Nestor Nestor Diculescu Kingston Petersen
www.nndkp.com
Overview
Rules on age discrimination are provided within the Constitution of Romania of 1991 (republished in the Official Gazette no. 767/2003), the Romanian Labour Code (Law no. 53/2003, published in the Official Gazette no. 72/2003 as subsequently amended and supplemented) and the Government Ordinance no. 137/ 31.08.2000 on preventing and sanctioning all kinds of discrimination (republished in the Official Gazette no. 99/2007).
The Constitution of Romania provides the principle that all the Romanian citizens are equal as regards their rights and obligations.
The Labour Code regulates the principle of equality of treatment in respect of all employers and employees. It expressly provides for definition of both direct and indirect discrimination.
The Government Ordinance no. 137/2000 regulates in detail the discrimination, harassment and victimization, it provides for obligations of both individual persons and legal persons in relation with the non-discrimination principle in all economic and social areas, sanctions applicable in case of breach of such legal provisions, public administrative bodies having attributions in implementing the legal provisions and sanctioning non-conformities.
According to the GO, any different treatment grounded on any of the criteria provided therein (including age) does not represent discrimination in case it is justified and has a legitimate purpose and the methods used to reach such purpose are appropriate and necessary.
The above mentioned GO implements the Directive no. 2000/43/CE implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, as well as the Directive no. 2000/78/CE establishing a general framework for equal treatment in employment and occupation. A well, in drafting the Labour Code there has been taken into account all the EU legislation applicable in the area of non-discrimination and equality of treatment.
Who's covered?
The GO no. 137/2000 represents the specific legislation applicable in area of non-discrimination principle and it applies not only with respect to the employment relationships, but also in other areas such as political, economical, social and cultural rights.
The non-discrimination principle as regulated by the GO covers all individual persons independently of their status (e.g. employees, self-employed, agency workers) and independently of their age. The GO does not provide for any exclusion. Such exclusions may be provided within specific legislation applicable to certain categories of individual persons.
What enforcement/remedies exist?
Non observance of the legal provisions with respect to the equal treatment between persons principle represents administrative offence. The law does not provide for any specific criminal sanctions.
The persons who commit discrimination deeds may be sanctioned by warning or fines, the amount of which depends on whether the discrimination concerns an individual or a group/ community.
The guarantor of the implementation of and compliance with the non-discrimination principle is the National Council for Fighting against Discrimination – NCFD – (independent public administrative body acting under the Parliament’s control). The Council has the authority to investigate, acknowledge and apply sanctions in case of discriminations deeds.
Related to the civil remedies, the person who considers himself/herself as being discriminated is entitled to claim in front of the competent Court of law to be compensated for all damages incurred as a result of a discrimination deed. Such person must prove the damages claimed (both material and moral damages). The amount of the material damages incurred must be proved and the amount of the moral damages claimed shall be established by the Court of law. The law limits provides for no limitations in respect of the amount of the material and moral damages.
As regards the Courts competent to judge cases in the are of the non-discrimination, there must be found two distinct situations:
How common are claims?
The claims related to age discrimination are not common in Romania, although such discrimination can be often found in practice.
Thus, according to report of NCFD for year 2007 from a total number of 836 petitions registered by NFCD only 10 of them were related to the age discrimination, 8 of them being solved during 2007. In only 3 cases the NCFD considered that there is a discrimination case.
The most common criteria of discriminations invoked in front of the NCFD during 2007 were related to the social origin (514 cases), ethnical belonging (82 cases) and disability (70 cases).
What claims are most common and what are trickiest issues for employers?
As mentioned, the claims related to age discrimination are not common in Romania. However, we aspect that most common claims to be related to recruitment. Thus, such claims may be submitted by those candidates who have been rejected on grounds of age.
Legal advice on age discrimination is not common practice.
Are there any specific exceptions in your laws?
In Romania there are exceptions related to the duration of the annual leave, duration of working time, performance of the overtime and night work which represents more favourable treatment for young employees who are under 18 years of age. The collective labour agreements also provide for length of service- related benefits (duration of annual leave, redundancy payments etc.). Lengths of service-related benefits are not necessarily connected with the age but may be a consequence.
Retirement ages
According to the Romanian applicable legislation (Law no. 19/2000) currently (2008) the standard retirement age is 58 years for women and 63 years for men and shall reach to 60 years for women and 65 years for men in 2015.
The Romanian Labour Code expressly provides that the Employer may dismiss the Employee in case he/she fulfils the age retirement conditions and the minimum duration of the period of contribution in the retirement insurance public system and he/she did not submit an application for retirement.
Interesting cases
No interesting cases on age discrimination are publicly available.