Employees’ Claims in the Event of Employer Insolvency in ... · international policies aimed at stimulating economic recovery, ... In 2009, with the aim of encouraging bank lending,

ILO Decent WOrk technIcaL SuppOrt team anD cOuntry OffIce fOr centraL anD eaStern eurOpe

Employees’ Claims in the Event of Employer Insolvency in Romania:A Comparative Review of National and International Regulations

AuthorBrandusa Bartolomei

Edited by Cristina Mihes and Verena Schmidt

Copyright © International Labour Organization 2011

First published 2011

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Bartolomei, Brandusa; Mihes, Cristina; Schmidt, Verena

Employees’ claims in the event of employer insolvency in Romania : A comparative review of national and international

regulations / Brandusa Bartolomei ; edited by Cristina Mihes and Verena Schmidt ; ILO Decent Work Technical Support

Team and Country Office for Central and Eastern Europe = CREAN TELE SALARIA TILOR ÎN CAZUL INSOLVEN TEI ANGAJATORULUI

ÎN ROMÂNIA STUDIU COMPARATIV AL NORMELOR NA TIONALE SI INTERNA TIONALE / Brîndusa Vartolomei ; Editat de Cristina

Mihess i Verena Schmidt ; Echipa de Suport Tehnic Privind Munca Decenta / Biroul de tara al Biroului International al

Muncii pentru Europa Centrala si de Est. - Budapest: ILO, 2011

1 v.

ISBN: 978-92-2-024898-0 (print)

ISBN: 978-92-2-024899-7 (web pdf)

ILO Decent Work Technical Support Team and Country Office for Central and Eastern Europe

employers liability / workers rights / Community law/ EC Directive / ILO Convention / labour legislation / comment /

harmonization / Romania

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III

EMployEES’ ClAIMS In thE EVEnt of EMployER InSolVEnCy | foREwoRd

Foreword

The current global economic crisis (the “Great Recession”) has presented the world with unprecedented challenges related to the creation and maintenance of decent work opportunities. In Romania, as elsewhere, the crisis has resulted in a number of company insolvencies, which have a negative impact on employers and workers alike. Enterprise insolvency during the crisis has negatively affected employment rates as well as wage payments in Romania. While a Wage Guarantee Fund exists (in line with EU legislation) to pay employees working for insolvent enterprises their outstanding wage claims, few employees have applied to the Fund, either through lack of knowledge of the Fund’s existence or because of the Fund’s practical and procedural shortcomings.

This study analyses the increase in insolvency proceedings in Romania in line with the global economic crisis. It analyses their prevalence by region and by sector. It then considers the legal steps taken by Romania to protect workers in the face of widespread employer insolvency, including the adoption of relevant European Law: Council Regulation 1346/2000 on insolvency proceedings, and Directive 2008/94/EC on the protection of employees in the event of the insolvency of their employer. However, as unemployment is on the rise and relatively few persons benefit from the Wage Guarantee Fund, it remains important to seek ways to mitigate the negative effects of insolvency on workers in Romania.

The ILO response to the crisis is the Global Jobs Pact, adopted by tripartite consensus at the International Labour Conference in June 2009, which establishes an internationally agreed approach to guide national and international policies aimed at stimulating economic recovery, generating jobs and providing protection for working people and their families. The Global Jobs Pact calls for a decent work response to the crisis in order to strengthen efforts to maintain and create jobs, stimulate the development of sustainable enterprises, develop quality public services and protect both male and female workers, while safeguarding rights and promoting voice and participation.

It provides a framework for the period ahead and a resource of practical policies for the multilateral system, governments, workers and employers. The Global Jobs Pact prioritizes employment and building social protection as key elements of international and national action to aid recovery and development.

In the period of crisis, one guiding principle – highlighted by the Global Jobs Pact as necessary for sustainable recovery and growth – is that governments should adopt policies which promote international labour standards. These standards create a framework for ensuring rights at work and contribute to building a culture of social dialogue, both of which are of great importance during difficult periods. International labour standards include not only the fundamental Conventions, but a number of other ILO instruments concerning employment policy, wages, the employment relationship, and the termination of employment. Among these international standards whose importance has grown is ILO Convention 173 on the Protection of Workers Claims (Employer’s Insolvency), 1992.

Romania has adopted EU legislation on the protection of workers in the case of employer insolvency. As a result, it has been argued that Romania does not need to ratify ILO Convention 173. However, this study illustrates how the Convention differs in a number of ways from the legal framework currently in place in Romania, comparing EU and Romanian legislation with the provisions of Convention 173. Indeed, Romania’s ratification of Convention 173 would establish more rights and additional protection for employees and employers alike. Ratification of Convention 173 would result in the following:

• the requirement that the social partners be consulted before certain categories of workers were excluded from the protection given under the law, while the government currently can create these categories unilaterally;

• a longer minimum period for employee holiday pay coverage, replacing the three month period currently required in Romanian law by a period of six months;

IV

EMployEES’ ClAIMS In thE EVEnt of EMployER InSolVEnCy | foREwoRd

• the coverage of additional categories of claims under the law; and• the establishment of the possibility that other, more protective agreements could be added to

Romanian jurisprudence in the future.

For these reasons, the study recommends that Romania ratifies Convention 173 in addition to maintaining the legal framework currently in place.

This report has been prepared through the joint collaboration of Cristina Mihes, Senior Specialist in Social Dialogue, and Verena Schmidt, Senior Specialist on Working Conditions and Gender Equality in the ILO Decent Work Technical Support Team and Country Office for Central and Eastern Europe in Budapest (DWT/CO-Budapest). Stefan Roch, an external collaborator, carried out substantial redrafting and updating of the text, which is much appreciated.

Mark LevinDirector

ILO Decent Work Technical Support Team and Country Office for Central and Eastern Europe

Budapest

V

Table of Contents

Foreword iii

Chapter1 1Background

Chapter2 11AnalyticalcomparisonsbetweenEuropeanlaw,internationalstandardsandnationalregulations

2.1 The legal regime applying to employees’ claims in accordance with Council Regulation 1346/2000 112.2 Legal regime applicable to employees’ claims in accordance with Directive 2008/94/EC 122.3 The legal regime applying to employees’ claims under ILO Convention No. 173 (1992) 13

Chapter3 15Nationalregulations

Chapter4 21Comparativeanalysisofinternationalandnationaldocuments

Chapter5 33ViewsoftheSocialPartners

5.1 The point of view of workers’ organizations 335.2 The point of view of employers’ organizations 33

Conclusion 35

Bibliography 37

1

EMployEES’ ClAIMS In thE EVEnt of EMployER InSolVEnCy | ChAptER 1

1. Background

Of the many negative effects of the global economic and financial crisis, one not frequently considered is the inability of enterprises to meet their obligations to both their suppliers and their employees. One possible legal consequence of this is that they are forced into insolvency.

In Romania, the effects of the global economic crisis first became visible in the last quarter of 2008 and worsened in 2009. Unlike neighbouring economies, however, the Romanian economy shows no signs of recovery at present. The most optimistic forecast estimates that only in the second quarter of 2010 Romania is likely to register modest economic growth.

Consequently, we are witnessing a significant increase in the number of enterprises undergoing insolvency.

Among the reasons for the alarming growth in insolvency at the national level is the accumulation of debt which, in the long run, generates mounting interest payments as well as costs due to the depreciation of the national currency, shrinking markets and declining sales. This leads to a shortage of capital and a lack of liquidity, which in turn reduces access to credit for small and medium-size enterprises (SMEs).

As it is common practice in most EU member states, when an enterprise cannot pay its debts, any creditor having a claim against it over a certain threshold is entitled to request the opening of insolvency proceedings in order to recover part or all of the debt from the remaining assets.

Under these circumstances, many employers have been forced to restrict their commercial activities to those able to generate funds for repaying debts and have accordingly had to significantly reduce costs, especially labour costs.

In 2009, with the aim of encouraging bank lending, the National Bank of Romania took a series of measures to reduce the base lending rate and, at the same time, to reduce the reserves that the credit institutions have to deposit with the central bank. Unfortunately, the credit institutions substantially limited corporate lending as a result of the financial crisis and demanded high levels of security for borrowing and high interest rates. In particular, SMEs have been negatively affected by this through high interest rates and commission fees, as well as so-called hardship clauses.

Table 1 presents statistics on the enterprises which became insolvent in the period 2007 to June 2010. After rising from 14,104 insolvency proceedings in 2007 to 14,483 in 2008, there were 18,421 insolvency proceedings in 2009, representing a 20 per cent annual rise. The total number is likely to increase in 2010, as there were more insolvency proceedings by June 2010 than there were by June 2009.

2


TABlE1NUMBER OF INSOLVENCy PROCEEDINGS, By SECTOR, ROMANIA, 2007 – 2009 AND JUNE 2008 – JUNE 2010

SectorJune 2010

June 2009

June 2008

Total 2009

Total 2008

Total 2007

Wholesale trade 2,256 2,134 1,501 3,501 3,553 2,371

Retail 2,010 2,136 1,770 3,684 2,932 3,431

Construction 1,641 1,328 822 2,497 1,666 1,066

Transport 816 661 411 1,237 811 723

Others 708 577 377 1,022 782 520

Manufacture of textile garments and footwear 593 442 355 979 718 625

Hotels and restaurants 583 592 387 927 793 810

Agriculture 537 372 341 762 705 731

Metallurgical industry 338 263 17 934 575 1,093

Food and beverages 332 365 391 573 627 1,064

Manufacture of wood and wood products 281 534 412 496 38 338

Real estate 179 137 88 223 158 302

Other personal service activities 145 116 50 281 159 121

Sanitation and refuse removal, sanitation and similar activities

107 127 79 206 163 185

Recreational, cultural and sporting activities 134 101 86 204 114 86

Manufacture of chemicals and chemical products 121 139 77 157 111 115

Machinery and equipment industry 89 101 71 166 94 136

IT 97 92 56 172 132 96

Financial intermediation 68 73 50 139 78 83

Post and telecommunications 82 73 50 129 97 92

Mining industry 44 32 72 54 131 45

Health and social assistance 37 25 17 47 19 26

Production and supply of electricity and heat, water and gas

23 15 13 31 27 45

Total 11,221 10,435 7,493 18,421 14,483 14,104

Source: Coface Romania, 2010 & Coface Romania, 2009.

Trade (either retail or wholesale and distribution), construction, transportation and hotels have been hit hardest by the economic and financial crisis. It is worth mentioning that private enterprises are dominant in these sectors. The least affected by the adverse effects of the crisis have been telecommunications, extractive industries, health and social insurance, and the production and supply of electrical and thermal energy, water, and gas (branches in which public ownership is the rule).

In the wholesale sector, during the same period, the initial peak was registered in 2007, at 3,431, although the 2009 number was slightly higher, with 3,684 proceedings.

In contrast, in construction, the figure rose from 1,066 enterprises involved in insolvency proceedings in 2007 to 1,666 enterprises in 2008, while further increasing in 2009 to 2,497 enterprises.

3


Other sectors hard hit by the economic and financial crisis also registered substantial increases in insolvency proceedings:

• In transportation, the number of enterprises involved in insolvency proceedings rose from 723 in 2007 to 811 in 2008 and peaked at 1,237 enterprises in 2009.

• In hotels and restaurants, the number of enterprises involved in insolvency rose from 520 in 2007 to 782 in 2008, and reached 972 in 2009.

Figure 1 displays the insolvency proceedings registered in the first semester of 2010.

FigurE1NUMBER OF INSOLVENCy PROCEEDINGS, SELECTED SECTORS, ROMANIA, JUNE 2010

Source: Coface Romania, 2010.

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4


Total annual insolvencies in the abovementioned sectors are very likely to increase further by the end of 2010, as numbers of insolvencies were higher by midterm in most sectors, compared to the same period of previous years, as demonstrated in Figure 2.

