Page 218 - Albanian law on entrepreuners and companies - text with with commentary

offered exchange rate controlled by the courts and/or to have their shares bought up
if they do not want to participate in the restructuring.
 The protection of the creditors whose claims have come into existence before the
restructuring. Creditors do not participate in the restructuring and may find
themselves confronted with a less solvent debtor and a variety of competing
creditors.
 Protection of employees of the restructuring companies.
 The ‘automatic’ transfer of the assets of the existing enterprises to the newly
formed legal entities.

Article 214 (3) defines a precondition for any restructuring: Companies may only be
restructured, if they have been registered for at least one year in order to guarantee a certain
initial stability of company formation.
As regards the protection of the rights of the employees of each of the restructuring
enterprises, Article 216 (1) ë) requires that the consequences of the merger for employees and
their representatives and the measures proposed concerning them must be established by the
merger agreement. Article 20 (2) establishes the duty of the company’s representative to
inform the employee council about issues regarding restructuring. These disclosure rights in
the case of restructuring are part of the requirements established by the Directive 2001/23/EC
on safeguards of employees’ rights in case of transfer of enterprises or their parts (Article 7 of
the Directive). Other important provisions of this Directive are:

 Article 3 (1): The ‘transferor’s’ rights and obligations arising from an employment
relationship existing on the date of a transfer shall, by reason of such transfer, be
transferred to the ‘transferee’. Both are jointly and severally liable for these
obligations. This regards also collective agreements (paragraph 3);
 Article 4 (1): The transfer as such may not constitute grounds for dismissal;
 Article 6 (2): Continuation of employee representation must be guaranteed.

These standards are adopted by Article 220 (4): The rights and obligations of the
merging companies arising from contracts of employment or from employment relationships
and existing at the date on which the merger takes effect shall, by reason of that merger taking
effect, be transferred to the company resulting from the merger. Courts would be required to
interpret the legal compliance of a restructuring procedure also under this aspect. 215

3. Mergers: Any merger must, first of all, comply with another precondition contained in
Article 214 (4), compliance with competition law. This means that a merger is invalidated on
these grounds even if it fully complies with all the other merger provisions of the Company
Law. Compliance with competition law provisions becomes a Company Law precondition for
the legal validity of the merger.

215 See above chapter B.III, on the impact of SAA approximation rules.
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