EUROPEAN COMMITTEE OF SOCIAL RIGHTS

COMITE EUROPEEN DES DROITS SOCIAUX

July 2020

FOURTH REPORT

ON THE NON-ACCEPTED PROVISIONS OF

THE REVISED EUROPEAN SOCIAL CHARTER

ROMANIA

Meeting on 7 November 2019

TABLE OF CONTENTS

I.          SUMMARY .............................................................................................. 3

II.         EXAMINATION OF THE NON-ACCEPTED PROVISIONS .................... 5

III.        EXCHANGE OF VIEWS ON THE COLLECTIVE

COMPLAINTS PROCEDURE ................................................................. 36

Appendix I: Factsheet on provisions of the Charter accepted by Romania ……  37

Appendix II: Programme of the meeting ............................................................... 38

Appendix III: List of participants ........................................................................... 43

I. SUMMARY

1. Background

With respect to the procedure provided by Article 22 of the 1961 Charter – examination of non-accepted provisions – the Committee of Ministers decided in December 2002 that "states having ratified the Revised European Social Charter should report on the non-accepted provisions every five years after the date of ratification" and had "invited the European Committee of Social Rights to arrange the practical presentation and examination of reports with the states concerned" (Decision of the Committee of Ministers of 11 December 2002).

Following this decision, five years after ratification of the Revised European Social Charter and every five years thereafter, the European Committee of Social Rights (ECSR) reviews the non-accepted provisions with the countries concerned, with a view to securing a higher level of acceptance, given that selective acceptance of Charter provisions was meant to be a temporary phenomenon. The aim of the Article 22 procedure is therefore to review the situation after five years and encourage acceptance of more provisions.

Romania ratified the Revised Charter on 7 May 1999, accepting 65 of the 98 paragraphs of the Revised Charter.

At the time of ratification, Romania did not consider it bound by 32 numbered paragraphs of the Revised Charter, namely Art.2§3, Art.3§4, Art.10§§1–5, Art.13§4, Art.14§§1–2, Art.15§3, Art.18§§1–2, Art.19§§1–6,9–12, Art.22, Art.23, Art.26§§1–2, Art.27§§1,3, Art.30 and Art.31§§1–3.

2. Previous Examinations

The procedure provided by Article 22 of the 1961 Charter was applied for the first time in 2004, and a meeting between members of the European Committee of Social Rights and representatives of various Romanian ministries was held in Bucharest on 18 and 19 May 2004.

Following this meeting, the European Committee of Social Rights delegation at the time concluded that acceptance seemed possible in respect of the following Articles: 2§3, 3§4, 15§3, 19§5, 19§9, 22, 26§1, 27§3. The Committee further considered that acceptance was not immediately possible in respect of the following Articles: 13§4, 19§4, 23. As regards the other non-accepted provisions, the Committee was of the view that the information provided was not sufficient to allow an assessment: Articles 10§§1–5, 14§§1–2, 18§§1–2, 19§§1–3, 19§6, 19§10–12, 26§2, 27§1, 30, 31§§1–3.

For the second time, the examination of non-accepted provisions of the Charter took place at a meeting in Bucharest on 6 May 2009. Following this meeting, the European Committee of Social Rights delegation at the time confirmed that from the point of view of the situation in law and in practice there were no obstacles to the immediate acceptance of the following provisions: Articles 2§3, 19§9 and 27§3. Furthermore, the Committee considered that the acceptance of the following provisions was also possible: Articles 10§1, 10§§4–5 and 19§§1–3. Moreover, the Committee considered that, subject to some improvements in practice, Romania could also accept Articles 3§4, 10§3 and 15§3. The Committee further considered that acceptance was not immediately possible in respect of the following provisions: Articles 10§2, 14§§1–2, 18§§1–2, 22, 26§§1–2, 27§1 and 30. Finally, as regards Articles: 19§§4–6, 19§§10–12, 27§2 and 31§§1–3, the Committee found that the information provided was not sufficient to allow an assessment.

With a view to carrying out the procedure for the third time in 2014, the Romanian authorities were invited to provide written information on the non-accepted provisions. The Romanian Government submitted a report on the non-accepted provisions of the European Social Charter on 25 April 2014. Having examined the written information, the Committee observed that from the point of view of the situation in law and in practice there were no obstacles to the immediate acceptance of Articles: 2§3, 10§§1–5, 19§§1–5, 27§1, 27§3. Moreover, the Committee considers that the acceptance of the following provisions was also possible: Article 19§9, 22, 26§§1–2. Furthermore, the Committee considered that, subject to some improvements in practice or with respect to data collection mechanisms, Romania could accept the following provisions: Article 3§4, 14§§1–2, 15§3, 18§1, 19§6, 23. The Committee was of the view that further analysis of the legislation and practice was needed in respect of the following provisions: Article 13§4, 18§2, 30, 31§1. Finally, the Committee considered that the information provided in the report was not sufficient to allow a thorough assessment with regard to Articles: 19§§10–12, 31§§2–3.

3. Current Examination

The third meeting on the non-accepted provisions of the Revised Charter was held in  Bucharest on 7 November 2019. The meeting consisted of an exchange of views and information on the following non-accepted provisions of the Revised Charter:

Ø The right to just working conditions – minimum of paid annual holiday (Art.2§3)

Ø The right to safe and healthy working conditions – promotion of occupational health services (Art.3§4)

Ø The right to vocational training (Art.10§§1–5)

Ø The right to social and medical assistance – equal application of the right to nationals of other Parties lawfully residing in their territories (Art.13§4)

Ø The right to benefit from social welfare services (Art.14§§1–2)

Ø The right of persons with disabilities – access to transport, housing, cultural activities and leisure (Art.15§3)

Ø The right to engage in a gainful occupation in the territory of other Parties-application of existing regulations and simplification of existing formalities (Art.18§§1–2)

Ø The right of migrant workers and their families to protection and assistance (Art.19§§1–6,9–12)

Ø The right to participate in the improvement of working conditions (Art.22)

Ø The right of elderly persons to social protection (Art.23)

Ø The right to dignity at work (Art.26§§1–2)

Ø The right of workers with family responsibilities to equal opportunities and equal treatment (Art.27§§1 and 3)

Ø The right to protection against poverty and social exclusion (Art.30)

Ø The right to housing (Art.31§§1–3)

An exchange of views also took place concerning the Additional Protocol to the European Social Charter providing for a system of collective complaints, with a view to encouraging Romania to accept the procedure.

The European Committee of Social Rights remains at the disposal of the authorities of Romania and encourages them to take the necessary steps towards acceptance of the collective complaints procedure and more provisions of the Revised Charter.

Having examined the information provided by Romanian authorities, the Committee reiterates its earlier finding that from the point of view of the situation in law and in practice there are no obstacles to the immediate acceptance of Article 2§3, Art.10§§1–4, Art.18§2, Art.19§§1–3,5,9, Art.27§1 and 3.

Romania is encouraged to accept also Art.3§4, Art.10§5, Art.14§§1–2, Art.15§3, Art.18§1, Art.19§§4 and 6, Art.22 and Art.26§§1–2, while some additional efforts towards effective implementation and updated information on the situation in practice are needed.

As regards Art.13§4, Art.19§10 and 11, Art.23, Art.30 and Art.31§§1–3, the Government is encouraged to continue its efforts towards ensuring the respective rights both in law and in practice.

The factsheet on the provisions of the Revised Charter accepted by Romania appears in Appendix I. The programme of the meeting appears in Appendix II and the list of participants in Appendix III.

The next examination of the provisions not yet accepted by Romania will take place in 2024.

II. EXAMINATION OF THE NON-ACCEPTED PROVISIONS

The meeting was chaired by Andrada Trușcă from the General Directorate for European Affairs and International Relations, Ministry of Labour and Social Justice.

The opening address was made by Mr Francois Vandamme, Vice-President of the European Committee of Social Rights. Ms Margarita Galstyan, Lawyer of the Department of the European Social Charter of the Council of Europe also made openings remarks.

The Romanian authorities were invited to present the situation in law and in practice in Romania concerning the non-accepted provisions, following which the members of the European Committee on Social Rights presented a summary of the ECSR case law and an opinion on possible acceptance of respective provisions.

Article 2§3 (Right to just working conditions – Minimum of paid annual holiday)

With a view to ensuring the effective exercise of the right to just conditions of work, the Parties undertake:

Ø to provide for a minimum of four weeks’ annual holiday with pay.

Situation in Romania

Presentation of the Romanian situation was made by a representative of the Legal General Directorate of the Ministry of Labour and Social Protection.

The provisions of the Romanian labor law guarantee the right to annual leave of at least 20 working days, according to the provisions of Art.39(1)(c), corroborated with the provisions of Art.144(1) and Art.145(1) of Law no. 53/2003 on Republished Labour Code (as subsequently amended and supplemented). The effective duration of the annual leave is laid down in a relevant collective employment agreement, is stipulated in the individual employment agreement and is granted proportionally to the time worked in one calendar year.

Under Art.146(1) of the Labour Code the leave shall be taken each year. If, for justified reasons, the employee cannot take, in whole or in part, the annual rest leave, the employer is obliged to grant the remaining rest leave within a period of 18 months following the year when the right to annual leave was acquired, in accordance with Art.146(2) of the Labour Code. The cash compensation of the leave not taken is only allowed at the cessation of the individual employment contract, according to Art.146(3) of the Labour Code.

Opinion of the European Committee of Social Rights

The Committee provided information concerning interpretation and case law on Article 2§3. Article 2§3 guarantees the right to a minimum of four weeks (or 20 working days) annual holiday with pay. The taking of annual holiday may be subject to the requirement that the twelve working months for which it is due have fully elapsed.

Annual leave may not be replaced by financial compensation and employees must not have the option of giving up their annual leave. This principle does not prevent however the payment of a lump sum to an employee at the end of his employment in compensation for the paid holiday to which he was entitled but which he had not taken.

At least two weeks uninterrupted annual holidays must be used during the year the holidays were due. Annual holidays exceeding two weeks may be postponed in particular circumstances defined by domestic law, the nature of which should justify the postponement.

Workers who suffer from illness or injury during their annual leave are entitled to take the days lost at another time so that they receive the four week annual holiday provided for under this paragraph, possibly under the condition of producing a medical certificate

Considering the legal situation in Romania as described above, the Committee encourages the Romanian authorities to immediately accept Art.2§3 of the Charter.

Article 3§4 (Right to safe and healthy working conditions – promotion of occupational health services)

With a view to ensuring the effective exercise of the right to safe and healthy working conditions, the Parties undertake, in consultation with employers’ and workers’ organisations:

Ø to promote the progressive development of occupational health services for all workers with essentially preventive and advisory functions.

Situation in Romania

Presentation of the Romanian situation was made by a representative of the Department for Health and Safety at Work of the Ministry of Labour and Social Protection.

The Labour Code (Law no. 53/2003) stipulates the right of employees to adequate health and safety working conditions (Art.6(1)) and guarantees workers’ right to health and safety at work (Art.39(f)). Title V on health and safety at work of the Labour Code regulates the employer’s obligation to ensure workers’ health and safety in all work-related aspects.

The Law on Occupational Safety and Health no.319/2006 (with subsequent amendments) applies to all activities in public and private sectors, and to workers. In accordance with Art.24 of Law no.319/2006 (with subsequent amendments), the measures to ensure the proper supervision of the workers' health according to the risks regarding the safety and health at work are established by the Government Decision no. 355/2007 (with subsequent amendments) regarding supervision of workers' health.

Government Decision no.355/2007 (with subsequent amendments) establishes the minimum requirements for the supervision of the workers' health in relation to the risks for safety and health, for the prevention of the workers' illness with occupational diseases caused by chemical, physical, physic-chemical or biological agents, characteristic of the place of work, as well as the overloading of the different body systems in the work process.