FigurE2NUMBER OF INSOLVENCy PROCEEDINGS, SELECTED SECTORS, ROMANIA, JUNE 2008, JUNE 2009 AND JUNE 2010


Table 2 presents the distribution by county:

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2,000

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0

Jun-10 Jun-09 Jun-08

5


TABlE2DISTRIBUTION OF INSOLVENCIES, By COUNTy, ROMANIA, 2008 – 1ST qUARTER 2010

CountyTotal insolvency proceedings

2008 1st quarter of 2009 1st quarter of 2010Alba 56 36 151Arad 287 401 330

Argeş 169 137 207

Bacău 226 267 329

Bihor 475 675 657

Bistriţa-Năsăud 170 129 129

Botoşani 162 58 266

Braşov 421 618 429

Brăila 219 111 232

Bucureşti 1,719 1,195 1,405

Buzău 490 229 323

Caraş-Severin 277 177 277

Călăraşi 150 94 66

Cluj 600 511 443

Constanţa 572 752 571

Covasna 82 79 60

Dâmboviţa 174 107 133

Dolj 319 319 447

Galaţi 645 392 330

Giurgiu 72 55 94

Gorj 561 184 208

Harghita 518 178 163

Hunedoara 469 215 242

Ialomiţa 89 123 102

Iaşi 388 156 319

Ilfov 168 161 191

Maramureş 248 232 169

Mehedinţi 182 80 72

Mureş 344 198 230

Neamţ 173 154 142

Olt 156 183 113

Prahova 654 444 377

Satu Mare 212 407 320

Sălaj 160 59 107

Sibiu 192 225 189

Suceava 352 118 97

Teleorman 56 42 106

Timiş 983 327 481

Tulcea 247 132 155

Vâlcea 197 141 134

Vaslui 199 131 145

Vrancea 650 203 280

Total 14,483 10,435 11,221


6


As shown in Figure 3, in the period 2008–2009 Bucharest was the region most affected by company insolvencies, registering 1,719 in 2008 and 1,795 by 30 June 2009. In the same period, the counties most affected by insolvency proceedings were the most industrialized ones:

• In 2008: Timiş (983), Prahova (654), Galaşi (645), Cluj (600) and Constanşa (572);• By 30 June 2009: Constanşa (752), Bihor (675), Braşov (618), Cluj (511), Prahova (444) and Satu-Mare

(407).

FigurE3DISTRIBUTION OF INSOLVENCIES, By COUNTy, ROMANIA, 1ST qUARTER OF 2009 AND 1ST qUARTER OF 2010


TABlE3DISTRIBUTION OF INSOLVENCIES, By REGION, ROMANIA, 2009 – 1ST HALF OF 2010

Region

1st half of 2009 1st half of 2010

Total insolvency proceedings

Share of insolvency proceedings in total

proceedings

Total insolvency proceedings

Share of insolvency proceedings in total

proceedings

West 1,120 10.7 1,330 11.9

Bucharest 1,195 11.5 1,405 12.5

South-West 907 8.7 985 8.8

North-East 884 8.5 1,287 11.5

Centre 1,334 12.8 1,222 10.9

South-East 1,819 17.4 1,891 16.9

North-West 2,013 19.3 1,825 16.3

South 1,163 11.1 1,276 11.4

Total 10,435 100% 11,221 100%


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1st quarter of 2010

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7


FigurE4PROPORTION OF INSOLVENCy PROCEEDINGS, By REGION, ROMANIA, 1ST HALF OF 2010


At the national level, there is a centralized system for monitoring the payment of wages. The National Office of Trade Registration records the number of court judgments and other legal acts related to the payment of wages from the assets of those affected by insolvency, in accordance with Law No. 85/2006. By 31 June 2009, 72,597 judgments and other legal acts issued pursuant to insolvency proceedings had been registered by the National Office of Trade Registration (Table 4).

TABlE4JUDGMENTS AND OTHER LEGAL ACTS ISSUED PURSUANT TO INSOLVENCy PROCEEDINGS, ROMANIA, 2007 – 30 JUNE2009

Category of act Number

Subpoenas 22,395

Communications 24,345

Judgments 25,111

Other acts 746

Total 72,597


West12%

South11%

North-West16%

South-East18%

Bucharest12%

South-West9%

North-East11%

Centre11%

8


Employees represent a special category of creditors in the event of employer insolvency. The increasing number of insolvencies has also contributed to mounting unemployment, with total unemployment rising from 367,839 persons in December 2007 to 403,441 in 2008 and 625,140 in September 2009. Figure 3 depicts the rise in registered unemployment between January 2007 and July 2009.

Figure 5 shows that total unemployment fell during 2007, from 477,309 persons in January to 367,838 in December.

FigurE5DEVELOPMENT OF REGISTERED UNEMPLOyMENT, ROMANIA, JANUARy 2007 – NOVEMBER 2010

300,000

350,000

400,000

450,000

500,000

550,000

600,000

650,000

700,000

750,000

800,000

Jan-

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Source: Ministry of Family, Labour and Social Protection of Romania.

TABlE5DEVELOPMENT OF REGISTERED UNEMPLOyMENT, ROMANIA, JANUARy 2007 – SEPTEMBER 2010

Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec

2007 477,309 459,013 433,023 400,339 369,832 354,714 343,163 350,420 345,012 367,375 371,969 367,838

2008 383,989 379,779 374,050 352,466 338,298 337,084 340,462 345,510 352,912 364,183 376,971 403,441

2009 444,907 477,860 513,621 517,741 526,803 548,930 572,562 601,673 625,140 653,939 683,123 709,383

2010 740,982 762,375 765,285 738,187 701,854 680,782 679,495 675,790 670,247 645,453 633,476

Source: Ministry of Family, Labour and Social Protection of Romania.

The year 2008, however, was characterized by constantly rising unemployment, reaching 403,441 by December.

9


The total of 765,285 persons registered in March 2010, however, far exceeded all previous figures, highlighting the current precarious situation of the Romanian economy and its severe effects on employees, although figures have been slightly decreasing lately.

In the event of employer insolvency, employees whose wage claims cannot be met from the employer’s assets are entitled to apply to the Wage Guarantee Fund. However, according to the information available, by September 2009 only 1,186 employees from 18 private enterprises had received payments from the Fund (National Employment Agency 2010).

One possible explanation of this is that employees and trade unions are still not sufficiently aware of Law No. 200/2006 on the establishment and use of the Wage Guarantee Fund. Another possible reason is the fact that, according to the law, the administrator or liquidator of an insolvent company has the primary responsibility to file an application with the National Employment Agency or territorial agencies for employees’ claims. If the administrator fails to do this, the employees themselves or their trade unions may apply. However, this has rarely happened in practice.

A certain passivity may be noted on the part of the representative trade unions which, in accordance with Art. 19 para 2 of Law No. 200/2006, may file applications on behalf of their members for the recovery of payments from the Wage Guarantee Fund. It is worth pointing out that none of the trade unions or employers’ organizations consulted in the course of this study have implemented a system for monitoring compliance with the law.

11


2. Analytical comparisons between

European law, international

standards and national regulations

In the European Union, the provisions regulating the protection of employees in the event of employer insolvency are Council Regulation 1346/2000 on insolvency proceedings – which contains the generally applicable norms in the case of insolvency1 – and Directive 2008/94/EC 2 on the protection of employees in the event of the insolvency of their employer. Within the framework of the International Labour Organization, the Protection of Workers’ Claims (Employer’s Insolvency) Convention, 1992 (No. 173) is applicable.

2.1 The legal regime applying to employees’ claims in accordance with Council Regulation 1346/2000

The law which shall apply to protect employees in the event of employer insolvency is stipulated in point 28 of the Preamble to Regulation 1346/2000, which declares that, in order to protect employees and jobs, the effects of the insolvency proceedings on the continuation or termination of employment and the rights and obligations of the parties shall be determined by the law applying to the relevant employment contract, in accordance with the general rules on conflict of law. Furthermore, other matters related to insolvency, such as whether and to what extent the employees’ claims are privileged, shall be established in accordance with the law of the state which opens the proceedings.

Art. 10 expressly states that the effects of insolvency proceedings on a collective agreement and on an employment relationship shall be regulated exclusively by the relevant national law.

In conclusion, according to this regulation the effects of insolvency on the employees – in terms of any privilege which might apply to the employees’ claims – shall be established by the terms of the applicable national law.

1 PublishedinJOCE,L160din30.06.2000,p.1-18.2 PublishedinnJO,L283din28.10.2008,p.36-42.

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2.2 Legal regime applicable to employees’ claims in accordance with Directive 2008/94/EC

Directive 2008/94/EC currently applies in Romania3 (which includes the consolidated text of the Directive issued in 1980).

a) Directive 2008/94/EC lays down general principles concerning the protection of employees in the event of employer insolvency, including employees: • with individual labour contracts; and• employed by public bodies or institutions, whose employment is subject to an administrative

agreement resulting in a labour relationship with special characteristics (such as public employees).

The protection granted by the Directive is applicable to any type of labour contract, namely: • indefinite or fixed-term; and• full-time or part-time.

b) Member states may exclude from the Directive’s field of application the claims of certain categories of employees based on the existence of other forms of guarantee, provided that protection is ensured which is equivalent to that granted by the EU regulation. Art. 1, para 3 of the Directive entitles the member states to exclude from its area of application domestic employees and share fishermen. Also, Article 6 of the Directive permits the member states to not consider statutory social insurance contributions or optional contributions as wage debts.

c) The protection granted by the EU provisions shall be ensured by means of a guarantee institution which, without being defined by the Directive, shall be regulated by each member state. However, the Directive requires that the guarantee institution complies with the following:• the assets of the institutions must be independent of the employers’ operating capital and

should be made up so as to prevent sequestration in the event of insolvency proceedings;• employers must contribute to financing the institution, unless it is fully covered by the state; • regardless of the fulfilment of the liability to contribute to the financing of the guarantee

institution, the payment liability must exist.

d) In line with the provisions of the Directive, the period during which unpaid debts will be covered by the guarantee institution differs, depending on the reference period laid down by each member state, as follows: • for a minimum reference period of six months, the guarantee institution shall cover wage

claims arising from the last three months of the labour contract; • for a minimum reference period of 18 months, the guarantee institution shall cover the wage

claims arising from the last two months of the labour contract.

3 TheEuropeanCommissionevaluated the implementationof theDirective intoRomanianLawin2009 through theAct200/2006. It came to theconclusion that theDirectivewasoverall adequatelytransposed,neverthelessanumberofconformityproblemsremained.Theproblemsmainlyconcernthenon-inclusionofpublicemployersintothescopeofthelaw,themissinginstrumentsforraisingawarenessamongemployees,employers,judicialadministratorsandliquidatorsasregardstocasesinwhichthefundmaybeusedandprovisionofspecificsanctionstobeappliedtothejudicialadministratorsandliquidatorsorterritorialemploymentagencies,forfailuretosubmitarequestforthepaymentoftheoutstandingclaims.Hence,theCommissionrecommendsthelaw200/2006tobeamended.Compare:MilieuLTD&EuropaInstitut,UniversityofEdinburgh,2008.

13


e) In Art. 4 para 3 of the Directive, member states are given the right to limit payments by the guarantee institution, provided the ceiling is not lower than that established in the Directive.4

f) With regard to the free movement of workers in the EU, the Directive regulates the individual labour contracts of employees who are employed in the territory of one member state, but who perform their duties in another member state. In this case, under the territoriality principle, the payment of unpaid debts is the responsibility of the member state in whose territory the workers perform their duties.

2.3 The legal regime applying to employees’ claims under ILO Convention No. 173 (1992)

a) Convention No. 173 applies to all employees and fields of activity.

b) Certain categories of workers, mainly public employees, can be excluded due to the specific nature of their employment relationship or because they are granted other forms of protection equivalent to that established by the Convention.

c) The Convention regulates two ways of protecting employees with regard to their claims against their employer:• granting the employees preferential rights; and• establishing a guarantee institution to deal with employees’ claims.

Thus, if preferential rights have been granted, employees’ claims take precedence over the claims of other creditors with regard to the payment of wages from the insolvent employer’s assets. In other words, the Convention considers the employees’ claims as preferential debts and establishes a priority regarding their payment.

The Convention includes a priority list of employee claims considered as privileged debts to be covered by the employer:• employees’ claims for wages relating to a prescribed period, which shall not be less than three

months, prior to the insolvency or prior to the end of the employment contract;• employees’ claims for holiday pay due as a result of work performed during the year in which

the insolvency or the termination of employment occurred, as well as in the preceding year; • employees’ claims for amounts due in respect of other types of paid absence relating to a

prescribed period, which cannot be less than three months prior to the insolvency or the end of the employment contract;

• allowances due to employees on the termination of the employment contract.

To ensure at least a minimum level of protection for employees, the Convention grants the possibility of limiting the degree of preference of employees’ claims to a reference value, which should be set at an acceptable level. Similarly, the Convention declares that employees’ claims should be considered to have preference over other preferential debts, especially state debts. With regard to the protection of employees’ claims by means of a guarantee institution, payment should be made from a special fund in the event of an employer’s insolvency and insufficient assets.

4 Asaresult,thememberstatesmaysetupareferenceindexaccordingtowhichpaymentsaretobemaderepresentingthegrossminimumwageguaranteedatnationallevel,theaverageornetwage,ortheindividualwagenegotiatedbythepartiestotheindividualemploymentcontract.

14


3.Similar to the list of preferential debts, the Convention provides a limited list of employees’ claims to be paid from the Guarantee Fund, including:

• employees’ claims for wages relating to a prescribed period, which should not be less than eight weeks prior to the insolvency or the termination of the employment contract;

• employees’ claims for holiday pay due as a result of work carried out during a determinate period which shall not be less than six months prior to the insolvency or the termination of the employment contract;

• employees’ claims for amounts due in respect of other types of paid absence, related to a determinate period which shall not be less than eight weeks prior to the insolvency or the termination of the employment contract;

• allowances due to employees on the termination of the employment contract.

