In a letter to President von der Leyen NUJ's General Secretary Michelle Stanistreet has asked for clarification on the situation of self-employed members who live and work in the European Union.

The National Union of Journalists is the union for journalists and journalism in the UK and Ireland, and also represents members who live and work in the European Union, most of whom are UK nationals, and many of whom are self-employed in a variety of careers including correspondents, reporters, photographers, editors, public relations and other media professionals. Their work often requires them to operate in different EU countries. It has, until now, been standard practice for such UK nationals to live in one EU Member State but work in or provide services to other EU member states. For example, our members may be commissioned to cover an event in one country, by a media organisation based in a second, while living themselves in a third. In order to flourish as self-employed persons they may then sell an article or photograph to media organisations in a fourth country.

Having read the Guidance Note relating to the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community Part Two – Citizens’ Rights (2020/C 173/01) in conjunction with the relevant sections of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (2019/C 384 I/01), the TFEU and Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union it is unclear to us whether these workers are included in the provisions of Articles 24 and 25 of the Withdrawal Agreement.

Could you provide the union with clarification on the situation of self-employed workers engaging in the types of cross-border work outlined above, and whether or not they fall into the definition of a ‘self-employed person’, or a ‘self-employed frontier worker’.

Please could you clarify the following:

  1. Are such workers considered ‘self-employed persons’ or ‘self-employed frontier workers’ under the Withdrawal Agreement
  2. What is the position for these types of workers if the current provisions of the Withdrawal Agreement, in particular Articles 24 and 25, remain in force after January 1, 2021
  3. What is the position for these types of workers if there is no Agreement between the United Kingdom and the European Union on January 1, 2021?

We request this clarification on behalf of members who live and work in the European Union and who would like to continue to do so using experience, expertise and knowledge often built up over decades of Continental European residence, thereby contributing to a healthy and diverse media and cultural landscape – core values of the EU.

Despite the stated purpose of the Withdrawal agreement to “limit to a minimum the disruption to people’s lives which the UK’s departure is likely to cause” we fear that in the current complications surrounding the UK withdrawal from the EU, the voice of this specific cohort of workers could go unheard.

 

The EU’s recently published guidelines to the Withdrawal Agreement with the UK say British citizens who live in Europe will no longer be permitted to work across borders. What this means and what can be done about it.

What has happened?

The EU/UK Withdrawal Agreement protects the rights of UK citizens living in Europe following the UK’s departure. During the negotiations before Brexit, Britain and the EU couldn’t agree on the level of freedom of movement allowed to UK citizens resident in the EU. The question was postponed to the current post-exit trade negotiations.

Recently, the EU Commission published its Guidance Notes to the Withdrawal Agreement including Article 2.13.1 Article 25(1) (See below). Though not yet legally binding, this nevertheless states that when the transition period ends on the 1st January 2021 self-employed UK freelancers based in the EU will not count as “frontier” workers able to provide cross-border services to several other EU countries.

Self-employed UK nationals legally resident in the EU, appear only to be allowed to supply cross-border services to one EU27 State providing you don’t also work, a) in the State in which you reside, or b) provide services to any other of the EU26 States.

The EU Commission here mirrors the provisions made for ordinarily employed UK citizens. Working across borders is a right enjoyed by being a member of the Single Market which the UK may have left, but UK nationals living and working in it have not.

What this could mean

Currently, there are around 440 NUJ members based in the EU, most of whom are UK nationals and many of whom are freelancers. It is often standard practice to work across EU borders. Often on a daily basis.

The Guidance Notes suggest UK freelancers based in the Netherlands could not:

  • Cover stories in EU countries outside the Netherlands. A UK photographer could not cross into Belgium, shoot a news picture and then sell it to the Dutch photo agency ANP.
  • Provide any story to titles in EU countries outside the Netherlands, a news picture in Dam Square could not be sold to Le Monde or Der Speigel but could to the New York Times or the Guardian.
  • Provide any Dutch subject matter, via EU based agencies outside the Netherlands, even to Dutch clients. The photographer could not make a portrait of a Dutch businessman in his own Dutch company if his marketing department happened to employ a Belgian photo agency to provide that picture. 

What should we do?

