Comentariu critic asupra reglementărilor europene și naționale de protecție a salariaților în materia transferului de întreprindere
Critical commentary on the European and national regulations of protection of the employees in the matter of transfer of undertaking

Summary/Abstract: The present study intends to highlight critical or just unclear aspects of the directives of the Union, of the implementing national law and of the jurisprudence of the Court of Justice of the European Union concerning the protection of the rights of the employees in the case of transfer of undertakings, businesses or part of businesses. It is about the Directive 187/77 of the Council, the Directive 50/98 of the Council, which has amended the first, and the Directive 23/2001 of the Council, which is in force at the time being, the two former being repealed by it; these directives were implemented in Romania by the Law 67/2006 and the Labour Code (the Law 53/2003). The transfer of undertaking consists not only in the purchase or the lease of the business, or the merger of businesses, but also in the taking over, by a new provider of goods or services, of all or of the majority of the employees of the former provider of a client, if those employees constituted and continue to constitute a unitary group from an organizational and functional point of view, continue to carry on the same activity for the client, possibly in the same place and, if they are indispensable for the activity, with the same material means. The protection afforded to the employees consists in the automatic transfer of their contracts or of the content of these to the new employer, that is the acquirer of the undertaking whatever the form of the acquisition may be, as we saw above.The conclusions contain proposals de lege ferenda concerning both the directive in force and the implementing national law. So, regarding the directive we appreciate as being necessary the renaming of the transfer of undertaking in transfer of activity, the partial renaming of the cases of transfer and the suppression of some of the actual cases, the express defining of the protection as being only the transfer of the rights and obligations from the labour contracts or relationships or at least the renouncement to the automatic character of the transfer of the contracts, the suppression of the provisions mentioned as superfluous. Regarding the national law, we consider necessary to keep only one of the two normative acts mentioned, to eliminate the non-compliances shown with the directive, where they exist, and to include in the civil law provisions related to the sale and the lease of the activity for all the types of legal persons, professional or non-professional.

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