Page 30 - Albanian law on entrepreuners and companies - text with with commentary

date even if all of the founders had no legal capacity the company could become validly
incorporated. It must be also noted that reference to incapability of all founders at the
incorporation date is also present in the respective nullity provisions of Directive
2009/101/EC, and therefore the same interpretation must apply also for Article 3/1, b) of the
Company Law. Also regarding the second last minute change, notwithstanding the insertion
of the word “legal” in front of the word “capacity”, it should be clearly understood that
Article 3/1, b) refers to the capacity to act under Article 6 of the Civil Code, and not to the
legal capacity pursuant to Article 1, which is the capacity of all living individuals to be
subject to rights and obligations, and as such a totally different legal concept form the
capacity to act.
The capacity to act is granted and/or removed to individuals pursuant to Article 6 et seq.
of the Civil Code. The capacity to act is usually available to anyone reaching eighteen years
of age, however in special cases envisaged under the Civil Code younger persons can also
acquire limited capacity to act. In addition, adults who by reason of mental illness or
underdevelopment are not able to look after their affairs, could lose legal capacity. The
Company Law does not further discuss the matter of the capacity to act, as this is a pure civil
Code matter, falling beyond the scope of the Company Law.
The nature of this ground of nullity, based on the general categorization drawn by the
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Albania legislation could be absolute or relative (annul ability), depending on the case (age,
consent of the parent/guardian, loss of capacity to act, etc.) will be discussed in the following
paragraphs. Although, in the original proposal for Article 3/1, the categorisation of the nullity
of a company formation into absolute or relative was unimportant and did not result in any
practical differences in terms of effects, since, following the principles in Directive
2009/101/EC, the same regime of effects applied to all types of nullity. As explained below,
through last-minute changes made in the Parliamentary committees inserted a difference in
terms of consequences based on the nature of nullity.
A question that may arise with respect to this ground is related to the founders being
other legal entities. Does letter b) of Article 3/1 apply also for the case of founders being legal
entitles?
Starting from the literal interpretation of the text of letter b), considering that under the
Civil Code the capacity to act is strictly referred to physical persons, the application of this
ground if founders are other entities, would not be appropriate.
One could argue that as entities are fictitious persons created by law for different aims
(for commercial companies to incentive business), the legal personality they acquire by law is
equivalent to the legal capacity of living individuals pursuant to Articles 1 to 4 of the Civil
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Code. However, for entities, there is no issue of maturity, because legal entities can be

50 See Articles 92 et seq. of the Civil Code. See also decisions of the Albania Supreme Court in unified sessions No.13
dated 09.03.2006 and No. 10 dated 18.09.2009.
51 Under Civil Code, the legal capacity is the capacity to be a subject of rights and obligations, within the limits of the
law. Article 2 of the Civil Code grants legal capacity to any child that is born alive, and even reserves the legal capacity
form the date of his/her conception. Article 320 of the Civil Code reserves legal inheritance rights also the unborn child
that was conceived before the death of the deceased, provided that the child is born alive.
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