 

The Ministry of Health is the competent authority in the field of occupational medicine and the supervision of the health of workers. The supervision of the workers' health is conducted by the occupational medicine specialist doctor in accordance with the Law no. 418/2004 regarding the status of the occupational medicine doctors.

In 2018, under the coordination of the Ministry of Labour and the Ministry of Health, which are the national authorities competent in the field of occupational safety and health, the National Strategy in the field of occupational safety and health was developed for the period 2018–2020. The National Strategy was approved by Government Decision no.191/2018.

The National Action Plan for the implementation of the National Strategy in the field of occupational safety and health for the period 2018–2020 has foreseen:

-       under the specific objective "Improvement of the legal framework in the field of SSM", actions towards increasing the quality and competitiveness of occupational health service providers;

-       under the specific objective "Improvement of the process that aims to comply with the legislation in the field of occupational safety and health through actions of the authorities with responsibilities in the field", actions towards improving the knowledge related to health promotion and the application of the legislation in the field of occupational medicine and monitoring the quality of occupational medicine services, public and private.

According to the Government Decision no.191/2018, the final evaluation of the results of the actions included in the National Action Plan will take place at the beginning of 2021, and the quantitative and qualitative data will be provided by the Ministry of Health.

However, for the time being information about the quantitative indicators related to Art.3§4 of the Charter regarding the number of occupational medicine doctors and the number of workers who benefit from health surveillance measures was not available.

Opinion of the European Committee of Social Rights

The Committee provided information concerning interpretation and case law on Article 3§4. Article 3§4 requires to promote, in consultation with employers’ and workers’ organisations, the progressive development of occupational health services. Such services shall be accessible to all workers, in all branches of economic activity and for all enterprises. If those services are not established within all enterprises, public authorities must develop a strategy, in consultation with employers’ and workers’ organisations, for that purpose.

Under Article 3§4 States Parties must take measures that allow to achieve the objectives within a reasonable time, with measurable progress and to an extent consistent with the maximum use of available resources. Any strategy to promote the progressive development of occupational health services must include the full national territory, cover nationals of other States Parties, and not only some branches of activity, major enterprises or especially severe risks, but all types of workers.

Relevant indicators to assess the conformity with Article 3§4 are the number of occupational physicians, the number of enterprises providing occupational health services, as well as the number of workers supervised by those services  compared to the total workforce, and compared to the previous reference period. The ratification of ILO Occupational Health Services Convention No. 161 (1985) and the transposition of the Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work are also relevant. The impact of the strategy to promote the progressive development of occupational health services in small and medium-sized enterprises shall be assessed.

Occupational health services have essentially preventive and advisory functions, which are specialised in occupational medicine, beyond safety at work. They contribute to conducting workplace-related risk assessment and prevention, to worker health supervision, to training in matters of occupational safety and health, as well as to assessing working conditions impact on worker health. They must be trained, endowed and staffed to identify, measure and prevent work-related stress, aggression and violence

The Committee notes that Romania has transposed the Council Directive 89/391/EEC, but has not ratified the ILO Occupational Health Services Convention No. 161. Whereas the legal framework and the National Strategy in the field of occupational safety and health in Romania adhere to the requirements of Art.3§4, further information is needed on the practical implementation of the strategy. The Committee encourages the authorities to monitor the situation in practice and collect data on indicators related to occupational health services, such as the number of workers benefitting from occupational health services, the conditions of access to these services, the number of occupational physicians and occupational health service providers.

Article 10 (Right to vocational training)

With a view to ensuring the effective exercise of the right to vocational training, the Parties undertake:

Article 10§1

Ø  to provide or promote, as necessary, the technical and vocational training of all persons, including the handicapped, in consultation with employers’ and workers’ organisations, and to grant facilities for access to higher technical and university education, based solely on individual aptitude;

Situation in Romania

Presentation of the Romanian situation as regards Art.10§1 was made by a representative of the Ministry of National Education.

The relevant legal framework includes:

-       Law of national education no. 1/2011 (Title III - Higher education)

-       Law no. 132/1999 on the establishment and operation of the National Council for Adult Vocational Training

-       Government Decision no. 129/2000 on training of adults

-       Order no. 4543/468 approving procedure for evaluation and certification of skills obtained in other than formal contexts  

For the initial vocational training, the right to vocational training is ensured in upper secondary education, and high school technological education, vocational education and so-called dual education (which is a form of organization of vocational education). Non-university tertiary education is ensured through post-secondary education, which includes post-secondary and foreman's schools. However, a functional mechanism for recognizing the results of the learning acquired in the vocational education and the technological high school in order for students to enter tertiary education is currently missing.

The right to vocational training is ensured in public higher education institutions according to the Law of national education no. 1/2011 (Title III - Higher education), with later amendments.

There are strategic plans of vocational education and training at regional, county and educational unit level: Regional Action Plan for Education, Local (County) Action Plan for Education, and School Action Plans. These aim to increase the relevance of the IPT offer for the labor market and are elaborated in participation of local authorities, county employment agencies, chambers of commerce, employers, professional associations, trade unions and NGOs.

Statistical data on the offer and utilization of vocational training is collected by the National Center for the Development of Vocational and Technical Education.

Opinion of the European Committee of Social Rights

The Committee provided information concerning interpretation and case law on Article 10§1. The right to vocational training must be guaranteed to everyone. In order to provide for vocational training States must:

– ensure general and vocational secondary education, university and non-university higher education; and other forms of vocational training;

– build bridges between secondary vocational education and university and non-university higher education;

– introduce mechanisms for the recognition/validation of knowledge and experience acquired in the context of training/working activity in order to achieve a qualification or to gain access to general, technical and university higher education;

– take measures to make general secondary education and general higher education qualifications relevant from the perspective of professional integration in the job market;

– introduce mechanisms for the recognition of qualifications awarded by continuing vocational education and training.

In the light of the case law and the current legal framework which covers all forms of technical and vocational training, the Committee considers that Article 10§1 could be immediately accepted by Romania.

Article 10§2

Ø to provide or promote a system of apprenticeship and other systematic arrangements for training young boys and girls in their various employments;

Situation in Romania

Presentation of the Romanian situation as regards Art.10§2 was made by a representative of the Directorate for Employment Policies, Skills and Professional Mobility of the Ministry of Labour and Social Protection.

According to the Labor Code, Article 209, the person employed on the basis of an apprenticeship contract has the status of apprentice. The apprentice benefits from the provisions applicable to the other employees, insofar as they are not contrary to those specific to his status. Apprenticeship in the workplace is further regulated by Law no. 279/2005 (with later amendments) and Government Decision no. 855/2013 on methodological norms for applying the provisions of Law no. 279/2005.

In 2019, the Law no. 279/2005 on apprenticeships was amended to provide for the possibility to organise workplace apprenticeships for level 1 qualifications with a duration up to 6 months. Accordingly, graduates of primary education have access to level 1 vocational training, apprenticeships, to improve their knowledge, abilities and skills in personal, civic, social and/or occupational contexts, allowing them to take up jobs that require basic general knowledge and specific skills.

Apprenticeship at the workplace concerns people over 16 years, who learn from real, concrete professional situations by practicing an occupation directly at a workplace. Apprenticeship is carried out on the basis of an individual employment contract of a particular type, concluded for a fixed period, between the employer and the apprentice, in written form. The contract is registered with the territorial county labor inspectorate. The employer undertakes to ensure the payment of the apprentice and all necessary conditions for training, including pedagogical support by appointing a qualified apprenticeship coordinator.

The number of apprenticeship contracts has rapidly increased. In 2018 the number of concluded apprenticeship contracts was 503. By the end of September 2019, the number of apprenticeship contracts had already reached 3,926.

Opinion of the European Committee of Social Rights

The Committee provided information concerning interpretation and case law on Article 10§2. According to Article 10§2, young people have the right to access to apprenticeship and other training arrangements. Apprenticeship can mean training based on a contract of employment between the employer and the apprentice and leading to vocational education; whereas other training arrangements may consist of school-based vocational training. They both must combine theoretical and practical training and close ties must be maintained between training establishments and the working world. Apprenticeship is assessed on the basis of the following elements: length of the apprenticeship and division of time between practical and theoretical learning; selection of apprentices; selection and training of trainers; termination of the apprenticeship contract. The main indicators of compliance with Art.10§2 are:

-       the existence of apprenticeships or other training arrangements for young people;

-       the quality of these trainings i.e. the number of people enrolled, the total spending, both public and private, on these types of training and the availability of places for all those seeking them.

Equal treatment with respect to access to apprenticeship and other training arrangements must be guaranteed to nationals of other Parties lawfully resident or regularly working on the territory of the Party concerned, while no length of residence may be required.

In the light of the legal situation and practice on apprenticeships, the Committee considers that Article Art.10§2 could be immediately accepted by Romania.

Article 10§3

Ø to provide or promote, as necessary:

a. adequate and readily available training facilities for adult workers;

b. special facilities for the re-training of adult workers needed as a result of technological development or new trends in employment;

Situation in Romania

Presentation of the Romanian situation as regards Art.10§3 was made by a representative of the Directorate for Employment Policies, Skills and Professional Mobility of the Ministry of Labour and Social Protection.

Law no. 53/2003 on the Labour Code (with later amendments) Title VI – Training regulates the training of employees. Professional training of adults is further stipulated in the Ordinance of the Government no. 129/2000.

The main objectives of the professional training of the employees are the adaptation of the employee to the demands of the job or of the place of work; the professional reconversion caused by socio-economic restructuring; and prevention of the risk of unemployment. The professional training of the employees can be achieved by: a) participating in courses organised by the employer or by the providers of professional training services; internships of professional adaptation to the demands of the job and of the job; internships and internships at home and abroad; organised apprenticeship at the workplace (Article 192 of the Labour Code). Employers bear the costs of participating in vocational training programmes (Article 194 of the Labour Code).

Opinion of the European Committee of Social Rights

The Committee provided information concerning interpretation and case law on Article 10§3.

The right to continuing vocational training must be guaranteed to employed and unemployed persons, including young unemployed people. For both employed and unemployed persons, the main indicators of compliance with this provision are the types of continuing vocational training and education available on the labour market, training measures for certain groups, such as women, the overall participation rate of persons in training and the gender balance, the percentage of employees participating in continuing vocational training, and the total expenditure.

In the light of the current legal situation and practice, the Committee is of the opinion that Art.10§3 could be immediately accepted by Romania.

Article 10§4

Ø to provide or promote, as necessary, special measures for the retraining and reintegration of the long-term unemployed;

Situation in Romania

Presentation of the Romanian situation as regards Art.10§4 was made by a representative of the National Agency for Employment.

Law no 76/2002 on unemployment insurance and stimulation of employment (with later amendments) defines the long-term unemployed person as a person who is unemployed for a period of more than 12 months, in the case of persons of minimum 25 years old or for a period of 6 months in the case of persons between 16–25 years old.

The employment agency at territorial level concludes with each registered long-term unemployed person (who does not qualify for the Youth Guarantee) a written labour integration agreement, with an objective to find a job within 18 months from registration as unemployed (Article 58 (5) of Law no. 76/2002).

Long-term unemployed are one of the target groups in the national training plans implemented by the National Employment Agency. The National Employment Agency also provides incentives to employers by subsidizing the jobs of long-term unemployed. The employers who hire long-term unemployed on indefinite term contracts receive monthly 2,250 Lei for a period of 12 months, for each employed person, with the obligation to maintain employment or service relationships at least 18 months.

Opinion of the European Committee of Social Rights

The Committee provided information concerning interpretation and case law on Article 10§4.

