Primary and secondary EU law never refers to the notion of representativeness, and the Commission first used the term in its 1993 Communication concerning the application of the Agreement on Social Policy. Annex 3 of the Communication entitled ‘Main findings of the social partners' study (Representativeness)' defined the criteria for representativeness in the consultation phase of social dialogue.
The Commission's Communication of 20 May 1998 on adapting and promoting the social dialogue at Union level set out the criteria for the representative interest organisations in the sense of Articles 154–155 TFEU. These must:
- 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 (EC 1993 and 1998).
In its 1996 Communication on the development of social dialogue at Community level, the Commission argued that it was not so much by means of an official decision but rather based on mutual recognition of the European social partners that the representativeness of management and labour in the process of Articles 154 and 155 TFEU had to be assessed. In its second Communication from 1998, the Commission confirmed the 1993 criteria, but refined the geographical coverage, as the decision dealt primarily with sectoral social dialogue.
Decision 98/500/EC on the establishment of Sectoral Dialogue Committees defines the criteria for representativeness of the European social partners. According to these criteria, organisations are required to:
- 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 States’ social partner structures and have the capacity to negotiate agreements, and which are representative of several Member States;
- have adequate structures to ensure their effective participation in the consultation process.
In its 2002 Communication on European social dialogue, a force for innovation and change, the Commission repeated its former position. In its 2004 Communication on social dialogue, the Commission outlined the role played by studies into the representativeness of sectors in the process:
In order to identify the social partners to be consulted under Article 138 of the EC Treaty, the Commission carries out representativeness studies on the European organisations. This information is also important for the setting up of new sectoral social dialogue committees, as well as the Commission's assessment of the representative status of the signatory parties to Article 139(2) agreements.
The Commission proposed that the number of such studies be extended and nominated Dublin-based tripartite EU agency Eurofound for this task. In 2006, Eurofound started carrying out sectoral representativeness studies. Ten years later, by end November 2016, the number of sectoral representativeness studies published by Eurofound has amounted to 45 studies, in addition to a cross-sector representativeness study published in 2014.
Thus, ‘management and labour’ in the sense of Article 154 TFEU are to be understood as the European social partners, organised at cross-industry or sectoral level. The Commission has drawn up a list of organisations it consults under Article 154 TFEU. This list, which is regularly revised, currently consists of 87 organisations ( increasing progressively from from 28 in 1993, 44 in 1998, 55 in 2002, 60 in 2004 and 79 in 2010). In the course of the last 22 years, the total number of EU social partner organisations to be consulted by the Commission under article 154 TFEU has more than tripled. A Eurofound study from 2016 on the Concept of representativeness at national, international and European level identified four different frames of reference for the assessment of the representativeness of the EU social partners:
- setting up of the European sectoral social dialogue committees (legal conformity): on the basis of Commission Decision 98/500/EC and on the basis of the Eurofound representativeness studies;
- consultation based on legal conformity: representativeness by accreditation of the Commission on the basis of the representativeness criteria as elaborated in the COM (1993) 600 final and COM (1998 ) 322 final and on the basis of Eurofound's representativeness studies;
- negotiation based on mutual recognition/bargaining autonomy: representativeness by mutual recognition as described by academic experts and based on the bargaining autonomy of the social partners;
- implementation of European framework agreements by Council decision: representativeness assessed in light of the judgement in the landmark UEAPME case: '(…) whether, having regard to the content of the agreement in question, the signatories, taken together, are sufficiently representative' (T-135/96, 2335, para. 90), in light of Communication (98/322) (only for EC, 2000, 169), Decision 98/500/EC (EC, 2005, 3; 2009a, 7; 2014, 7 and 2016, 6) and on the basis of the Eurofound representativeness studies.