Similar to the establishment of preferential rights with regard to employees’ claims, in the case of a guarantee institution the Convention grants the possibility of limiting the degree of preference of employees’ claims to a reference value, which should be set at an acceptable level.

15

3.


National regulations

According to European and international regulations regarding the protection of employees’ claims in the event of employer insolvency, the regulations governing this field in Romanian legislation (commercial and labour) include the following:

• Labour Code: Art. 156 (“wages are paid before any other monetary liabilities of the employer”); Art. 167 (“the setting up and use of the Guarantee Fund for the payment of employees’ claims shall be regulated by a special law”);

• Law No. 85/2006 on insolvency proceedings;5

• Law No. 200/2006 on the setting up and use of the Guarantee Fund for the payment of employees’ claims;6

• Methodological norms regarding the application of Law No. 200/2006;7

• The Collective Agreement concluded at national level for 2007–2010,8 including Art. 48 (1) (“All monies due with regard to employees’ claims are paid before any other monetary liabilities of the unit”) and (2) (“In the event of bankruptcy or judicial liquidation, employees have the position of privileged creditors, and their rights are categorized as senior debt and will be fully paid, prior to the claims of other creditors”).

In accordance with Art. 3 of Law No. 85/2006, insolvency is defined as “a situation in which the debtor has insufficient assets to be able to clear their debts”.

Private legal persons subject to insolvency proceedings entitled to act on behalf of the insolvent employer may be subject to general or simplified proceedings. Simplified proceedings apply when private persons do not own any assets, or when the administrator or constitutive actor cannot be found or does not meet the conditions for the simplified procedure.

In legal terms, insolvency is (Turcu, 2006):• presumed when the debtor, after 30 days in arrears, fails to pay a debt to one or more creditors;• imminent when it appears that the debtor is not able to pay their debt with the funds available.

Insolvency proceedings often involve the participation of creditors in order to track and recover their claims.With regard to claims arising from individual or collective labour agreements, established between

the employer (debtor) and their employees, Law No. 85/2006 contains special rules constituting the legal framework for this category of workers’ claims and thus for this special category of creditor. Hence:

• In accordance with Art. 3 para 8 of the Law, employees have the status of creditor entitled to participate in insolvency proceedings without submitting individual claims.

• Employee’s claims are, in accordance with Art. 10 of the Law, automatically recorded in the table of claims by the judicial administrator or the liquidator.

• The minimum amount of debt established by law that leads to the opening of insolvency proceedings is RON 30,000, for a firm creditor and in cases where the employees are the creditor the equivalent of six national average wages.

5 Publishedin:Legea85/2006privindprocedurainsolventei,2006.6 PublishedinMonitorulOficialalRomâniei,parteaI,nr.1038din28decembrie2006.7 Publishedin:HotărârepentruaprobareaNormelormetodologicedeaplicareaLegiinr.200/2006privindconstituireașiutilizareaFonduluidegarantarepentruplatacreanțelorsalariale,2006.8 PublishedinMonitorulOficialalRomâniei,parteaaV-a,nr.5din29ianuarie2007.

16


• The employees are actively involved in instigating insolvency proceedings, as members of the creditors’ panel before the court, alongside the judge, the judicial administrator and the liquidator.

• Employees must designate a representative or delegate who will attend creditors’ meetings and have a vote weighted in proportion to the full value of the claims of the employees who they represent.

• In contrast to the provisions of the Labour Code on the individual termination of employment through the employer’s initiative, the wage claims of employees whose employment contracts are terminated because of insolvency will be made a priority by the judicial administrator or the liquidator when insolvency proceedings are opened. These claims can be filed immediately and are not dependent on the completion of the collective dismissal procedure prescribed by law, following the requisite 15 day statutory notice period (Stefanescu, 2006) (20 working days, according to Art. 74 para 2 of the Collective Agreement concluded at the national level).

• The ultimate goal of insolvency proceedings is the satisfaction of creditors, based on an order of priority, as set out in Art. 123 of the Law. The order is as follows: - taxes, duties or any other costs related to the proceedings, as established by law, including

costs necessary for the preservation and administration of the debtor’s assets and the payment of the wages of persons employed to carry out the proceedings; claims arising from employment relationships;

- claims related to loans, interest and expenses, provided by credit institutions after the opening of insolvency proceedings and also claims resulting from the work continuing after the opening of the proceedings;

- budgetary claims; - claims related to amounts owed by the debtor to third parties, such as maintenance payments

for children or others; - amounts established by the judge for the maintenance of the debtor and their family, if the

debtor is a natural person; claims related to bank loans, with costs and interest, as well as claims resulting from the delivery of goods, services or other work, and rent;

- other unsecured claims; - subordinated debt.

• According to Art. 36 of the Law, all legal actions or enforcement measures initiated against the debtor or their assets will be suspended on the date of the opening of legal proceedings, except appeals brought by the employer/debtor. Once insolvency proceedings have been opened, employees no longer enjoy other remedies against the employer/debtor in order to recover wages.

This regulation grants employees’ claims the status of senior debt, establishing a higher degree of priority in relation to other claims secured by real or personal guaranties held by other creditors of the employer. It follows that, meeting the requirements of Convention No. 173 (1992), employees’ claims have a higher level of privilege than most other senior debt and, in particular, before the debts of the state. Moreover, they are registered automatically by the administrator or liquidator in the final table of the employer/ debtor’s claims, independently of the action or inaction of any individual employee in their capacity as creditor. Participation in the creditors’ panel by an employee representative party to the insolvency proceedings is likely to protect the interests of this particular category of creditors.

The legal regime applicable to employees’ claims is laid down in Law No. 200/2006 and by the methodological norms adopted for its implementation.9

According to Art. 125 para 1 of Law No. 85/2006 on insolvency proceedings, the creditors in a certain category may be allotted a particular sum only after the full satisfaction of the creditors ranking higher in

9 See:Stefanescu,2006,pp.591–95;Ticlea,2009,pp.649–53;Tinca,2005,pp.51–59;Rosu,2003,pp.31–33.

17


the order of priority, in accordance with the order stipulated by the Law. In accordance with paragraph 2 of the same Article, if the assets are insufficient to cover the full value of the liabilities with the same degree of priority, the creditors with the same degree of priority shall receive a share of the assets in accordance with the proportion of the liabilities in their category. Employees whose financial claims remain unsettled can apply to the Guarantee Fund for their payment, within the limits laid down in Law No. 200/2006.

According to Law No. 200/2006:

a) The key condition for the applicability of the Law is the insolvency of the employer, based on a final court decision regarding the opening of insolvency proceedings and determining the full or partial cessation of the employer’s administrative rights.

b) Protection measures apply to employees upon termination of their employment contract.

c) The only way to guarantee employees’ claims is to establish a guarantee institution or fund, operating on the following principles:• the fund shall be based on employers’ contributions; • employers are responsible for establishing the fund; • payments will be made from the fund to cover the wage debts of insolvent employers; • wage liabilities will be paid regardless of whether or not an employer has paid their

contributions; • the fund will be independent of the other resources managed by the institution responsible

for its administration.

d) In compliance with the Law No. 200/2006 (Art. 7 para 1), employers are obliged to pay a monthly contribution of 0.25 per cent of the employer’s contribution to the unemployment fund to the wage guarantee fund.

e) The wage guarantee fund shall be managed, in accordance with Art. 10 of the Law, by the National Employment Agency through its territorial agencies established in each county and in the city of Bucharest. In managing the fund, the Agency: • receives, examines and settles claims regarding the payment of wage debts resulting from

individual and/or collective contracts; • determines the amount of the wage debts due and ensures their payment; • recovers debts, not including those arising from contributions to the guarantee fund; • represents the interests of the guarantee fund in relations with central and local government

institutions, courts, enterprises or organizations;• exchanges information with competent institutions from EU or EEA member states.

f) The categories of employees’ claims to be paid from the Fund’s resources include: • residual wages;• holiday payments, but only those due for the last year of employment;• outstanding payments in the amount specified in the collective agreement and/or individual

employment contract in the event of termination of employment; • outstanding payments under the collective agreement and/ or individual employment contracts

related to work accidents or occupational diseases; • outstanding payments that employers are obliged to pay employees during temporary

interruptions of work. The social contributions paid by employers subject to insolvency proceedings are excluded from the provisions of the Law.

18


g) The total amount of outstanding claims to be covered by the guarantee fund may not exceed, according to Art. 14 para 1 of the Law, the equivalent of three times the gross nationwide average wage for each employee.

h) Except for compensation for outstanding annual leave owed to employees, all other wage claims must refer to a period not longer than three calendar months preceding the filing of the claim, prior to or after the opening of insolvency proceedings.

i) With regard to claims related to annual holiday payments, employers are liable to pay amounts for up to 12 months prior to the opening of insolvency proceedings.

j) Determination of the amounts and the payment of outstanding claims are carried out by county agencies: • at the written request of the administrator or liquidator of the insolvent employer; or• at the written request of the relevant employees or legally constituted organizations

representing their interests.10

The administrator or liquidator is responsible for the accuracy and truthfulness of the data contained in documents sent to the Agency.

Applications shall be settled within 45 days of the date of registration with the competent territorial agency.

In accordance with the law, before filing a claim with a territorial agency, the employees or their legal representatives must notify, in writing, the administrator or liquidator to enable the latter to take the necessary steps to pay the employees’ claims. A copy of this notification is attached to the request made to the territorial employment agency.

k) In the case of a transnational employer being subject to insolvency proceedings, applications for the payment of the wages for employees who normally perform their work in Romania is made to the employment agency of the territory in which the employee works.

l) In order to establish the insolvency of an employer, the decision of the competent authority of the EU or EEA member state which opens insolvency proceedings, or which declares that the employer has no assets or that their assets are insufficient to justify the initiation of insolvency proceedings and demands that the company name is deleted from the special bankruptcy register, shall be taken into account.

m) Finally, a decision is issued by the territorial employment agency stating the total amount of wage debts to be paid by the Guarantee Fund. The administrator or the liquidator is notified of the decision. This decision represents a debt instrument which is enforceable after six months, as provided for in Article 17 of the Law.

10 Writtenrequestsmustbeaccompanied,inaccordancewithArt.10pararaph1ofthedetailedrules,bythefollowingdocuments:copyofthefinalcourtdecisiontoopeninsolvencyproceedings;copyofthefinalcourtdecisionorderingthetotalorpartialremovaloftherightofadministration;alistofemployees’claims drawn up by the administrator or liquidator; copies of the time sheets of employees; copies ofthe payroll proving the existence of outstanding claims; copies of collective agreements applicable totheemployer;copiesoftheindividualemploymentcontractsofemployeeswhosufferedworkaccidentsoroccupationaldiseases;copiesofmedicalcertificatesthatgrantcompensationfortemporarydisabilityduetooccupationalaccidentsanddiseases;copiesof investigationreportsofaccidentspreparedbythecompetentauthority;copiesofthefinaldeclarationsofillnessmadebythecompetentauthority;copiesofthepersonnelfilesofpersonswhoseemploymenthasbeenterminated.

19


n) A key provision of Art. 11 para 2 of the detailed rules is that, where individual contracts and/ or collective agreements concluded between employees and their employers establish that payment in kind, in the form of full or partial wages, is to be given in cases of insolvency and such payment proves to be impossible, such payment in kind must be converted into its monetary equivalent.11

11 WagedebtsdenominatedinforeigncurrencieswillbeconvertedintoRomanianleiattheexchangerateoftheNationalBankofRomania(BNR)atthedateoftheopeningofinsolvencyproceedings.Thedebtswillbepaidinleiinoneinstalment,inaccordancewiththesystemusedforthepaymentofunemploymentbenefits.

21


4. Comparative analysis of

international and national

documents12

European and international norms take different approaches to covering employees’ claims in the event of insolvency, whether in terms of preferential rights or by means of a guarantee institution. Within the EU, the guaranteeing of employees’ claims by means of preferential rights is regulated by EC Regulation 1346/2000 and the guarantee institution is regulated by Directive 2008/94/EC, whereas the ILO regulates both issues in Convention No. 173 (1992).

In Romanian legislation, which corresponds to the current approach of the EU:• the establishment of preferential rights with regard to employees’ claims is accomplished by Law No.

85/2006 on insolvency proceedings; and• the Guarantee Fund is established by Law No. 200/2006.13

Consequently, we shall present the following, in comparative terms:

a) the extent to which Law No. 85/2006 – as it relates to employees’ claims – is concordant (or is not concordant) with EU Regulation 1346/2000 and with Part II of the Convention No. 173 (1992);

b) the extent to which Directive 2008/94/EC, Part III of Convention No. 173 (1992) and Romanian legislation are concordant with one another.