In accordance with Article 10§4, States must fight long-term unemployment through retraining and reintegration measures. A person who has been without work for 12 months or more is long-term unemployed. The main indicators of compliance with this provision are the types of training and retraining measures available on the labour market, the number of persons in this type of training, the special attention given to young long-term unemployed, and the impact of the measures on reducing long-term unemployment.

In the light of the case law and the current legal situation and practice, the Committee considers that Romania could accept Article 10§4 without further delay.

Article 10§5

Ø to encourage the full utilisation of the facilities provided by appropriate measures such as:

a. reducing or abolishing any fees or charges;

b. granting financial assistance in appropriate cases;

c. including in the normal working hours time spent on supplementary training taken by the worker, at the request of his employer, during employment;

d. ensuring, through adequate supervision, in consultation with the employers’ and workers’ organisations, the efficiency of apprenticeship and other training arrangements for young workers, and the adequate protection of young workers generally (Art. 10§5);

Situation in Romania

Presentation of the Romanian situation as regards Art.10§5 was made by a representative of the Ministry of National Education.

Financial assistance is provided to students in vocational education through scholarships under the Professional Scholarship Program. Monitoring of the program is the responsibility of the National Commission for monitoring the award of the professional scholarships within the Ministry of Education and Research. According to the Government Decision no. 951/2017 (Article 2(2)) equal treatment of foreigners, respectively of the citizens of the European Union/European Economic Area and Swiss Confederation with the right of residence in the territory of Romania, who attend vocational education, shall be ensured as regards the payment of professional scholarships.

According to Law no 76/2002 on unemployment insurance and stimulation of employment, the unemployed persons and persons from disadvantaged groups registered with employment agencies, as well as the employed, on request, by agreement of or on request of the employer, are entitled to free training services.

The time spent by the employee in training or internship organised by the employer is deemed working time. According to Article 197 (3) of the Labour Code (Law no. 53/2003 with later amendments), should participation in the vocational training courses or internships involve the complete removal from the field, the individual employment contract of that employee shall be suspended, and the employee shall receive a benefit paid by the employer, as provided for in the applicable collective labour agreement or in the individual employment contract.

Opinion of the European Committee of Social Rights

The Committee underlined the core aspects of interpretation and case-law with regard to Article 10§5, which provides for complementary measures to make access to vocational training effective in practice.

Under Article 10§5(a) States must ensure that vocational training is provided free of charge or that fees are progressively reduced. Under Article 10§5(b) States must provide financial assistance either universally, or subject to a means-test, or awarded on the basis of the merit. In any event, assistance should at least be available for those in need and shall be adequate. It may consist of scholarships or loans at preferential interest rates. The number of beneficiaries and the amount of financial assistance are also taken into consideration for assessing compliance with this provision. The granting of financial assistance to students and trainees shall be based on equal treatment between own nationals and nationals of other States Parties lawfully resident or regularly working, while no length of residence may be required. For a thorough assessment of the situation in practice, the Committee seeks additional information on the types and nature of financial assistance available and the conditions of entitlement.

With regard to Article 10§5(c), the time spent on supplementary training at the request of the employer must be included in the normal working-hours. With regard to Article 10§5(d), states must evaluate their vocational training programmes for young workers, including the apprenticeships. In particular, the participation of employers’ workers’ organisations is required in the supervision process.

The Committee considered that the legislation in Romania fulfilled most of the requirements of Article 10§5. Some further clarifications on implementation, in particular on any fees charged, is needed in order to assess of the situation in practice.

Article 13§4 (Right to social and medical assistance-equal application of the right to nationals of other Parties lawfully residing in their territories)

With a view to ensuring the effective exercise of the right to social and medical assistance, the Parties undertake:

Ø to apply the provisions referred to in paragraphs 1, 2 and 3 of this article on an equal footing with their nationals to nationals of other Contracting Parties lawfully within their territories, in accordance with their obligations under the European Convention on Social and Medical Assistance, signed at Paris on 11th December 1953.

Situation in Romania

Presentation of the Romanian situation was made by a representative of the National Health Insurance House.

The applicable legislation in Romania includes:

-       Law no. 292/2011 on social assistance (with later amendments) and related regulations on social assistance benefits;

-       Government Decision no. 867/2015 approving the list of social services, and the framework regulations for the organisation and delivery of social services. The latter includes code 8899 CPCSA Reception and accommodation centres for asylum seekers and persons granted a form of protection in Romania.

-       Law no. 95/2006 on the health reform (with later amendments) and the subsequent normative acts:

o   Government Decision no. 140/2018 for the approval of the services packages and the Framework Contract that regulates the conditions of the provision of medical assistance, medicines and medical devices within the health insurance system for the years 2018–2019 (with later amendments), and

o   Order of the Minister of Health and the President of the National Health Insurance House (CNAS) no. 397/836/2018 for the approval of the Methodological Norms for the application in 2018 of the provisions of H.G. No.140/2018 (with later amendments, which inter alia extended its applicability until 31 December 2019).

In the social health insurance system of Romania, patients of the Member States of the European Union, European Economic Area and Swiss Confederation, holders of the European Health Insurance Card as well as patients from the states with which Romania has concluded international agreements in the field of health, benefit from the emergency medical services, including ambulance services, medical-surgical services, primary health care, specialized outpatient care, and emergency dental care.

Opinion of the European Committee of Social Rights

The Committee provided information concerning interpretation and case law on Article 13§4. The personal and material scope of Article 13§4 are defined by the text of Article 13§4 itself and by the Appendix of the Charter.

 

Article 13§4 grants non-resident foreign nationals entitlement to emergency social and medical assistance. The personal scope of Article 13§4 differs from that of other Charter provisions. In accordance with the Appendix, Article 13§4 refers to “nationals of other Contracting Parties lawfully within their territories”. Accordingly, the beneficiaries of this right to emergency social and medical assistance are foreign nationals who are lawfully present in the country but do not have resident status. No condition of length of presence can be set on the right to emergency assistance.

States Parties are required to provide non-resident foreigners without resources emergency social and medical assistance (accommodation, food, emergency care and clothing) to cope with an urgent and serious state of need. The States shall not interpret too narrowly the “urgency” and “seriousness” criteria. At the same time, the States are not required to apply the guaranteed income arrangements.

The provision of free emergency medical care must be based on the individual’s particular state of health. Migrant minors in a country are entitled to receive health care extending beyond urgent medical assistance and including primary and secondary care, as well as psychological assistance, even if they are in an irregular situation.

As regards the emergency social assistance, there shall be a right to appeal to an independent body and a proper administration of shelter distribution. This right must be effective in practice.

The reference to the 1953 European Convention on Social and Medical Assistance does not affect the personal and material scope of Art.13§4. The only link between Art.13§4 and the 1953 Convention concerns the conditions under which States Parties can repatriate non-resident foreigners without resources on the ground that they are in need of assistance, namely that the persons are in a fit state of health to be transported (Article 7.a.ii of the 1953 Convention). This option may only be applied in the greatest moderation and where there is no objection on humanitarian grounds. States that are bound by Article 13§4 must also comply with the 1953 Convention provisions as regards repatriation of nationals of States Parties that have not ratified the Convention.

The Committee stresses that under Article 13§4 emergency social and medical assistance shall be granted to foreign nationals who are lawfully present in Romania, but do not have resident status, and certain cases also to persons in irregular situations. The Committee invites Romania to continue its consideration of this provision with a view to its possible acceptance.

Article 14§§1–2 (Right to benefit from social welfare services)

With a view to ensuring the effective exercise of the right to benefit from social welfare services, the Parties undertake:

Ø to promote or provide services which, by using methods of social work, would contribute to the welfare and development of both individuals and groups in the community, and to their adjustment to the social environment (Art.14§1);

Ø to encourage the participation of individuals and voluntary or other organisations in the establishment and maintenance of such services (Art.14§2).

Situation in Romania

Presentation of the Romanian situation was made by a representative of the Directorate for Social Services Policies of the Ministry of Labour and Social Justice.

The relevant legal framework includes the following pieces of legislation:

-       Law no. 292/2011 on social assistance (with later amendments);

-       Law no.197/2012 on quality assurance in social services (with later amendments);

-       Government Decisions no.118/2014 and 476/2019 on the rules for implementation of Law no. 197/2012 on quality assurance in social services;

-       Government Decision no. 867/2015 on the classification of social services, and the framework regulations for the organisation and delivery of social services;

-       Order of the Minister of Labour, Family, Social Protection and the Elderly no. 424/2014 on the specific criteria for the accreditation of providers of social services;

-       Order of the Ministry of Labour and Social Justice no. 29/2019 on the minimum quality standards for the accreditation of social services provided to the elderly, homeless, youth leaving the child protection system and other categories of adults in difficulty, and for community-based services, integrated services and soup kitchens.

The Law no. 292/2011 on social assistance regulates the general framework for the organization, functioning and financing of the national social assistance system in Romania. Government Decision no. 867/2015 stipulates the classification and codification of social services, and framework regulations for the organisation and delivery of social services. Social services are provided by public or private providers, accredited by the Ministry based on Law no.197/2012 on quality assurance in the field of social services. The minimum quality standards used for the licensing of social services cover the following aspects: the purpose of the social service and the specific of the activities carried out; the basic needs of the beneficiaries; the quality of life and the safety of the beneficiaries (the right to self-determination, the right to choose services, the right to be informed and consulted in decision making, etc.); the quality of the management and the competence of the specialised personnel; respecting the economic-financial discipline. Supervision, monitoring and evaluation of social services are the responsibility of the National Agency for Payments and Social Inspection.

The source of financing of social services provided by the local public administration authorities are the local budgets and ear-marked funds from the state budget for the functioning of the social services organised at the level to the territorial-administrative units. Social services are purchased by local public administration from public and private providers by using contracting in compliance with legislation applicable to public procurement.

Pursuant to the Government Decision no. 427/2018, the Ministry is running two national programmes: "Community services at home for elderly dependent persons" and "Increasing the capacity of public social assistance services in some administrative-territorial units”.

Opinion of the European Committee of Social Rights

The Committee provided information concerning interpretation and case law on Article 14§1–2.

The right to benefit from social welfare services provided for by Article 14§1 requires Parties to set up a network of social services to help people to reach or maintain well-being and to overcome any problems of social adjustment. The provision of social welfare services concerns everybody who find themselves in a situation of dependency, in particular the vulnerable groups and individuals who have a social problem. Social services include in particular counselling, advice, rehabilitation and other forms of support from social workers, home help services (assistance in the running of the home, personal hygiene, social support, delivery of meals), residential care, and social emergency care (shelters).

The rights of beneficiaries of services shall be protected: any decision should be made in consultation with and not against the will of the client; remedies shall be available in terms of complaints and a right to appeal to an independent body in cases of discrimination and violation against human dignity.

Social services may be provided subject to fees, fixed or variable, but fees must not be so high as to prevent the effective access of these services.

The geographical distribution of these services shall be sufficiently wide; staff shall be qualified and in sufficient numbers; and there must be mechanisms for supervising the adequacy of services, public as well as private.

The Committee considered that the legislation in Romania fulfilled most of the requirements of Article 14§§1–2. Further information on implementation, in particular on the effective access to a range of social services in different local areas, applicable fees for clients, and public resources allocated for financing social services, is needed in order to assess the situation in practice.

Article 15§3 (Right of persons with disabilities – access to transport, housing, cultural activities and leisure)

With a view to ensuring to persons with disabilities, irrespective of age and the nature and origin of their disabilities, the effective exercise of the right to independence, social integration and participation in the life of the community, the Parties undertake, in particular to promote their full social integration and participation in the life of the community in particular through measures, including technical aids, aiming to overcome barriers to communication and mobility and enabling access to transport, housing, cultural activities and leisure.

