CROSS-BORDER SOCIAL DIALOGUE AND AGREEMENTS: An ...

Legal dimensions of international framework agreements – Sobczak
Powers of signatories
The legal nature of a standard depends on the powers conferred on
its authors, in particular if the norm aims at defining rules of conduct
applying to third parties. Given the lack of a legal framework in the field
of transnational collective bargaining, no power has been explicitly conferred
by labour law on any actor. Consequently, those who want to
adopt IFAs have to invent new solutions.
Signatories — employers
On the employers’ side, one or more representatives of the holding
company signs the IFA, even if the negotiations may in some cases also
involve managers from different subsidiaries of the group. 3 This solution
may reflect the reality of economic powers within the group, but from a
legal point of view it constitutes a problem, because each of the subsidiaries
has its own legal personality, even if it is highly integrated in the
group. There is indeed a divorce between the holding company’s control
over an economic activity within the group and its lack of legal liability
for the social consequences of this activity (Del Cont, 1997; Rorive,
2004). This makes it impossible to consider the holding company as the
employer of the workers in the subsidiaries (Supiot, 1985), and means
that the holding company may not conclude collective agreements that
bind the subsidiaries. This problem is even greater if the IFA defines rules
for subcontractors and suppliers, whose own legal personality excludes
the possibility of the company negotiating for them.
To allow companies to conclude IFAs for their subsidiaries and subcontractors,
they need to receive a mandate to negotiate legally binding
commitments. The Directive of 22 September 1994 on European Works
Councils uses this legal technique (European Council, 1994). For groups
within the EU, the Directive imposes the obligation on the holding company
of opening negotiations on information and consultation across the
whole group. However, the mandate to negotiate is explicitly conferred
by the Directive. Furthermore, an agreement to establish a European
works council (EWC) only creates obligations for the holding company,
not for the subsidiaries.
3
As with Electricité de France (EDF), for example.
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