Legal aspects of the transposition of directive 2001/23/EC regarding the safeguarding of employees' rights in the event of transfers in the romanian law

Author:Felicia Bejan
Position:PhD candidate, Faculty of Political Science, University of Bucharest, Romania
Pages:16-23
LESIJ NO. XX, VOL. 1/2013
LEGAL ASPECTS OF THE TRANSPOSITION OF DIRECTIVE
2001/23/EC REGARDING THE SAFEGUARDING OF EMPLOYEES’
RIGHTS IN THE EVENT OF TRANSFERS IN THE ROMANIAN
LAW
Felicia BEJAN*
Abstract
The transfer of undertakings, businesses or parts of undertakings or businesses by legal transfer or
merger determine important changes in the structure of the participant entities. The change of their
juridical organisation has significant consequences on the employees’ rights, reason why, both nationally
and internationally, normative acts tha t would regulate appropriate safeguarding mechanisms have been
adopted. The paper aims to analyse the transposition into national law of the communitarian norms in the
field. As a result, the legal aspects with regards to which the legislator chose a restrictive transposition, as
well as the additional r ights established by them in favour of the employees, in comparison to the directive
are identified. At the same time, the study emphasizes the a spects with regards to which the Romanian law
requires to be changed and therefore makes some proposals de lege ferenda, so that the transposition of the
communitarian normative act into national law would be a precise one and consistent to the other
dispositions regarding national law.
Keywords: transfer, employees, labour contract, enterprise, transposition.
1. Introduction
Theă objectiveă ofă theă Europeană regulationsă regardingă theă employees’ă protectionă ină theă
event of transfers is that of offering them a juridical framework that would safeguard them from
illegal measures affecting the rights they won, such as the modification of the working
conditions, or the individual or collective dismissal.
The consecrated principle is that of the employees’ălaboură contractsăcontinuity,ăunderătheă
same conditions they were concluded, in the event of employer change as a result of a transfer
process by legal transfer or merger. The e mployees’ safeguarding mechanisms in the event of
the stock company reorganisation aim at guaranteeing the respect of the employees’ rights,
those previously gained, within the new juridical structure. The dispositions regarding the
maintenanceă ofă theă employees’ă rightsă in the event of transfers of undertakings, businesses or
parts of them by legal transfer or merger have to become legal guaranties for the stability of the
labour report and the conten t of the labour contract between the employees and the employers
involved in this kind of operations.
The Directive 2001/23/EC on the approximation of the laws of the Member States
relatingă toă theă safeguardingă ofă employees’ă rightsă ină theă eventă ofă transfersă ofă undertakings,ă
businesses or parts of undertakings o r businesses
1 was transposed into national law by Articles
173-174 of the Law 53/2003 of the Labour Co de2 and the Law 67/2006 concerning the
* PhD candidate, Faculty of Political Science, University of Bucharest, Romania (e-mail:
felicia.bejan@fspub.unibuc.ro).
1 Published in the Official Journal, nº L 82/2001, p. 6-20.
2 Republished in the Romanian Official Journal, 1st Part, nº 3445, the 18th of May 2011.

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