Forță juridică și remedii procesuale pentru nerespectarea dreptului la informare și consultare al salariaților în procedura transferului de întreprindere
Legal force and procedural remedies for the failure to comply with the right to information and to consultation of employees in the procedure of transfer of undertakings

Summary/Abstract: Directive 2001/23 on the approximation of the laws of the Member States relating to the safeguarding of the employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses leaves to the discretion of the Member States the task of regulating the procedural means and the legal sanctions able to ensure the full and effective exercise of the right to the information and consultation of the employees affected by the transfer. In the Romanian law, the Law No 67/2006 on safeguarding of the employees’ rights in the event of transfer of undertaking, establishments or parts thereof, which transposed Directive 2001/23, does not provide for a separate sanctioning regime for the violation of the obligation to inform and to consult the employees affected by the transfer, but establishes, generically, for the violation of any obligation provided in its content, the contraventional liability of the transferor or transferee and the right of the employees, respectively of the representatives of the employees affected by the transfer, to address the courts of labour jurisdiction competent to resolve individual and collective labour conflicts. The present study emphasizes, by applying the requirements of the principle of the effective transposition of the directive and by carrying out a comparative law analysis, the fact that the mixed system of sanctions in the Romanian law, made of the contraventional fine and compensatory damages, fails to ensure the deterrent effect for employers and does not confer to the employees affected by the transfer any effective procedural remedies for respecting the right to information and consultation. De lege ferenda, several measures are proposed that can be adopted in order to ensure the effective nature of the right to information and consultation of the employees affected by the transfer, respectively: the clarification of the conditions for exercising the application for summons that seeks to repair the damage caused by the violation of the right to information and to consultation of the employees affected by the transfer; the express legislative establishment of the joint liability of the transferor and of the transferee for the damages resulting from non-compliance with the right to information and to consultation of the transferred employees; the increase of the limits of the contraventional fine.

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