12 See:Duccase,Roset,&Tholy, 2003, pp. 997–1011;Voiculescu, 2003, pp. 33–36;Voiculescu,2006,pp.33–38.13 It isworthmentioning,bywayofexample, that inFranceboth legal institutionsareregulatedundertheLabourCode.See:Lardy-Pelissier,Pelissier,Roset,&Tholy,2009,pp.1133–50.

22


TABl

E6

1EN

Suri

NgW

AgE

ClAi

mS

Bym

EANS

oF

PrEF

ErEN

TiAl

rig

hTS

1.1 E

UROP

EAN

AND

INTE

RNAT

IONA

L NOR

MS

WHI

CH H

AVE

BEEN

INCO

RPOR

ATED

INTO

ROM

ANIA

N LE

GISL

ATIO

N

ECr

egul

atio

n13

64/2

000

ilo

Conv

enti

onN

o.1

73(1

992)

law

No.

85/

2006

Conc

lusi

ons

Art.

2le

t.a

: “In

solv

ency

pro

ceed

ings

” sh

all

mea

n th

e co

llect

ive

proc

eedi

ngs r

efer

red

to

in A

rtic

le 1(

1). T

hese

pro

ceed

ings

are

list

ed in

An

nex

A.Ar

t.1:

Thi

s Reg

ulat

ion

shal

l app

ly to

col

lect

ive

inso

lven

cy p

roce

edin

gs w

hich

ent

ail t

he

part

ial o

r tot

al d

ives

tmen

t of a

deb

tor a

nd th

e ap

poin

tmen

t of a

liqu

idat

or.

Art.

1p

ar.1

: For

the

purp

oses

of t

his C

onve

ntio

n, th

e te

rm

“ins

olve

ncy”

refe

rs to

situ

atio

ns in

whi

ch, i

n ac

cord

ance

with

na

tiona

l law

and

pra

ctic

e, p

roce

edin

gs h

ave

been

ope

ned

rela

ting

to a

n em

ploy

er's

ass

ets w

ith a

vie

w to

the

colle

ctiv

e re

imbu

rsem

ent

of it

s cre

dito

rs.

Art.

1.p

ar.2

: For

the

purp

oses

of t

his C

onve

ntio

n, a

Mem

ber

may

ext

end

the

term

“in

solv

ency

” to

oth

er si

tuat

ions

in w

hich

w

orke

rs' c

laim

s can

not b

e pa

id b

y re

ason

of t

he fi

nanc

ial s

ituat

ion

of th

e em

ploy

er, f

or e

xam

ple,

whe

re th

e am

ount

of t

he e

mpl

oyer

's

asse

ts is

reco

gniz

ed a

s bei

ng in

suff

icie

nt to

just

ify th

e op

enin

g of

in

solv

ency

pro

ceed

ings

.

Art.

3p

ct.1

Inso

lven

cy is

the

cond

ition

of

the

debt

or’s

asse

ts w

hich

is c

hara

cter

ized

by

the

insu

ffic

ienc

y of

pec

unia

ry fu

nds

avai

labl

e fo

r the

pay

men

t of c

erta

in, l

iqui

d an

d pa

yabl

e cl

aim

s.In

solv

ency

is p

resu

med

to e

xist

whe

n th

e de

btor

, aft

er 3

0 da

ys h

ave

elap

sed,

has

not

pa

id it

s deb

ts to

one

or m

ore

of it

s cre

dito

rs.

Inso

lven

cy is

imm

inen

t whe

n it

is pr

oven

th

at th

e de

btor

can

not p

ay it

s deb

ts o

n th

e du

e da

te w

ith th

e fu

nds i

t has

ava

ilabl

e.

• EC

Reg

ulat

ion

1346

/200

0 an

d IL

O Co

nven

tion

No. 1

73 a

re c

onco

rdan

t in

def

inin

g in

solv

ency

pro

ceed

ings

as

col

lect

ive

proc

eedi

ngs o

pene

d fo

r th

e pu

rpos

e of

reco

verin

g de

bts t

o cr

edito

rs.

• Ro

man

ian

legi

slatio

n is

conc

orda

nt

with

EC

Regu

latio

n 13

46/2

000

and

ILO

Conv

entio

n No

. 173

.

Poin

t28

oft

heP

ream

ble:

In o

rder

to

prot

ect e

mpl

oyee

s and

jobs

, the

effe

cts o

f in

solv

ency

pro

ceed

ings

on

the

cont

inua

tion

or te

rmin

atio

n of

em

ploy

men

t and

on

the

right

s and

obl

igat

ions

of a

ll pa

rtie

s to

such

em

ploy

men

t mus

t be

dete

rmin

ed b

y th

e la

w

appl

icab

le to

the

agre

emen

t in

acco

rdan

ce

with

the

gene

ral r

ules

on

conf

lict o

f law

. Any

ot

her i

nsol

venc

y-la

w q

uest

ions

, suc

h as

w

heth

er th

e em

ploy

ees'

clai

ms a

re p

rote

cted

by

pre

fere

ntia

l rig

hts a

nd w

hat s

tatu

s suc

h pr

efer

entia

l rig

hts m

ay h

ave,

shou

ld b

e de

term

ined

by

the

law

of t

he s

tate

.

Art.

1p

ar.3

: The

ext

ent t

o w

hich

an

empl

oyer

's a

sset

s are

subj

ect

to th

e pr

ocee

ding

s ref

erre

d to

in p

arag

raph

1 ab

ove

shal

l be

dete

rmin

ed b

y na

tiona

l law

s, re

gula

tions

or p

ract

ice.

Art.

5: I

n th

e ev

ent o

f an

empl

oyer

's in

solv

ency

, wor

kers

' cla

ims

arisi

ng o

ut o

f the

ir em

ploy

men

t sha

ll be

pro

tect

ed b

y a

priv

ilege

so

that

they

are

pai

d ou

t of t

he a

sset

s of t

he in

solv

ent e

mpl

oyer

be

fore

non

-priv

ilege

d cr

edito

rs c

an b

e pa

id th

eir s

hare

.Ar

t.6

: The

priv

ilege

shal

l cov

er a

t lea

st:

(a) t

he w

orke

rs' c

laim

s for

wag

es re

latin

g to

a p

resc

ribed

per

iod,

w

hich

shal

l not

be

less

than

thre

e m

onth

s, p

rior t

o th

e in

solv

ency

or

prio

r to

the

term

inat

ion

of th

e em

ploy

men

t;(b

) the

wor

kers

' cla

ims f

or h

olid

ay p

ay d

ue a

s a re

sult

of w

ork

perf

orm

ed d

urin

g th

e ye

ar in

whi

ch th

e in

solv

ency

or t

he

term

inat

ion

of th

e em

ploy

men

t occ

urre

d, a

nd in

the

prec

edin

g ye

ar;

(c) t

he w

orke

rs' c

laim

s for

am

ount

s due

in re

spec

t of o

ther

type

s of

pai

d ab

senc

e re

latin

g to

a p

resc

ribed

per

iod,

whi

ch sh

all n

ot

be le

ss th

an th

ree

mon

ths,

prio

r to

the

inso

lven

cy o

r prio

r to

the

term

inat

ion

of th

e em

ploy

men

t;(d

) sev

eran

ce p

ay d

ue to

wor

kers

upo

n te

rmin

atio

n of

thei

r em

ploy

men

t.

• W

here

as th

e EC

Reg

ulat

ion

leav

es

it en

tirel

y to

the

disc

retio

n of

na

tiona

l leg

islat

ion

to e

stab

lish

how

em

ploy

ees’

cla

ims s

hall

be

priv

ilege

d, C

onve

ntio

n No

. 173

–

whi

ch, b

y an

d la

rge,

pro

vide

s fo

r the

sam

e so

lutio

n –

spec

ifies

ca

tego

ries o

f em

ploy

ees’

cla

ims

whi

ch a

re to

be

subj

ect t

o pr

ivile

ge

and

the

min

imum

leve

l of c

over

age

atta

ched

to th

at p

rivile

ge.

23


TABl

E6

1.1 C

ONTI

NUED

ECr

egul

atio

n13

64/2

000

ilo

Conv

enti

onN

o.1

73(1

992)

law

No.

85/

2006

Conc

lusio

ns

Art.

10:

Con

trac

ts o

f em

ploy

men

tThe

effe

cts

of in

solv

ency

pro

ceed

ings

on

empl

oym

ent

cont

ract

s and

rela

tions

hips

shal

l be

gove

rned

so

lely

by

the

law

of t

he M

embe

r Sta

te

appl

icab

le to

the

cont

ract

of e

mpl

oym

ent.

Art.

8: p

ar. 1

: Nat

iona

l law

s or r

egul

atio

ns sh

all g

ive

wor

kers

' cl

aim

s a h

ighe

r ran

k of

priv

ilege

than

mos

t oth

er p

rivile

ged

clai

ms,

an

d in

par

ticul

ar th

ose

of th

e St

ate

and

the

soci

al se

curit

y sy

stem

.

Art.

123

: Cla

ims s

hall

be p

aid,

in th

e ev

ent o

f ba

nkru

ptcy

, in

the

follo

win

g or

der:

1. (.

..);

2. c

laim

s res

ultin

g fr

om e

mpl

oym

ent

rela

tions

hips

;3.

bud

geta

ry c

laim

s; (.

..)

• Ro

man

ian

legi

slatio

n gi

ves

empl

oyee

s’ c

laim

s prio

rity

over

ot

her c

ateg

orie

s of c

laim

s, in

clud

ing

thos

e of

the

stat

e. A

t the

sam

e tim

e,

Rom

ania

n le

gisla

tion,

with

out

enum

erat

ing

the

cate

gorie

s of

clai

ms r

efer

red

to b

y Ar

t. 6

of

Conv

entio

n No

. 173

, use

s gen

eric

te

rmin

olog

y, n

amel

y th

at o

f “c

laim

s aris

ing

from

em

ploy

men

t re

latio

nshi

ps”,

whi

ch le

ads o

ne

to c

oncl

ude

that

it c

over

s all

empl

oyee

s’ c

laim

s.

24


TABl

E6

1EN

Suri

NgW

AgE

ClAi

mS

Bym

EANS

oF

PrEF

ErEN

TiAl

rig

hTS

1.2 N

ORM

S IN

ROM

ANIA

N LE

GISL

ATIO

N IN

ADD

ITIO

N TO

EUR

OPEA

N AN

D IN

TERN

ATIO

NAL N

ORM

S

law

No.

85/

2006

The

nati

onal

-lev

elc

olle

ctiv

eag

reem

ent

for

2007

–10

Conc

lusi

ons

Art.

3p

oint

8:(

...) T

he d

ebto

r’s e

mpl

oyee

s sha

ll ha

ve th

e ca

paci

ty o

f a c

redi

tor e

ntitl

ed to

join

the

inso

lven

cy p

roce

edin

gs

with

out p

erso

nally

subm

ittin

g in

divi

dual

cla

ims.

Art.

48

para

grap

h1:

All

pecu

niar

y rig

hts,

as o

wed

to th

e em

ploy

ees,

shal

l be

paid

prio

r to

any

othe

r pec

unia

ry o

blig

atio

ns

of th

e co

mpa

ny.

Para

grap

h2:

In c

ase

of b

ankr

uptc

y or

liqu

idat

ion,

the

empl

oyee

s sh

all h

ave

the

capa

city

of p

rivile

ged

cred

itors

, and

thei

r pec

unia

ry

right

s sha

ll re

pres

ent p

rivile

ged

clai

ms t

o be

pai

d in

full

prio

r to

the

clai

ms o

f oth

er c

redi

tors

.

• Ro

man

ian

legi

slatio

n co

ntai

ns a

num

ber o

f add

ition

al n

orm

s re

late

d to

pra

ctic

al im

plem

enta

tion,

whi

ch d

o no

t rai

se a

ny

spec

ific

prob

lem

s in

term

s of t

heir

appl

icat

ion.

• Th

e na

tiona

l-le

vel C

olle

ctiv

e Ag

reem

ent f

or 2

007–

2010

es

tabl

ishes

that

the

said

cla

ims s

hall

be p

aid

prio

r to

any

othe

r cl

aim

s, in

con

tras

t to

Law

No.

85/

2006

, whi

ch ra

nks t

hem

se

cond

in te

rms o

f deg

ree

of p

refe

renc

e. T

his i

s als

o st

ipul

ated

by

Art

. 156

of t

he L

abou

r Cod

e.

Art.

3p

oint

10:

Em

ploy

ees’

cla

ims a

re th

ose

clai

ms r

esul

ting

from

em

ploy

men

t rel

atio

ns b

etw

een

the

debt

or a

nd th

e de

btor

’s em

ploy

ees.

The

said

cla

ims a

re re

gist

ered

ex

offic

io in

the

tabl

e of

cl

aim

s by

the

lega

l adm

inis

trat

or o

r liq

uida

tor.

