Page 24 - Albanian law on entrepreuners and companies - text with with commentary

which should be disclosed to the interested public. Continental laws or jurisprudence have,
therefore, attributed special privileges and obligations to such ‘important’ entrepreneurs
including contractual formalities, obligations involving defects of goods, special liability
standards with respect to professional skills, etc. Such obligations and privileges would
basically be applicable to all business organizations unless otherwise provided by the special
provisions concerning them.
In order to define when an entrepreneur is ‘important’ enough to be the holder of the
mentioned privileges and obligations, paragraph 4 of Article 2 establishes that the “volume”
of activities requires “an ordinary business organization”. Without going into depth on the
reasons and trend in the EU Member States, in the context of identification of “business
activity”, the Company Law overcomes the qualitative criterion of the type of business
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activity required by the older law , and replaces it with a quantitative criterion. Given the
variety of economic activities and changes, the definition of a quantitative criterion in the Law
objectively would not be the most appropriate solution, because it would lack the necessary
flexibility. In this respect, the quantitative criterion is determined indirectly and subjectively,
whereby the business reaches such a size as to not be able to be conducted by a single person
(or with the help of his or her family members) but requires special structures, book keeping
and financial accounting, and hiring the personnel required for the successful management of
the business (i.e., it requires an ordinary business organisation).
However, in order to enable a quantitative criterion that is flexible, uniform, minimal
and objective, the Company Law delegates to the Ministry of Finance and the ministry
responsible for economy the task to set the business threshold to be used for an activity to be
considered as a “business”.
Unfortunately, since 2008 the aforementioned ministries have failed to approve the
threshold for identifying if an activity has “an ordinary business organization”. The practical
outcome of this inactivity is that if from time to time the Government wants to facilitate
specific activities, by removing red-tape and registration procedures, it will need to approve
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special exceptions in applicable laws and regulations. Instead, by using this flexible
instrument, the Government can manage its business development policies and procedures
without having to go through the burden of the legislative process. In order to align the legal
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provisions, a similar provisions was included in the Business Registration Law , too, in 2015.

39 It should be noted that under Articles 2 and 4 of Law No. 7632 ‘On the General Part of the Commercial Code’ (now
repealed by the Company Law), an entrepreneur was identified on the basis of the type of activity. Specifically: (i)
buying for reselling purposes, selling based on previous purchases made for reselling purposes, and generally and trade
action in relation to another trade action; (ii) any action of the industrial contract of construction, mining, transportation,
insurance, storage, public performances, advertising, and non-handicraft printing publications; (iii) any banking and
exchange operations; (iv) all trade intermediary operations, such as intermediary or haulage operations and trade
representation ones.
40 For example currently street vendors and farmers register only with tax authorities based on special provision of Law
No. 9920 “On Tax Procedures in the Republic of Albania”.
41 Under Article 22 (2) of the Business Registration Law, as amended by Law No.8/2015, unless a special law provides
otherwise, natural persons, as defined by the Civil Code, and as identified by a joint order of the Minister responsible for
trade and the Minister of Finance, who act as employer or self-employed in specific fields, or who do not reach the
specified turnover threshold, are shall not be obliged to register with the registry.
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