Mergers' implications for employees under romanian law

• Author: Felicia Bejan
• Position: The Bucharest University of Economic Studies, Department of Law
• Pages: 6-13

AGORA International Journal of Juridical Sciences, www.juridicalj ournal.univagora.ro

ISSN 1843-570X, E-ISSN 2067-7677

No. 3 (2013), pp. 6-13

6

MERGERS’ IMPLICATIONS FOR EMPLOYEES

UNDER ROMANIAN LAW

F. Bejan

Felicia Bejan

The Bucharest University of Economic Studies, Department of Law

* Correspondence: The Faculty of Political Science, 24 Sfantul Stefan St., 023997, Bucharest,

Romania

E-mail: felicia.bejan@fspub.unibuc.ro

Abstract

Mergers of enterprises produce profound effects over the rights of associates,

creditors, and employees. Although the interests of each of the categories of persons affected

are protected by national and European norms, employees enjoy a particular attention. In

European law, Directive 2001/23/EC regulates the safeguarding of employees’ right in the

case of transfer of undertakings, businesses, and parts of undertakings or businesses.

Communitarian dispositions have been transposed in Romanian law by articles 173-174 of

Law 53/2003 - The Labour Code and Law 67/2006 regarding the protection of employees’

rights in the event of transfer of undertakings, businesses, or parts of them, which transpose

the Communitarian norms in the subject matter.

The labour contract is an intuitu personae contract, the relationship between

employee and employer being one of subordination. Thus, there are at least two rationales

that justify the lawmaker’s preoccupation for the implications of restructuring operations

over employees. Employee protection in case of transfer by merger entails, in substance, the

safeguarding of their rights and obligations within the framework of the ceded entity, as they

had been set by the labour contract of the cedent entity. The current study critically analyses

the national law concerning the transfer of labour contracts in the context of transfer by

merger. The paper also contains a number of de lege ferenda proposals, which can contribute

to the improving of the existing juridical framework.

Keywords: merger, legal transfer, employees, labour contract.

Introduction

According to Directive 2001/23/EC concerning the safeguarding of the rights of

employees in cases of transfers of undertakings, businesses, or parts of them

1

, to be

appropriated by member states in national law, transposed by Law 67/2006

2

, the law has as

object to be regulated the conditions in which the employees’ rights are protected, as

provided for by individual labour contracts and in the collective labour contract that applies,

in the case of the transfer of undertaking, business, or parts of undertakings or businesses

towards another employer, as a result of a legal transfer or merger, as provided by the law

(art. 1).

In our opinion, the division, together with the merger, is part of the scope of Law

67/2006 concerning the protection of employees’ rights in cases of transfer of undertakings,

businesses, or parts of undertakings or businesses. As a general consideration, there is a

juridical identity between mergers and divisions, with the exceptions of the particularities

generated by the specifics of each of the two types of operations. The only admissible

1

Published in the Official Journal no. L 82/2001, p. 16-20

2

Published in the Official Journal of Romania, Part I, no. 276 of 28 March 2006, came into force the date

Romania became a member of the European Union.