Situation in Romania

Presentation of the Romanian situation was made by a representative of the National Authority for People with Disabilities.

The relevant legal framework includes the following pieces of legislation:

-       Law no. 448/2006 on the protection and promotion of the rights of disabled persons;

-       Government Decision no. 268/2007 on the Rules for implementation of Law no. 448/2006;

-       Law no. 221/2010 on the ratification by Romania of the UN Convention on the Rights of Persons with Disabilities;

-       Expeditious Ordinance of the Government no. 8/2018 amending and supplementing Law 95/2005 on the reform of the healthcare system;

-       Order of the Minister of Labour and Social Justice no. 82/2019 on the quality standards for social services provided to disabled persons.

Law no. 448/2016 on the protection and promotion of the rights of persons with disabilities (with later amendments) specifies that persons with disabilities have the right to housing, the arrangement of the personal living environment, transport, access to the physical, informational, communicational environment, as well as to the leisure, access in culture, sport, and tourism (Art.6(e) and (f)).

The Expeditious Ordinance of the Government no. 8/2018  extended the list of medical devises to include assistive and accessibility technologies.

The Order of the Minister of Labour and Social Justice no. 82/2019 stipulates that social services provided in residential and day centres include activities to support independent living skills (maintain/develop cognitive, daily, communication, mobility, self-care, self-management, interaction skills) and assistance for decision making. 

As regards access of persons with disabilities to culture, sport and tourism, Article 21 of Law no. 448/2006 stipulates that, the competent authorities of the public administration have the obligation to facilitate the access of persons with disabilities to the values of culture, to the objectives of heritage, tourism, sports and leisure. The specific measures to be taken by public administration authorities in this regard are:

- supporting the participation of persons with disabilities and their families in cultural, sporting and touristic events;

- organising, in collaboration or partnership with legal persons, public or private, cultural and sporting events and activities for leisure;

- providing conditions for the practice of sports by persons with disabilities;

- supporting the activity of sports organisations of persons with disabilities.

Children with disabilities, as well as the accompanying person, benefit from free admission tickets to shows, museums, artistic and sporting events. Adults with severe disabilities and accompanying persons benefit from free admission to shows, museums, artistic and sporting events, whereas adults with moderate or light disability benefit from reduced price of entrance tickets under the same conditions as students.

Regarding the rights of persons with disabilities to transport, Article 22 of Law no. 448/2006 specifies that the authorities of the local public administration have the obligation to take specific measures to ensure the public transport for the persons with disabilities, including purchasing adapted means of public transport; adapting the means of public transport in circulation within the possible technical limits; carrying out transport services for persons with disabilities. Persons with severe disabilities benefit from free access on all lines to public urban transport, as well as from free interurban transport by any type of train, within the limits of the cost of a ticket for the second class interregional train, with buses or ships for river transport, for a fixed number of round trips per calendar year.

Opinion of the European Committee of Social Rights

The Committee provided information on interpretation and case-law with regard to Article 15§3.

Under Art.15§3 there shall be comprehensive non-discrimination legislation covering both the public and private sphere in fields such as housing, transport, telecommunications and cultural and leisure activities. Such legislation may consist of general anti discrimination legislation, specific legislation or a combination of the two. There shall also be effective remedies for those who have been treated unlawfully.

States shall adopt a coherent policy in the disability context which includes positive action measures to achieve the goals of social integration and full participation of persons with disabilities. Such measures should have a clear legal basis and be coordinated, and people with disabilities should have a voice in the design, implementation and review of such policy.

States shall also remove barriers to communication and mobility to enable access to transport (land, rail, sea and air), housing (public, social and private), cultural activities and leisure (social and sporting activities). They shall establish mechanisms to assess the barriers to communication and mobility faced by persons with disabilities, and identify the support measures that are required to assist them in overcoming these barriers. All public transport vehicles, all newly constructed or renovated public buildings, facilities and buildings open to the public should be physically accessible, and there shall be tangible progress in adapting existing environment.

Technical aids (prostheses, walkers, wheelchairs, guide dogs etc) must be available either free of charge or subject to an appropriate contribution towards their cost and taking into account the beneficiary’s means. Support services (such as personal assistance and auxillary aids) must be available, either free of charge or subject to an appropriate contribution towards their cost and taking into account the beneficiary’s means. Telecommunications and new information technology must be accessible, and sign language must have an official status.

The needs of persons with disabilities must be taken into account in housing policies, including the construction of an adequate supply of suitable housing including social housing. Financial assistance should be provided for the adaptation of existing housing.

In the light of Committee’s case law and the current legal framework in Romania, Article 15§3 could be accepted by Romania, considering also that Romania is bound by the UN Convention on the Rights of Persons with Disabilities. The situation in practice would be of importance in order to assess how the effective exercise of the right to independence, social integration and participation in the life of the community of persons with disabilities is ensured.

Article 18§§1–2 (Right to engage in a gainful occupation in the territory of other Parties – application of existing regulations and simplification of existing formalities)

With a view to ensuring the effective exercise of the right to engage in a gainful occupation in the territory of any other Party, the Parties undertake:

Ø to apply existing regulations in a spirit of liberality (Art.18§1);

Ø to simplify existing formalities and to reduce or abolish chancery dues and other charges payable by foreign workers or their employers (Art.18§2).

Situation in Romania

Presentation of the Romanian situation was made by a representative of the General Inspectorate for Immigration.

Foreign and migrant workers may have access to regulated positions and professions only in compliance with the special laws laying down the requirements for carrying out such work (e.g. physicians, pharmacists, lawyers, etc);

Law no. 247/2018 amending and supplementing certain regulations on the status of foreigners in Romania (Ordinance of the Government no. 941/2018) came into force on 9 November 2018. The Law amended the Expeditious Ordinance of the Government no. 194/2002 on the regime of foreigners in Romania and the Ordinance of the Government no. 25/2014 on the employment and posting of foreigners in Romania, approximating the Directive (EU) 2016/801 of the European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing. The changes in the Law on the employment of foreign citizens in Romania covered, among others, the easing of requirements for the issuance of work permits for permanent, internship and cross-border workers, through the simplification of the selection procedures applied by the employers, as well as through the reduction of the fees charged for the issuance of these documents.

Opinion of the European Committee of Social Rights

The Committee provided information concerning interpretation and case law on Article 18§1–2.

Article 18 applies to employees and the self-employed who are nationals of States which are party to the Charter. It also covers members of their family allowed into the country for the purposes of family reunion. Article 18 relates not only to workers already on the territory of the State concerned, but also to workers outside the country applying for a permit to work on the territory.

The assessment of the degree of liberality used in applying existing regulations is based on figures showing the refusal rates for work permits. To this end, the figures supplied must be broken down by country and must also distinguish between first-time applications and renewal applications.

Economic or social reasons might justify limiting access of foreign workers to the national labour market. This may occur, for example, with a view to addressing the problem of national unemployment by means of favouring employment of national workers. However, the implementation of such policies limiting access of third-country nationals to the national labour market, should neither lead to a complete exclusion of nationals of non-EU (or non-EEA) States parties to the Charter from the national labour market, nor substantially limit the possibility for them of acceding the national labour market.

Formalities and dues and other charges governing the employment are dealt with specifically under Art.18§2. Conformity with Article 18§2 presupposes the possibility of completing such formalities in the country of destination as well as in the country of origin and obtaining the residence and work permits at the same time and through a single application. It also implies that the documents required (residence/work permits) will be delivered within a reasonable time. States Parties are under an obligation to reduce or abolish chancery dues and other charges paid either by foreign workers or by their employers. In order to comply with such an obligation, States must, first of all, not set an excessively high level for the dues and charges in question that is a level likely to prevent or discourage foreign workers from seeking to engage in a gainful occupation, and employers from seeking to employ foreign workers.

In addition, States have to make concrete efforts to progressively reduce the level of fees and other charges payable by foreign workers or their employers. States are required to demonstrate that they have taken measures towards achieving such a reduction. Otherwise, they will have failed to demonstrate that they serve the goal of facilitating the effective exercise of the right of foreign workers to engage in a gainful occupation in their territory.

In the light of the Committee’s case law and the current legal situation and practice in Romania, the Committee considers that Romania could accept Article 18§§1 and 2. To permit full assessment of the situation in practice as regards Article 18§1, data on the refusal rates for work permits needs to be collected by authorities.

Article 19 (Right of migrant workers and their families to protection and

assistance)

With a view to ensuring the effective exercise of the right of migrant workers and their families to protection and assistance in the territory of any other Party, the Parties undertake:

Article 19§1

Ø to maintain or to satisfy themselves that there are maintained adequate and free services to assist such workers, particularly in obtaining accurate information, and to take all appropriate steps, so far as national laws and regulations permit, against misleading propaganda relating to emigration and immigration;

Situation in Romania

Presentation of the Romanian situation was made by a representative of the General Inspectorate for Immigration.

Law no. 544/2001 on free access to information of public interest establishes the obligation of each public institution to communicate information of public interest, including normative acts that regulate the organisation and functioning of the public authority or institution; and the list of documents of public interest.

Every public institution that has competences regarding the management of the legal regime of foreigners, management of labour relations, access to services, education and health, social security etc., has the obligation to publicise all the relevant information both in the online environment, on their own websites, as well as on time, at the express request of the interested person. The information can also be provided during the information campaigns carried out by each institution, both on the national territory and through the diplomatic representatives of Romania abroad.

In order to increase the awareness among those responsible for the implementation of the law, professional training of civil servants engaged in activities with migrant workers is carried out. The General Inspectorate for Immigration and the Labour Inspectorate organise information campaigns concerning foreigners and their workplaces.

Opinion of the European Committee of Social Rights

The Committee provided information concerning interpretation and case law on Article 19§1.

Art.19§1 guarantees the right to free information and assistance to nationals wishing to emigrate and to nationals of other States Parties who wish to immigrate. Information should be reliable and objective and cover issues such as formalities to be completed and the living and working conditions they may expect in the country of destination (such as vocational guidance and training, social security, trade union membership, housing, social services, education and health).

Another obligation under this provision is that States Parties must take measures to prevent misleading propaganda relating to immigration and emigration. Such measures should prevent the communication of misleading information to nationals leaving the country and act against false information targeted at migrants seeking to enter.

To be effective, action against misleading propaganda should include legal and practical measures to tackle racism and xenophobia as well as women trafficking. Such measures, which should be aimed at the whole population, are necessary inter alia to counter the spread of stereotyped assumptions that migrants are inclined to crime, violence, drug abuse or disease. States Parties must also take measures to raise awareness amongst law enforcement officials, such as awareness training of officials who are in first contact with migrants.

In the light of the Committee’s case law and the current legal situation and practice in Romania, the Committee considers that Article 19§1 could be immediately accepted by Romania.

Article 19§2

Ø to adopt appropriate measures within their own jurisdiction to facilitate the departure, journey and reception of such workers and their families, and to provide, within their own jurisdiction, appropriate services for health, medical attention and good hygienic conditions during the journey;

Situation in Romania

Presentation of the Romanian situation was made by a representative of the General Inspectorate for Immigration.

The framework of entry and residence of foreigners on the territory of Romania and exit from the territory of Romania is regulated by the Expeditious Ordinance of the Government no. 194/2002. The same ordinance covers the rights and obligations of foreigners, as well as specific measures to control immigration. The Romanian state guarantees to foreigners who legally reside in Romania the general protection of persons and assets, guaranteed by the Constitution and other laws, as well as by the rights provided in international treaties. Foreigners who legally reside in Romania and temporarily leave the territory of the Romanian state have the right to re-enter for the entire duration of the validity of the residence permit. They benefit from social protection measures of the state under the same conditions as the Romanian citizens.