Art.

3p

oint

12:

The

min

imum

am

ount

of a

cla

im, i

f file

d by

a

firm

cre

dito

r, is

30,0

00 le

i, an

d if

filed

by

an e

mpl

oyee

six

aver

age

wag

es

Art.

14

para

5: A

t mee

tings

of t

he c

redi

tors

, the

deb

tor’s

em

ploy

ees m

ay b

e re

pres

ente

d by

a d

eleg

ate

who

se v

otin

g rig

hts

shal

l be

prop

ortio

nate

to th

e to

tal v

alue

of e

mpl

oyee

s’ c

laim

s for

w

ages

and

oth

er p

aym

ents

.

25


TABl

E6

2EN

Suri

NgW

AgE

ClAi

mS

Bym

EANS

oF

Agu

ArAN

TEE

iNST

iTuT

ioN

2.1 E

UROP

EAN

AND

INTE

RNAT

IONA

L NOR

MS

WHI

CH H

AVE

BEEN

INCO

RPOR

ATED

INTO

ROM

ANIA

N LE

GISL

ATIO

N

EuD

irec

tive

200

8/94

/EC

ilo

Conv

enti

onN

o.1

73(1

992)

law

No.

200

/200

6an

dre

late

dm

etho

dolo

gica

lnor

ms

Conc

lusi

ons

Art.

1p

ara

1: T

his D

irect

ive

shal

l ap

ply

to e

mpl

oyee

s’ c

laim

s aris

ing

from

con

trac

ts o

f em

ploy

men

t or

empl

oym

ent r

elat

ions

hips

and

exi

stin

g ag

ains

t em

ploy

ers w

ho a

re in

a s

tate

of

inso

lven

cy.

At.4

par

a1:

Sub

ject

to th

e ex

cept

ions

pro

vide

d fo

r in

para

grap

h 2

belo

w, a

nd to

any

lim

itatio

ns sp

ecifi

ed in

ac

cord

ance

with

Art

icle

3, p

arag

raph

3, t

his C

onve

ntio

n sh

all a

pply

to a

ll em

ploy

ees a

nd to

all

bran

ches

of e

cono

mic

ac

tivity

.

Art.

2: P

rovi

sion

shal

l be

mad

e fr

om

the

guar

ante

e fu

nd fo

r the

pay

men

t of

empl

oyee

s’ c

laim

s aris

ing

from

con

trac

ts

of e

mpl

oym

ent a

nd c

olle

ctiv

e ag

reem

ents

co

nclu

ded

by th

e em

ploy

ees w

ith th

eir

empl

oyer

, aga

inst

who

m fi

nal j

udgm

ent

has b

een

issue

d.

• W

ith re

gard

to e

mpl

oym

ent r

elat

ions

, the

EU

Dire

ctiv

e ha

s a w

ider

scop

e, re

achi

ng b

eyon

d in

divi

dual

con

trac

ts o

f em

ploy

men

t, w

hile

Co

nven

tion

No. 1

73 a

pplie

s onl

y to

wor

kers

em

ploy

ed o

n th

e ba

sis o

f suc

h co

ntra

cts (

in a

ll br

anch

es).

• Lik

e th

e EU

Dire

ctiv

e, R

oman

ian

legi

slatio

n fo

cuse

s exc

lusi

vely

on

empl

oyee

s’ c

laim

s aris

ing

from

indi

vidu

al c

ontr

acts

of e

mpl

oym

ent a

nd

colle

ctiv

e ag

reem

ents

, alth

ough

som

e ca

tego

ries

of e

mpl

oyee

s are

exc

lude

d (s

uch

as p

ublic

em

ploy

ees).

Art.

1p

ara

2: M

embe

r Sta

tes m

ay, b

y w

ay o

f exc

eptio

n, e

xclu

de c

laim

s by

cert

ain

cate

gorie

s of e

mpl

oyee

from

the

scop

e of

this

Dire

ctiv

e, b

y vi

rtue

of t

he

exis

tenc

e of

oth

er fo

rms o

f gua

rant

ee,

if it

is es

tabl

ished

that

thes

e of

fer t

he

pers

ons c

once

rned

a d

egre

e of

pro

tect

ion

equi

vale

nt to

that

resu

lting

from

this

Dire

ctiv

e.Ar

t.1

par

a3:

Whe

re su

ch p

rovi

sion

alre

ady

appl

ies i

n th

eir n

atio

nal

legi

slatio

n, M

embe

r Sta

tes m

ay c

ontin

ue

to e

xclu

de fr

om th

e sc

ope

of th

is Di

rect

ive:

(a) d

omes

tic se

rvan

ts e

mpl

oyed

by

a n

atur

al p

erso

n;(b

) sha

re fi

sher

men

.

Art.

3p

ara

3: A

Mem

ber w

hich

acc

epts

the

oblig

atio

ns o

f bo

th P

arts

of t

his C

onve

ntio

n m

ay, a

fter

con

sulti

ng th

e m

ost

repr

esen

tativ

e or

gani

zatio

ns o

f em

ploy

ers a

nd w

orke

rs, l

imit

the

appl

icat

ion

of P

art I

II to

cer

tain

cat

egor

ies o

f wor

kers

and

to

cer

tain

bra

nche

s of e

cono

mic

act

ivity

. Suc

h lim

itatio

ns

shal

l be

spec

ified

in th

e de

clar

atio

n of

acc

epta

nce.

Art.

3p

ara

5: A

Mem

ber w

hich

has

acc

epte

d th

e ob

ligat

ions

of

Par

ts II

and

III o

f thi

s Con

vent

ion

may

, aft

er c

onsu

lting

the

mos

t rep

rese

ntat

ive

orga

niza

tions

of e

mpl

oyer

s and

wor

kers

, ex

clud

e fr

om th

e ap

plic

atio

n of

Par

t II t

hose

cla

ims w

hich

are

pr

otec

ted

purs

uant

to P

art I

II.Ar

t.4

par

a2:

The

com

pete

nt a

utho

rity,

aft

er c

onsu

lting

th

e m

ost r

epre

sent

ativ

e or

gani

zatio

ns o

f em

ploy

ers a

nd

wor

kers

, may

exc

lude

from

Par

t II,

Part

III o

r bot

h Pa

rts o

f th

is Co

nven

tion

spec

ific

cate

gorie

s of w

orke

rs, i

n pa

rtic

ular

pu

blic

em

ploy

ees,

by

reas

on o

f the

par

ticul

ar n

atur

e of

th

eir e

mpl

oym

ent r

elat

ions

hip,

or i

f the

re a

re o

ther

type

s of

gua

rant

ee a

fford

ing

them

pro

tect

ion

equi

vale

nt to

that

pr

ovid

ed b

y th

e Co

nven

tion.

- -

• Bo

th th

e EU

Dire

ctiv

e an

d Co

nven

tion

No. 1

73

allo

w fo

r the

exc

lusio

n of

cer

tain

cat

egor

ies o

f em

ploy

ees f

rom

thei

r app

licat

ion.

In a

dditi

on,

Conv

entio

n No

. 173

refe

rs, b

y w

ay o

f exa

mpl

e, to

pu

blic

em

ploy

ees.

• Un

like

the

EU D

irect

ive,

whi

ch g

rant

s the

righ

t to

mem

ber s

tate

s to

excl

ude

cert

ain

cate

gorie

s of

empl

oyee

s exc

lusi

vely

, Con

vent

ion

No. 1

73 la

ys

dow

n an

obl

igat

ion

to fi

rst c

onsu

lt th

e so

cial

pa

rtne

rs. I

n th

is re

spec

t, Co

nven

tion

No. 1

73 is

to

be p

refe

rred

to th

e EU

Dire

ctiv

e.

• Ro

man

ian

legi

slatio

n ex

clud

es p

ublic

em

ploy

ees

from

its f

ield

of a

pplic

atio

n, b

ut n

ot d

omes

tic

staf

f or s

hare

fish

erm

en (i

n co

ntra

st to

the

Dire

ctiv

e).

• Ro

man

ian

legi

slatio

n do

es n

ot e

xpre

ssly

la

y do

wn

an o

blig

atio

n to

con

sult

the

soci

al

part

ners

on

whi

ch c

ateg

orie

s of w

orke

rs m

ay b

e ex

clud

ed fr

om th

e sc

ope

of th

e le

gisla

tion.

26


TABl

E6

2.1 C

ONTI

NUED

EuD

irec

tive

200

8/94

/EC

ilo

Conv

enti

onN

o.1

73(1

992)

law

No.

200

/200

6an

dre

late

dm

etho

dolo

gica

lnor

ms

Conc

lusi

ons

Art.

2p

ara

2: H

owev

er, t

he M

embe

r St

ates

may

not

exc

lude

from

the

scop

e of

th

is Di

rect

ive:

(a) p

art-

time

empl

oyee

s with

in th

e m

eani

ng o

f Dire

ctiv

e 97

/81/E

C;(b

) em

ploy

ees w

ith a

fixe

d-te

rm c

ontr

act

with

in th

e m

eani

ng o

f Dire

ctiv

e 19

99/7

0/EC

;(c

) em

ploy

ees w

ith a

tem

pora

ry

empl

oym

ent r

elat

ions

hip

with

in th

e m

eani

ng o

f Art

icle

1(2)

of D

irect

ive

91/3

83/

EEC.

3. M

embe

r Sta

tes m

ay n

ot se

t a m

inim

um

dura

tion

for t

he c

ontr

act o

f em

ploy

men

t or

the

empl

oym

ent r

elat

ions

hip

in o

rder

fo

r em

ploy

ees t

o qu

alify

for c

laim

s und

er

this

Dire

ctiv

e.

- -

Art.

1p

ara

2of

the

Nor

ms

of

Appl

icat

ion:

Em

ploy

ees e

mpl

oyed

on

the

basis

of a

n in

divi

dual

con

trac

t of

empl

oym

ent s

hall

be u

nder

stoo

d, a

s st

ipul

ated

und

er p

arag

raph

(1) a

nd A

rt. 7

pa

ragr

aph

(1) o

f the

Law

, to

be e

mpl

oyee

s hi

red

on th

e ba

sis o

f an

indi

vidu

al

cont

ract

of e

mpl

oym

ent c

oncl

uded

on

a fu

ll-tim

e ba

sis o

r for

hom

e w

orki

ng, a

pa

rt-t

ime

empl

oym

ent c

ontr

act o

r an

appr

entic

eshi

p ag

reem

ent,

irres

pect

ive

of

the

latt

er’s

dura

tion,

incl

udin

g em

ploy

ees

cum

ulat

ing

thei

r pen

sion

with

the

sala

ry,

in a

ccor

danc

e w

ith th

e la

w.

• Th

e EU

Dire

ctiv

e st

ipul

ates

that

it a

pplie

s to

all

cate

gorie

s of i

ndiv

idua

l con

trac

ts o

f em

ploy

men

t, as

doe

s Con

vent

ion

No. 1

73, a

lthou

gh it

doe

s not

co

ntai

n an

y co

ncre

te p

rovi

sions

in th

is re

spec

t.•

Rom

ania

n le

gisla

tion

is co

ncor

dant

with

Eu

rope

an a

nd in

tern

atio

nal p

rovi

sions

rela

ted

to

all t

ypes

of i

ndiv

idua

l con

trac

ts o

f em

ploy

men

t.

Art.

2p

ara

1: F

or th

e pu

rpos

es o

f thi

s Di

rect

ive,

an

empl

oyer

shal

l be

deem

ed

to b

e in

a s

tate

of i

nsol

venc

y w

here

a

requ

est h

as b

een

mad

e fo

r the

ope

ning

of

col

lect

ive

proc

eedi

ngs b

ased

on

inso

lven

cy o

f the

em

ploy

er, a

s pro

vide

d fo

r und

er th

e la

ws,

regu

latio

ns a

nd

adm

inis

trat

ive

prov

ision

s of a

Mem

ber

Stat

e, a

nd in

volv

ing

the

part

ial o

r tot

al

dive

stm

ent o

f the

em

ploy

ers a

sset

s an

d th

e ap

poin

tmen

t of a

liqu

idat

or

or a

per

son

perf

orm

ing

a sim

ilar t

ask,

an

d th

e au

thor

ity w

hich

is c

ompe

tent

pu

rsua

nt to

the

said

pro

visio

ns h

as:(a

) ei

ther

dec

ided

to o

pen

the

proc

eedi

ngs;

or

(b) e

stab

lishe

d th

at th

e em

ploy

ers

unde

rtak

ing

or b

usin

ess h

as b

een

defin

itive

ly c

lose

d do

wn

and

that

th

e av

aila

ble

asse

ts a

re in

suff

icie

nt to

w

arra

nt th

e op

enin

g of

the

proc

eedi

ngs.

Art.

