Page 39 - Albanian law on entrepreuners and companies - text with with commentary

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We are not aware that such reasons exist in Albania. Last not least, we must take the recent
ECJ jurisprudence on restrictions to the Freedom of Establishment into account (see
63
Comments to Article 8 below).

Article 6
Statute
The company Statute includes the particulars listed by Article 32 to 36 of Law No.
9723 on the National Registration Centre. Paragraph 4 of Article 28 of that Law applies.

Comments:

1. The Company Law requires only one document for company formation and
constitution, the written ‘Statute’. This simple system is confirmed by the bad experience with
other laws in the region requiring a foundation (incorporation) agreement (or ‘memorandum
of association’) and ‘by-laws’ (or ‘Articles of association’). The mandatory distinction often
resulted in an unnecessary overlapping of the contents of those documents. Duplication of
documents containing at least partly the same provisions may give rise to the risk of confusion
in case of differences between the two. This is particularly troublesome if third parties want to
inform themselves of the contents of the documents, for instance, with regard to who is
entitled to represent the company. In fact, Albanian law does not exclude the establishment of
two or more documents as long as they contain together all those data required by Article 6
which refers to the relevant provisions of the Business Registration Law. Article 28 (3)
Business Registration Law requires that, in case more than one document exist, all of them
must be presented in order to fulfil the application requirements. This is particularly important
with respect to registered data that the company may rely on as against third parties. At this
point, we recommend reading Article 21 Business Registration Law, which is one of the most
important provisions of that Law as it transposes the requirements of Article 3 of the First
Company Law Directive 68/151/EEC (as amended by Directive 2009/101/EC of 16
September 2009) on the effects of registration and disclosure of company data into Albanian
Law (see also below Comments to Article 12 on representation).

2. Article 6 refrains from listing the minimum requirements of the Statute, but refers to

62 In the past, partnerships in Germany were taxed as individuals and therefore on a lower scale than LLCs or JSCs.
63 Up to now, EU Company Law Directives have only refered to companies. Partnerships, including Civil Code ‘simple
partnerships’, have not been targeted by European measures. Companies with limited liability of members and
shareholders bear special risks and have the greater impact on European markets. This is why they deserve special
attention of harmonization and integration. Exceptions are, however, certain hybrid forms which the text refers to. This
is, above all, the ‘Special Limited Partnership’ (‘GmbH & Co. KG’), a very common form of business organization in
Germany and Luxembourg, where the unlimited partner of a limited partnership is a private limited liability company.
The latter enters into a limited partnership agreement with the limited partners. Consequently, unlimited liability is
avoided for the entire set of companies involved. This company form, which tries to combine the advantages of both
forms in question, is legally accepted. In many cases, however, courts applied rules for LLCs or JSCs accordingly in
order to come to terms with the organizational and risk structure of such hybrids. As ‘atypical partnerships’ were often
used for the construction of company groups (‘pyramids’), they were forced under the European regime of the Fourth
and the Seventh Directive on Accounting and Consolidated Accounts by Directive 90/605/EEC.
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