Page 180 - Albanian law on entrepreuners and companies - text with with commentary

(5) Paragraph 6 of Article 151 applies to the pursuit of claims deriving from
paragraphs 3 and 4. These claims must be brought within 3 years starting from the day
when the breach of duty is discovered.

Comments:

As regards Directors’ special fiduciary duties established by this provision, Comments
to Article 98 apply. However, there are some particular points to be added here with respect to
special duties regarding the JSC capital maintenance requirements and the different layers of
managing and (independent) supervising directors.

 As regards the particular legal duties in Article 163 (4), the list of violations is
almost double as long as the one provided for Managing Directors in LLCs.
Article 163 (4) c), ç), e) and ë) refer to special capital maintenance requirements.
 Paragraph 3 provides for joint and several liabilities for all Board members and/or
Managing Directors involved in the breach of duty. They shall also disgorge any
personal profits made in violation of their duties to the company. (Independent)
non-Managing Directors’ duties must obviously be understood from the point of
view of their supervising requirements with respect to the management of the
company. It will therefore largely refer to omissions of adequate interventions with
respect to the violations committed by the management, paragraph 4, first
sentence. This is confirmed by Article 167 (6) which declares that Supervisory
Board members are liable for damage caused by violation of their duties and the
standard of diligence expressed by paragraphs (1) to (3) of Article 163. As regards
violations by Managing Directors with respect to paragraph (4) of Article 163,
Supervisory Board members are liable if they were aware or could have been
aware of a violation of duties without notifying the General Meeting in this
respect. This standard must also apply to the non-Managing Directors in the one-
tier system. However, the first sentence of paragraph (4) establishes also a duty for
other Managing Directors to consider their fellow directors’ actions carefully and,
in case of violation, to call in the General Meeting. In other words, the supervising
function is established not only between managing and supervising directors but
also between Managing Directors: a (Managing) Director should rather become a
‘whistle blower’ with respect to other (Managing) Directors’ breach of duty or he
will risk liability for non-disclosure in spite of his awareness. This is an important
and efficient extra increase of their fiduciary duties.

Article 164
Collective Liability of the Board of Directors and Managing Directors
Members of the Board of Directors and the Managing Directors are jointly and
severally liable for the probity of all financial statements, of mandatory publications and

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