Considerations for Ensuring Payment of Wage Claims in Case of Insolvency of the Employee in Line with EU Rules

• Author: Ion Paducel, PhD
• Position: Senior Lecturer. University of Bucharest "Titu Maiorescu"
• Pages: 138-144

Page 138

Headquarters matter of worker protection in case of insolvency of the employer in the Community rules is the Council Directive no. 80/987 / EEC on the approximation of national laws on protection of employees in case of insolvency of the employer¹ as substantially (Teyssie, 2006, p. 242) (Voiculescu, 2005, p. 165) by Directive 2002/74/EC of the European Parliament and Council.²

The Directive 2002/74/EC and Directive no. 80/987 were based on International Labor Organization Convention no. 95 in 1949 on the protection of workers³ and thePage 139emergence of the fund in some Western countries as Belgium, Holland, Denmark and France.

Since the content of these directives were not well outlined some aspects of the regulations on employment and collective dismissal procedures particularly those of bankruptcy, the European Parliament and Council adopted Directive no. 2008/94/EC of 22 October 2008 on protection of employees in case of insolvency of the employer.⁴

With regard to our country, the issue of the guarantee fund to pay outstanding claims sparked disputes still living in the Code development phase work,⁵ especially regarding the financing of the Fund by employers. By art. 167 of the Code of State formation and the role of the Fund and stated by art. 168 (literally reproducing art. 5 b) of Directive no. 80/987/CEE), principles of formation and use of the Fund.

In that period, to assess, in consultation with the European Commission that Romania must at least in principle, to assert the intention of establishing the Labor Fund and benchmark principles of training and its use. Article 168 of the Code reproducing the text from the Directive, materialize, therefore, a commitment to negotiations.

Government Emergency Ordinance no. 65/2005⁶ amends art. 167 of the Code and repeals art. 168 of the same Code. As stated in the doctrine, (Stefanescu, 2006, p. 98) these changes allowed the legislature "only appears to have a broad range of options on how to set up a Guarantee Fund for payment of claims, in fact amend and repeal Article art. 167. 168 of the Code are useless if the subtext, it was intended, in any circumstances employers may not even partially finance the Fund.

In this regard, we believe that the legislature did not merely postpone again, drawing up the bill announced by art. 167 of the Code and obligations arising from Romania negotiated and enshrined in the Treaty of Accession to the European Union (Law no. 157/2005).Page 140

The problem was cut by adopting the Law on the establishment and use no. 200/2006 fund to pay outstanding claims⁷which entered into force on June 1, 2007. In applying this law, detailed rules were approved by Government Decision no. 1850/2006⁸, and the content of the law and implementing rules subject to reviews in the literature. (Ticlea, 2007, p. 262) (tefănescu, 2007, p. 593) (Tinca, 2005, p. 177)

Given the comments set out in theory, content no. 200/2006 Law as amended thereafter, in relation to Community directives, and doctrine of the Court of Justice, some observations can be made.

Directive 80/987 states, in Article 2 that parag.1 employer insolvency is the date on which the required opening of collective proceedings based on insolvency of the employer, under the laws of the Member States and the competent authority under these provisions, either decided to open proceedings or found permanent closure of the company, and insufficient assets available to justify the procedure.

Community courts, interpreting these provisions noted⁹ that Directive 80/987 established a system of protection of workers subject to filing an application for opening insolvency proceedings under the law of the Member State concerned and the existence of a formal decision opening the proceedings or the finding of the closing company. The court held that, because the Directive to apply, two events must occur, namely: first, a request to open insolvency proceedings to the competent national authority and, secondly, to be held either a decision to initiate the procedure or finding a...