Article 27 - Workers' right to information and consultation within the undertaking
Key facts of the case:
The constitutionality issue was raised in respect to a series of collective redundancies based on Article 86 (6) of Law no 85/2006 on the insolvency procedure. This article allows for an exception to the Labour Code, Law nr. 53/2003, and in the first part it states that when an insolvency procedure is started, the body overseeing the procedure can dismiss the employees of the company without the need to undergo the collective redundancies procedure and in the second part it states that employees would receive only 15 days’ notice when dismissed under such circumstances.
The constitutionality issue was raised in a number of cases pending before national courts, in which former employees were dismissed under this provision and they challenged its constitutionality. They were represented by their trade unions. The courts referred the constitutionality questions to the Constitutional Court, which was asked to rule on the constitutionality of Article 86 (6) of Law no 85/2006 on the insolvency procedure.
Outcome of the case:
The Constitutional Court declared the first part of Article 86 (6) of Law no 85/2006 on the insolvency procedure to be unconstitutional. That is the part which allows companies undergoing insolvency to bypass the collective redundancies procedure. The second part of this Article 86 (6), which requires the employer to give 15 days’ notice when dismissing an employee was declared constitutional in respect to the arguments raised.
29. Regarding the exception of unconstitutionality raised in the allegations concerning breaches of EU laws of the authors of the constitutionality challenge, the Court notes that Article 27 of the Charter of Fundamental Rights of the European Union, with the heading Workers' right to information and consultation within the undertaking provides that "Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Community law and national laws and practices". Also, Art. 153 para. (1) e) of the Treaty on the European Union states that "In order to achieve the objectives of Article 151 [promotion of employment, improved living and working conditions, proper social protection social dialogue, human resources development and combating exclusion], the Union shall support and complement Member States' action in the following areas: [...] (e) the information and consultation of workers ". In the implementation of these generous principles, Article 2, with the title information and consultation of Directive 98/59/EC of 20 July 1998 on the approximation of the laws of Member States relating to collective redundancies, published in the Official Journal of the European Union, Series L, nr. 225 of 12 August 1998 provides that where an employer is contemplating collective redundancies, it has to initiate timely consultations with workers to reach an agreement, consultations cover at least the possibilities of avoiding collective redundancies or reducing the number of workers affected, and of mitigating the consequences by recourse to accompanying social measures aimed, inter alia, at aid for redeploying or retraining workers made redundant. In order to attain the objective pursued, the employer is obliged to provide all information necessary to enable workers' representatives to make constructive proposals. In this regard, the Court notes that the judgment of 3 March 2011 in Case C-235/2010 David Claes and Others v Landsbanki Luxembourg SA, the Court of Justice of the European Union held that "consultations under Article 2 of Directive 98/59 refer not only to the ways of avoiding or reducing the number of collective redundancies, but also of mitigating the consequences by recourse to accompanying social measures aimed, inter alia, for redeploying or retraining workers made redundant "(paragraph 56) as translated from Romanian RCC decision. By the same judgment, the Court in Luxembourg decided that, "until definitive cessation of the legal personality of an institution undergoing dissolution and liquidation, it must fulfil its obligations under Articles 2 and 3 of Directive 98/59. The employer's obligations under these articles have to be executed by the management of the institution concerned, as long as it remains in office, even with limited powers in terms of managing the institution, or its liquidator, as far as that institution is taken into administration"(see point 2 of the operative part of the judgment). So the obligation on information and consultation under the Directive must be respected, irrespective of whether the judicial reorganisation or liquidation procedure of the company has started.
30. The Constitutional Court, in its case law, ruled that the Charter of Fundamental Rights of the European Union, as a legal act, has a different nature to other international treaties referred to in Article 20 of the Constitution, and its applicable constitutional provision is Article 148 of the Constitution, which is applicable in the process of constitutional review only when the legal norms provide for guarantees and develop the constitutional provisions regarding fundamental rights, in other words, as far as the level of protection offered by these norms is at least at the level of national constitutional norms on human rights (Decision nr. 871 of 25 June 2010, published in the Official Gazette of Romania, Part I, 433 of 28 June 2010, and Decision No. 206 of 6 March 2012, published in the Official Gazette of Romania, Part I, no. 254 of 17 April 2012). The Court considers that there is no reason to depart from that case law and applies mutatis mutandis to the resulting demands on both the Treaties establishing the European Union and its secondary acts, namely directives.
31. As regards the application of the mandatory provisions of the European Union in the constitutional review, the Court, in its case law, held that "using a rule of European law in the constitutional review as the reference standard involves under Article 148 para. (2) and (4) of the Constitution, two cumulative requirements: on the one hand, that the rule must be sufficiently clear, precise and unequivocal itself or its meaning must be clearly established, precise and unambiguous, on the other hand the rule must have a certain level of constitutional relevance, so that it can be used to find a violation of the Constitution by national law –the Constitution being the only direct reference in the constitutionality review"(Decision 668 of 18 May 2011, published in the Official Gazette of Romania, Part I, nr. 487 of 8 July 2011).
32. Related to the case, the Court finds that the first requirement is fulfilled, Article 153 para. (1) e) of the Treaty on the European Union, Article 27 of the Charter of Fundamental Rights of the European Union and Article 2 and 3 of the Directive are sufficiently clear, precise and unambiguous, especially considering the interpretation given by the Court of Justice of the European Union in the aforesaid judgment. On the second requirement, the Court finds that the content of the legal acts of the European Union protect the right to "information and consultation", supporting and complementing the activities of the Member States, therefore aimed directly at the fundamental right to social protection of labour provided by Article 41 par. (2) of the Constitution as interpreted by this decision, the constitutional text which ensures a standard of protection equal to that resulting from the acts of the European Union. It follows, therefore, that the European Union acts mentioned above have an obvious constitutional relevance, which means, on the one hand, they relate to Article 41 para. (2) of the Constitution by fulfilling both the requirements mentioned above, without violating the national constitutional identity (Decision nr. 683 of 27 June 2012, published in the Official Gazette of Romania, Part I, nr. 479 of 12 July 2012), and, on the other hand, it is for the Constitutional Court to rule on the disparity between the aforementioned European Union acts and national law, respectively the first part of Article 86 para. (6) of Law no. 85/2006. On the latter point, the Court holds that such regulatory non-compliance can be found not only by resorting to resolving the constitutional principle of the priority of application of European Union acts, but by finding an infringement of Article 148 (2) of the Constitution, which requires national law to comply with European Union law (with the distinctions mentioned in Decision No. 80 of 16 February 2014, published in the Official Gazette of Romania, Part I, No. 246, paragraph 455 of 7 April, 2014) and the breach of this Article, when discussing European Union acts with constitutional relevance, must be sanctioned as such by the Constitutional Court. Of course, for the European Union acts which do not have constitutional relevance, the jurisdiction to find disparities between national law and EU law belongs to the general courts (see Decision 668 of 18 May 2011 previously cited).
