would the ones contained in the Company Law.
In this regard, during the consultation process of the amendments to the Company Law,
stakeholders from the business community as well as Albanian legal practitioners raised the
concern that the provisions then in force did not sufficiently regulate matters on nullity of
corporate deeds and procedures, and the Company Law did not provide a specific general
time-limit for corporate claims. To address these concerns, specific provisions regulating
corporate nullities and time-limits for corporate claims were proposed in the draft
amendments to the Company Law.

31 Article 25 of the Civil Code provides that “Private legal persons shall be companies, associations, foundations and
other entities of a private nature acquiring their legal personality in the methods specified by law.”
32 Articles 92 et seq. of the Civil Code.
33 For instance, the invalidity of calling the general meeting shall be caused only by the failure to comply with the
relevant requirements in the Company Law.
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