Page 216 - Albanian law on entrepreuners and companies - text with with commentary

‘European fortress’ may very well reconsider using the ‘old’ instruments of the regulatory
212
state when its interests so require.
As regards the Albanian Company Law, there are no restrictions of this kind. Article
213 reflects the general ‘openness’ of company law towards the possibility of state
participation in the economy. The public authorities may use any company form when
pursuing their general economic interests, Article 213 (1). Company Law applies for
formation and operation, Article 213 (2). Moreover, Article 213 (1) makes it possible that
public authorities may not only create wholly-owned companies, as Article 94 of the old Law
No. 7638 had required, but also take the ‘parent’ role of Articles 207 to 212 to control a
company pursuant to their general economic policies. This does not exclude that a public
authority holds a minor share in a company. The company simply could not be called any
more ‘state-owned’.

2. The fact that public authorities may be ‘parents’ in the sense of the new Law of Groups
(Articles 206 to 212) is another interesting feature of the new Law. It shows, first of all, that
the Law itself applies the parent-subsidiary rules where a group constellation is considered
important enough to extend those rules to other economic actors than ‘companies’ (see above
Comment before Article 206). Second, the Law recognizes that public authorities must also
abide by the rules they created for the conduct of private interests when they use them for
public interests. The ‘conflicts of interests’ involved demand this treatment. This was
confirmed by the German Federal Court which ended a famous debate on the ‘parent’ role of
213
the state in the 1970s. However, the fact that the recent corporate governance debate has
widened the definition of companies’ interests by developing increasingly standards of
corporate social responsibility, must be taken into account when the triple set of fiduciary
duties and interests is coordinated in accordance with Articles 209 and 210 (see above
Comments to Article 98, and before Article 206).

PART IX
RESTRUCTURING OF LIMITED LIABILITY AND JOINT STOCK COMPANIES

Comments:

1. Flexible economic management of company structures and the creation of company
networks often require the merging of companies, their transformation into other company
forms or their division and the ‘outsourcing’ of parts which are integrated into independent
companies which, for example, may be managed as ‘joint ventures’ together with other
interested companies. If special provisions on restructuring were missing, fulfilment of a

212 Cf. EU Trade Commissioner P. Mandelson’s speech ‘Europe’s openness and the politics of globalization’, Alcuin
Lecture in Cambridge on 8 February 8 2008.
213 Volume 69, p. 334 et seq. of the collection of the jurisprudence of the Federal Court (BGHZ 69, p. 334 et seq.),
‘Veba-Gelsenberg’.
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