The NUJ is currently looking at the legal position and surveying its EU-based freelancers who may be affected. We are seeking legal clarity on the Guidance Notes, in particular on: Whether it is discriminatory under the Withdrawal Agreement, EU law or the EU27 countries’ national law, and whether there is a distinction between UK nationals per se and UK nationals legally living in the EU who are covered by the Withdrawal Agreement.

We aim to lobby the “Specialised Committee on Citizens’ Rights between the European Commission and the UK Government”, which is considering these matters. We want self-employed UK nationals, legally resident in the EU prior to Brexit, to be able to continue to work across EU borders. We believe we are a distinct cohort which exercised our previous rights to freedom of movement. These rights are specifically limited by the Withdrawal Agreement, putting us in a worse position than third-country nationals such as US journalists. To deny us our means of earning a living because we chose to live here would be discriminatory.

We aim too to lobby members of the European Parliament. The first point of contact might be EU-UK Friendship Group Co-Chaired by Terry Reintke, Natalie Loiseau, Radek Sikorski and Katarina Barley.

2.13.1

Article 25(1): 

There is a difference between the following categories:  i)  a  person who resides in  State  A  and pursues an activity as a self-employed person in State B; and ii) a person who resides in State A and pursues an activity as a self-employed person in  State  A  while also providing services in  States  B  and  C – either through the occasional provision of services or through the secondary establishment. The first category corresponds to that of a frontier self-employed person while the second category does not.”

Link to the Guidance Notes  

Link to the full text of the Withdrawal Agreement 

Flexible workers, such as those on zero-hours contracts, who because of the corona crisis may have lost a large part of their income, but who cannot claim benefits, have until Sunday 12 July to make a claim under the government’s Temporary Bridging Scheme for Flexible Workers (TOFA) .

However, there are conditions attached. These so-called flex workers must have had an income of at least €400 a month in February, and have then lost at least half by April. Their April income must not have been higher than €550. Nor can they have received any unemployment benefit or other social security payments during this period.

In the first days of the scheme, the Employee Insurance Agency (UWV) received 11,500 requests from flex workers of whom a proportion received  €1,650. That is €550 for March, April and May.

However, to date almost half of the requests have been rejected for not meeting the conditions, mostly due not earning enough in February or too much in April.

For more information, see www.uwv.nl/tofa

AFTER THE transition period following Brexit ends on 1 January 2021 and the UK leaves the EU's Single Market, UK nationals living in an EU Member State face losing the right to provide "cross border" services to another EU country. 

You can read the article on The Freelance, which is the bulletin of London Freelance Branch of the National Union of Journalists

NUJ members working this weekend covering the George Floyd solidarity protests need to plan accordingly and take appropriate health and safety precautions - there may be a range of people hostile to journalists. There have already been instances of journalists attacked.

Carry a copy of the NUJ's and Thompson solicitors emergency phone number in case you need help. Thompsons operate a 24-hour EMERGENCY number for work-related criminal matters.

Thompsons legal helpline: 08005877530

Here are some tips and advice –

  • Always carry your press card in an accessible place and use it to identify yourself       
  • Ensure you are protected by adequate insurance and conduct your own risk assessment before working
  • Always carry a map so you can check alternative routes and exit points
  • Leave yourself time to drive the route to check for places for good pictures, trouble spots, level of policing, exit routes
  • If you are parking a car, think carefully where you leave it, as you might need to get out in a hurry
  • If you park too close to the protest your car could get damaged or blocked if there is trouble
  • Wear strong boots or shoes and strong, tight-fitting clothing which allows you to move about freely
  • Face mask, shin-guards, kneepads, body armour, helmet - all or some may be worth thinking about
  • Always remember the weather and dress accordingly
  • Carry the minimum amount of equipment so you can move quickly if needs be
  • Ensure you have enough electronic memory, batteries and powerpacks to power equipment and phones
  • Remember you do not have to hand over equipment or delete any footage or images
  • Let someone know that you are covering the protest and tell them what time you are leaving and at what time to expect you back
  • At all times you should be distinct from the protesters and the police
  • Always work in such a way that if something happens you can extract yourself
  • Try and keep police units in sight and avoid putting yourself in a position where you can easily be surrounded
  • Observe government health and safety guidance relating to the coronavirus
  • Keep an eye on fellow journalists in case they need help

After the event, please inform the NUJ of any incidents that happen on the day (even if you do not wish to make a formal complaint), please email the information to This email address is being protected from spambots. You need JavaScript enabled to view it.

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