Law 234/2021, better known as the Budget Law 2022, introduced significant innovations including the so-called anti-displacement rule (Art. 1, paragraphs 224 to 238) that would have the stated purpose of "ensuring the preservation of the employment and production fabric."
Based on the word provisions, the employer - meeting certain size requirements: paragraph 225 stipulates that "the discipline referred to in paragraphs 224 to 238 applies to employers who, in the previous year, have employed under a contract of employment, including apprentices and managers, an average of at least 250 employees" - "who intends to proceed with the closure of a branch, establishment, subsidiary, or autonomous office or department located in the national territory, with permanent cessation of the relevant activity and with dismissal of a number of workers exceeding 50, is obliged to give written notice of the intention to proceed with the closure to the company trade union representatives or the unitary trade union representation as well as to the territorial branches of the comparatively most representative trade union associations at the national level and, at the same time, to the regions concerned, the Ministry of Labor and Social Policy, the Ministry of Economic Development and the National Agency for Active Labor Policies (ANPAL)."
This burden appears to be only the first in a long series of obligations-which appear, to be fair, to be particularly demanding-imposed on the employer and which do not relate so much to its willingness to relocate, but simply to its intention to cease operations at certain production sites, involving more than 50 redundancies in the assumed restructuring.
The notice referred to above should not be addressed only to trade union representatives, but should be addressed from the outset (unlike the first stage of the collective dismissal procedure under Law no. 223/1991) also to the Institutions (Regions concerned, Ministry of Labor and Social Policies, Ministry of Economic Development and ANPAL), at least 90 days before the start of the dismissal procedure referred to in Article 4 of Law No. 223 of July 23, 1991, indicating the economic, financial, technical or organizational reasons for the closure, the number and professional profiles of the staff employed, as well as the deadline by which the closure is expected.
In addition, as clarified by Paragraph 227, dismissals made in the absence of the notice, or before the expiration of the 90-day period, are null and void.
Despite the onerousness of the provisions set forth above, the obligations of an employer who intends to cease operation of a production site do not end there.
Paragraph 228 provides verbatim that: "Within sixty days of the communication made to the social partners, the employer is required to prepare a plan to limit the employment fallout 2
and economic benefits resulting from the closure. The latter will be presented to the same trade union representatives as above and simultaneously to the regions concerned, the Ministry of Labor and Social Policy, the Ministry of Economic Development and ANPAL."
Such "plan" shall not exceed 12 months in duration and shall indicate:
(a) the actions planned to safeguard employment levels and interventions for the non-traumatic management of possible redundancies, such as the use of social shock absorbers, outplacement with another employer, and the assumed redundancy incentive measures;
(b) actions aimed at reemployment or self-employment, such as training and retraining, including through the use of interprofessional funds (these measures can be co-financed by the regions under their active labor policy measures);
(c) the prospects for the sale of the business or business branches for the purpose of business continuation, including by transferring the business, or branches thereof, to the workers or cooperatives established by them;
(d) any plans for conversion of the production site, including for socio-cultural purposes for the benefit of the area concerned;
(e) the timing and manner of implementation of the planned actions.
In the event that a labor union agreement is reached, the plan is signed, following which the employer assumes the commitment to implement the actions contained therein in the scheduled time and manner. As specified in Paragraph 229: "workers affected by the plan referred to in Paragraph 228, signed pursuant to Paragraph 231, may benefit from the extraordinary wage supplementation treatment."
If no agreement is reached, the employer is subject to the penalty of the dismissal ticket increased by 50 percent.
Before the conclusion of the examination of the plan and its eventual signing, the employer may not initiate the collective dismissal procedure.
The procedure under comment thus appears, on the one hand, to be particularly complex and on the other hand, in some ways, likely to create an overlap of some of its phases with the procedure under Articles 4 and 24 of Law No. 223/1991.
Moreover, it is doubtful that the (obviously unavoidable) needs of industrial policy that drive an entrepreneur to close a production site will be discouraged through the imposition of mere procedural burdens; would it not rather be preferable to initiate active industrial policies, as the only instrument capable of protecting employment levels?
