Page 49 - Albanian law on entrepreuners and companies - text with with commentary

difficult to interpret because the text was a compromise between some of the original Member
States in the EEC particularly Germany and France.

2. Vanessa Edwards relates “how the Italian deputy who cast the only negative vote in the
European Parliament against the Directive, gave as his reason that: “He could not conceive
how [it] could provide in one Article that the company may rely on properly published
information against third parties, and at the same time in another Article exclude such
reliance with respect to properly published limitations on the powers of companies officials.
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He called the approved text ‘a beast with a Latin head and a German body and tail”.
Indeed the conflict is obvious particularly in the light of Article 3(5) of the Directive
which provides that: “documents [including the company’s instrument of constitution and
statutes] and particular . . . may be relied on by the company as against third parties only
after they have been published.”
Edwards argues that Article 9 (1) and (2) was intended to prevail although her reasons
are thin; it turns on the exact wording of the text: “disclosure of the statutes shall not of itself
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be sufficient proof against third parties” . In support of this contention she cites the
Economic and Social Committee who thought that the publishing of the statutes were
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therefore redundant.
On the other hand she cites Dan Prentice who clearly thought that the Articles could not
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be reconciled. Edwards also cites Ubbink Isoatie BV v Dak-en Wandtechniek BV. There,
the Court was considering nullity but there were indications in the judgment which bears on
our current problem. There the judge said: “the purpose of the directive is not therefore to
permit third parties to rely on appearances created by the company’s organs or
representatives if those appearances do not conform to the information contained in the
public register”. However the court did not clearly indicate what the reason was. Similarly
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Advocate General Mayras in Friedrich Haaga GmbH made contradictory statements his
opinion; “Where third parties are informed by such disclosure [of nominations, resignations
or revocations concerning the organs of the company. . . the company is entitled to rely on
statements published” and “restrictions imposed upon the power to represent the company,
even if disclosed, may not be relied on as against third parties”. It seems that the confusion is
rife in the way that the directive was drafted and therefore it is not surprising that national
company laws are also confused.

77 V. Edward, EC Company Law (Oxford University Press, 1999), p. 40, citing Expose des motifs for the amended
Proposal, 31, translated from E. Stain, Harmonization of European Company Laws (Duke University Press, 1971), p
293, n.175.
78 V. Edward, EC Company Law (Oxford University Press, 1999), p. 40
79 [1964] JO 3254 also cited by Edwards.
80 Dan Prentice, “Section 9 of the European Commercial Act” (1973) 89 LQR 518 and Michael Schaeftler “Ultra Vires-
Ultra Useless: The Myth of State Interest in Ultra Vires Acts of Business Corporations”, 9 Journal of Corporation. L. 81
(181-1984) interesting this author is very clear that the Ultra Vires doctrine is only to protect shareholders interests. He
disregards creditors and the public interest entirely.
81 Case 136/87 [1988] WLR 4665, at para 13.
82 Case 32/74 [1974] ECR 1201, paras 12010 and 1214, V. Edward, EC Company Law (Oxford University Press, 1999),
p. 41.
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