Page 67 - Albanian law on entrepreuners and companies - text with with commentary

company has sufficient capital at a time when they know or must have known that the
company will not be able to meet its commitments as against third parties.” This may
obviously be either immediately, at the beginning of operations, or at a later stage. So
basically, the undercapitalization rule of Article 1067 Civil Code is recognized here as
another example for the refusal of the mentioned legal objective that the legally separated set
of assets must serve the company’s creditors. However, the formula “when they know or must
have known” brings us back to the limitations we mentioned above: compared to the former
case (b) where the actors cannot but know that they are abusively stripping assets, there is no
‘automatic’ liability and piercing-the-veil for undercapitalization. The actors have some
discretion with respect to ‘sufficient capitalization’ and the moment of its occurrence. Again:
the application of the undercapitalization rule must always take the specific capital
maintenance model of the company and its actual situation into account. So the rules on
‘reasonable management’ of Articles 98 and 163 come to the fore. They must be applied
accordingly to members and shareholders capable of influencing the management of the
company.
However, like any other civil law liability in its broader sense (part of which is the
Company Law) any personal liability deriving from the use of the privilege of limited liability
for illegal gains or from its abuse in violation of Article 16 of Law No. 9901 has to be
certified by a final court order, Article 16 (4).
Otherwise, the assignment of personal liability to an individual for the liabilities of
another (legal) person without a due legal process would pose the risk of unfairly restricting
individual freedoms and right that are enshrined in the Constitution of the Republic of
Albania.
From the strategic perspective of business policies, if the certification of the cases
provided for in Article 16 of Law No. 9901 was done without due legal process, this would
adversely affect the economy by slowing down foreign investment in the country because, in
addition to normal investment risk, investors would feel insecure in relation to their
investment due to the unpredictability of the maximum loss amount they will have to cover.
Following the concerns that the stakeholders raised in the 2011–2012 consultations, it
was deemed reasonable to reformulate Article 16 of Law No. 9901, in order to first clarify its
previous wording that personal liability under Article 16 of Law No. 9901 vis-à-vis third
parties also included public authorities was valid only if the violations provided for in that
Article were found by a final court judgment.
In addition, given that the liability under Article 16 is a non-contractual one in terms of
damages, it was deemed reasonable to also determine the intentional element of the abusive
behaviour having the effect of payment of damages to third parties, by analogy with the Civil
Code provisions in relation to damage-related obligations (Article 608 et seq.).
As a result, it has been clarified that any action or omission under Article 16 has to be
done by responsible persons for the purpose of securing unjust profits for him/herself or third
parties, or for causing to third parties a loss of property

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