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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
04.01.6
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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;
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• 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
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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.
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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.
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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.
Who
lesa
le tr
ade
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and
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Recr
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nd sp
ortin
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es
Man
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hem
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rodu
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Mac
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ry a
nd e
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t ind
ustr
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Post
and
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Min
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Heal
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ssis
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e
Prod
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pply
of e
lect
ricity
and
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t, w
ater
and
gas
2,500
2,000
1,500
1,000
500
0
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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
Source: Coface Romania, 2010 & Coface Romania, 2009.
Table 2 presents the distribution by county:
Who
lesa
le tr
ade
Reta
il
Cons
truc
tion
Tran
spor
t
Othe
rs
Man
ufac
ture
of t
extil
e ga
rmen
ts a
nd fo
otw
ear
Hote
ls an
d re
stau
rant
s
Agric
ultu
re
Met
allu
rgic
al in
dust
ry
Food
and
bev
erag
es
Man
ufac
ture
of w
ood
and
woo
d pr
oduc
ts
2,500
2,000
1,500
1,000
500
0
Jun-10 Jun-09 Jun-08
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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
Source: Coface Romania, 2010 & Coface Romania, 2009.
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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
Source: Coface Romania, 2010 & Coface Romania, 2009.
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%
Source: Coface Romania, 2010 & Coface Romania, 2009.
Alba
Arad
Arge
şBa
cău
Biho
rBi
striţ
a-Nă
săud
Boto
şani
Braş
ovBr
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verin
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man
Timiş
Tulc
eaVâ
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Vasl
uiVr
ance
a
1st quarter of 2009
1st quarter of 2010
1,600
1,400
1,200
1,000
800
600
400
200
0
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FigurE4PROPORTION OF INSOLVENCy PROCEEDINGS, By REGION, ROMANIA, 1ST HALF OF 2010
Source: Coface Romania, 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
Source: Coface Romania, 2010.
West12%
South11%
North-West16%
South-East18%
Bucharest12%
South-West9%
North-East11%
Centre11%
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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-
07Fe
brua
ryM
arch
Apr-
07M
ayJu
neJu
l-07
Augu
stSe
ptem
ber
Oct-
07No
vem
ber
Dece
mbe
rJa
n-08
Febr
uary
Mar
chAp
r-08 May
June
Jul-
08Au
gust
Sept
embe
rOc
t-08
Nove
mbe
rDe
cem
ber
Jan-
09Fe
brua
ryM
arch
Apr-
09 May
June
Jul-
09Au
gust
Sept
embe
rOc
t-09
Nove
mbe
rDe
cem
ber
Jan-
10Fe
brua
ryM
arch
Apr-
10M
ayJu
neJu
l-10
Augu
stSe
ptem
ber
Oct-
10No
vem
ber
peop
le u
nem
ploy
ed
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.
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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.
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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
EMployEES’ ClAIMS In thE EVEnt of EMployER InSolVEnCy | ChAptER 2
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
EMployEES’ ClAIMS In thE EVEnt of EMployER InSolVEnCy | ChAptER 2
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.
EMployEES’ ClAIMS In thE EVEnt of EMployER InSolVEnCy | ChAptER 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
EMployEES’ ClAIMS In thE EVEnt of EMployER InSolVEnCy | ChAptER 3
• 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
EMployEES’ ClAIMS In thE EVEnt of EMployER InSolVEnCy | ChAptER 3
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
EMployEES’ ClAIMS In thE EVEnt of EMployER InSolVEnCy | ChAptER 3
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
EMployEES’ ClAIMS In thE EVEnt of EMployER InSolVEnCy | ChAptER 3
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
EMployEES’ ClAIMS In thE EVEnt of EMployER InSolVEnCy | ChAptER 4
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
EMployEES’ ClAIMS In thE EVEnt of EMployER InSolVEnCy | ChAptER 4
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
EMployEES’ ClAIMS In thE EVEnt of EMployER InSolVEnCy | ChAptER 4
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
EMployEES’ ClAIMS In thE EVEnt of EMployER InSolVEnCy | ChAptER 4
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
EMployEES’ ClAIMS In thE EVEnt of EMployER InSolVEnCy | ChAptER 4
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
EMployEES’ ClAIMS In thE EVEnt of EMployER InSolVEnCy | ChAptER 4
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
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ONTI
NUED
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irec
tive
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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
EMployEES’ ClAIMS In thE EVEnt of EMployER InSolVEnCy | ChAptER 4
TABl
E6
2.1 C
ONTI
NUED
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irec
tive
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/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
EMployEES’ ClAIMS In thE EVEnt of EMployER InSolVEnCy | ChAptER 4
TABl
E6
2.1 C
ONTI
NUED
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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
EMployEES’ ClAIMS In thE EVEnt of EMployER InSolVEnCy | ChAptER 4
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
EMployEES’ ClAIMS In thE EVEnt of EMployER InSolVEnCy | ChAptER 4
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
EMployEES’ ClAIMS In thE EVEnt of EMployER InSolVEnCy | ChAptER 4
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.
EMployEES’ ClAIMS In thE EVEnt of EMployER InSolVEnCy | ChAptER 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.
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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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EMployEES’ ClAIMS In thE EVEnt of EMployER InSolVEnCy | BIBlIogRAphy
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