According to the Expeditious Ordinance of the Government no. 105/2001 on the state border, the jurisdiction of the Romanian state is exercised within the limits of the state border.

Opinion of the European Committee of Social Rights

The Committee provided information concerning interpretation and case law on Article 19§2.

Article 19§2 obliges States Parties to adopt special measures for the benefit of migrant workers, beyond those which are provided for nationals to facilitate their departure, journey and reception. ‘Reception’ means the period of weeks which follows immediately from their arrival, during which migrant workers and their families most often find themselves in situations of particular difficulty, and the measures at issue must include not only assistance with regard to placement and integration in the workplace, but also assistance in overcoming problems, such as short-term accommodation, illness, shortage of money and adequate health measures.

The obligation to “provide within their own jurisdiction, appropriate services for health, medical attention and good hygienic conditions during the journey” relates to migrant workers and their families travelling either collectively or under the public or private arrangements for collective recruitment. The Committee considers that this aspect of Article 19§2 does not apply to forms of individual migration for which the State is not responsible.

The Committee considers that Romania could consider accepting Article 19§2.

Article 19§3

Ø  to promote co-operation, as appropriate, between social services, public and private, in emigration and immigration countries; 

Situation in Romania

Presentation of the Romanian situation was made by a representative of the General Inspectorate for Immigration.

A new National Strategy on migration for the period 2019–2022 is being developed. Under the previous strategy, cooperation with the diplomatic missions of the countries which represent a high migratory potential for Romania, and their central authorities was promoted.

Opinion of the European Committee of Social Rights

The Committee provided information concerning interpretation and case law on Article 19§3. The scope of Article 19§3 extends to migrant workers immigrating as well as migrant workers emigrating to the territory of any other State. Contacts and information exchanges should be established between public and/or private social services in emigration and immigration countries, with a view to facilitating the life of emigrants and their families, their adjustment to the new environment and their relations with members of their families who remain in their country of origin. Formal arrangements are not necessary, the provision of practical co-operation on a needs basis may be sufficient.

The Committee considers that Romania could immediately accept Article 19§3.

Article 19§4

Ø to secure for such workers lawfully within their territories, insofar as such matters are regulated by law or regulations or are subject to the control of administrative authorities, treatment not less favourable than that of their own nationals in respect of the following matters:

a. remuneration and other employment and working conditions;

b. membership of trade unions and enjoyment of the benefits of collective bargaining;

c. accommodation.

Situation in Romania

Presentation of the Romanian situation was made by a representative of the General Inspectorate for Immigration.

A series of normative acts regulate the admission, the legal stay, the modalities of leaving the territory and the rights of foreign citizens in Romania.

According to Article 801(3) of the Government Emergency Ordinance no. 194/2002 on the regime of foreigners, foreign holders of a right of temporary residence, employed persons, registered unemployed or researchers shall be treated equally with the Romanian citizens regarding:

a) working conditions, including regarding the remuneration and the protection measures against the dismissal or other unfavorable treatment by the employer, the outstanding payments to be made by the employers, regarding the possible overdue remuneration, as well as the requirements regarding health and safety at work;

b) access to all forms and levels of education and training, including the award of scholarships;

c) the equivalence of studies and the recognition of diplomas, certificates, attestations of competence and professional qualifications, according to the regulations in force;

d) social security;

e) social assistance and protection;

f) public health assistance;

g) income tax and tax exemptions;

h) access to public goods and services, including obtaining housing;

i) the freedom of association, affiliation and membership of a trade union or professional organization, including regarding the rights and benefits conferred by such organizations;

j) the services offered by the employment agencies.

A representative of the Social Dialogue Directorate of the Ministry of Labour and Social Protection clarified that the collective labour agreement provisions are mandatory and have erga omnes applicability.

Opinion of the European Committee of Social Rights

The Committee provided information concerning interpretation and case law on Article 19§4.

Article 19§4 guarantees the right of migrant workers to a treatment not less favourable than that of the nationals in the areas of: (a) remuneration and other employment and

working conditions, (b) trade union membership and the enjoyment of benefits of collective bargaining, and (c) accommodation.

States are required to guarantee certain minimum standards in these areas with a view to assisting and improving the legal, social and material position of migrant workers and their families. States are obliged to eliminate all legal and de facto discrimination concerning remuneration and other employment and working conditions, including in-service/vocational training and promotion. The right to membership of a trade union includes the right to be founding member and access to administrative and managerial posts in trade unions. This also applies to workers who provide services within the host state but are contracted by an employer in another state. There must be no legal or de facto restrictions on access to public or private accommodation including home-buying, access to subsidised housing or housing aids, such as loans or other allowances.

The Committee notes that the Romanian law provides for equal treatment in working conditions and pay, as regards formation and participation in trade union activities, enjoyment of the benefits of collective bargaining, and the right to access accommodation without discrimination.

In the light of the Committee’s case law and the current legal situation in Romania, the Committee considers that Romania could accept Article 19§4. Information on the implementation of the legal framework, in particular on the monitoring system and any judicial remedies available to migrant workers, would be essential to assess the situation in practice.

Article 19§5

Ø to secure for such workers lawfully within their territories treatment not less favourable than that of their own nationals with regard to employment taxes, dues or contributions payable in respect of employed persons;

Situation in Romania

According to Article 801(3) (d) and (g) of the Government Emergency Ordinance no. 194/2002 on the regime of foreigners, equal treatment of foreign residents covers also social security, income tax, and tax exemptions.

Opinion of the European Committee of Social Rights

The Committee provided information concerning interpretation and case law on Article 19§5. This provision recognises the right of migrant workers to equal treatment in law and in practice in respect of the payment of employment taxes, dues or contributions.

In the light of the current legal situation, the Committee considers that Article 19§5 could be immediately accepted by Romania.

Article 19§6

Ø to facilitate as far as possible the reunion of the family of a foreign worker permitted to establish himself in the territory;

Situation in Romania

According to Article 46 of the Government Emergency Ordinance no. 194/2002 on the regime of foreigners, the foreign possessor of a residence permit may request the reintegration of the family for the following categories of persons:

a) spouse;

b) unmarried minor children (including adopted children) of the person and of the spouse;

c) the unmarried minor children (including adopted children) of the person, who are in his care and on whom the person exercises parental rights. If the parental rights are exercised jointly, the consent of the other holder of the parental rights regarding the reunification of the family requested by the sponsor is also necessary;

d) unmarried minor children (including adopted children) of the spouse, including those adopted who are in their care and over whom the spouse exercises parental rights. If the parental rights are jointly exercised, the consent of the other holder of the parental rights regarding the reunification of the family requested by the person is also required.

e) the first degree relatives in the ascending line of the person or of the spouse, in case they cannot be maintained alone and do not enjoy adequate family support in the country of origin;

f) unmarried adult children of the person or of the spouse, if they cannot be maintained alone for medical reasons.

The applicant must be the holder of a valid permit for at least one year, have means of maintenance for himself and his family members, have a living space for a dwelling considered normal for a similar family in Romania, and have a social health insurance. The deadline for processing such applications is up to 90 days from the date of submission.

The relevant legal provisions were transposed in the Romanian legislation from the Council Directive no. 86/2003 regarding the right to family reunification.

Opinion of the European Committee of Social Rights

The Committee provided information concerning interpretation and case law on Article 19§6.

Article 19§6 obliges States to allow the families of migrants legally established in their territory to join them. The worker’s children entitled to family reunion are those who are dependent and unmarried, and who fall under the legal age-limit in the receiving state (under the Charter the age limit for admission under family reunion is set at the age of majority, which in most countries is 18 years).

The Committee considers that certain conditions excessively inhibit family reunion and are therefore violations of the Charter, these include: refusal on health grounds except where the condition is a threat to public health, order or security; a requirement that the migrant has been resident for more than one year; a requirement that the family have sufficient accommodation which is too restrictive; a requirement that the family have sufficient means which is too restrictive; or language tests which must be passed in order to be allowed to join the family in the State.

In light of the Committee’s case law and the legal situation in Romania, the Committee considers that Article 19§6 could be accepted by Romania. Updated information on refusals is essential to assess the situation in practice.

Article 19§9

Ø to permit, within legal limits, the transfer of such parts of the earnings and savings of such workers as they may desire;

Situation in Romania

Information on the situation in Romania was provided by representatives of the National Bank of Romania and the General Inspectorate for Immigration.

In accordance of the National Bank of Romania Regulation no. 4/2005 on the foreign exchange regime, there are no restrictions on the transfer of funds by migrants. According to Article 2 of the Regulation, current and capital transactions are performed freely and without restrictions between residents and non-residents, in foreign currency and Romanian currency (RON). Non-residents may open and hold accounts in foreign currency and in Romanian currency (RON) with credit institutions and may repatriate and transfer financial assets held.

Opinion of the European Committee of Social Rights

The Committee provided information concerning interpretation and case law on Article 19§9. Migrants must be allowed to transfer money (earnings and savings) to their own country or any other country both during their stay and when they leave their host country. There may be legal limits, but not excessive restrictions. This provision includes the right to transfer moveable property in their possession.

The Committee considers that Romania could accept Article 19§9.

Article 19§10

Ø to extend the protection and assistance provided for in this article to self-employed migrants insofar as such measures apply;

Situation in Romania

Government Ordinance no. 102/2005 regarding the free movement on the territory of Romania of the citizens of the Member States of the European Union, of the European Economic Area and of the citizens of the Swiss Confederation establishes (Article 3(1)) that citizens of the European Union and their family members exercising their right of residence on the territory of Romania enjoy equal treatment with the Romanian citizens in the field of application of the European Union treaties, subject to the provisions of these treaties and the provisions adopted in their application. This provision allows this category of persons to work also as self-employed persons.

 

However, under the Romanian law, citizens coming from third states can carry out on the territory of Romania only lucrative activities based on an individual employment contract, which implies an employee-employer type relationship. This excludes the possibility of non-EU/EEA nationals to carry out activities as self-employed persons.

Opinion of the European Committee of Social Rights

The Committee provided information concerning interpretation and case law on Article 19§10.

Under Article 19§10, States must ensure equal treament of self-employed persons and wage-earners as well as self-employed migrants and self-employed nationals as regards the rights covered by Art19§§1–9 and Art.19§§11–12.

States must ensure that there is no unjustified treatment which amounts to discrimination, in law or in practice between wage-earners and self-employed migrants. A finding of nonconformity under any of the paragraphs Art19§§1–9 or Art.19§§11–12 may lead to a finding of nonconformity under Art.19§10.

As the right to carry out activities as self-employed persons is limited to nationals of EU/EEA countries and Swiss nationals, and does not extend to nationals of all States Parties to the Charter, the situation does not comply with requirements of Art.19§10 of the Charter.

Article 19§11

Ø to promote and facilitate the teaching of the national language of the receiving state or, if there are several, one of these languages, to migrant workers and members of their families;

Situation in Romania

According to the provision of Order of the Minister of National Education 4174/2018 on then organisation and provision of Romanian language preparation year to foreign citizens, the learning of the Romanian Language by foreign citizens who want to enrol in higher or post-graduate education programmes delivered in Romanian is organised and delivered by accredited higher education entities.

Government Ordinance no. 44/2004 on the social integration of the foreigners who have acquired international protection or a right of residence in Romania, as well as of the citizens of the Member States of the EU/EEA stipulates that (Article 351) foreigners who have acquired the right of residence in Romania, the citizens of the Member States of the EU, EEA and Swiss Confederation can benefit, on request, of cultural accommodation and counseling sessions free of charge, as well as of courses of learning the Romanian language for a fee, organized by the Ministry of Education and Research through the school inspectorates. The fees for participating in the Romanian language learning courses are set by the Ministry of Education and Research.

