Rigged competition: how EU law works against freelances

tobiasmaas

“To know better your enemies is to better chances of your eventual victory”, wrote Sun Tzu in the Art Of War.  So an eyeball-to-eyeball encounter with one of the European Union’s competition tzars provided provided a rare chance to understand the frustrations placed in the way of unions working on behalf of freelance journalists.

My encounter came at the concluding conference of “The future of work in the media, arts and entertainment sector”, a two-year project to consider the challenges faced by our sector and organised by the European Federation of Journalists, the International Federation of Actors, the  and  the “international” for media technicians.  It took place in Brussels on 8 – 9 September 2016.

Needless to say, the trades unionists found much to worry about: employment displaced by freelancing, scarcity of work and downward pressure on remuneration. There is a good deal about which to be hopeful too – much of it set out in the excellent booklet produced by the project.

Perhaps the most disturbing revelations catalogued concerns about the work of national competition authorities (every EU national has one, in Britain it is known as the the Competition and Markets Authority).  Several have used EU competition regulations to rule that freelances are micro businesses whose unions’ attempts to regulate rates are anti-competitive and illegal.

Tobias P Maas works for “DG Competition” in the European Commission.  In that capacity, with others, he strives to ensure that articles 101 – 109 of the Treaty On The Functioning Of The European Union are enforced.

He came to the conference to persuade a hundred or more disputatious trades union officials that their worries were groundless.  He did not get an easy ride.  “Collective bargaining is outside competition law”, he reassured.  “If cases do arise, it is easiest to resolve them in court – a case-by-case approach serves everyone best”, he suggested.

His opening speech was just long enough for the big artillery in the room to get him in range.  Their fusilade was relentless.

“Collective bargaining is a human right that precedes national law”, stormed Esther Lynch from the European Trades  Union Congress.  Irish senator, Ivana Bacik suggested that Maas was proposing a needless job creation scheme for lawyers.  And NUJ Assistant General Secretary Seamus Dooley told the conference that: “court is open to all just as the Ritz hotel is – deep pockets are required”.

Dooley had the hall cheering him on, but his quarry was unruffled.  “There have been so few cases in this area, that this is hardly an issue”, he said, oozing emoiliance.  Was this a skill learned at one of the three universities from which he had obtained degrees or while practicing law?  We did not learn.  It was a bravura performance, nonetheless.

The unions pointed to cases where their members had been affected.  In Denmark the Completion Authority ruled that freelance journalists were self-employed and that minimum rates advice suggested by their union was anti competitive.  A legal tussle between their union, Dansk Journalistforbund and Aller Media improved matters slightly, but subsequent judgements had not all gone the workers’ way. The price paid for photographs by Aller Media has fallen from around €90 each to €25 each.

Maas ploughed on.  “Court is an easy place to sort out the tiny number of issues that arise”, he suggested.  “Or you could arrange a friendly chat with your competition authority”.

The response was quick-fire: competition authorities behave as absolute monarchs rather than elements of a democratic polity.

Bacik returned to the fray, citing specifics of the Irish case.  Was not DG Competition advising the Irish government on the amendments that they should insist on to the legislation that Bacik herself had successfully initiated?  Maas feigned unfamiliarity with the detail of the case – although this was one area on which he shifted his ground.

Indeed when Senator referred to her Bill, which proposes exempting groups of freelance workers from the provisions of competition law, Maas revealed that he had seen the proposal and did not agree such an exemption was necessary.,

The plight of freelance orchestral musicians in the Netherlands was cited.  The European Court of Justice has ruled that they were actually “false self employed”, thereby allowing their union to negotiate their rates.  The Hague Court of Appeal had subsequently ruled that this judgement applied only to the orchestral musicians, however, thereby forcing Dutch unions to return to law for each discrete group of freelance workers whose rates they wished to set.

As the session closed, a Brussels insider told me that Maas was a rising star of his department and was thought to be one of the true believers, for whom the promotion of competition laws is an article of faith.  Whether that is true, I have no idea; as a representative of a zealous creed, he does quite a job.

He might not have crumpled at this encounter with those of use who represent freelances’ interests, but his very presence, and the meeting’s location in European parliament, was symbolic of the European establishment taking our case seriously.

Most critically, though, the trades union movement is at its best when forced to counter the intellectual challenge of its opponents head on, rather than arguing among ourselves. Tools sharpened through purposeful work will serve the workers best.

All photographs © Tim Dawson
Top: Tobias Maas; Middle: Séamus Dooley; bottom: Ivana Bacik