1p

ara

1: F

or th

e pu

rpos

es o

f thi

s Con

vent

ion,

the

term

“i

nsol

venc

y” re

fers

to si

tuat

ions

in w

hich

, in

acco

rdan

ce w

ith

natio

nal l

aw a

nd p

ract

ice,

pro

ceed

ings

hav

e be

en o

pene

d re

latin

g to

an

empl

oyer

's a

sset

s with

a v

iew

to th

e co

llect

ive

reim

burs

emen

t of i

ts c

redi

tors

.Ar

t.1

par

a2:

For

the

purp

oses

of t

his C

onve

ntio

n, a

Mem

ber

may

ext

end

the

term

«in

solv

ency

» to

oth

er si

tuat

ions

in

whi

ch w

orke

rs' c

laim

s can

not b

e pa

id b

y re

ason

of t

he

finan

cial

situ

atio

n of

the

empl

oyer

, for

exa

mpl

e w

here

th

e am

ount

of t

he e

mpl

oyer

's a

sset

s is r

ecog

nize

d as

bei

ng

insu

ffic

ient

to ju

stify

the

open

ing

of in

solv

ency

pro

ceed

ings

.3.

The

ext

ent t

o w

hich

an

empl

oyer

's a

sset

s are

subj

ect t

o th

e pr

ocee

ding

s ref

erre

d to

in p

arag

raph

1 ab

ove

shal

l be

dete

rmin

ed b

y na

tiona

l law

s, re

gula

tions

or p

ract

ice.

• Bo

th th

e Di

rect

ive

and

Conv

entio

n No

. 173

de

clar

e th

at in

solv

ency

is to

be

unde

rsto

od in

ac

cord

ance

with

the

mem

ber s

tate

`s le

gisla

tion

and

prac

tice.

• Ro

man

ian

legi

slatio

n co

vers

all

situa

tions

st

ipul

ated

in th

e Di

rect

ive

and

the

Conv

entio

n.

27


TABl

E6

2.1 C

ONTI

NUED

EuD

irec

tive

200

8/94

/EC

ilo

Conv

enti

onN

o.1

73(1

992)

law

No.

200

/200

6an

dre

late

dm

etho

dolo

gica

lnor

ms

Conc

lusi

ons

Art.

3: M

embe

r Sta

tes s

hall

take

the

mea

sure

s nec

essa

ry to

ens

ure

that

gu

aran

tee

inst

itutio

ns g

uara

ntee

, sub

ject

to

Art

icle

4, p

aym

ent o

f em

ploy

ees’

ou

tsta

ndin

g cl

aim

s res

ultin

g fr

om

cont

ract

s of e

mpl

oym

ent o

r em

ploy

men

t re

latio

nshi

ps, i

nclu

ding

, whe

re p

rovi

ded

for b

y na

tiona

l law

, sev

eran

ce p

ay o

n te

rmin

atio

n of

em

ploy

men

t rel

atio

nshi

ps.

The

clai

ms t

aken

ove

r by

the

guar

ante

e in

stitu

tion

shal

l be

the

outs

tand

ing

pay

clai

ms r

elat

ing

to a

per

iod

prio

r to

and/

or, a

s app

licab

le, a

fter

a g

iven

dat

e de

term

ined

by

the

Mem

ber S

tate

s.

Art.

12:

The

wor

kers

' cla

ims p

rote

cted

pur

suan

t to

this

Part

of

the

Conv

entio

n sh

all i

nclu

de a

t lea

st:

(a) t

he w

orke

rs' c

laim

s for

wag

es re

latin

g to

a p

resc

ribed

pe

riod,

whi

ch sh

all n

ot b

e le

ss th

an e

ight

wee

ks, p

rior t

o th

e in

solv

ency

or p

rior t

o th

e te

rmin

atio

n of

the

empl

oym

ent;

(b) t

he w

orke

rs' c

laim

s for

hol

iday

pay

due

as a

resu

lt of

wor

k pe

rfor

med

dur

ing

a pr

escr

ibed

per

iod,

whi

ch sh

all n

ot b

e le

ss th

an si

x m

onth

s prio

r to

the

inso

lven

cy o

r prio

r to

the

term

inat

ion

of th

e em

ploy

men

t;(c

) the

wor

kers

' cla

ims f

or a

mou

nts d

ue in

resp

ect o

f oth

er

type

s of p

aid

abse

nce

rela

ting

to a

pre

scrib

ed p

erio

d, w

hich

sh

all n

ot b

e le

ss th

an e

ight

wee

ks p

rior t

o th

e in

solv

ency

or

prio

r to

the

term

inat

ion

of e

mpl

oym

ent;

(d) s

ever

ance

pay

due

to w

orke

rs u

pon

term

inat

ion

of th

eir

empl

oym

ent.

Art.

13

para

1: T

he G

uara

ntee

Fun

d sh

all

be u

sed

to ta

ke o

ver,

in a

ccor

danc

e w

ith

the

prov

ision

s lai

d do

wn

in th

is Ch

apte

r, th

e fo

llow

ing

cate

gorie

s of e

mpl

oyee

s’

clai

ms:

a)

out

stan

ding

wag

es;

b) c

laim

s for

am

ount

s due

for o

ther

type

s of

pai

d ab

senc

e, b

ut o

nly

cove

ring

up to

a

max

imum

of o

ne y

ear;

c)

cla

ims f

or a

mou

nts d

ue u

nder

the

colle

ctiv

e ag

reem

ent a

nd/o

r ind

ivid

ual

cont

ract

s of e

mpl

oym

ent o

n th

e te

rmin

atio

n of

em

ploy

men

t rel

atio

nshi

ps;

d) c

laim

s for

am

ount

s due

und

er

colle

ctiv

e ag

reem

ents

and

/or i

ndiv

idua

l co

ntra

cts o

f em

ploy

men

t in

the

case

of

acci

dent

s at w

ork

or o

ccup

atio

nal d

iseas

e;

e) c

laim

s for

am

ount

s due

as a

resu

lt of

te

mpo

rary

inte

rrup

tion

of w

ork.

• At

the

EU le

vel,

EC R

egul

atio

n 13

46/2

000

esta

blish

es a

priv

ilege

for e

mpl

oyee

s’ c

laim

s,

whi

le th

e Di

rect

ive

refe

rs o

nly

to th

e po

ssib

ility

of

ens

urin

g th

e pa

ymen

t of e

mpl

oyee

s’ c

laim

s by

esta

blish

ing

a gu

aran

tee

fund

.•

Conv

entio

n No

. 173

regu

late

s bot

h w

ays o

f co

verin

g em

ploy

ees’

cla

ims.

• Ho

wev

er, t

he D

irect

ive

refe

rs to

all

empl

oyee

s’

clai

ms,

whe

reas

Con

vent

ion

No. 1

73 is

mor

e an

alyt

ical

and

enu

mer

ates

such

cla

ims.

• Ro

man

ian

legi

slatio

n do

es n

ot c

onta

in a

ll em

ploy

ees’

cla

ims.

It e

xclu

des,

for i

nsta

nce,

cl

aim

s for

pai

d ho

liday

s oth

er th

an a

nnua

l pai

d le

ave.

Art.

6: M

embe

r Sta

tes m

ay s

tipul

ate

that

Art

icle

s 3, 4

and

5 sh

all n

ot a

pply

to

con

trib

utio

ns d

ue u

nder

nat

iona

l st

atut

ory

soci

al se

curit

y sc

hem

es o

r und

er

supp

lem

enta

ry o

ccup

atio

nal o

r int

er-

occu

patio

nal p

ensio

n sc

hem

es o

utsid

e th

e na

tiona

l sta

tuto

ry so

cial

secu

rity

sche

mes

.

Art.

13

para

2: T

he g

uara

ntee

fund

m

ay n

ot b

e us

ed to

cov

er th

e so

cial

co

ntrib

utio

ns o

wed

by

inso

lven

t em

ploy

ers.

• Un

like

the

EU D

irect

ive,

Con

vent

ion

No. 1

73 d

oes

not r

efer

to th

e so

cial

con

trib

utio

ns o

wed

by

inso

lven

t em

ploy

ers.

•

Rom

ania

n le

gisla

tion

stip

ulat

es, i

n ac

cord

ance

w

ith th

e Di

rect

ive,

that

em

ploy

ers’

out

stan

ding

so

cial

con

trib

utio

ns sh

all n

ot b

e co

vere

d by

the

guar

ante

e fu

nd.

28


TABl

E6

2.1 C

ONTI

NUED

EuD

irec

tive

200

8/94

/EC

ilo

Conv

enti

onN

o.1

73(1

992)

law

No.

200

/200

6an

dre

late

dm

etho

dolo

gica

lnor

ms

Conc

lusi

ons

Art.

4p

ara

1: M

embe

r Sta

tes s

hall

have

the

optio

n to

lim

it th

e lia

bilit

y of

the

guar

ante

e in

stitu

tions

refe

rred

to in

Ar

ticle

3.

Para

2: I

f Mem

ber S

tate

s exe

rcise

the

optio

n re

ferr

ed to

in p

arag

raph

1, th

ey

shal

l specifyth

e le

ngth

of t

he p

erio

d fo

r whi

ch o

utst

andi

ng c

laim

s are

to

be m

et b

y th

e gu

aran

tee

inst

itutio

n.

How

ever

, thi

s may

notbeshortert

han

a pe

riod

cove

ring

the

rem

uner

atio

n of

th

e la

st th

ree

mon

ths ofthee

mpl

oym

ent

rela

tions

hip

prio

r to

and/

or a

fter

the

date

re

ferr

ed to

in th

e se

cond

par

agra

ph o

f Ar

ticle

3.

Para

3: M

embe

r Sta

tes m

ay in

clud

e th

is m

inim

um p

erio

d of

thre

e m

onth

s in

a re

fere

nce

perio

d w

ith a

dur

atio

n of

not

le

ss th

an si

x m

onth

s.Pa

ra4

: Mem

ber S

tate

s hav

ing

a re

fere

nce

perio

d of

not

less

than

18 m

onth

s may

lim

it th

e pe

riod

for w

hich

out

stan

ding

cl

aim

s are

met

by

the

guar

ante

e in

stitu

tion

to e

ight

wee

ks. I

n th

is ca

se,

thos

e pe

riods

whi

ch a

re m

ost f

avou

rabl

e to

the

empl

oyee

shal

l be

used

for t

he

calc

ulat

ion

of th

e m

inim

um p

erio

d.

Art.

12:

The

wor

kers

' cla

ims p

rote

cted

pur

suan

t to

this

Part

of

the

Conv

entio

n sh

all i

nclu

de a

t lea

st:(a

) the

wor

kers

' cl

aim

s for

wag

es re

latin

g to

a p

resc

ribed

per

iod,

whi

ch

shal

l not

be

less

than

eig

ht w

eeks

, prio

r to

the

inso

lven

cy

or prio

rto

the

term

inat

ion

of e

mpl

oym

ent;(

b) th

e w

orke

rs'

clai

ms f

or h

olid

ay p

ay d

ue a

s a re

sult

of w

ork

perf

orm

ed

durin

g a

pres

crib

ed p

erio

d, w

hich

shal

l not

be

less

than

six

monthsp

rior t

o th

e in

solv

ency

or p

rior t

o th

e te

rmin

atio

n of

em

ploy

men

t;(c)

the

wor

kers

' cla

ims f

or a

mou

nts d

ue in

re

spec

t of o

ther

type

s of p

aid

abse

nce

rela

ting

to a

pre

scrib

ed

perio

d, w

hich

shal

l not

be

less

than

eightweeksp

rior t

o th

e in

solv

ency

or p

rior t

o th

e te

rmin

atio

n of

employment;(d)

seve

ranc

e pa

y du

e to

wor

kers

upo

n te

rmin

atio

n of

thei

r em

ploy

men

t.

Art.

5p

ara

1of

the

met

hodo

logi

cal

Norm

s: T

he e

mpl

oyee

s’ c

laim

s stip

ulat

ed

unde

r Art

. 13

para

1 le

tter

s (a)

, (c)

, (d)

and

(e

) of t

he la

w a

re re

late

d to

the

perio

d of

th

ree

cale

ndar

mon

ths s

tipul

ated

in A

rt.

15 p

ara

1 of t

he L

aw, p

rior t

o th

e m

onth

in

whi

ch th

e cl

aim

s are

mad

e.

Par.

2: T

he e

mpl

oyee

s’ c

laim

s stip

ulat

ed

unde

r Art

. 13

para

1 le

tter

(b) o

f the

Law

ar

ise u

pon

the

term

inat

ion

of in

divi

dual

co

ntra

cts o

f em

ploy

men

t and

are

rela

ted

to th

e la

st 12

mon

ths p

rior t

o th

e da

te

refe

rred

to in

Art

. 5 p

ara

1.

Art.