Opinion of the European Committee of Social Rights

The Committee provided information concerning interpretation and case law on Article 19§11. Under Article 19§11 States should promote and facilitate the teaching of the national language to migrants and their family members which is the main means to integrate into the world of work and society at large. The Committee holds that national language classes shall be provided free of charge otherwise these are not accessible to many migrants, and a requirement to pay substantial fees is not in conformity with the Charter.

With regard to Article 19§11, the Committee observed that Romania provides teaching of the national language to migrants. However, there is a fee for participating in the courses of the Romanian language. Thus the Committee wishes to encourage authorities to take necessary measures, which will bring the situation into conformity with Article 19§11of the Charter, and thus allowing the acceptance of this provision.

Article 19§12

Ø to promote and facilitate, as far as practicable, the teaching of the migrant worker’s mother tongue to the children of the migrant worker.

Situation in Romania

According to the Law no. 1/2011 on national education, education in Romania is carried out in Romanian, as well as in the languages of national minorities and international languages (Article 10) and any Romanian citizen or citizen of the EU or Swiss Confederation may enrol and study, irrespective of their mother tongue and of the language in which he/she has previously studied, in all forms of education in the Romanian language, in the languages of the national minorities, or in international languages (Article 45 (1)).

Opinion of the European Committee of Social Rights

The Committee provided information concerning interpretation and case law on Article 19§12. Article 19§12 States should promote and facilitate the teaching of the languages most represented among the migrants present on their territories in schools, voluntary associations, NGOs etc.

The Committee considered that the Law on national education prescribes the teaching of languages of national minorities in schools. The Committee considers that Romania could accept Article 19§12.

Article 22 (Right to participate in the improvement of working conditions)

With a view to ensuring the effective exercise of the right of workers to take part in the determination and improvement of the working conditions and working environment in the undertaking, the Parties undertake

Ø to adopt or encourage measures enabling workers or their representatives, in accordance with national legislation and practice, to contribute:

a) to the determination and the improvement of the working conditions, work organisation and working environment;

b) to the protection of health and safety within the undertaking;

c) to the organisation of social and socio-cultural services and facilities within the undertaking;

d) to the supervision of the observance of regulations on these matters.

Situation in Romania

Presentation of the Romanian situation was made by representatives of the Department for Health and Safety at Work and Social Dialogue Directorate of the Ministry of Labour and Social Protection.

The right to participate in the improvement of working conditions is guaranteed by Article 39 of Law no. 53/2003 on Labor Code, and Articles 175–184 of the Law no. 319/2006 on occupational safety and health, concerning the assurance of occupational safety and health and the establishment of occupational safety and health committees.

According to Article 57 of the Government Decision no. 1425/2006, in enterprises which have at least 50 workers the Committee on occupational safety and health shall be set up. In enterprises with less than 50 workers, where there is no occupational safety and health committee, its responsibilities are on the workers representatives with specific responsibilities in the field of safety and health.

In order to ensure the workers' right of participation in determining and improving working conditions, and respectively the right to health and safety protection within the company, Law no. 319/2006 on occupational safety and health (with later amendments), provides for the obligation of the employers regarding the information, consultation and participation of the workers in aspects regarding safety and health at work. Employers shall consult the workers and/or their representatives and allow their participation in discussing all the issues related to safety and health at work. The consultation, with the balanced participation of all stakeholders, implies the right of the workers and/or their representatives to make proposals. The obligation to inform and consult workers applies to all activities in the public and private sectors.

Opinion of the European Committee of Social Rights

The Committee provided information concerning interpretation and case law on Article 22.

Article 22 applies to all undertakings, whether private or public. States Parties may exclude from the scope of this provision those undertakings employing less than a certain number of workers, to be determined by national legislation or practice and tendency undertakings.

Workers and/or their representatives (trade unions, worker’s delegates, health and safety representatives, works councils) must be granted an effective right to participate in the decision-making process and the supervision of the observance of regulations in all matters referred to in this provision, such as:

-       the determination and improvement of the working conditions, work organisation and working environment;

-       the protection of health and safety within the undertaking. The right of workers’ representatives to consultation at the enterprise level in matters of health and safety at the workplace is equally dealt with by Article 3 of the Charter. For the States Parties who have accepted Articles 3 and 22, this issue is examined only under Article 22;

-       the organisation of social and socio-cultural services within the undertaking. The right to take part in the organisation of social and socio-cultural services and facilities only applies in undertakings where such services and facilities are planned or have already been established. Article 22 of the Charter does not require that employers offer social and socio-cultural services and facilities to their employees but requires that workers may participate in their organisation, where such services and facilities have been established.

Workers must have legal remedies when these rights are not respected. There must also be sanctions for employers which fail to fulfil their obligations under Article 22.

In the light of the Committee’s case law and the current legal framework and practice in Romania Article 22 could be accepted. Information related to the legal remedies available to workers would be of importance in assessing the conformity of the situation with the requirements of the Charter.

Article 23 (Right of elderly persons to social protection)

With a view to ensuring the effective exercise of the right of elderly persons to social protection, the Parties undertake to adopt or encourage, either directly or in co-operation with public or private organisations, appropriate measures designed in particular:

Ø to enable elderly persons to remain full members of society for as long as possible, by means of:

a)    adequate resources enabling them to lead a decent life and play an active part in public, social and cultural life;

b)    provision of information about services and facilities available for elderly persons and their opportunities to make use of them;

Ø to enable elderly persons to choose their lifestyle freely and to lead independent lives in their familiar surroundings for as long as they wish and are able, by means of:

a)    provision of housing suited to their needs and their state of health or of adequate support for adapting their housing;

b)    the health care and the services necessitated by their state;

Ø to guarantee elderly persons living in institutions appropriate support, while respecting their privacy, and participation in decisions concerning living conditions in their institution.

Situation in Romania

Presentation of the Romanian situation was made by representative of the Directorate for Social Services Policies, Ministry of Labour and Social Protection.

The right of elderly persons to social protection are  reflected in the national legislation, respectively in Social Assistance Law no.292 / 2011, with subsequent amendments, Law no.17 / 2000 on elderly social assistance, with subsequent amendments and GD no.566 / 2015 on the approval of the National Strategy for promoting the active aging and elderly protection for the period 2015 - 2020, of the Operational Action Plan for the period 2016 - 2020, as well as the Integrated Monitoring and Evaluation Mechanism, as subsequently amended and supplemented.

The provisions of this article are also found in GD no.566 / 2015 on the approval of the National Strategy for promoting active aging and elderly protection for the period 2015 – 2020. Anti-discrimination legislation foresees prohibition of discrimination based on age among other grounds.

According to art.13 of the Social Assistance Law 292/2011, with subsequent amendments, the social assistance benefits for the support of persons with special needs are granted both for ensuring the basic needs of life, and for the purpose of promoting and guaranteeing the exercise of fundamental rights and freedoms and full participation in society.

All Romanian citizens residing in the territory of Romania have their domicile or residence in Romania, the citizens of the Member States of the European Union, the European Economic Area and the citizens of the Swiss Confederation, as well as the foreigners and stateless persons who have their residence in Romania the right to social assistance, under the conditions of the Romanian legislation, as well as the regulations of the European Union and the agreements and treaties to which Romania is a party. They also have the right to be informed about the content and modalities of granting social assistance measures and actions, which are granted upon request or ex officio.

According to the provisions of art.9 of Law no.17/2000 with subsequent amendments, the community counseling services, in order to prevent social marginalization and for social reintegration, are ensured without payment of a contribution, as a fundamental right of the elderly, by the social assistants.

According to the provisions of art.3 of Social Assistance Law 292/2011, with subsequent modifications and completions, the State, through the public policies in the field of social services, contributes to the promotion, respect and guarantee of the beneficiaries' rights to an independent, fulfilled and dignified life, as well as to facilitating their participation in social, economic, political and cultural life.

Any dependent person has the right to personal care services, granted according to the individual needs of help, the family situation, socio-economic and the personal living environment (art.36 paragraph 1 of the Social Assistance Law 292/2011, with subsequent modifications and completions). The beneficiaries of the personal care services are the elderly, the disabled and the chronically ill (art.36 paragraph 2 of the Social Assistance Law 292/2011, as subsequently amended and supplemented).

The process of granting social services has the following mandatory steps:

    a) the initial evaluation;

    b) elaboration of the intervention plan;

    c) complex evaluation;

    d) elaboration of the individualized plan of assistance and care;

    e) implementation of the measures provided for in the intervention plan and in the individualized plan;

    f) monitoring and evaluation of the provision of services. (art. 46 of the Social Assistance Law 292/2011, as subsequently amended and supplemented).

As regards to informal care, the spouse and relatives who care for an elderly dependent person can benefit from a reduced monthly work schedule, half-time, with the support of salary rights for the other half of the local budget, corresponding to the gross monthly salary of the home care worker, according to the Law no. 153/2017 regarding the remuneration of paid staff from public funds.

Opinion of the European Committee of Social Rights

The Committee provided information on interpretation and case-law with regard to Article 23.

States Parties shall combat age discrimination in a range of areas beyond employment, namely in access to goods, facilities and services, healthcare, education, services such as insurance and banking products, participation in policy making/civil dialogue, allocation of resources and facilities. An adequate legal framework is required to combat age discrimination in these areas. There should also be a legal framework on assisted decision making for the elderly guaranteeing their right to make decisions for themselves unless it is shown that they are unable to make them.

To assess the adequacy of resources, all social protection measures guaranteed to elderly persons and aimed at maintaining income level allowing them to lead a decent life and participate actively in public, social and cultural life are taken into account. The emphasis is on minimum level of pensions, but other complementary cash benefits available to elderly persons are also considered. These resources are compared with the median equivalised income in the country concerned. The Committee also takes into consideration indicators relating to at-risk-of-poverty rates for persons aged 65 and over.

The Committee assesses the existence, extent and cost of home help services, community based services, specialised day care provision (e.g. for persons with dementia and related illnesses) and services such as information, training and respite care for families caring for elderly persons, in particular, highly dependent persons, as well as cultural leisure and educational facilities available to elderly persons. States must also have a system for monitoring the quality of services, a procedure for complaining about the standard of services and an appropriate regulation of fees for services.

Housing law and policy must take account of the special needs of elderly persons. There shall be sufficient supply of adequate and appropriate housing for elderly persons, and assistance for the adaptation of homes and provision of sheltered/supported housing to allow elderly persons to remain in their own homes for as long as possible. There must also be health care programmes and services (in particular primary health care services including domiciliary nursing/health care services), specifically aimed at the elderly, mental health programmes for any psychological problems in respect of the elderly, as well as adequate palliative care services.

Elderly persons living in institutions must be guaranteed the right to appropriate care and adequate services, the right to privacy, the right to personal dignity, the right to participate in decisions concerning the living conditions in the institution, the protection of property, the right to maintain personal contact with persons close to the elderly person and the right to complain about treatment and care in institutions.

As regards acceptance of Article 23 of the Charter, the situation in practice is of particular importance in order to assess the extent to which the effective exercise of the right of elderly persons to social protection is ensured. The Committee encourages Romania to continue its efforts towards ensuring the right of elderly persons to social protection in view of possible acceptance of Article 23 in the near future. The Committee also invites the Government to ensure that there is a system for monitoring the quality of services provided to the elderly persons and a procedure for complaining about the standard of services or about the treatment and care in institutions.

