Page 41 - Albanian law on entrepreuners and companies - text with with commentary

2. Originally in 2008 the Company Law enacted no cases of nullity. The idea was to
simplify the law and to align the ‘word and spirit’ of Article 11 of the First Directive. The
ECJ interprets the limited nullity cases of Article 11 First Directive very restrictively, as the
court understood that the purpose behind the provisions of Article 11 was to increase certainty
of contract between companies and third parties. This was especially important as the EC
expanded to admit more member companies so that individual scrutiny of the documents
founding a company became more unlikely. Some nullity cases were brought many years
after foundation and caused considerable upset in legal relations over a number of years.
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The ECJ established that ‘unlawfulness of the company object’ only refers to the
object envisaged by the statute. A company may therefore not be declared null based on
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Article 3/1 of the Company Law just because it is de facto carrying unlawful activities. In
such case, the company may be wound up based on a court decision issued under Law No.
9754, dated 14.06.2007 “On the criminal responsibility of legal entities”.

Article 8
Head Office
(1) Unless the Statute otherwise provides, a company’s head office is the place
where the major part of its business is carried out.
(2) A company the head office of which is located in the territory of the Republic of
Albania, is subject to this Law.

Comments:

1. Together with the registered or trade name, the establishment of the head office
individualizes the company. Article 8 (1) is a default rule as it recognizes that the Statute can
change the location of the Head Office. Moreover, “alternative locations of the exercise of the
activity apart from the registered office”—which is the ‘head office’ (Article 8) or ‘seat’
(paragraph (1), letter d)) of Article 32 Business Registration Law)—must be submitted for
registration according to Article 43 (3), letter d).

2. Article 8 (2) applies the Company Law to a company the head office of which is in
Albania. But which law applies if a company is registered in Albania and does all its business
abroad? Must this company be dissolved and liquidated? And if a company founded with
respect to foreign law wants to transfer its head office to Albania, will it have to comply with
Albanian foundation provisions?
In this context, we also must consider that Art. 50 (1) and (3) SAA require that Albania
and the EU facilitate the setting-up and the operations of their respective companies,
subsidiaries, branches and nationals. Paragraph 2 of the same provision declares that no new

65 Article 11 No. 2(b) of the First Directive, restated in Article 12, b (ii) of Directive 2009/101.
66 See Case 106/89, Marleasing.
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