Page 42 - Albanian law on entrepreuners and companies - text with with commentary

discrimination against EU companies in Albania (and Albanian companies in the EU) may be
created. Article 56 provides for some exceptions to these rules.
While the SAA creates the most favourable conditions for the establishment of
companies between the EU and Albania, the TFEU’s freedom of establishment provisions
between Member States are wider. Albanian laws will apply to all of the provisions of the
freedom of establishment in the EU. Any restriction of access, not only discrimination, is
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prohibited. In practice, exceptions may only be applied to the operation of the established
foreign company, if the same rules apply to national companies and as long as they are not
discriminatory. At stake is the regulatory freedom and scope of Member States’ company
laws. The EU’s debate on this matter is important for Albania as it determines whether the
basic standard applied by Albanian law to foreign companies on its territory will be
compatible with future membership.
Questions of this kind where the facts of a case involve a foreign element, deemed to be
‘significant’ by a domestic court, are resolved by the domestic rules of ‘conflict of laws’ or
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‘international private law’. As regards company law, the rules of conflict are informed by
two opposing underlying philosophies which originate in the abovementioned contractualist
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and the concession theory.
The ‘registration’ or ‘incorporation’ approach regards a company as fully formed and
constituted under national law if it has its registered office within that state. It does not matter
where the actual central administration and the business of the company are located. The
company may freely choose where it wants to be registered and do its business elsewhere. In
this case, it is often believed that it will choose the location with the most lax regulatory
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regime.
Instead, the ‘real seat’ doctrine recognizes a company only if it has a real connection
with the legal system under which it operates. That means a company will not be regarded as
fully constituted in a state unless it has both its registered office and its central administration
in the same jurisdiction. If such a company splits the registered office and the place of central
administration, the ‘real seat’ doctrine will view the company as losing the nationality of the
place of origin, and the new country will not recognize it until it has been reconstituted
according to local laws so that it can have a local registered office. The Albanian Company
Law follows the ‘real seat’ doctrine like all the other laws in the region. During the drafting
and consultation process between 2006 and 2008, only few voices opted for the ‘registration
approach’. The vast majority of professional respondents confirmed the application of the
‘real seat’ doctrine. The question is, if this approach is acceptable from the point of view of
alignment with EU Law as it might conflict with the adoption of the ‘freedom of
establishment’.

67 Cf. the text of Article 49 TFEU (ex-Article 43 (1) TEC).
68 Law No. 10428/2011 “On International Private Law”
69 See above Chapter B.I.; for details, M. Habersack, Europäisches Gesellschaftsrecht, (Beck: Munich, 3rd ed., 2006),
pp. 8–17; J. Dine, M. Blecher and M. Koutsis, footnote 12, p. 67–105.
70 This was called the ‘Delaware-effect’ due to the relatively lax foundation requirements of this state of the US; cf. C.
Villiers, European Company Law - Towards Democracy? (Dartmouth, 1998), p. 17.
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