7p

ara

1: If

the

empl

oyee

s’ c

laim

s re

late

to a

per

iod

prio

r to

the

mon

th in

w

hich

inso

lven

cy p

roce

edin

gs a

re o

pene

d,

the

perio

d of

thre

e ca

lend

ar m

onth

s st

ipul

ated

und

er A

rt. 1

5 pa

ra 1

of th

e La

w

shal

l pre

cede

the

date

of t

he in

itiat

ion

of

the

said

pro

cedu

re.

Par.

2: I

f the

em

ploy

ees’

cla

ims r

elat

e to

a

perio

d su

bseq

uent

to th

e m

onth

in w

hich

th

e in

solv

ency

pro

ceed

ings

are

ope

ned,

th

e pe

riod

stip

ulat

ed u

nder

Art

. 15

para

(1)

shal

l be

subs

eque

nt to

the

date

of t

he

initi

atio

n of

the

inso

lven

cy p

roce

dure

.

• Bo

th th

e Di

rect

ive

and

Conv

entio

n No

. 173

es

tabl

ish m

inim

um p

erio

ds fo

r the

cal

cula

tion

of e

mpl

oyee

s’ c

laim

s. T

he p

erio

ds fo

r whi

ch

empl

oyee

s’ c

laim

s are

to b

e co

vere

d ar

e us

ually

lo

nger

in th

e Di

rect

ive.

How

ever

, in

term

s of

clai

ms r

elat

ed to

ann

ual p

aid

leav

e, C

onve

ntio

n No

. 173

is m

ore

favo

urab

le, s

ince

it e

stab

lishe

s a

min

imum

per

iod

of si

x m

onth

s (as

com

pare

d to

th

e th

ree

mon

ths l

aid

dow

n in

the

Dire

ctiv

e).

• W

hile

the

EU D

irect

ive

refe

rs to

a m

inim

um

perio

d of

thre

e m

onth

s for

cov

erin

g em

ploy

ees’

cl

aim

s, R

oman

ian

legi

slatio

n es

tabl

ishes

a

fixed

thre

e m

onth

term

. How

ever

, no

refe

renc

e pe

riod

is es

tabl

ished

. Lik

ewise

, the

Rom

ania

n le

gisla

tion

does

not

est

ablis

h a

refe

renc

e pe

riod

of 18

mon

ths w

ith re

gard

to w

hich

the

guar

ante

e in

stitu

tion

shou

ld c

over

a p

erio

d of

ei

ght w

eeks

. •

By w

ay o

f exc

eptio

n, R

oman

ian

legi

slatio

n es

tabl

ishes

a p

erio

d of

12 m

onth

s for

the

calc

ulat

ion

of e

mpl

oyee

s’ c

laim

s with

rega

rd to

pa

id a

nnua

l lea

ve (w

hich

is in

acc

orda

nce

with

Ar

t. 4

par

a 3

of C

onve

ntio

n No

. 173

).

Art.

4p

ara

3: M

embe

r Sta

tes m

ay se

t ce

iling

s on

the

paym

ents

mad

e by

the

guar

ante

e in

stitu

tion.

The

se c

eilin

gs m

ust

not f

all b

elow

a le

vel w

hich

is so

cial

ly

com

patib

le w

ith th

e so

cial

obj

ectiv

e of

th

is Di

rect

ive.

If M

embe

r Sta

tes e

xerc

ise

this

optio

n, th

ey sh

all i

nfor

m th

e Co

mm

issio

n of

the

met

hods

use

d to

set

the

ceili

ng.

Art.

7: N

atio

nal l

aws o

r reg

ulat

ions

may

lim

it th

e pr

otec

tion

by p

rivile

ge o

f wor

kers

' cla

ims t

o a

pres

crib

ed a

mou

nt, w

hich

sh

all n

ot b

e be

low

a so

cial

ly a

ccep

tabl

e le

vel.

Art.

13

para

1: C

laim

s pro

tect

ed p

ursu

ant t

o th

is Pa

rt o

f the

Co

nven

tion

may

be

limite

d to

a p

resc

ribed

am

ount

, whi

ch

shal

l not

be

belo

w a

soci

ally

acc

epta

ble

leve

l.

Art.

14

para

1: T

he a

mou

nt o

f em

ploy

ees’

cl

aim

s pai

d ou

t of t

he G

uara

ntee

Fun

d m

ay n

ot e

xcee

d th

ree

times

the

natio

nal

aver

age

wag

e.

• Bo

th th

e Di

rect

ive

and

Conv

entio

n No

. 173

im

pose

com

plia

nce

with

soci

al o

bjec

tives

. The

y le

ave

it to

the

mem

ber s

tate

s to

dete

rmin

e w

hat t

he re

leva

nt p

aym

ent c

eilin

gs sh

ould

be

, alth

ough

they

stip

ulat

e th

at th

ey m

ust n

ot

be b

elow

a “

soci

ally

acc

epta

ble”

or “

soci

ally

co

mpa

tible

” le

vel.

• Ro

man

ian

legi

slatio

n qu

alifi

es th

e so

cial

ly

acce

ptab

le le

vel r

efer

red

to in

the

Dire

ctiv

e an

d Co

nven

tion

No. 1

73 a

s thr

ee ti

mes

the

natio

nal

aver

age

wag

e.

29


TABl

E6

2.1 C

ONTI

NUED

EuD

irec

tive

200

8/94

/EC

ilo

Conv

enti

onN

o.1

73(1

992)

law

No.

200

/200

6an

dre

late

dm

etho

dolo

gica

lnor

ms

Conc

lusi

ons

Art.

5: M

embe

r Sta

tes s

hall

lay

dow

n de

taile

d ru

les f

or th

e or

gani

zatio

n,

finan

cing

and

ope

ratio

n of

the

guar

ante

e in

stitu

tions

, com

plyi

ng w

ith th

e fo

llow

ing

prin

cipl

es in

par

ticul

ar:(a

) th

e as

sets

of t

he in

stitu

tions

mus

t be

inde

pend

ent o

f the

em

ploy

er’s

oper

atin

g ca

pita

l and

be

inac

cess

ible

to p

roce

edin

gs

for i

nsol

venc

y;(b

) em

ploy

ers m

ust

cont

ribut

e to

fina

ncin

g, u

nles

s it i

s ful

ly

cove

red

by th

e pu

blic

aut

horit

ies;

(c)

the

inst

itutio

ns’ l

iabi

litie

s mus

t not

de

pend

on

whe

ther

or n

ot o

blig

atio

ns

to c

ontr

ibut

e to

fina

ncin

g ha

ve b

een

fulfi

lled.

Art.

11:

The

org

aniz

atio

n, m

anag

emen

t, op

erat

ion

and

finan

cing

of w

age

guar

ante

e in

stitu

tions

shal

l be

dete

rmin

ed

purs

uant

to A

rtic

le 2

.

Art.

3: T

he e

stab

lishm

ent,

man

agem

ent

and

use

of th

e Gu

aran

tee

Fund

is b

ased

on

the

follo

win

g pr

inci

ples

: a)

the

cont

ribut

ion

prin

cipl

e, a

ccor

ding

to

whi

ch th

e Gu

aran

tee

Fund

shal

l be

esta

blish

ed o

n th

e ba

sis o

f em

ploy

ers’

co

ntrib

utio

ns;

b) th

e ob

ligat

ion

prin

cipl

e, a

ccor

ding

to

whi

ch e

mpl

oyer

s are

obl

iged

to e

stab

lish

a gu

aran

tee

fund

; c)

the

repa

rtiti

on p

rinci

ple,

acc

ordi

ng to

w

hich

the

guar

ante

e fu

nd sh

all c

over

w

ages

ow

ed b

y in

solv

ent e

mpl

oyer

s;

d) p

aym

ent m

ust n

ot d

epen

d on

w

heth

er o

r not

em

ploy

ers’

obl

igat

ions

to

con

trib

ute

to fi

nanc

ing

have

bee

n fu

lfille

d;

e) th

e as

sets

of t

he g

uara

ntee

fund

m

ust b

e in

depe

nden

t of t

he e

mpl

oyer

’s op

erat

ing

capi

tal;

f) th

e as

sets

of t

he g

uara

ntee

fund

mus

t no

t be

acce

ssib

le in

any

inso

lven

cy

proc

eedi

ngs.

Art.

5: T

he a

sset

s of t

he g

uara

ntee

fund

sh

all b

e pr

ovid

ed th

roug

h:a)

em

ploy

ers’

con

trib

utio

ns;

b) re

venu

es a

ccru

ing

from

inte

rest

ra

tes a

nd p

enal

ties f

or la

te p

aym

ent o

f co

ntrib

utio

ns to

the

guar

ante

e fu

nd, a

s w

ell a

s fro

m o

ther

sour

ces,

in a

ccor

danc

e w

ith th

e la

w;

c) re

venu

es fr

om th

e re

cove

ry o

f deb

ts

arisi

ng u

nder

the

curr

ent l

aw, o

ther

than

th

ose

accr

uing

from

con

trib

utio

ns to

the

guar

ante

e fu

nd.

• Un

like

the

EU D

irect

ive,

Con

vent

ion

No. 1

73

does

not

enu

mer

ate

the

prin

cipl

es g

over

ning

th

e es

tabl

ishm

ent o

f the

gua

rant

ee in

stitu

tion,

le

avin

g th

e la

tter

to th

e di

scre

tion

of th

e m

embe

r sta

tes.

• Ro

man

ian

legi

slatio

n st

ipul

ates

that

the

guar

ante

e fu

nd sh

all b

e es

tabl

ished

ent

irely

fr

om e

mpl

oyer

s’ c

ontr

ibut

ions

. Thi

s is u

nlik

e th

e Eu

rope

an n

orm

, whi

ch e

stab

lishe

s, a

lthou

gh

not a

s an

oblig

atio

n, th

e po

ssib

ility

that

sta

te

cont

ribut

ions

may

als

o be

pro

vide

d fo

r suc

h fu

nds.

30


TABl

E6

2.1 C

ONTI

NUED

EuD

irec

tive

200

8/94

/EC

ilo

Conv

enti

onN

o.1

73(1

992)

law

No.

200

/200

6an

dre

late

dm

etho

dolo

gica

lnor

ms

Conc

lusi

ons

Art.

9 p

ara

1: If

an

unde

rtak

ing

with

ac

tiviti

es in

the

terr

itorie

s of a

t lea

st tw

o M

embe

r Sta

tes i

s in

a st

ate

of in

solv

ency

w

ithin

the

mea

ning

of A

rtic

le 2

(l), t

he

inst

itutio

n re

spon

sible

for m

eetin

g em

ploy

ees’

out

stan

ding

cla

ims s

hall

be th

at in

the

Mem

ber S

tate

in w

hose

te

rrito

ry th

ey w

ork

or h

abitu

ally

wor

k.Pa

ra 2

: The

ext

ent o

f em

ploy

ees’

righ

ts

shal

l be

dete

rmin

ed b

y th

e la

w g

over

ning

th

e co

mpe

tent

gua

rant

ee in

stitu

tion.

Para

3: M

embe

r Sta

tes s

hall

take

the

mea

sure

s nec

essa

ry to

ens

ure

that

, in

the

case

s ref

erre

d to

in p

arag

raph

1 of

this

Artic

le, d

ecisi

ons t

aken

in th

e co

ntex

t of

inso

lven

cy p

roce

edin

gs re

ferr

ed to

in

Artic

le 2

(1), w

hich

hav

e be

en re

ques

ted

in a

noth

er M

embe

r Sta

te, a

re ta

ken

into

acc

ount

whe

n de

term

inin

g th

e em

ploy

er’s

stat

e of

inso

lven

cy w

ithin

the

mea

ning

of t

his D

irect

ive.

- -

Art.

20

(1) In

the

even

t of t

he in

solv

ency

of

a tr

ansn

atio

nal e

mpl

oyer

, em

ploy

ees

who

hab

itual

ly w

ork

on R

oman

ian

terr

itory

shal

l file

thei

r cla

ims w

ith, a

nd

rece

ive

subs

eque

nt p

aym

ent f

rom

, the

te

rrito

rial a

genc

y in

who

se ju

risdi

ctio

n th

e em

ploy

ees w

ork.

Para

2: U

pon

esta

blish

ing

that

a c

ompa

ny

is in

a s

tate

of i

nsol

venc

y, a

ccou

nt m

ust

be ta

ken

of th

e de

cisio

n iss

ued

by th

e co

mpe

tent

aut

horit

y fr

om a

n EU

or E

EA

mem

ber s

tate

, whi

ch e

ither

led

to th

e op

enin

g of

the

inso

lven

cy p

roce

edin

gs, o

r w

hich

est

ablis

h th

at th

e de

btor

has

no

asse

ts o

r tha

t the

latt

er a

re in

suff

icie

nt to

ju

stify

ope

ning

inso

lven

cy p

roce

edin

gs,

and

the

debt

or sh

all b

e re

mov

ed fr

om th

e co

mpa

ny re

gist

er.

