Albania has recognized the obligations in the global scale by introducing Anti Money Laundering Laws and regulatory framework. Investors or service providers that intend to carry out economic activities DIRECTLY in Albania (the "Economic Operators"), will establish a Permanent Establishment (the "PE") in Albania. Usually such economic operators register a representative office, a branch or a NewCo. Law No 9901, dated 14.4.2008 "On Entrepreneurs and Commercial Companies" (the "Company Law"), as amended, Law no. 131/2015, dated 26.11.2015 "On the National Business Centre" and Law no. 9723, dated 3.5.2007 "On the business registration", as amended, provide for the rules on the registration of such PE at the National Business Centre ("NBC"). As soon as the PE is registered with the National Business Centre, the next step for the start of activity consists in opening a bank account in Albania. The process of opening of a bank account in Albania is a challenge given the strict rules of checking of overseas shareholders' structure.
This article aims at introducing the type of documents to be provided by companies and procedures to be followed and some practical observations.
Banks or financial institutions in the Republic of Albania are subject to Law no. 9917 dated 19.05.2008 "On the prevention of money laundering and terrorism financing" ("AML Law") which provides general rules to be observed by specific natural or legal persons. In accordance with this law, banks should identify their clients and check their identities by means of identification documents in a complete and accurate manner before establishing a business relationship, i.e. before opening the bank account. In case the bank is unable to fulfil its due diligence obligations it should not proceed with the opening of a bank account or with the establishment of a business relationship or, should interrupt the business relationship in the event it has already been established.
For the purposes of identification and confirmation of the identity of clients, the bank shall:
- check the identity of any person acting in the name of the client and further ensure that he is duly authorized to act in the name and on behalf of the client;
- check the legal status of the client by requesting their incorporation or registration documents, name, number and date of registration with the National Business Centre, address, identities of managers and /or legal representatives and provisions that govern their relationship;
- identify the beneficiary owner and take the necessary measures to check such information through data obtained by trustful sources;
- determine whether clients are acting on behalf of another person and take all necessary measures for the identification and confirmation of the identity of that person;
- understand the structure of ownership and control of the client;
- identify the individuals who own or control the client, including the persons who exercise the ultimate effective control over the legal entity ;
- collect information related to the scope and nature of the business relationship and develop the risk profile during constant monitoring;
- perform constant monitoring of the business relationship with the client;
- ensure that the documents, data or information obtained hereinabove are up-to-date;
- check the identity of the client and beneficiary owner before or during the establishment of the business relationship. The confirmation of the identity of the client and of the beneficiary owner may be performed after the establishment of the business relationship, provided that however:
- such operation is performed as soon as practically possible;
- does not interrupt the normal course of business;
- money laundering risks are effectively managed by the bank.
Under the AML Regulation of the Bank of Albania approved by decision no. 44 dated 10 June 2009, as amended, in addition to the verifications by the bank described hereinabove, the physical presence of the client is obligatory for the opening of a bank account. Such requirement should be further detailed with some general observations resulting from law no. 9901 "On entrepreneurs and commercial companies" ("Company Law"). If natural persons in their quality of entrepreneurs should be physically present in the bank to sign the forms, on the other hand, companies, in the quality of legal entities and in accordance with the Company Law, should be represented by their administrator.
The representation of the company during the opening of a bank account may not be provided by a third person through a power of attorney ("PoA") issued by the administrator; the PoA will be accepted only for the subsequent operations with the bank account (transfers, withdrawals etc.). This prohibition complies with the general principle of non-representation provided by the Civil Code for certain personal actions and could be compared to the principle of civil procedure in French law "nul ne plaide par procureur" providing that a plaintiff should personally sign the document instituting the proceedings. In any case, whenever the client is represented by a third person by PoA, the bank should request the identification information of the client and keep a copy of all the documents submitted by the third person, including the original or notarized copy of the PoA.
Moreover, the situation may become more problematic in the event that more than one administrators have been appointed to jointly represent the company. Their individual or joint powers have to be clearly determined in the articles of association of the company in consideration of the fact that the Company Law provides a general rule of joint representation and banks generally adopt a strict interpretation thereof.
Therefore in the event the administrator is empowered to individually represent the company, his presence should be sufficient to open the bank account of the company; the presence of the other(s) administrators should, as a rule, not be required. By exception, banks should apply the enhanced due diligence rules for some categories of clients listed in article 8 of the AML Law, amongst which clients incorporated or performing their activity in countries which not have fully implemented AML international standards or who are organized under the form of trusts. Pursuant to such rules, the physical presence of the client and/or its administrators becomes obligatory.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.