Page 47 - Albanian law on entrepreuners and companies - text with with commentary

breach of duty during the foundation phase. In that case the duty will be owed to the
company.

2. Article 10 (2) establishes that founders have to bring in their contributions in cash or
kind in time as required by the statute and respect the formation formalities. In case they fail
to comply with these rules or they delay, founders are jointly and severally liable to the
company for any damage resulting from their failure. Partners, members or shareholders who
enter a company at a later stage bear the same liability regarding their contributions. Article
123 explicitly states this for JSCs.

3. According to Article 10 (3), claims regarding foundation formalities and duties may be
realized by the legal representative of the company, or, in case of the latter’s failure to do so,
by the other partners, or by a quota of members or shareholders representing at least 5% of a
LLC’s or JSC’s total votes. Creditors have the same right if they fail to be satisfied by the
company. In this respect, paragraph 6 of Articles 91 and 150 must be observed: A request
made by creditor in bad faith shall make him liable in accordance with Article 143 of the
Criminal Code, Law No. 7895/1995.
The right established by Article 10 (3) for the other partners, minorities or creditors
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results in what is called in the Anglo-American company law ‘derivative action’ as it
derives from the company’s right against the founders which the other partners, minorities or
creditors need to realize in case the company management does not do so whatever the reason
is. However, as regards LLCs and JSCs and their formalized decision-making competencies,
the third sentence of Article 10 (3) must be observed. It refers the minority or creditor quota
to the procedural requirements of Articles 91, 92 and 150, 151. The minority or creditor must
first request the General Meeting to file the court case against the founders. Only in case the
General Meeting does not do so within the time limit set by the mentioned provisions may the
minority or the creditors file the case by themselves.

Article 11
Information on Letters, Order Forms and Other Documents
(1) All letters, order forms and other documents issued by companies and by their
branches and representations either by use of paper or electronic means and addressed
to third parties shall provide for the following information:
a) the Unique Identification Number;
b) the legal form of the company;
c) the location of its registered seat and head office;
ç) if a company is in liquidation;

75 In German company law: ‘actio pro socio’; see U. Eisenhardt, Gesellschaftrechts, Beck, Munich 2002, pp 37, 314,
409.
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