Employees' Transfer as a Consequence of the Transfer of the Enterprise, Unit or Parts of the Enterprise or Unit
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Septembrie 2008 |
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IOANA RACOŢI - Avocat Coordonator
ZAMFIRESCU RACOŢI PREDOIU |
Adresa
Strada Plantelor, Nr. 12
023974 Bucureşti, Sector 2
Telefon
+40-21-311.05.17/18
Fax
+40-21-311.05.19
Website
www.zrp.ro
IOANA RACOŢI
Avocat Coordonator
SOCIETATEA CIVILĂ DE AVOCAŢI "ZAMFIRESCU RACOŢI PREDOIU"
Following Romania’s accession to the European Union on January 1st, 2007, the rate of the business acquisition projects has increased as more and more foreign investors decided to develop new activities in Romania or to gain control over the existing profitable ones.
At the same date, January 1st, 2007, new Romanian regulations transposed into the Romanian legal system the European provisions on protection of the employees’ rights in case of transfer of the enterprise, unit or parts of the enterprise or unit. By those new provisions the employees’ protection, the security of the job positions and the employment terms were ensured.
Before the date the European provisions were transposed into the Romanian legislation, the employees’ interests had been protected by general provisions inserted in the Romanian Labor Code (hereinafter referred to as “RLC”). Such provisions, which are currently in force, only establish the main principles that the employees’ rights in case of transfer of the enterprise, unit or parts of the enterprise or unit shall be protected. No transfer conditions and no transfer procedures were described by the RLC.
Due to the fact that the employees’ interests were ensured, the employment issues became a relevant factor in making the decisions pertaining to the investments to be operated. In this respect, the employment transfer implications upon the transaction became one of the essential elements.
Transfer of the enterprise, unit or parts of the enterprise or unit. Generalities
The Directive 2001/23/CE of the Council of March 12th, 2001 on the appropriation of the legislations of the member states relating to the maintenance of the workers’ rights in case of transfer of the undertaking, unit or parts of the undertaking or unit (hereinafter referred to as the „Directive 23”), replacing a previous Directive, 77/187/CE of the Council, was transposed into the Romanian legislation by the provisions of RLC and the Law no. 67/2006 on protection of the employees’ rights in case of transfer of the undertaking, unit or parts of the undertaking or unit (hereinafter referred to as the „Law 67”).
According to the Directive 23 “the transfer” means transferring from the assignor’s ownership into the assignee’s ownership an undertaking, unit or part of the undertaking or unit as a result of an assignment or merger, for the purpose of carrying on the main or secondary activities, without considering its obtaining or non-obtaining of any profit (the assignor being the person who loses its capacity as employer towards the employees of the undertaking, unit or parts of the undertaking or unit, and the assignee the person who acquires the capacity of employer towards the employees mentioned).
The European Court of Justice regulated that the notion of economic entity represents an organized aggregate of persons and elements permitting the performance of economic (main or secondary) activity pursuing a specific objective. In other words, the economic entity is construed as being a unit or a part of the unit, that establishment and/or sector (division) of activity of an undertaking that has or may have an autonomous activity, as well as the necessary and sufficient human, technical and logistic capital.
Taking into consideration the interpretation that the European Court of Justice has granted to the “economic entity” the signification of a unit or a part of the unit, that establishment and/or sector (division) of activity of an undertaking that has or may have an autonomous activity, the necessary and sufficient human, technical and logistic capital, as well as fact that the Law 67 defines “the transfer” as representing a change in what regards the employer, one could consider that the obligation of information regulated by Directive 23 shall not apply in case of a share transfer.
Thus, considering the fact that the Law 67 defines “the transfer” as representing a change in what regards the employer and due to the fact that, in case of a transfer of shares, the employer is not changed and, consequently, there is no obligation of the company whose shares are to be sold to inform the employees’ representatives with regard to the transfer.
By exception, according to the Romanian Capital Market Law, the company whose shares are to be sold has the obligation to inform the employees’ representatives of the transfer conditions, only if the following conditions are jointly met:
- the company’s shares or the shares of the company’s subsidiary are listed in Romania;
- the share transfer shall be subject to a voluntary takeover public offer; the “voluntary takeover public offer” is a public purchase offer, addressed to all shareholders, for all the rights of such shareholders, launched by a person that does not have such an obligation, for the purpose of acquiring more than 33% of the voting rights.
Should the above-mentioned conditions be met, immediately after the preliminary notice is published, the Board of Directors of the company to be taken over shall inform the employees’ representative or directly the employees of the takeover.
Moreover, the opinion that is to be issued by the Board of Directors of the company subject to the takeover with regard to the effects of this operation upon the company’s business and company’s employees shall be submitted to the employees’ representatives or directly to the employees. If the employees have drawn up their own opinion on the effects of the takeover upon the employees, such opinion shall be added to the Board of Directors’ opinion and submitted to the National Securities Commission.
