2. ETUC Project 2014/06 "Building an Enabling Environment for Voluntary and Autonomous Negotiations at Transnational Level between Trade Unions and Multinational Companies" Drafting a proposal for an Optional Legal Framework at EU level for TCAs: where we are? Update on findings following the 2nd legal experts meeting on 29 October 2015

3. Mandate to negotiate and sign a TCA The OLF should deal with representativeness on two different levels: 1.Access to the OLF should be general and based on the sector (as is the case in the social dialogue committees); 2.The problem of representativeness of signatory parties may be solved through: a) Mutual recognition of parties; b) Disclosure of the mandate. The mandate on the workers’ side: the procedures set by ETUFs are assessed as able to bind their national affiliates and they are a necessary complement for the OLF. The mandate on the company’s side: Prof. Pisarczyk suggested to include in the proposal for an OLF also a provision which imposes to the company central management to disclose its mandate and expressly point out which subsidiaries and controlled undertakings will be covered by the agreement at the beginning of the negotiation round. This could better bind local managers to implement the TCA.

4. TCAs and supply chain: a voluntary way to raise social standards up in lower-paid sectors What about the legal way? Different solutions may be envisaged to impose the respect and enforcement of TCA provisions to subsidiaries and controlled undertakings. While it is more difficult when it comes to suppliers and subcontractors. Neither the parent undertaking, nor its subsidiaries can wield any corporate influence on those subjects: TCAs cannot bind them. As a result, no legal obligation on the management can be provided for by the OLF, since the respect of such social clauses would depend on a third-party. The voluntary solution: Nevertheless, suppliers and subcontractors can be influenced by a TCA: when negotiating such an agreement the parties can introduce a «social clause» imposing to the company and subsidiaries managements to make reference to the respect of TCA provisions in the wording of commercial agreements with suppliers and subcontractors. The latter would be then liable in the event of a breach of the agreement. This would help raise social standards up in lower-paid sectors as well as guaranteeing the equal treatment of employees which work on the same plant but employed by different employers.

5. Enforcement of TCAs: legal effect and non-regression clause How to avoid the TCAs can lower national standards? The OLF shall impose to parties who wants to opt-in to introduce a non-regression clause in the agreement in order to safeguard the eventual higher standards set out in the national collective agreements (at any level). Moreover, the OLF should clearly state that in the event such a provision has not been provided for by the TCA, in case of conflict of provisions, the principle of major favour for the employees applies. How to make TCAs legally binding in the national legal order (that means allowing them to achieve the same legal effect as a national collective agreement at company level)? Possible solutions: 1.An act of national social partners transposing the TCA content into a national agreement; 2.A State intervention (i.e. an implementing legislation) aimed at providing such an effect; 3.A EU law directly providing for such an effect but which cannot avooid to influence the national legal orders; 4.An interpretation of TFEU which avails the «model of parallel statutes» and states that acceptance of diversity is not only a political idea but also a necessary legal principle in the EU legal order.

6. Alternative Dispute Resolution The OLF should encourage parties to continue to set internal dispute settlement mechanisms as it occurs in the practice of the most part of TCAs; For disputes which cannot be internally solved a third and neutral ADR body at European level should be set up by a delegated act of the EC (under Art. 290 TFEU and Art. 154 TFEU); The ADR should prefearibly consist in mediation; Only the signatoy parties of a TCA shall be entitled to have access to the ADR and only once all the steps of the TCA internal dispute settlement mechanism have failed; In any case, the ADR cannot prevent the signatory parties to apply to a public judicial body for redress if the violation persists.

7. TCAs and mainstream EU policies Requiring a legal act to be adopted by EU institutions, the ETUC proposal needs to produce advantages to and be framed in the mainstream EU policies. Which EU policies can be enhanced by the introduction of an OLF for TCAs? 1.SINGLE MARKET The OLF can foster a further integration of the single market by facilitating sound cross-border relationships and dialogue of labour and management and by allowing a smoother mediation of their interests. 2.EU 2020 STRATEGY Most part of TCAs foster the attainment of objectives as inclusive growth, investments in skills and vocational training, anticipating of changes and larger participation of women and young people in the labour market. 3.BETTER REGULATION Being optional the OLF does not put burdens on businesses which the latter do not want. In addition with the OLF the EC could enhance the legislative framework of the single market by not making use of binding legislation: co-regulation, self-regulation.