EPSU-CJ – Credible criteria and transparent procedures for trade unions’ representativeness
It was at the USF’s suggestion that the concept of ‘representative trade unions and staff associations’ was enshrined in the Staff Regulations (Article 10c) as part of the 2004 reform.
Unfortunately, the criteria for representativeness have never been harmonised across institutions, with each referring i) either to the number of members within the institution (e.g. the Council), ii) or to the results of staff elections (e.g. the Parliament), iii) or to a combination of the two (e.g. the Commission).
The rules in force at the Court of Justice …
The Court of Justice has followed the third approach. Through the ‘Rules on Recognition and Representativeness’ of 23 September 2013, the Administrative Committee of the Court of Justice established three alternative methods for attributing the status of a representative trade union or staff association.
Following each election to the institution’s Staff Committee, a check on representativeness is carried out. To this end, “officials and other servants of the institution who have been members for at least six months and are up to date with their membership fees are taken into account as union members”.
⚠️ … and their misuse: ‘extra-light’ representativeness
However, during the 2023 verification of the representativeness of another trade union, which was unable to provide evidence that it had 1% of members amongst the institution’s active staff, a department within the Court requested and obtained from the Legal Adviser for Administrative Affairs an ‘Opinion’ on the interpretation of the aforementioned provision, thereby decoupling the amount of the membership fee from the scale set by the trade union in question. Any amount would suffice as a membership fee.
In support of his ‘Opinion’, the Legal Adviser even set himself up as a defender of ‘freedom of association’!
It was in this way that the trade union in question was recognised as representative. It was not until three years later that EPSU-CJ was taken by surprise upon learning of certain events that had taken place in 2023.
Whilst the Rules formally adopted by the Court’s Administrative Committee remain posted on intranet-curia, their ‘interpretation’ is reserved for a select circle of insiders.
USF/EPSU-CJ, a legal entity, lodged a direct action against the Court of Justice of the EU before the General Court of the EU on 2 June 2026 (Case T-346/26).
Membership fees: the cornerstone of a trade union’s independence
💥EPSU-CJ has voluntarily committed itself, in its articles of association, to adhering to a progressive method of calculating membership fees modelled on that which is mandatory at the Council of the EU, which, in order to recognise a trade union as representative, requires that its membership fees amount to 0.2 % of the basic salary.
The question is whether an institution applies credible criteria for defining representative trade unions, which have ‘the means to guarantee their autonomy of action’, or whether, on the contrary, it prefers ‘cheap’ trade unions, which are therefore unable to fund legal proceedings. Thus, the Rules of the Administrative Committee of the Court require a trade union organisation to derive its main resources from its members’ subscriptions, which form the basis of its independence.
ILO Conventions C151 and C135 protect the complete independence of public employees’ organisations from public authorities and call for measures to ensure that the presence of elected representatives [i.e. Staff Committees] is not used to undermine the position of trade unions.
However, at the Court, unlike other institutions of at least equal size, all secondments (3), plus two posts in the secretariat, are allocated to the Staff Committee and none to the trade unions.
In order to fulfil its role as a defender of staff, a trade union is obliged, first and foremost, to defend its credibility when this is compromised, and its own means of action when these are denied to it.
This case illustrates the development of a ‘parallel State’ phenomenon by certain members of the hierarchy who take too many liberties, showing contempt not only for their social partners (trade unions) but also for the hierarchy of legal norms, by passing off an amendment to the rules as an ‘interpretation’.
