The Theory of the Gained Right. Aspects Concerning Article 38 of the Labour Code

AuthorAdam, R.A.
PositionFaculty of Law, Transilvania University of Brasov
Pages83-88
Bulletin of the Transilvania University of Braşov
Series VII: Social Sciences • Law • Vol. 6 (55) No. 1 - 2013
THE THEORY OF THE GAINED RIGHT.
ASPECTS CONCERNING ARTICLE 38
OF THE LABOUR CODE
Roxana A. ADAM1
Abstract: EU legislation concerning judicial relationships pertaining to
labour law has known an important change in the time between the Rome
Treaty establishing the European Economic Community in 1957 and the
Amsterdam Treaty in 1997. A relatively new concept in this matter is
flexicurity, which is a harmonization of labour flexibility and security. Within
this concept the notion of labour security differs from the classical one known
in social security legislation. Flexicurity was defined by the European
Commission in 2007 as being „an integrated strategy” to simultaneously
enhance flexibility and security in the labour market. Within this context,
after nearly a century of labour legislation, emerged on the premises created
by the International Labour Organisation in view of ensuring employee
protection, EU legislation has devised norms addressing worker – owner
relationships, in other words the relationships between labour and capital.
Key words: right, employee protection, st rategy, flexicurity.
1 Faculty of Law, Transilvania University of Braşov.
1. Introduction
Evidently the debates related to the
modernization of labour legislation in the
EU member states, within the three-way
social dialogue, have often generated
serious controversy and tensi on, of a
magnitude that eventually has yielded the
concept of flexicurity, with the aim of
stopping the effects of globalisation, which
on occasion is viewed as an excuse for
diminishing worker rights.
It is within the framework of this
flexicurity concept that the theory of
gained rights emerged in the relationships
between ownership and workers.
In essence the theory of gained rights
means establishing workers ’ rights, and
which, once confirmed, remain unmodified
provided the circumstances of their
establishing stay the same.
The theory of gained rights stays,
however, „in the shadows”, considering
that part of the doctrine does not recognise
it, and another part does not even mention
its existence.
The existence of the theory of gained
rights cannot be, however, denied,
considering the evolution of labour
legislation, reflected mostly in the
European Union, and to a smaller extent in
the United Nations Organisation and the
International Labour Organisation,
respectively, given the different economic
development of states worldwi de.
The Labour Code, materialised in Law
53/2003, provisions at article 38 that

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