Page 19 - Albanian law on entrepreuners and companies - text with with commentary

These new provisions were accepted only in part, as modified following numerous
discussions, because the Ministry of Justice considered them to be in conflict with the
Constitutional Court case law. Ultimately, only the provisions on nullity of the company
establishment remained in the shape of the current Article 3/1, as it was deemed an
approximation of Article 12 of Directive 2009/101/EC.
A discussion of particular relevance regarding the relation between codes and ordinary
laws has risen, following a jurisprudence recently established by the Albanian Constitutional
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Court.
Under Article 81 (2) of the Albanian Constitution, the following are approved by 3/5
qualified majority of all members of the Parliament:

 laws on the organization and functioning of bodies envisaged in the Constitution;
 laws on citizenship;
 laws on general and local elections;
 laws on referendums;
 codes;
 laws on state of emergency;
 laws on the status of public servants;
 laws on amnesty;
 laws on the administrative division of territory territorial division of the Republic.

In the light of the above provision of the Constitution, the Albania Constitutional Court
has found that, notwithstanding the fact that Article 1 of the Criminal Code allows for
criminal offences to be included in “other laws”, these other laws must be approved by the
same qualified majority.
The Court also pointed out that “…from the point of view of legal sources, organic laws
or laws requiring qualified majority, stand at a higher legal hierarchy compared to ordinary
laws. Therefore, from this point of view, ordinary laws may not treat matters that are reserved
to be treated by codes or organic laws. If the Constituent had wanted to give the same power
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to all legal acts, Article 81 (2) of the Constituent would not have existed”.
Even though, under the “legal certainty” principle, this perspective may be deemed as
fair in relation to the criminalisation of new offences, the Constitutional Court failed to
provide a final clarification whether this interpretation of Article 81 (2) of the Constitution
will also extend to other legal areas.
Without going into detail in terms of theoretical differences between the codes, as a
systematic order of legal rules, and the laws, and given that recently the Albanian legislation
has experienced high productivity in terms of codes, beyond the classical civil, criminal and
respective procedures codes,36 an extension of this interpretation of Article 81 (2) of the

34 See for example Decisions No. 3, dated 05.02.2010, No. 1, dated 12.1.2011 and No.23, dated 8.6.2011.
35 Decision of the Albanian Constitutional Court, No. 1 dated 12.1.2011.
36 For instance, the Administrative Procedure Code.
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