Article 26 (Right to dignity at work)

With a view to ensuring the effective exercise of the right of all workers to protection of their dignity at work, the Parties undertake, in consultation with employers’ and workers’ organisations:

Ø    to promote awareness, information and prevention of sexual harassment in the workplace or in relation to work and to take all appropriate measures to protect workers from such conduct (Art.26§1);

Ø to promote awareness, information and prevention of recurrent reprehensible or distinctly negative and offensive actions directed against individual workers in the workplace or in relation to work and to take all appropriate measures to protect workers from such conduct (Art.26§2).

Situation in Romania

Presentation of the Romanian situation was made by a representative of the Legal General Directorate of the Ministry of Labour and Social Protection.

Law no. 202/2002 on equal opportunities for and treatment of women and men defines gender-based discrimination as direct and indirect discrimination, harassment and sexual harassment of a person by another person at the workplace or in any other place where such a person operates, as well as any less favourable treatment caused by the rejection of or submission to such behaviours by discriminated person (Article 4(g)).

Article 39(1)(e) of Law no. 53/2003 on Labor Code guarantees the dignity of the employees at the workplace. Victims of sexual harassment in the workplace relations can notify the Labour Inspection or bring legal action to recover the pecuniary or non-pecuniary damages suffered. Article 34(2) and (3) of the Law no. 202/2002 on equal opportunities for and treatment of women and men stipulates the payment of indemnity by the employer to the employee.

Opinion of the European Committee of Social Rights

The Committee provided information concerning interpretation and case law on Article 26§§1–2. Under Art.26§1 there is no obligation to enact specific legislation relating to sexual harassment insofar as the general legal framework ensures an effective protection in law and in practice against harassment in the workplace or in relation to work.

States shall take appropriate preventive measures, such as information, awareness-raising and prevention campaigns in the workplace or in relation to work to combat sexual harassment. Workers should be informed about the nature of the behaviour in question and the available remedies. There shall be effective protection against harassment, including the right to appeal to an independent body in the event of harassment, the right to obtain adequate compensation and the right not to be retaliated against for upholding these rights.

Effective protection of employees also requires a shift in the burden of proof, making it possible for a court to find in favour of the victim on the basis of sufficient prima facie evidence and the personal conviction of the judge or judges. Victims of sexual harassment must have effective judicial remedies to seek reparation for pecuniary and non-pecuniary damage, and to act as a deterrent to the employer.

Under Article 26§2 States are required to take all necessary preventive and compensatory measures to protect individual workers against recurrent reprehensible or distinctly negative and offensive actions directed against them at the workplace or in relation to their work, and to combat moral harassment.

The Committee considers that the legal framework on equal opportunities in Romania permits acceptance of Article 26§§1 and 2 of the Charter. Updated information on the implementation of the legislation, in particular on the case law of the courts and the National Council for Combating Discrimination with regard to sexual harassment in the workplace or in relation to work, is necessary to monitor the situation in practice.

Article 27 (Right of workers with family responsibilities to equal opportunities and equal treatment)

With a view to ensuring the exercise of the right to equality of opportunity and treatment for men and women workers with family responsibilities and between such workers and other workers, the Parties undertake:

Article 27§1 (Participation in working life)

Ø to take appropriate measures:

a. to enable workers with family responsibilities to enter and remain in employment, as well as to re-enter employment after an absence due to those responsibilities, including measures in the field of vocational guidance and training

b. to take account of their needs in terms of conditions of employment and social security;

c. to develop or promote services, public or private, in particular child day care services and other childcare arrangements

Article 27§3 (Dismissal protection)

To ensure that family responsibilities shall not, as such, constitute a valid reason for termination of employment.

Situation in Romania

Presentation of the Romanian situation was made by a representative of the Legal General Directorate of the Ministry of Labour and Social Protection.

Accroding to Law no. 53/2003 on the Labour Code, Article 5(2) any discrimination based on family situation and family responsibility shall be prohibited. Prohibition of discrimination relates inter alia to establishing and granting the salary.

As regards protection of employees with family responsibilities against dismissal, Articles 59(2) and 15(3) of the Labour Code prohibit the dismissal of the employees on the basis of family responsibility criteria.

Opinion of the European Committee of Social Rights

The Committee provided information on interpretation and case-law with regard to Article 27§§1 and 3. Article 27§1 addresses the issues of reconciliation of work and family responsibilities, while Article 27§3 concerns dismissal protection of workers with family responsibilities.

Under Article 27§1(a), States shall ensure that workers with family responsibilities are not discriminated against and shall take positive action, in particular by means of vocational guidance, training and re-training, to provide people with family responsibilities with equal opportunities in respect of entering, remaining and re-entering employment. 

With regard Article 27§1(b), States must take measures concerning the length and organisation of working time. Workers with family responsibilities should be allowed to work part-time or to return to full-time employment. Periods out-of-employment due to family responsibilities should be taken into account when determining the right to and calculating the amount of pension. Crediting of periods of childcare leave in pension schemes should be secured equally to men and women.

Under Article 27§1(c), States shall develop child day care services and other childcare arrangements, and make them available and accessible to workers with family responsibilities. Another aspect addressed under Art. 27§1(c) is that parents should be allowed to reduce or cease work because of the serious illness of a child. As regards child care services, there is an overlap between Article 16 and Article 27§1(c) of the Charter. As Romania has ratified Article 16, it is already bound by the obligation concerning the provision of child day care services under that provision.

 

Article 27§3 addresses the issue dismissal protection of workers with family responsibilities. Family responsibilities must not constitute a valid ground for termination of employment. Courts or other competent bodies shall be able to order reinstatement of an employee unlawfully dismissed and/or a level of compensation that is sufficient both to deter the employer and proportionate to the damage suffered by the victim and should not be subject to an upper limits. Such measures have an important preventive role to deter employers from discriminating workers with family responsibilities.

In the light of the Committee's case law and the legal situation and practice in Romania, the Committee considers that there are no obstacles to the immediate acceptance of Article 27§§1 and 3.

Article 30 (Right to protection against poverty and social exclusion)

With a view to ensuring the effective exercise of the right to protection against poverty and social exclusion, the Parties undertake:

Øa. to take measures within the framework of an overall and co-ordinated approach to promote the effective access of persons who live or risk living in a situation of social exclusion or poverty, as well as their families, to, in particular, employment, housing, training, education, culture and social and medical assistance.

 Ø b. to review these measures with a view to their adaptation if necessary.

Situation in Romania

Presentation of the Romanian situation was made by representatives of the Directorate for Social Services Policies and Directorate for Social Benefits Policies of the Ministry of Labour and Social Protection.

The relevant legal framework includes the following pieces of legislation:

-       Law no. 416/2001 on the minimum guaranteed income;

-       Law no. 116/2002 on preventing and fighting social marginalisation (access to employment, housing, healthcare, education, measures for preventing and fighting social marginalisation);

-       Law no. 292/2011 on social assistance, regulating the general framework of organisation, operation and financing of the social assistance system;

-       Law no. 197/2012 on quality assurance in the field of social services.

The Government Decision no. 1217/2006 on establishment of the national mechanism for the promotion of social inclusion in Romania, set up the national commission and the county commissions on social inclusion, comprising of representatives of public services with responsibilities in the field of social inclusion, representatives of the NGOs, local councils and the county council.

The National Strategy on Social Inclusion and Poverty Reduction for the period 2015–2020 and the Strategic Action Plan for the period 2015–2020 were approved by the Government Decision no. 383/2015. The strategy sets specific objectives and priority actions to reduce poverty and promote social inclusion in areas of employment, social services, education, health, housing and social participation. The strategy aims to promote access of all citizens to equal opportunities to participate in society, to be appreciated and valued, to live in dignity, and their basic needs are met and the differences respected.

The Government Decision no. 18/2015 approved the Strategy on the Inclusion of the Roma for the period 2015–2020.

Opinion of the European Committee of Social Rights

The Committee provided information concerning interpretation and case law with regard to Article 30.

Article 30 requires States to adopt an overall and coordinated approach, which should consist of an analytical framework, a set of priorities and measures to prevent and remove obstacles to access fundamental social rights. There should be in place monitoring mechanisms involving all relevant actors, including civil society and persons affected by poverty and social exclusion. This approach must link and integrate policies in a consistent way, moving beyond sectoral or target group approach.

The measures taken must promote and remove obstacles to access to fundamental social rights, in particular employment, housing, training, education, culture and social and medical assistance, addressing the multidimensional phenomena of poverty and social exclusion. The measures should strengthen access to social rights, their monitoring and enforcement, improve the procedures and management of benefits and services, improve information about social rights and related benefits and services, combat psychological and socio-cultural obstacles to accessing rights, and where necessary, specifically target the most vulnerable groups and regions.

Access to fundamental social rights is assessed by taking into consideration the effectiveness of policies, measures and actions undertaken. As long as poverty and social exclusion persist, there should be an increase in the resources deployed to make social rights possible. Adequate resources should be allocated to attain the objectives of the strategy. The measures should be adequate in their quality and quantity to the nature and extent of poverty and social exclusion in the country.

To assess national situations, the Committee uses the Eurostat at-risk-of-poverty rate (the percentage of people living under the poverty threshold, which is set at 60% of the equivalised median income) before and after social transfers is used as a comparative value.

In a statement of interpretation from 2013, the Committee noted that the economic crisis should not have as a consequence the reduction of the protection of the rights recognised by the Charter. The governments are bound to take all necessary steps to ensure that the rights of the Charter are effectively guaranteed at a period of time when beneficiaries need the protection most.

The Committee takes note of the National Strategy on Social Inclusion and Poverty Reduction. Considering the high share of population living at risk of poverty or social exclusion in Romania (32.5% in 2018 by Eurostat), the Committee stresses its case law whereby the measures taken and resources allocated to attain the objectives of the strategy shall correspond to the nature and extent of poverty and social exclusion in the country. The Committee invites Romania to continue considering the acceptance of this provision in the near future.

Article 31§§1–3 (Right to housing)

With a view to ensuring the effective exercise of the right to housing, the Parties undertake to take measures designed:

Article 31§1 (Adequate housing)

Ø to promote access to housing of an adequate standard

Article 31§2 (Reduction of homelessness)

Ø to prevent and reduce homelessness with a view to its gradual elimination;

Article 31§3 (Affordable housing)

Ø to make the price of housing accessible to those without adequate resources.

Situation in Romania

Presentation of the Romanian situation was made by a representative of the Ministry of Regional Development and Public Administration.

In Romania, the Right to housing is not guaranteed in the Constitution. The general legal framework for housing is the Housing Law no. 114/1996 (with subsequent amendments). Law no. 114/1996 defines convenient dwelling as the dwelling which corresponds to the user's requirements and covers the essential necessities for rest, food preparation, education and hygiene, ensuring the minimum requirements set in the annex of law (Article 2(b)).

Law no. 114/1996 also defines social housing as the housing which is granted with subsidy rent to people or families, whose economic situation does not allow them the access to housing or renting a house under the conditions of the market (Article 2(c)). Families or persons with a monthly average net income per person (over the last 12 months) below the national average net income may rent social housing (Article 42). The following categories of people may benefit of social housing in the order of priority set by the law: people and families evicted or to be evicted from properties returned to the owners; young people aged under 35 years; young people from the social protection institutions who have reached the age of 18 years; persons with disabilities, seniors, war veterans and war widows (Article 43).

Housing Law no. 114/1996 was supplemented by Emergency Ordinance 40/1999, which concerns protection of tenants. Emergency Ordinance 57/2008 amended the Housing Law 114/1996, and modified Emergency Ordinance 74/2007 on establishing an insurance fund for social housing tenants about to be evicted or having been evicted from their homes because these have been returned to the former owners.

