Page 71 - Albanian law on entrepreuners and companies - text with with commentary

both, the interest of the public and the best interest of the company expressed by those
provisions. So, directors acting as whistle-blowers here are not only covered by Article 18 (2)
but also by their duties as directors.

TITLE V
EMPLOYEE PARTICIPATION

Comments:

1. Present EU thinking on employee involvement can be learnt from the following quote
of the report of an experts group established by the EU Commission in 1996: “Globalization
of the economy and the special place of European industry raise fundamental questions
regarding the power of social partners within the company. The type of labour needed by
European companies—skilled, mobile, committed, responsible, and capable of using technical
innovations and of identifying with the objective of increasing competitiveness and quality—
cannot be expected simply to obey the employers’ instructions. Workers must be closely and
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permanently involved in decision making at all levels of the company”. European legislation
in force on employee involvement includes the European Works Council Directive 94/45/EC
which requires the establishment of works councils in European wide enterprises, and
Directive 2002/14/EC on Informing and Consulting Employees. There are no European
requirements for representation at board level. But Regulation 2157/2001 for the European
Company anticipates the establishment of European companies which have this form of
participation. These provisions are based on the law and practice of certain member states,
like Germany, the Netherlands and the Scandinavian Member States where employee
participation has a strong and successful tradition as part of the ‘increase of enterprise control’
mentioned in the previous chapter.

2. For convergence with the EU standard, law makers in Albania established an employee
council system with corresponding information and consultation rights, Articles 19 to 21.
However, as regards employee representation at board level, the Company Law 2008 did not
introduce the legal concept of Article 109 of the old Company Law No. 7638 which required
one-third of Supervisory Board members to be elected by employees. During the consultation
process, there was agreement on the fact that this provision had never been applied at all
during the 15 years of company law practice under the old Law. Moreover, as the 2008 Law
was supposed to allow for the choice between various (one-tier and two-tier) governance
models, no agreement could be reached on how employee representation on board level could
be kept mandatory for all these models. Therefore, Article 21 of the Company Law adopts the
solution introduced for the first time into European Law by Regulation 2157/2001 EC on the
Statute for a European Company (SE) and by Directive 2001/86/EC supplementing this

96 Final Report of the Group of Experts on European Systems of Workers Involvement headed by Viscount Davignon
(Davignon Report), European Commission, May 1997, para. 19.
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