On 13th January 2004 the European Commission released a proposal for a directive on services in the internal market. This directive poses a certain number of concerns to the European Federation of Journalists and its members. In particular, the EFJ is not convinced that this directive would ensure “social progress”. Although it is important to improve the good functioning of the internal market, the liberalisation of European services must, we believe, be accompanied by strong labour and social protection. This is presently not the case. The EFJ urges the European Union to introduce provisions across the Union that will secure strong and equitable working conditions for media workers.
Our concerns are:
Firstly, this horizontal proposed directive aims at harmonising services in all sectors without taking into account their specific nature. In particular, it fails to distinguish services of public interest, such as audiovisual and cultural services.
Secondly, the directive would define all those working as freelance journalists, irrespective of their actual status, as pure service providers, like architects and lawyers. This ignores the fact that - although being a freelance is a legitimate choice for many journalists - many freelances are in part an economically dependent profession and many have been forced out of full time staff employment.
Thirdly, providing free movement of services, such as broadcast programmes, will inevitably have consequences, many of them negative, on the employees of a service provider such as, for instance, a broadcaster who operates in a number of countries. This directive will introduce regulations that may challenge existing laws, which provide employment protection at a national level. This could have an important impact on working conditions.
As it stands the EFJ believes that this proposal will lead to social dumping by establishing services in places where labour legislation and social protection are weak.
Country of origin principle
Of major concern is article 16 of the directive proposal, which introduces the country of origin principle, whereby a service provider will only be subject to the law of the country in which it is established. In other words, member states may not use their own specific national legal basis to restrict services from providers established in another member state.
The EFJ does not support such a principle when it is applied horizontally and would have the effect of diluting higher standards that exist in some member states. The EFJ objects to the introduction of such a principle for the following reasons:
• The country of origin principle is almost always detrimental to labour rights protection for journalists. The introduction of such a principle as a general rule for services would allow media owners to move their headquarters to those EU member states with the lowest levels of labour protection and working conditions. This would increase the threat of social dumping. It would attack some principles regarding national legislation on social security payments etc. specifically threatening to freelances.
• As well as undermining social rights, this threatens pluralism. It will reinforce the existing unbalanced conditions in favour of larger employers, which have a better economic capacity to operate in different countries. This could lead to greater media concentration.
• The right of collective bargaining would be affected because the directive would allow for the application of law from a country where workers have lower protection. In some countries labour rules are the result of negotiations and collective agreements rather than legislation. In future these could be overtaken by rules being applied from other countries, which will have legal force.
• The country of origin principle conflicts with the existing Rome I Convention on the law applicable to contractual obligations within the European Union and which addresses important issues regarding employment contracts. According to article 6 of Rome I, the law applicable to an employment contract should be the law of the country where the employee normally works. It is important, therefore, to stress that this has precedence over the directive on services. This is of vital importance to journalists who are employed in one country, which would be their place of “normal” work, but who are posted from country to country in the course of employment.
Recital 14 of the Directive proposal makes a critical reference to audiovisual services. The EFJ is worried that the audiovisual sector is covered at all by this directive.
In particular, public broadcasting has been defined by the Amsterdam Treaty and by several decisions of the EU Court of Justice as a particular service with the capacity for public funding in opposition with general rules on competition. As far as broadcasting in general is concerned, the EFJ insists that information and cultural goods are not merchandise and should not be considered as such.
The EFJ believes that facilitating freedom of establishment and cross-border activities in the audiovisual sector can only be economically and morally justified if strong and coercive instruments against media concentration and cross-media ownership are developed at the same time.
The Television Without Frontiers directive limits the application of the country of origin principle to specifically listed points. In that sense, national legal provisions to safeguard media pluralism should not be overruled by the services directive. The directive seeks to reduce these national legal provisions and introduces a new demand that such exceptions cannot be justified.
The EFJ regrets that services are addressed in such a broad sense that they include public services. Public services must comply with certain requirements and controls to guarantee their good quality. The EFJ believes that a EU instrument regulating public services must give priority to quality and should not be regulated by the rules of competitiveness alone.
The EFJ says that media have a public service dimension and that to this extent they have to fulfil fundamental objectives such as pluralism, freedom of expression, cultural and linguistic diversity as well as content that meets criteria for quality public information. The EFJ does not consider that the current version of the proposal guarantees the protection of this public service mission.
Many journalists work as freelancers and are considered as economically dependant workers . Article 4 of the proposal defines services as “any self–employed economic activity, as referred to in article 50 of the Treaty”. The directive would therefore, particularly affect freelance journalists.
Freelancers are not just entrepreneurs and cannot be strictly defined as such. As workers, they should benefit from labour law protection and should be included in collective bargaining agreements.
Article 16.3 f) for instance, restricts member states from imposing “application of specific contractual arrangements between the provider and the recipient which prevent or restrict service provision by the self-employed”. Many freelance journalists are actually “forced freelancers” and often seek full time employment. This article could prevent them from being offered and taking staff jobs. Working as a freelance is not always a choice and article 16.3 f provides, as it stands, a real incentive for member states to discourage arrangements for forced freelances to get back into full time employment.