Page 29 - Albanian law on entrepreuners and companies - text with with commentary

and void, drawing an analogy to the nullity of legal transactions for contracts that the Civil
Code provided for.
Given that the contract nullity grounds provided for by the Civil Code do not
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correspond to the limited list laid down in the EU Law, the stakeholders’ concern led to the
idea of including in the Company Law special provisions in relation to company nullity, in
line with Article 11 of First Council Directive 68/151/EEC, as amended by Directive
2009/101/EC, the provisions of which the amendments introduced by Law No. 129/2014,
intend to be approximated with.
Therefore, the original draft proposals for Law No. 129/2014 amending the Company
Law included a new Title II/1 dealing with Invalidities and General Time Limits. This Title
was composed of four Articles dealing with invalid company establishment, other invalidities
related to the internal organization and functioning of commercial companies, invalidities
related to the external company relations with third parties and on general time limits for
claims under the Company Law.
Unfortunately, as explained earlier on The Special Relationship with the Civil Code,
proposed provisions for corporate invalidities and time-limits for corporate claims were
rejected during the legislative process, and only the provisions on company nullity remained
in the shape of the currently Article 3/1, as it was deemed an approximation of Article 12 of
Directive 2009/101/EC.

2. Coming to the new Article 3/1, its provisions are aligned with Articles 26 and 34 of the
Civil Code under which legal entries obtain legal personality in accordance with the manners
specified by law, and expire in accordance with the provisions of its memorandum of
association, Articles of association or the law. Obviously for commercial companies the law
referred to by the Civil Code shall be the Company Law. Provisions of the new Article 3/1 are
fully aligned of Directive 2009/101/EC. The first paragraph of the new Article 3/1 lists the
grounds that cause the company nullity. This list diligently follows the corresponding list of
Article 12 of the aforementioned directive (although the listing order of the relevant grounds
is not the same.
Letter a) enforces the legal requirement written form for incorporation documents, and
provides that that absence of written incorporation documents is a ground for company
nullity. Letter b) discusses the case where all the founders, at the date of incorporation did not
have the capacity to act.

3. During the parliamentary hearings for the approval of Law No. 129/2014, the text of
letter b) of Article 3/1 was lightly amended from the original text by removing the reference
to the date of incorporation, and the word “legal” has been inserted in front of the word
“capacity”.
Regarding the reference to the incorporation date, in our opinion this does not cause
particular interpretative issues now. When the NBC incorporates a company on a particular

49 Article l2 of the Directive 2009/101/EC.
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