Digitalization nowadays occupies an important role in the life of all the stakeholders of the business ecosystem, especially in these unprecedented times where due to Covid-19 pandemic companies across the world were forced to operate remotely in order to prevent the spread of the virus. This method of working became quite common in Albania, as well, in these last two years and affected not only the performance of the daily activities of the companies but also the conduct of shareholders’ meetings.
Unlike some countries that adopted additional pieces of legislation, of either temporary or permanent nature, for addressing the business - related challenges that arose as a result of the pandemic, Albania had already in place a number of legal provisions regulating the virtual shareholders’ meetings and the electronic execution of documents, which facilitated the companies operating in the country.
- Criteria for the realization of the remote shareholders’ meetings
According to Albanian Commercial Law, namely Law 9901/2008 “On Entrepreneurs and Commercial Companies”, all or some of the shareholders may attend a general assembly meeting remotely, in case that i) the Articles of Association of the respective company foresee the possibility of the remote participation of the shareholders in the meeting by using electronic means or in case that ii) all the shareholders state in writing their consent in this regard. In every case the identification of the shareholders must be guaranteed.
Under the Commercial Law, the term “electronic means” includes but is not limited to:
a) real-time transmission of the general meeting
b) real-time mutual communication enabling shareholders to address the general meeting from a remote location
c) a mechanism enabling the voting process, whether before or during the general meeting, without the need to appoint a proxy holder who is physically present at the meeting.
- Valid use of the electronic signature
In addition to the above , what has served as a further facilitator especially during the pandemic and beyond, is the existence of the legal framework regulating the validity of the electronic signatures (e-signatures). Based on Law 9880/2008 “On Electronic Signature”, an electronic document that bears an e-signature shall be considered to have an equal validity and probatory power with a document signed in wet ink signature, only if the qualified certificate is issued by a qualified electronic service provider that has been registered with the Albanian Authority for Electronic Certification & Cybersecurity (i.e. AKCESK). For the time being, in Albania there are two qualified trust service providers, namely ALEAT and AKSHI (National Agency for Information Society).
The e-signatures issued by a qualified trust service provider (QTSP) operating in the European Union, are deemed equivalent to the e-signatures issued by a QTSP operating in Albania, and therefore equivalent to the handwritten signatures (wet-ink), on condition that the QTSP is part of the EU Trusted List.
The law specifies that for certain types of documents, such as the ones pertaining to legal transactions in the field of family law and inheritance, the documents for which a legalization or a notarization is required or whenever the law expressly prohibits the use of electronic form, the e-signature cannot be used. However, the resolutions being adopted in a remote meeting are not classified under any of the above categories and hence they can be signed electronically.
The pandemic highlighted and further reinforced the self - evident advantages, mainly in terms of speed and cost, that are associated with the electronic execution of the documents and the holding of virtual meetings, while at the same time contributed to the establishment of a new mindset according to which the aforementioned are not being seen anymore as an atypical modus operandi.
Even if at the time that the pandemic hit the globe, Albania had already in place a legal arsenal enabling the continuation of the activity of the businesses with as little interruption as possible, it has to be highlighted that it would be even more beneficial if the government had adopted temporary measures allowing remote meetings even though they were not specifically foreseen in the companies’ Articles of Association. Moreover, there is much work to be done in the direction of consolidating the approach of all the public authorities in Albania towards the admissibility of the electronically signed documents, as well as in the direction of combatting the doubtful approach of businesses regarding the use of e-signature.
