Page 28 - Albanian law on entrepreuners and companies - text with with commentary

contribution, at least up to the extent that commitments entered into with creditors so
require.
(7) The claim for the declaration of invalidity of the of establishment of the
commercial company must be raised within three years form the date the company has
been registered at the National Registration Centre. In any case, claims related to the
invalidity of establishment of a commercial company shall not be raised after the
publication of the correction of the circumstance causing the invalidity pursuant to this
law, if able to be corrected.

Comments:

1. As mentioned in the introductory part of this commentary, during consultation process
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of the draft amendments to the Company Law stakeholders and practitioners raised some
concerns regarding, amongst others, the implementation of Company Law as regard to
company nullity, corporate invalidities and time limits for corporate claims.
First we would like to explain the reason behind the absence of company nullity
provisions in the original test of the Company Law.
The principles of legal security and third party protection are a focal point of the EU
company legislation. As such, with the aim of protecting third parties that entered into
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dealings with the company, the provision of the First Company Law Directive, as restated
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with Directive 2009/101/EC aims to:

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(i) limit the grounds for the nullity of commercial companies, and
(ii) provide for clear consequences of the company nullity.

The aforementioned directives do not, however, impede the internal legislation to
choose the option of not providing any ground for company nullity, as this would offer
maximal protection to third parties. If an established company is registered and there are no
available grounds for its nullity, third party credits are ensured. Therefore, the option chosen
upon approval of the original test of the Company Law was not to provide for any ground of
company nullity.
With regard to company nullity, some stakeholder representatives raised the concern
that, despite the fact that the original text of the Company Law did not provide for any nullity
grounds, Albanian courts had established a practice of finding or declaring companies null

45 Approved with Law No. 129/2014.
46 First Council Directive No. 68/151/EEC of 9 March 1968 on co-ordination of safeguards which, for the protection of
the interests of members and others, are required by Member States of companies within the meaning of the second
paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community.
47 Article 12.
48 Directive 2009/101/EC uses the term nullity, irrespective if based on the national legislation the respective ground is
categorized as cause of non-existence, absolute nullity, relative nullity or declaration of nullity. The term nullity shall be
used generically in this Commentary as well, to include also causes of non-existence, absolute nullity, relative nullity or
declaration of nullity, as categorized by the Albanian legislation.
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