1. Background The Executive committee of ETUC has already addressed the issue of cross- border negotiations with multinational companies in year 2006. The consultation with social partners registered a backlash that pushed the Commission to delay any further initiative BUILDING AN ETUC POSITION ON EFA

2. 2006, the ETUC Resolution Three leading principles: 1. trade union organisations, in their capacity of collective representatives, were seen as the only legitimated player of cross- border negotiations on the employee side. 2. the content and the effects of the agreements concluded at this level could not adversely affect collective bargaining agreements concluded under national legislations (non-regression clause). 3. the management of any conflict implied the need for the definition of a coherent framework, including the recognition of rights such as the right of association and the right to strike. The creation of a “labour section” at the European Court of Justice was called upon as well. BUILDING AN ETUC POSITION ON EFA

3. State of art Cross-border negotiations with MNC has rapidly evolved. The current 220 Transnational Company Agreements (covering about 150 companies and 10 million workers) design a brand-new situation. In most recent years, Agreements with a European scope of application (EFA) have rapidly increased in number. Their contents are becoming more substantial (restructurings, career development, financial participation, etc.) and per consequence the enforceability issue becomes more urgent. ETUC position paper will refer to EFA when not differently indicated. Collective agreements with cross-border scope/effects have been experienced in cross-border areas BUILDING AN ETUC POSITION ON EFA

4. Policy options from the group of experts Elements of conclusion of the group of experts put forward some policy options on: - Recognizing the role of transnational company agreements and contributing to their development -Supporting the actors in transnational company agreements and clarifying their roles -Promoting transparency in transnational company agreements - linkage with other levels of social dialogue - legal aspect, including dispute settlement and conflict management BUILDING AN ETUC POSITION ON EFA

5. Key message We gathered a strong request by our affiliates, especially Eastern Europe, to enhance the cooperation and coordination of the negotiations in the multinational companies. EFA can prevent social dumping and wage competition and to achieve a progressive approximation of working conditions within the same company Work made by ETUFs could be spread further and implemented, as well as the procedures. The role of the trade unions in signing transnational agreements should be strengthened, the scope of such agreements should extended at the core part of the work conditions. This activity falls under the joint coordination of the EU federations and the ETUC. Our affiliates, notably the national federations, the interregional trade unions and the IRTUCs need help. BUILDING AN ETUC POSITION ON EFA

6. WHO DOES WHAT Cross-border negotiations with multinational company (EFA) is an issue for European trade unions … … and fall in the scope of activity of ETUFs. There are no cases of EFA signed by ETUC nor it is desirable. BUILDING AN ETUC POSITION ON EFA

7. ETUC intervenes when... - cross-sector issues: for instance the European Commission launches initiatives (monitoring, researches and policy or legislative proposals) addressing EFA in general. - in relationship with BusinessEurope - a coordination among ETUFs to build an enabling environment for cross-border negotiations as well as to help convergences in establishing “rules of the game”. BUILDING AN ETUC POSITION ON EFA

8. RULES OF THE GAME ETUC considers that a frame of rules must be set at European level in order to encourage a neat and effective development cross-border collective bargaining. An optional frame of rules can be desirable but it must be the result of the autonomous capacity of social partners to set rules of the game. An optional framework must actually reflect needs of social partners in conformity with dominating practices. ETUFs have already set some relevant rules and practices BUILDING AN ETUC POSITION ON EFA

9. BUILDING AND ENABLING ENVIRONMENT FOR EFA It is necessary to build an enabling environment in which rights and opportunities for workers may result enhanced in a transparent and involving way......in full respect of the predominance of the national level which remains the most desirable level to which determine working conditions and protect individual and trade union workers’ rights. BUILDING AND ENABLING ENVIRONMENT FOR EFA

10. ACTORS the presence of a multitude of actors must be rationalized. All ETUFs converge on the idea that ETUFs themselves should be the leading actors… … and the only entitled to sign EFAs BUILDING AND ENABLING ENVIRONMENT FOR EFA

11. EWC OR NOT EWCs: they have shown some activism in negotiating with Multinational companies. EWCs have different structures and therefore may accomplish to different functions. It is a truth that some EWCs have a full-bodied trade union structure and therefore EWCs may sometime fulfill all criteria pertaining to a collective bargaining body. On the other hand, it is not less true that EWCs only in few cases fulfill such criteria. We can conclude that, even if having legitimately concluded EFAs in the past years, EWCs are not a reliable tool on which a solid system of cross-border collective bargaining level could be created. BUILDING AND ENABLING ENVIRONMENT FOR EFA

12. AD HOC DELEGATIONS In some other cases, collective bargaining has been conducted by ad hoc trade union committees (a selection of national trade unions). This solution is normally led by a dominant actor as the trade union(s) of the parent company or (worse) by the company itself. This solution does not either guarantee a proper democratic result as it remains a sum of national interests deprived of any genuine capacity of pan-European representation of interests. BUILDING AND ENABLING ENVIRONMENT FOR EFA

13. ENHANCING SYNERGIES WITH OTHER LEVELS OF SOCIAL DIALOGUE EFA are not (completely) disconnected from other levels of social dialogue. Some EFAs take inspiration from EU Interprofessional or Sector Framework Agreements Others provide a cross-border extension to national agreement. On the way around it is assumable that a consolidate experience of negotiations at Group level in a given sector can deliver its positive effects on the social dialogue in that sector. Restructurings with a cross border effects are more and more a field of work for ETUFs and EFAs. BUILDING AND ENABLING ENVIRONMENT FOR EFA

14. Transparency Transparency resides within procedures and mechanisms established by ETUFs. If the mandate is clear and easily traceable, the entire process will result more transparent and accountable. ETUFs should ensure that all employees falling within the scope of the negotiations could be informed of the initiative. BUILDING AND ENABLING ENVIRONMENT FOR EFA

15. Dispute solution and conflicts The legal frame in which EFAs live and produce effects cuts across European and International law. A recent study shows how difficult is to say a final word on transnational legal effects of EFAs. It cannot be assumed that the application of international law and European law will go in the direction desired by European trade unions. Our aim to create rules from practice, can go along with the elaboration of a sort of supernational jurisprudence (even of private nature) that can help such practices to be better interpreted in their legal aspects, and judged on the basis of justice and equity of the European interests of the concerned actors. BUILDING AND ENABLING ENVIRONMENT FOR EFA

16. A EU Jurisdiction for EFA In absence of a labour section of the European Court of Justice or in absence of a ritual court that could be called upon to judge on the application of an EFA, ETUC should promote the idea to create a conciliation/arbitration instance at European level - with a tripartite composition. -accessible on voluntary basis - only for EFA - for 5 years BUILDING AND ENABLING ENVIRONMENT FOR EFA