Excepțiile de la principiul nediscriminării pe criteriul vârstei în raporturile de muncă
Exceptions to the principle of non-discrimination based on age in employment contracts

Summary/Abstract: Not all exceptions to the prohibition of age-based discrimination provided by Directive 2000/78/EC have been incorporated into national legislation. Article 5 of the Labor Code, like Article 2 of Government Ordinance No. 137/2000, unlike Article 6 of the directive, does not explicitly state that direct discrimination on the grounds of age can be objectively justified if it pursues a legitimate aim and the means used are proportionate to that aim.Nevertheless, in labor legislation, we do encounter exceptions to the principle of direct non-discrimination on the grounds of age, similar to those provided by Article 6 of the directive. For example, Article 56 of the Labor Code regulates the automatic termination of the individual employment contract upon meeting the retirement conditions, which represents different treatment directly based on age.I consider that the Romanian legislator's intention was not to regulate the prohibition of age-based discrimination more favorably than the directive. Therefore, to avoid any interpretative issues, it is necessary to amend Article 5 of the Labor Code by adding paragraph (3)¹, allowing the same exceptions for direct age-based discrimination as those provided by the directive, as follows: „(3)¹ Differentiated treatment based on age does not constitute discrimination when it is objectively and reasonably justified within the framework of national law by a legitimate aim, particularly by legitimate employment policy, labor market, and vocational training objectives, and the means of achieving this aim are appropriate and necessary”.The partial incorporation of certain provisions of Directive 2000/78/EC by the national legislator has resulted in an improper transposition of its provisions into the Labor Code as well as into Government Ordinance No. 137/2000. This issue could be remedied by fully adopting Article 6 of the directive.

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