Less rigid regulations introduced for unemployed artists

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Artists in Belgium have an unclear social and employment status and experience the greatest difficulty in building up their social security rights. The current government is committed to drawing up a new status for artists in this respect. In the meantime, on 1 January 2001 a new regulation came into effect for unemployed artists drawing benefit. The improvement is seen by critics as not being far-reaching enough and full of administrative concepts Only "creative artists in a secondary occupation" are regarded as being somewhat better off under the new rules, subject to numerous conditions.

Although increasing numbers of artistic works are currently being produced and sold, many Belgian artists live in difficult conditions. The most important reason is that the social system security has been constructed for the majority of working people, who work in trade, industry or public administration. On the one hand, employees generally have a relatively steady job and work directly for one employer. On the other hand, the self-employed perform an economic activity where one of the essential features is that it is financially profitable in the short term.

The work of artists is marked by completely different characteristics: they sometimes work for a large number of employers simultaneously, or for none at all; they are dependent on intermediaries and the tastes of the public; they often have to train and work alongside their work as an artist; and they may sell nothing for long periods and then suddenly a great deal. In practice, in the best cases artists have access to social security, but they have to deal with complex combinations of different sections of the social security system. In the worst cases, they are protected neither by social security for the self-employed nor by social security for employees.

Only in the past few years have Belgian artists organised themselves into platforms and interest groups through which they can influence policy. The New International Cultural Centre (Nieuw Internationaal Cultureel Centrum, NICC) in particular, which is a cross-community association of mainly plastic artists, acts as a spokesperson for issues affecting the social status of all artists. Their problems are abundantly clear. In 1998, the National Platform of Artists (Nationaal Kunstenaarsplatform/Plate-forme Nationale des Artistes) conducted a survey among 26,000 artists. Of the respondents, 78.8% said that they were not satisfied with their tax and social security situation, while an even larger group said that their tax and social security status was not adapted to artistic reality. The July 1999 coalition agreement of the current Liberal/Socialist/Green government provides for the development of a new social status for artists within the current legislature.

The situation is even more difficult for unemployed artists, both in claiming unemployment benefit (only possible for wage earners) and in fitting in with administrative departments which use completely different rules and categories than would be appropriate for them. Laurette Onkelinx, the Minister of Labour and Employment, has taken up the problem of unemployed artists, and since she took office has worked on a revision of the rules. She has made specific reference to the case of Pascale Fonteneau to illustrate the incongruities of the old regulations. Ms Fonteneau is a novelist who experienced major complications with regard to her entitlement to unemployment benefit, which resulted in her being ordered to pay back a large sum of benefit (BE9710120N). Ms Onkelinx would like to provide legal certainty and enable the development of artists during periods of unemployment. As a result, a new regulation for unemployed artists has now been adopted.

New rules for unemployed artists

The new regulation came into effect on 1 January 2001. The new rules are characterised by administrative intricacies, as it is stipulated that the revisions are aimed at "anyone who works as a creative, interpretative or performing artist, whether as a main occupation, a secondary occupation or as a hobby". In principle, this creates nine possible categories of artist. However, for a person who practises art as a hobby or as a main occupation little or nothing changes:

• hobby. The practice of art is considered by the unemployment authorities as a hobby if the artist does not commercialise his or her work. Nothing changes in this respect - people entitled to benefit may indulge in their hobby whenever they want; and

• main occupation. The situation remains unchanged for interpretative or performing artists. They preserve their right to unemployment benefit for the days of unemployment. For creative artists the situation also remains largely unchanged. In a number of cases, however, such artists can refuse a non-artistic job:

  • if in the previous 18 months they have performed 156 working days of artistic activity,

  • if the job offered is not intellectually or physically compatible with their artistic work, and

  • if the offered job involves risk factors that could impede their artistic skills.

According to Yasmine Kherbache, legal adviser of the NICC, the different levels of importance of these three conditions raises questions. The first condition remains the most important. If artists have not worked enough days in artistic activity, they may well be called on to accept an unsuitable, possibly risky job. This is worrisome as the poor legal-social framework for artists (in terms of sickness and accident insurance) remains unchanged.

