Brit freelances in EU to lose right to sell cross-borders?

AFTER THE transition period following Brexit ends on 1 January 2021 and the UK leaves the EU's Single Market, it seems that UK nationals living in an EU Member State will face serious obstacles to providing "cross border" services to another EU country. This is likely to have a serious adverse effect on the working lives of around 440 NUJ members who are freelances based in the EU, many of whom regularly work across EU borders - often on a daily basis.

Central Amsterdam in lockdown easing

Image © Matt Salusbury

Concerns have been raised by Nick Gammon, Recruitment and Retention Officer of NUJ Netherlands Branch. He draws our attention to the European Commission's recent Guidance Notes to the Withdrawal Agreement. Paragraph 2.13.1 of the guidance discusses Article 25(1) of the Agreement, on cross-border workers and the cross-border labour market. The European Commission here seeks to reinforce the idea that "cross-border labour market" is part of the Single Market and that this is no longer available to UK nationals.

Under the Withdrawal Agreement, UK nationals can permanently settle in the one EU Member State where they are already resident, and work there. But they will - as things stand - face obstacles in working other EU states after the UK's withdrawal is complete. Self-employed UK nationals will be able provide freelance services to the UK, or to the EU member state where they reside. But it seems that as far as other EU member states go they'll be in the same position as Albanian or Zimbabewean freelances - they may, for example, need to apply for working visas to carry out even the "occasional provision of services" there. The same would of course apply to freelances based in the UK who want to work in any EU member state.

Nick gives numerous examples from his own experience and that of self-employed colleagues of routine freelance work across the borders of EU Member States. He was, for example, recently commissioned to do a portrait of a businessman near Amsterdam. But because the photo agency that commissioned him (and commissions a lot of work done in the Netherlands) is based in Belgium, Nick would, he says, "not be permitted" to do this work after 1 January 2021. His reading of the guidance is that as a UK citizen he is "expressly not permitted to operate in the Single Market" after that date - unless, the Freelance believes, he went through aforementioned hoops.

Photo agencies routinely ring up photographers based near where photos need to be taken. Under the agreement, Nick says, agencies legally wouldn't be able to use British photographers based in a third EU country.

Another example Nick gave entailed flying with a colleague to do an assignment in the US and deciding to sell on related work to a couple of in-flight magazines - one Danish and one French. Nick notes the irony that "there's absolutely nothing to stop me shooting the story for a US magazine, or for that matter a US (national) photographer shooting for those Danish or French titles. Not least because 'third country' nationals (from outside the UK or EU) of similar status as us appear to have greater mobility rights than those afforded under the Withdrawal Agreement." The Freelance is taking advice on this reading of the rules.

Selling photos to a Dutch agency following a drive over the Dutch-Belgian border to photograph the "border bollards" of a frontier closed due to coronavirus would no longer be possible for a Netherlands-based British photographer - unless, the Freelance notes, they had a work visa. There are several NUJ Netherlands Branch members of various nationalities who live in Dutch cities such as Rotterdam and Eindhoven, close to the Belgian border, and who do most of their work covering EU politics in Brussels.

Nick gathered 71 responses after an appeal to the British in Europe Facebook page, from UK nationals working across industry sectors. Most responses were "highly pessimistic." These included a British universities consultant based in France who was "challenged by her cross-border client" after an audit of their hiring processes. The problem was resolved after the intervention of the British Embassy, but she was warned she would need a work visa to do cross-border consultancy after 1 January 2021.

Several lawyers who Nick approached gave different advice. Jeremy Bierbach, an immigration lawyer at Franssen Advocaten referred, prior to the publication of the Guidance Notes, to the peculiar form of entity that most self-employed in the Netherlands have to register at the Chamber of Commerce - "Zzp" independent company without employees. This might provide a loophole that would allow Dutch-registered UK national freelances to work "cross border." They would be a Dutch business entity rather than a UK national sole trader. (This contrasts with France and Belgium, where it's legally harder for journalists to operate as freelances.) The Guidance Notes seem to Nick to contradict this. Again, the Freelance is seeking further advice.

The "British in Europe group" is lobbying on this issue: they say it should still a subject for further negotiation between the EU and the UK. A legal challenge is being mounted at the European Court of Justice. Steve Peers, professor in EU law at the University of Essex, reckons the legal challenge would fail, but that the Withdrawal Agreement provides a route for UK nationals in the EU to recover their lost freedom of movement based on existing EU case law.

Discrimination on the basis of nationality is likely to be illegal under many EU Member States' national constitutions. Article 1 of the Netherlands constitution, for example, begins, "Everyone who finds themselves in the Netherlands will be treated equally..." It is possible that there are grounds for challenge under Germany's constitution, which states that no one will be "disfavoured" on the basis of their "homeland and origin".

It is unclear how any ban on UK national freelances working cross-border could be enforced - particularly when it comes to selling words or stock pictures across borders, rather than working in another state. It is likely, though, to have a chilling effect on clients within the EU hiring British journalists to do freelance work, particularly in those countries where hiring practices are more strictly controlled and audited.

The NUJ's Continental European Council, representing members across the continent of Europe, have been informed of these concerns, as has NUJ Freelance Organiser Pamela Morton in London. The NUJ's Legal Officer is studying the documents and contact is being made with the International Federation of Journalists (IFJ, of which the NUJ is a part) over this issue.

© Nick Gammon and Matt Salusbury
as edited by Mike Holderness

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