Mergers' implications for employees under romanian law

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

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,... (see full summary)

 
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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.

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