With regard to artistic activities as a secondary occupation, Minister Onkelinx has preserved the distinction between creative artistic work and work done as an interpreter or performer, in accordance with the advice of the management committee of the National Employment Office (Office National de l'Emploi/Rijksdienst voor Arbeidsvoorziening, ONEm/ RVA), issued on 6 January 2000. The implications are far-reaching.

With regard to interpretative or performing artistic work, the situation remains unchanged. The Royal Decree of 28 November 1969, which states that activities performed in public appearances or necessary rehearsals are governed by social law (there is a requirement to be subject to this system for wage-earning employees), remains in force. Unemployed artists declare such work and do not receive unemployment benefit for these days.

Only with regard to creative artistic activity is there any substantial change. Such activity must:

1. involve a creative artistic activity that is not a main occupation;

2. be done during the period of unemployment;

3. be declared by the unemployed person to the benefit office.

Four new rules apply in the case of such creative artistic activity as a secondary occupation:

1. the declaration to the benefit office must be made either at the time of the application for benefit, or when starting the activity. The unemployed person can thus start a creative artistic activity during the period of unemployment, something not formerly permitted;

2. more importantly, creative artistic activity can be performed at any time of day. Previously, it could only be performed outside working hours. This means that unemployed people do not have to record on their benefit card when they perform their creative activity. They can thus preserve their unemployment benefit. The unemployment benefit is paid in full if the person's net taxable annual income does not exceed BEF 128,040 (EUR 3,174). If the unemployed artist earns more, then unemployment benefit falls proportionately. The daily benefit is reduced by one 312th of the excess amount;

3. unemployed artists are free to exhibit. It used to be the rule rather than the exception (depending on the individual approach of the municipal authority concerned) that artists lost unemployment benefit for the entire period of the exhibition. Now unemployed artists only have to make a record on their benefit card when they have to attend an exhibition where a third party is commercialising their works, or when they themselves have to deal with their sale. A distinction is thus made here between the activity of creation and the activity of commercialisation; and

4. an unemployed artist who is no longer active artistically, but who still receives income from the previous artistic activities, must report this to the benefit office. This requirement does not apply if the activities have ceased for two full calendar years, or if they ended before the period of unemployment commenced.

Here too, the NICC has a few critical comments to make:

• that unemployment benefit may be combined with a net taxable income of up to BEF 128,040 (EUR 3,174) per year is, of course, regarded as a major improvement. However, a problem occurs when this amount is exceeded and has financial implications in the following year. Clearly no account has been taken here of the changeable nature of the profession. An artist who is in vogue in 2000 (and therefore earns too much) can be out of style in 2001 (to the point of selling nothing). In the second year, such an artist will have to manage on the reduced benefit. On the other hand, an income of BEF 50,000 (EUR 1240) per month in the first year, for example, which exceeds the financial limit, is not exactly enough to start a savings account;

• allowing unemployed artists to exhibit their work without being financially penalised for it is regarded as an obvious point. The situation would, however, have been better if an exhibition is only defined as commercial if something is actually sold there. The cases of artists who do not sell any work for a long time are well known. If unemployed artists organise a 10-day exhibition and sell nothing, they lose - aside from the financial investment in the exhibition itself - 10 days of benefit. This does not, for the NICC, encourage the individual tenacity that is the mark of great art, but rather compliance with general tastes, which is mediocre art; and

• the new requirement that income relating to former artistic activities (which is mainly aimed at copyright) has to be declared and offset against benefit, will not be welcomed by unemployed artists.

Commentary

The recognition of a problem is a first step in the right direction. Developing a number of solutions, which is what Minister Onkelinx has done, is a second. The painful point about this new regulation is that it uses distinctions and rules that are alien to the world of art. Can a sensible distinction really be made between a creative and interpretative artist? Do actors not flesh out the characters they are playing? Does the musician not colour the score? Many artists are in fact interdisciplinary. Minister Onkelinx has, as mentioned, made this distinction on the advice of the National Employment Office. Either the Office does not understand the world of art, in which case its position as an advisory body is something of a mystery; or the advice of the department has been used as a reason for political immobility. According to Yasmine Kherbache of the NICC, "in order to be able to talk of a real step forward for artists in Belgium, a lot of flaws still have to be eliminated." (Hilde Walschap and Jan De Schampheleire, TESA-VUB)