Page 31 - Albanian law on entrepreuners and companies - text with with commentary

eternal and are able to understand and look after its own affairs. On the other hand then the
capacity to act is considered to be acquired immediately and jointly with the legal personality.
Therefore the legal entity lacking legal personality would also lack capacity to act, hence
could potentially cause the ground for company nullity under letter b) of Article 3/1.
However, in our view the ground for invalidity under letter b) of Article 3/1 would find
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little relevance if founders of the company are other legal entities. Moreover, if a legal entity
lacks proper legal personality then the incorporation documents would have been validly
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executed in the name of its founders or persons acting for the entity; hence by persons
having capacity to act, and therefore the ground under letter b) would not resonate. Moreover,
considering that the spirit of the Directive 2009/101/EC is to limit grounds for company
nullity, extensive analogy should be avoided.
A final question for this ground would be what happens if only one or more founder, but
not all founders, have no capacity to act? This question is however not relevant for company
nullity, as Article 3/1, letter b) clearly states that all founders should be incapable to act.
Therefore, if one or more, but not all founders were incapable to act at the time of
incorporation, the eventual invalidity shall not affect the legal personality of the company, but
rather the contractual relation entered into between the founders, aiming to establish the
company (i.e. typically called deed of incorporation).
The deed of incorporation is a legal action between the founders aiming to create legal
relations between them (i.e. to give respective contributions for the conduct in common of a
business, with the aim of sharing the profit). As such, the deed of incorporation is a typical
Civil Code relation between private parties, and as such governed by the Civil Code
provisions. The establishment of a separate legal entity, through which the common business
shall be conducted, and the terns of and conditions of the functioning and operation of the
company (i.e. the company statute), is a consequence of such founders’ agreement. This is the
reason why the Company Law does not regulate the deed of incorporation, but only discusses
the incorporation process and the company Statute. Notwithstanding that pursuant to the
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Business Registration Law the clauses of the deed of incorporation and the company statue
may be merged in a single document, these remain two separate legal transactions. Therefore,
terms and conditions regulating the founders’ agreement to establish the company are relevant
for the deed of incorporeal, while the organizational and functions provisions of the Company
are relevant for the statute. The first shall be governed by the Civil Code, while the second
form the company law.
As regards the validity of the founders’ agreement, the inability to act of one of the
founders may be only one of the defects under the Civil Code. In addition to the inability to

52 An exception could be the case of the entity having legal personality, but that has limited powers based on a court
order pursuant to Article 10, dh) of Law No. 9754, dated 14.6.2007 “On the criminal liability of legal entities”. However,
these are exceptional cases that confirm the rule that the ground for invalidity under letter b) of Article 3/1 is not relevant
if founders of the company are other legal entities.
53 See for example Article 10 (1) of the Company Law, and Article 78 (1) of the Civil Code.
54 Article 28 of the Business Registration Law provides that companies are registered “upon filing,…the company statute
and the deed of incorporation, if drawn up in two separate documents, …”
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