• Un

like

Conv

entio

n No

. 173

, Rom

ania

n le

gisla

tion

– in

acc

orda

nce

with

Eur

opea

n re

gula

tion

– a

lso

deal

s with

cro

ss-b

orde

r ins

olve

ncy.

31


TABl

E6

2EN

Suri

NgW

AgE

ClAi

mS

Bym

EANS

oF

Agu

ArAN

TEE

iNST

iTuT

ioN

2.2

ExIS

TING

NOR

MS

IN R

OMAN

IAN

LEGI

SLAT

ION

IN A

DDIT

ION

TO E

UROP

EAN

AND

INTE

RNAT

IONA

L NOR

MS

law

No.

200

/200

6m

etho

dolo

gica

lNor

ms

Conc

lusi

ons

Art.

7: E

mpl

oyer

s are

obl

iged

to p

ay a

mon

thly

con

trib

utio

n to

th

e gu

aran

tee

fund

in th

e am

ount

of 0

.25%

of t

he e

mpl

oyee

s’

cont

ribut

ions

to th

e un

empl

oym

ent i

nsur

ance

fund

, inc

ludi

ng th

ose

empl

oyee

s who

are

em

ploy

ed o

n th

e ba

sis o

f ind

ivid

ual c

ontr

acts

.

Art.

1 pa

ra1:

The

pro

port

ion

of c

ontr

ibut

ions

to th

e gu

aran

tee

fund

se

t up

to c

over

the

paym

ent o

f em

ploy

ees’

cla

ims –

her

eina

fter

: the

gu

aran

tee

fund

– a

gain

st th

eir e

mpl

oyer

s in

acco

rdan

ce w

ith A

rt. 7

pa

ra (1

) of t

he L

aw sh

all a

pply

to th

e ba

sis fo

r cal

cula

tion

of e

mpl

oyee

s’

– w

orki

ng o

n th

e ba

sis o

f an

indi

vidu

al c

ontr

act o

f em

ploy

men

t –

cont

ribut

ions

to th

e un

empl

oym

ent i

nsur

ance

fund

. Ar

t.2

par

a1:

The

mon

thly

bas

is fo

r cal

cula

tion

in a

ccor

danc

e w

ith

whi

ch (.

..) c

ontr

ibut

ions

to th

e un

empl

oym

ent i

nsur

ance

fund

are

w

orke

d ou

t is t

hat s

tipul

ated

in A

rt. 1

4 of

the

Met

hodo

logi

cal N

orm

s fo

r the

App

licat

ion

of L

aw N

o. 17

4/20

02 o

n th

e un

empl

oym

ent

insu

ranc

e sy

stem

and

the

stim

ulat

ion

of e

mpl

oym

ent,

as a

ppro

ved

by

Gove

rnm

ent D

ecisi

on N

o. 17

4/20

02, w

ith su

bseq

uent

am

endm

ents

and

ad

just

men

ts.

Para

2: T

he le

vel o

f con

trib

utio

ns o

wed

by

empl

oyer

s to

the

unem

ploy

men

t ins

uran

ce fu

nd u

nder

Art

. 7 p

ara

(1) o

f the

Law

shal

l be

that

est

ablis

hed

by th

e La

w o

n th

e so

cial

insu

ranc

e fu

nd, i

n ac

cord

ance

with

Art

. 29

of L

aw N

o. 76

/200

2 on

the

unem

ploy

men

t in

sura

nce

fund

and

the

stim

ulat

ion

of e

mpl

oym

ent,

with

subs

eque

nt

amen

dmen

ts a

nd a

djus

tmen

ts.

• Ro

man

ian

legi

slatio

n co

ntai

ns, i

n ad

ditio

n to

the

Euro

pean

and

inte

rnat

iona

l reg

ulat

ions

, a n

umbe

r of

prec

ise n

orm

s reg

ardi

ng th

e es

tabl

ishm

ent a

nd u

se o

f the

gu

aran

tee

fund

whi

ch h

ave

prov

ed to

be

extr

emel

y us

eful

in

pra

ctic

e.

Art.

15 p

ara

1: T

he e

mpl

oyee

s’ c

laim

s stip

ulat

ed in

Art

. 13

para

(1)

lett

ers (

a), (

c), (

d) a

nd (e

) sha

ll be

bor

ne fo

r a p

erio

d of

thre

e m

onth

s.Pa

r. 2:

The

per

iod

stip

ulat

ed in

par

agra

ph 1

shal

l be

the

perio

d pr

ior

to th

e da

te w

hen

the

clai

ms w

ere

filed

, eith

er b

efor

e or

aft

er th

e da

te

of th

e op

enin

g of

inso

lven

cy p

roce

edin

gs.

Para

3: F

urth

er e

mpl

oyee

s’ c

laim

s may

be

mad

e on

ly if

the

perio

d as

st

ipul

ated

und

er p

arag

raph

2 is

less

than

thre

e m

onth

s.

Art.

7 p

ara

1: If

em

ploy

ees’

cla

ims r

efer

to a

per

iod

prio

r to

the

open

ing

of in

solv

ency

pro

ceed

ings

, the

thre

e-m

onth

per

iod

stip

ulat

ed

in A

rt. 1

5 pa

ra 1

of th

e La

w sh

all p

rece

de th

e da

te o

f ope

ning

the

inso

lven

cy p

roce

edin

gs.

Para

2: I

f em

ploy

ees’

cla

ims r

efer

to a

per

iod

subs

eque

nt to

the

mon

th

in w

hich

the

inso

lven

cy p

roce

edin

gs a

re o

pene

d, th

e pe

riod

stip

ulat

ed

in A

rt. 1

5 pa

ra 1

of th

e La

w sh

all a

lso

refe

r to

the

date

on

whi

ch th

e in

solv

ency

pro

ceed

ings

are

ope

ned.

Art.

8: E

mpl

oyee

s’ c

laim

s mad

e in

acc

orda

nce

with

the

cond

ition

s st

ipul

ated

in A

rt. 1

5 pa

ra 3

of t

he L

aw sh

all b

e bo

rne

for t

he ti

me

rem

aini

ng u

ntil

the

expi

ry o

f the

per

iod

stip

ulat

ed in

Art

. 15

para

1 of

th

e La

w.

32


TABl

E6

2.2

CONT

INUE

D

law

No.

200

/200

6m

etho

dolo

gica

lNor

ms

Conc

lusi

ons

Art.

16: C

laim

s aris

ing

from

pai

d em

ploy

men

t rel

atio

nshi

ps in

the

even

t of b

ankr

uptc

y sh

all b

e re

duce

d in

pro

port

ion

to th

e am

ount

s pa

id o

ut o

f the

gua

rant

ee fu

nd.

-

Art.

19 p

ara

1: T

he e

stab

lishm

ent o

f wha

t pro

port

ion

of e

mpl

oyee

s’

clai

ms i

s to

be p

aid,

and

the

actu

al p

aym

ents

them

selv

es, s

hall

be

carr

ied

out b

y th

e te

rrito

rial a

genc

ies i

n w

hose

juris

dict

ion

the

head

of

fice,

dom

icile

or r

esid

ence

of t

he e

mpl

oyer

is lo

cate

d.

Art.

14 p

ara

1: If

the

amou

nt o

f an

indi

vidu

al e

mpl

oyee

’s cl

aim

s und

er

Art.

10 p

ara

1 (c)

is le

ss th

an th

ree

gros

s nat

iona

l ave

rage

wag

es, t

he

amou

nt o

f the

em

ploy

ee’s

clai

m to

be

paid

out

of t

he g

uara

ntee

fund

sh

all b

e eq

ual t

o th

at s

tipul

ated

in A

rt. 1

0 pa

ra 1

(c).

Para

2: I

f the

am

ount

of a

n in

divi

dual

em

ploy

ee’s

clai

ms u

nder

Art

. 10

par

a 1 (

c) is

hig

her t

han

thre

e gr

oss n

atio

nal a

vera

ge w

ages

, the

am

ount

of t

he e

mpl

oyee

’s cl

aim

to b

e pa

id o

ut o

f the

gua

rant

ee fu

nd

shal

l be

the

equi

vale

nt o

f thr

ee g

ross

nat

iona

l ave

rage

wag

es.

33

5.


Views of the Social Partners

With the aim of presenting an accurate picture of the legal implementation of employees’ claims in case of employer insolvency, we consulted some of the representative social partners at the national level.14

5.1 The point of view of workers’ organizations

a) The national legal framework is regarded as favourable in terms of the protection it offers to those employees whose claims are covered by the specially established fund.

b) The period for which the payment of employees’ claims is to be covered out of the guarantee fund, namely three calendar months, usually meets the needs of employees, although not when the employer’s debts relate to a longer period. It is perceived that this period should be extended in the future.

c) The calculation of the period of three months for which the payment of employees’ claims is to be covered consists of calendar days, not working days. This may be an advantage for the employees, bearing in mind that wages are typically calculated on the basis of working days, not calendar days.

d) The procedure established by law for the payment of employees’ claims out of the guarantee fund makes bringing a claim extremely difficult, since it involves:

- filing an application and submitting numerous documents, after which a decision is reached no sooner than 45 days later regarding the payment or non-payment of the employees’ claims; and

- priority status being given to applications filed by the administrator or liquidator of the estate of the debtor employer, and only subsidiary status being given to the applications filed by employees or their union. This may mean that employee or union claims are given a lower ranking.

5.2 The point of view of employers’ organizations15

a) The contribution to be paid towards the establishment of the guarantee fund – 0.25 per cent – does not represent, at present, an additional burden for employers, given that this percentage is deducted from the unemployment contribution. It is seen as a form of employer protection when insolvency proceedings are opened.

However, the fact that the guarantee fund must cover employees’ claims regardless of whether their employer has in fact contributed to the fund is unfair to those employers who duly pay their contributions. The lack of serious penalties against employers who fail to meet their legal obligation to contribute to the Wage Guarantee Fund provides them with little incentive to comply.

14 The views of the national trade unions (National Union Block, ALFA Cartel, RomanianConfederationofDemocraticTradeUnions,MeridianandCNSLRFratia)werepresentedbyrepresentativesoftheirLegalDepartments.15 Theviewsofsomeoftheemployers’confederationsthatarerepresentativeatthenationallevel(NationalAssociationofEntrepreneursinConstructionARACO,NationalCouncilofRomanianPrivateSmallandMedium-SizedEnterprises,NationalCouncilofRomanianEmployers)werepresentedbytheirrepresentatives.

35

EMployEES’ ClAIMS In thE EVEnt of EMployER InSolVEnCy | ConCluSIon

Conclusion

Generally speaking, Convention No. 173 (1992), EC Regulation No. 1436/2000 and Directive 2008/94/EC are in accordance with one another.

At the same time, a number of their respective provisions diverge. This can be explained by differences in the orientation (regional versus international, with different levels of development and legal traditions) and membership of the two organizations, as well as the fact that the instruments were adopted on different dates (Convention No. 173 in 1992, EC Regulation No. 1346 in 2000 and the Directive [consolidated version] in 2008).

Some provisions of Directive 2008/94/EC are more favourable for employees than those of Convention No. 173 (1992). These include provisions relating to the period during which the employees’ claims are to be covered (except for those claims related to unpaid rest leave).

It is important to note that ILO Convention No. 173 (1992) does not prevent ratifying states from providing higher protection for employees, in accordance with the principle of the pre-eminence of more favourable law, common to all international labour standards. In other words, ratification of the Convention does not mean that national legislation cannot comply with the provisions established by virtue of Directive 2008/94/EC. On the other hand, Convention No. 173 (1992) contains a series of provisions which are more favourable to employees than those of the Directive. These include:

• The obligation of member states to consult the most representative workers’ and employers’ organizations with a view to establishing the categories of workers who may be excluded from the application of the provisions on the payment of employees’ claims arising from insolvency;

• The existence of additional categories of claims which are to be covered (other forms of paid leave);• The lack of an explicit reference to specific types of individual labour agreements, which leaves open

the possibility that, in the future, in accordance with the requirements of flexicurity, other types of individual agreements may be added or integrated.

Based on the findings of the study and in accordance with Law No. 109/1997,16 the Economic and Social Council should consider discussing and forwarding to Parliament the proposal to ratify Convention No. 173 (1992). Subsequently, de lege ferenda (“instead of what shape the law ought to take”) a number of appropriate amendments should be made to Law No. 200/2006 on the establishment and use of the Wage Guarantee Fund for the payment of employees’ claims.

In the author’s opinion, the view that the ratification of Convention No. 173 (1992) is not currently justified because Romanian law is already aligned with Directive 2008/94/EC is invalid. It is clear that both the social partners and the government would benefit from ratifying the Convention.

16 PublishedinMonitorulOficialalRomâniei,parteaI,nr.141din7iulie1997,cumodificărileşicompletărileulterioare.

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