Opinion of the European Committee of Social Rights

The Committee provided information concerning interpretation and case law with regard to Article 31 §§ 1, 2 and 3 which concerned the areas of access to an adequate standard of housing, the prevention of homelessness and access to affordable housing.

Under Article 31§1 States must guarantee to everyone the right to adequate housing. Adequate housing means a dwelling which is: 1) safe from a sanitary and health point of view and possesses all basic amenities (such as water, heating, waste disposal, sanitation facilities, electricity, etc); 2) not over-crowded – the size of the dwelling must be suitable in light of the number of persons and the composition of the household in residence; 3) with secure tenure supported by the law. To ensure that the housing stock is adequate, public authorities shall take appropriate measure, such as conduct an inventory of the housing stock; apply injunctions against owners who disregard obligations; adopt urban development rules and maintenance obligations for landlords; and take safeguards against the interruption of essential services such as water, electricity and telephone. Public authorities shall also promote access to housing for different groups of vulnerable persons, such as low-income persons, unemployed persons, single parent households, young persons, persons with disabilities, including those with mental health problems. Hence, beyond legal provisions effective implementation is necessary.

Article 31§2 addresses the issue of prevention and reduction of homelessness. States must take action to prevent groups of vulnerable people from becoming homeless, in particular by ensuring access to social housing and setting up procedures to limit the risk of eviction. Evictions should be governed by rules of procedure, which are sufficiently protective of the rights of the persons concerned. There shall be legal protection of persons threatened by eviction, including an obligation to consult the parties affected to find alternative solutions to eviction, and an obligation to fix a reasonable notice period before eviction. Evictions, if they could not be avoided, must be carried out under conditions which respect the dignity of the persons concerned. Evictions carried out at night or during the winter period shall be prohibited by law and authorities must adopt measures to re-house or financially assist the persons concerned. To prevent homelessness, there shall be access to emergency measures, such as shelter, accompanied with procedures to find more permanent housing. The conditions in temporary shelters shall enable living in keeping with human dignity.

Article 31§3 addresses the affordability of housing, in particular for persons with limited resources. Social housing should target the most disadvantaged. Waiting periods for the allocation of housing must not be excessive, and legal and non-legal remedies must be available when waiting periods are long. Housing benefits shall be available at least for low-income and disadvantaged groups.

Finally, the rights to housing must be guaranteed without discrimination, in particular in respect of Roma or travellers.

Notably, Article 31 has some overlaps with Articles 11 and 16, which are ratified by Romania.

The Committee took note of the existing legislation and strategies relating to the right to housing, at the same time recognising some issues identified by national authorities in practical implementation of housing rights and policies. The Committee, therefore encourages the Romanian authorities to take further measures, which will bring the situation into conformity with Article 31 and thus allowing the acceptance of this provision.  

III. EXCHANGE OF VIEWS ON THE COLLECTIVE COMPLAINTS PROCEDURE

Mr Lauri Leppik, a former Member and General Rapporteur of the European Committee of Social Rights provided an overview of the core features of the collective complaints procedure. The procedure enables international NGOs, international and national representative organisations of emplyees and employers to lodge collective complaints on issues related to collective social rights, provided the respective right has been accepted by a Contracting Party when ratifying the Social Charter. The mechanism provides a legal tool for guaranteeing the full enjoyment of fundamental social and economic rights and had important implications for improving democracy through the involvement of civil society as actors. Mr Leppik gave an overview of specific rights addressed by complainant organisations under this procedure, provided data on the number of collective complaints, and the application of the procedure by the Committee.

Mr Leppik also noted that at a recent seminar “Reinforcing social rights protection in Europe to achieve greater unity and equality”, organised under the auspices of the French Presidency of the Committee of Ministers of the Council of Europe on 19 September 2019 in Strasbourg, representatives of current 15 States Parties to the Collective Complaints Protocol issued a call on the remaining European states to reinforce social rights protection and accept the collective complaints procedure.

Based on the above, the Committee encouraged Romania to accept the collective complaints procedure.

APPENDIX I

Situation of Romania with respect to the European Social Charter

Signatures and ratifications

 

Romania ratified the Revised European Social Charter on 7 May 1999 accepting 65 of its 98 paragraphs.

Table of Accepted Provisions

1.1	1.2	1.3	1.4	2.1	2.2	2.3	2.4	2.5	2.6	2.7
3.1	3.2	3.3	3.4	4.1	4.2	4.3	4.4	4.5	5	6.1
6.2	6.3	6.4	7.1	7.2	7.3	7.4	7.5	7.6	7.7	7.8
7.9	7.10	8.1	8.2	8.3	8.4	8.5	9	10.1	10.2	10.3
10.4	10.5	11.1	11.2	11.3	12.1	12.2	12.3	12.4	13.1	13.2
13.3	13.4	14.1	14.2	15.1	15.2	15.3	16	17.1	17.2	18.1
18.2	18.3	18.4	19.1	19.2	19.3	19.4	19.5	19.6	19.7	19.8
19.9	19.10	19.11	19.12	20	21	22	23	24	25	26.1
26.2	27.1	27.2	27.3	28	29	30	31.1	31.2	31.3

APPENDIX II

PROGRAMME

3^rd  MEETING ON THE NON-ACCEPTED PROVISIONS

OF THE EUROPEAN SOCIAL CHARTER

organised by the Department of the European Social Charter, DG I, Council of Europe and the Ministry of Labour and Social Justice of Romania 

Bucharest, 7 November 2019

Venue: Gheorghe Magheru Boulevard no. 31, Bucharest

Working languages: English and Romanian

Moderator: Andrada Trușcă, General Directorate for European Affairs and International Relations, Ministry of Labour and Social Justice

09:00  Opening remarks

-               Representative of the Romanian Government (TBC)

-               Mr Francois VANDAMME, vice-president of the European Committee of Social Rights

-               Ms Margarita GALSTYAN, lawyer/project manager, Department of the European Social Charter, Directorate of Human Rights, DGI, Council of Europe

09:30   The provisions not accepted by Romania

Article 2§3 (Right to just working conditions – minimum of payed annual holiday)

-           Presentation by a representative of the Romanian Government: Legal General Directorate, Ministry of Labour and Social Justice

-           Summary of case law and comments by Margarita GALSTYAN lawyer/project manager, Department of the European Social Charter

Article 3§4 (Right to safe and healthy working conditions -promotion of occupational health services)

-           Presentation by a representative of the Romanian Government: Department for health and safety at work, Ministry of Labour and Social Justice

-           Summary of case law and comments by Jozsef HAJDU, member of the European Committee of Social Rights

Article 10§1-5 (Right to vocational training)

-           Presentation by a representative of the Romanian Government: Para. 1 and 5 - Ministry of National Education, Para. 2 and 3 - Directorate for Employment Policies, Skills and Professional Mobility – Ministry of Labour and Social Justice, Para. 4. The National Agency for Employment

-           Summary of case law and comments by Nino CHITASHVILI, Lawyer, Department of the European Social Charter, Council of Europe

Article 13§4 (Right to social and medical assistance-equal application of the right to nationals of other Parties lawfully residing in their territories) 

-           Presentation by a representative of the Romanian Government: National Health Insurance House + General Inspectorate for Immigration

-           Summary of case law and comments by Nino CHITASHVILI, Lawyer, Department of the European Social Charter, Council of Europe

11:00-11:15  Coffee break

11:15 The provisions not accepted by Romania, continued

Article 14§1-2 (Right to benefit from social welfare services)

-           Presentation by a representative of the Romanian Government: Directorate for Social Services Policies – Ministry of Labour and Social Justice

-           Summary of case law and comments by Mr Francois VANDAMME, vice-president of the European Committee of Social Rights

Article 15§3 (Right of persons with disabilities- access to transport, housing, cultural activities and leisure)

-           Presentation by a representative of the Romanian Government: National Authority for People with Disabilities

-           Summary of case law and comments by Lauri LEPPIK, former member and General Rapporteur of the European Committee of Social Rights

Article 18§1-2 (Right to engage in a gainful occupation in the territory of other Parties-application of existing regulations and simplification of existing formalities)

-           Presentation by a representative of the Romanian Government: General Inspectorate for Immigration

-           Summary of case law and comments by Jozsef HAJDU, member of the European Committee of Social Rights

12:30-14:00Lunch break

14:00 The provisions not accepted by Romania, continued

Article 19§1-3 (Right of migrant workers and their families – adequate and free services)

-           Presentation by a representative of the Romanian Government: General Inspectorate for Immigration

-           Summary of case law and comments by Margarita GALSTYAN lawyer/project manager, Department of the European Social Charter

Article 19§4-6(Right of migrant workers and their families – remuneration, employment taxes and family reunification)

-           Presentation by a representative of the Romanian Government: General Inspectorate for Immigration

-           Summary of case law and comments by Mr Francois VANDAMME, vice-president of the European Committee of Social Rights

Article 19§9-12 (Right of migrant workers and their families – self-employed migrants, learning opportunities)

-           Presentation by a representative of the Romanian Government: National Bank of Romania + General Inspectorate for Immigration

-           Summary of case law and comments by Lauri LEPPIK, former member and General Rapporteur of the European Committee of Social Rights

Article 22 (Right to participate in the improvement of working conditions)

-           Presentation by a representative of the Romanian Government: Department for health and safety at work, Ministry of Labour and Social Justice

-           Summary of case law and comments by Jozsef HAJDU, member of the European Committee of Social Rights

Article 23 (Right of elderly persons to social protection)

-           Presentation by a representative of the Romanian Government: Directorate for Social Services Policies, Ministry of Labour and Social Justice

-           Summary of case law and comments by Lauri LEPPIK, former member and General Rapporteur of the European Committee of Social Rights

Article 26§1-2 (Right to dignity at work)

-           Presentation by a representative of the Romanian Government: Legal General Directorate, Ministry of Labour and Social Justice

-           Summary of case law and comments by Lauri LEPPIK, former member and General Rapporteur of the European Committee of Social Rights

Article 27§1,3 (Right to equal opportunities and equal treatment- workers with family responsibilities)

-           Presentation by a representative of the Romanian Government: Legal General Directorate, Ministry of Labour and Social Justice

-           Summary of case law and comments by Mr Francois VANDAMME, vice-president of the European Committee of Social Rights

16.00-16:15 Coffee break

16:15 The provisions not accepted by Romania, continued

Article 30 (Right to protection against poverty and social exclusion)

-           Presentation by a representative of the Romanian Government: Directorate for Social Services Policies + Directorate for Social Benefits Policies, Ministry of Labour and Social Justice

-           Summary of case law and comments by Lauri LEPPIK, former member and General Rapporteur of the European Committee of Social Rights

Article 31§1-3 (Right to housing)

-           Presentation by a representative of the Romanian Government: Ministry of Regional Development and Public Administration

-           Summary of case law and comments by Jozsef HAJDU, member of the European Committee of Social Rights

17:00 The Collective Complaints Procedure

-           Introduction by Lauri LEPPIK, former member and General Rapporteur of the European Committee of Social Rights

-           Presentation by a representative of the Romanian Government: reasons for non-acceptance of the procedure: Mr. Serghei MESAROȘ, Director, Social Dialogue Directorate, Ministry of Labour and Social Justice

-           Comments by social partner/civil society representatives

Discussion

17:45  Concluding remarks

-           Summing up the possibilities for acceptance by Lauri LEPPIK

-           Closing remarks on behalf of the Romanian Government: Ms Liana Ramona MOȘTENESCU VASILIU, General Director, General Directorate for European Affairs and International Relations, Ministry of Labour and Social Justice

-           Closing remarks on behalf of the European Committee of Social Rights: Francois VANDAMME

18:00 Closing of the meeting

APPENDIX III

List of participants