Page 70 - Albanian law on entrepreuners and companies - text with with commentary

regarding the company’s operations, and against its managers dedicating their workforce to
another context.

2. It is important to note that the statutory approval of Article 17 (2) cannot be given once
and for all but requires a specific case by case treatment.

Article 18
Business Secrets
(1) Business secrets are data and documents, which would significantly damage the
business interests of the company if they were disclosed to unauthorized persons.
(2) Information which is required to be disclosed by law or relates to violation of
laws, good business practices and principles of business ethics, will not be regarded as a
business secret. Disclosure may be legitimate if it is intended to protect the public
interest.
(3) With respect to their present or former position in the company, managing
partners, members or directors, members of the employee council and employee
representatives are liable for damage caused to the company by unlawful disclosure of
business secrets.
(4) Claims must be brought within 3 years after the violation. Paragraph 3 of
Article 10 applies accordingly.

Comments:

This provision which was enacted in 2008 is a novelty in the Albanian system. It
introduces, for the first time, an adequate standard of secrecy in business matters which
reflects the state of art of the European and international debate. This is reflected by
paragraph (2), which provides the definition of exceptions to the secrecy provision in
paragraph (1). These exceptions are required in order to guarantee the ordinary functioning of
the market and the democratic system. It is crucial that any violation of laws, ethics and good
practice committed in the realm of an entrepreneur’s business or in a company should be
known. Transparency is a highly prized principle of corporate governance. Persons who are in
the position of knowing about these illegal practices must be encouraged to disclose their
knowledge to the public and to become ‘whistle-blowers’ without the fear that they might
encounter any disqualification or other negative consequences. This is the sense of the last
sentence of paragraph (2) which regards the exceptions listed by the previous sentence as
‘public interest’ and declares disclosure legitimate if it was intended to protect this interest.
That means that there is a margin of error involved: if the whistle-blower acted in good faith
and had sufficient reasons to believe that the public interest had been violated, he may
disclose his knowledge even if mistaken without being legally liable. This standard connects
us to the one of ‘acting in good faith for the best interest of the company’ of Article 98 (1) and
163 (1): non-violation of laws, good business practices and principles of business ethics unite,

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