Page 33 - Albanian law on entrepreuners and companies - text with with commentary

that in a case where special laws require a higher minimal capital for the conduct of specific
regulated business activities (examples), the establishment of a company with a capital lower
than the minimal amount required by special laws shall not cause the company nullity under
Article 3/1 of the Company Law, but it may cause the inability to conduct that specific
business under the applicable regulatory requirements.

6. The last ground for company nullity of Article 3/1 is letter dh), when the subscribed
capital of the joint stock company, has not been prepaid by before its registration at the
National Business Centre. This ground clearly applies only to joint stock companies, and the
provisions against which this nullity grounds shall be verified are those of Article 113 and
following of the Company Law.

7. Regarding the effects of the company nullity, as mentioned above, the categorisation of
nullity into absolute or relative was unimportant and did not result in any practical differences
in terms of effects. This treatment was in line with the provisions of Directive 2009/101/EC.
During the parliamentary hearings, the text of Article 3/1 was amended, and paragraphs (3)
and (4) now contain two different provisions for absolute and relative grounds for nullity. The
approved text of paragraphs (3) dealing with absolute nullity and (4) dealing with relative
nullity, appear to lead to the conclusion that absolute grounds for nullity may not be corrected,
if able to be corrected. We note that this distinction of consequences is not in line with the
requirements in Directive 2009/101/EC.
From the list of grounds of Article 3/1 (1), only the case under letter b) could lead to an
absolute nullity, when all the founders, at the date of incorporation, were under 14 years of
age. The other grounds of Article 3/1 (1), including if all founders were underage (under 18
years, but older than 14 years) could hardly be deemed as absolute. Even though in practice
the eventuality that this case occurs is quite remote, considering the principle of legal security
and creditor protection contained in Directive 2009/101/EC, we see no reason not to allow
founders under 14 years having done business for four consecutive years, to be able to correct
the nullity ground, after they become of legal age (i.e. by ratifying the company
establishment). However, as courts may deem in special circumstances that also other nullity
grounds of Article 3/1 (1) have absolute nature, we see no legal and practical reason to deny,
for all cases, the possibility to correct the ground, if able to be corrected.
In addition, the aforementioned last minute amendment of the text of paragraphs (3) and
(4) of Article 3/1 caused an incorrect reference. The approved text of paragraph (4),
discussing cases of relative nullity, provides that the relative nullity may be corrected, if able
to be corrected, “prior to the court decision mentioned in paragraph (3) of this Article”….

8. The conclusion that the nature of the ground is irrelevant for the company nullity, and
therefore the possibility to correct the nullity, if able to be corrected, should be applied also
for cases of absolute grounds, is also confirmed by the fact that Article 3/1 (6) provides the
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same consequences for the both cases. The same conclusion is also sustained by the last

59 Both the absolute and relative nullity may not be relied on as against good faith third parties, and does not release
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