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Amendments to the National Archives Law and to the Labour Code

Important changes concerning the handing over of documents to the National Archives, the deadlines and the procedure for the issuance of records by the creators or holders of documents, including when the employer is in insolvency, bankruptcy or liquidation proceedings, have been introduced into legislation commencing on 14 January 2023.

Both the National Archives Law No 16/1996 (the “National Archives Law”) and Law No 53/2003 on the Labour Code (the “Labour Code”) were amended with the adoption of Law No 26/2023[1].

Amendments to the National Archives Law

Until now, creators or holders of documents or, where applicable, their rightful successors were required by law to issue, at the request of natural or legal persons, certificates, attestations, copies and extracts (hereinafter “records”) of the documents they create or hold, according to Article 29 paragraph (1) of the National Archives Law. The new legislative amendments stipulate that this obligation of creators or holders of documents must be fulfilled within a maximum of 60 calendar days. At the same time, the new legal text states that requests from natural or legal persons addressed to the latter must be submitted in written or electronic format.

The procedure for the issue of records relating to documents held by creators or holders of documents is now also expressly regulated. These records will be issued in letter form and either (i) delivered to the creators’ or document holders’ premises, in person or through a legal representative, or (ii) sent by courier/post with acknowledgement of receipt. The law provides that the applicant shall bear the cost of such courier/postal services.

The obligation to communicate, in writing, within 30 days, to the National Archives (either to the central body or to the territorial services) the documents certifying their establishment, reorganisation or disbandment, in accordance with the law, as well as the measures taken to archive the documents created or held, has also been extended in the case of dissolution or liquidation carried out in accordance with Company Law No 31/1990.

Another relevant amendment is the introduction of a new additional obligation for the operators[2], which has to notify the National Archives. These operators will henceforth have to include in the notification to the National Archives also all known previous names of the disbanded/dissolved creators, from their establishment until their disbandment or striking off from the trade registry, as the case may be.

At the same time, the effects of this information obligation now also extend to the public, in the sense that all known previous names of the disbanded/dissolved creators, as stated above, must be published: (i) in the event of the declaration of bankruptcy, under the law, of a creator of documents, without its activity being continued by another, by economic operators authorised to provide archival services by any means accessible to the public, including on their own website, respectively by (ii) the National Archives, on their own website.

Last but not least, the maximum limits of charges for archival services provided by economic operators authorised to provide such services will henceforth be set annually by order of the President of the National Public Pension House, with the approval of the National Archives.

Amendments to the Labour Code

The legislator has also made changes to the Labour Code.

Law 26/2023 introduces a maximum period of 60 days within which, according to Article 34 paragraph (6¹) of the Labour Code, the employer who is in insolvency, bankruptcy or liquidation proceedings, the judicial administrator (receiver) or, where applicable, the judicial liquidator is obliged to issue a document to the employees certifying the work carried out by them, as well as to terminate and transmit to the general register of employees the termination of individual employment contracts.

New sanctions

The legislator also introduced a number of new sanctions.

Failure to comply with some of the obligations under the National Archives Law will, from now on, constitute a contravention and will be sanctioned with a fine ranging from RON 1,000 (approximately EUR 200) to RON 25,000 (approximately EUR 5,000), of which we mention:

 ▸ the obligation to notify the National Archives of the known previous names of the creators who have been disbanded/dissolved, which is now incumbent on all the persons referred to in Article 18 paragraph (5) of the National Archives Law (not just on liquidators);

the obligation of economic operators authorised to provide archival services to publish by any means accessible to the public, including on their own website, all known previous names of the creators who have been disbanded/dissolved, according to Article 18 paragraph (6) letter a) of the new form of the National Archives Law;

the obligation of creators or holders of documents to communicate in writing, within 30 days, to the National Archives the documents attesting their establishment, reorganisation or disbandment under the terms of the law, as well as the measures taken to archive the documents created or held.

With regard to the amendments to the Labour Code, failure to comply with the obligations laid down for the employer in insolvency, bankruptcy or liquidation proceedings, respectively, on the judicial administrator (receiver) or, as the case may be, on the judicial liquidator, will constitute a contravention and will be sanctioned with a fine ranging from RON 300 (approximately EUR 60) to RON 1,000 (approximately EUR 200).

Last but not least, the new form of the National Archives Law stipulates that the offender may now pay, within 15 days from the date of delivery or communication of the report on the finding and sanctioning of contraventions, half of the amount of the fine imposed, the official who has found the contravention mentioning this possibility in the report. An exception to the rules of common law applicable to contraventions is thus established, rules which generally give the offender the possibility of paying half of the minimum fine laid down in the normative act within 15 days of the date of communication of the report.

 

[1] Law No 26/2023 amending and supplementing the National Archives Law No 16/1996 and Law No 53/2003 – Labour Code, published in the Official Gazette, Part I No 30 of 11 January 2023.

[2] According to Article 18 paragraph (5) of the National Archives Law, these operators are liquidators; economic operators authorised to provide archival services, natural or legal persons, including territorial pension houses, who have custody or safekeeping of the archives of the creators of documents that have been disbanded.

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