‘Representativeness’ is a criterion used by the European Commission to identify the ‘management and labour’ whom it must consult and who may initiate the social dialogue (Article 154 TFEU). While the Treaty provisions do not refer to the criterion of ‘representativeness’, the Commission was clearly drawn to this criterion for identifying organisations which can claim to be the ‘management and labour’ with the rights to consultation, to initiate social dialogue, and to reach and implement agreements.
The Commission in its Communication concerning the application of the Agreement on Social Policy (now Articles 154 and 155 TFEU) of 14 December 1993 put forward three criteria to identify the organisations that would be consulted under the procedure of Article154 TFEU. Organisations should:
- be cross-industry or relate to specific sectors or categories and be organised at European level;
- consist of organisations, which are themselves an integral and recognised part of Member State social partner structures and with the capacity to negotiate agreements, and which are representative of all Member States, as far as possible;
- have adequate structures to ensure their effective participation in the consultation process.
As at November 2010, there are three organisations recognised by the Commission as representative for cross-industry consultation. These are:
- the European Centre of Enterprises with Public Participation and of Enterprises of General Economic Interest CEEP; and
- the European Trade Union Confederation ETUC).
In addition, the Commission recognises as representative three cross-industry organisations representing certain categories of workers or undertakings. These are:
- Eurocadres, which represents professional and managerial staff;
- the European Association of Craft and Small and Medium-Sized Enterprises (UEAPME), which represents small and medium-sized businesses in Europe; and
- the European Confederation of Executives and Managerial Staff (CEC).
In 1998, UEAPME was at the centre of a dispute on representativeness, which it brought before the European Court of First Instance (CFI) (Case T-135/96), in which UEAPME challenged the legality of the Parental Leave Directive, which was the first product of European social dialogue reflected in Articles 154 and 155 TFEU (then the Protocol and Agreement on Social Policy), and had not been signed by UEAPME. However, UEAPME’s complaint was dismissed by the CFI. This does not imply a general judgement on the representativeness of UEAPME but only implies that ‘in relation to the content of [the] agreement’, namely a cross-sectoral agreement on parental leave, the collective representativity of the signing parties, even without UEAPME, was considered sufficient.
The Commission also recognises as representative The Association of European Chambers of Commerce and Industry (Eurochambres).
In terms of sectoral representativeness, the Commission recognises a total of 59 European sectoral employer organisations and 18 European sectoral trade union organisations.
The Commission adapts its list of representative organisations as new sectoral social dialogue committees are set up and/or in the light of representativeness studies. Eurofound conducts regular studies on the representativeness of the EU-level sectoral social partners, which are used by the Commission as an indicator in determining representativeness for consultation and social dialogue purposes.