The unique nature of the services provided by artists has meant that—for as long as anyone can remember—their employment has been subject to special rules. Specifically, the classification of this activity as a special type of employment relationship is included in Article 2 of the Workers’ Statute, along with, among others, senior management and domestic workers.
The Origin of the Regulation
This activity, which referred exclusively to “artists in public performances,” was regulated by Royal Decree 1435/1985, dated August 1, which for decades governed the circumstances of this group. First, it included the only (admittedly very brief) legal reference in Spanish law that permitted minors to engage in artistic activities. Second, it expanded its scope to include all artistic activities in general—in a much broader sense than mere live performances—since Article 2.2 of the Royal Decree covered“…all relationships established for the performance of artistic activities, …, carried out directly before an audience or intended for recording of any kind for dissemination to the public, in venues such as theaters, movie theaters, radio stations, television stations, bullrings, sports facilities, circuses, nightclubs, discos, and, in general, any venue habitually or occasionally used for public performances or artistic or exhibition-type acts.”
The Reforms
The regulation underwent changes over time—notably two—that substantially altered its content and had long made a significant regulatory reform necessary:
On the one hand, the incorporation into Spanish law of Royal Decree 2064/1995, dated December 22—the General Regulation on Contributions and Settlement of Other Social Security Obligations—consolidated what had until then been the building blocks of a special social security system; however, its adoption laid the groundwork for the scandal: the new system did, indeed, incorporate specific contribution guidelines for “artists in public performances” subject to a special employment relationship, but it also added two sections listing specific professional categories—not all of which were as closely linked to the artist community as one might think. Among them: directors, assistant directors, or production secretaries; directors of photography; set designers; editors; technical supervisors; technical assistants; production assistants; sound supervisors; production secretaries; etc. Although the issue was noticed almost immediately and resolved in the following year’s reform with an additional clause specifying that it applied to“artists in public performances, as well as to the technical and support staff listed in section 3. II of this same article,” not all technicians and support staff were included in Section 3.II, nor did that clause resolve the issue, which the industry had to live with for many years. And, of course, it was an endless source of debate within the sector’s collective bargaining agreements, in fruitless (because legally impossible) attempts to resolve the fact that, arbitrarily, some technicians were included in the special regime and others were not, with no justification other than their inclusion on this list.
On the other hand, the successive labor reforms and their impact on the original legal text at hand. Specifically, the consequences of the 2015 labor reform with regard to Article 5 of the Royal Decree, concerning the duration of the employment contract. The aforementioned Article 5 of Royal Decree 1435/1985 referred, with regard to permanent intermittent contracts, to the provisions of the Workers’ Statute; and the 2015 labor reform incorporated general regulations to govern this type of employment, which, therefore, undeniably applied to this group as well from that point forward. Consequently, an obvious contradiction arose in the legal text, which was based on the premise that the employment relationship was of a temporary nature, and the rules arising from this latest regulatory change.
It fell to the courts to clarify this situation as much as possible. Thus, the Supreme Court, in its ruling of May 17, 2005 (appeal No. 2700/2004), established that this“…dual provision of the collective bargaining agreement—which accepts temporary employment as the general rule and allows for the possibility of permanent intermittent artists by referring to statutory regulations—requires a coordinated interpretation based on the purpose and nature of each of these provisions. This leads to the conclusion that the general rule of temporary employment set forth in Article 5.1 is justified by the unique characteristics of artists’ work, both with regard to the artist as an individual—who must possess special skills and qualifications that are constantly evolving—and with regard to the activity itself and the context in which it takes place —which are subject to constant changes and innovations—and which would render the rule of permanent employment dysfunctional. Meanwhile, the acceptance of “discontinuous permanence” is justified by the existence of seasonal work that recurs intermittently or cyclically in its nature (see, among others, the rulings of July 7, 2003 (Case No. 4185/00) and March 22, 2004 (Case No. 349/02)). It might seem that the two contractual modalities provided for in Article 5 are mutually exclusive, since if artists’ work is recognized as temporary due to its changing nature, and discontinuous permanence is achieved through the repetition of the same or a homogeneous activity, the logical conclusion would be that there can be no permanence in the employment relationship of artists. However, what the legislature has not wished to rule out is that (Art. 5.2) there are artists who are hired for a repeated and unchanging artistic activity; yet this is a scenario that, as an exception to the general rule of 5.1, must be interpreted restrictively.”
Despite the reforms, the text remained largely intact and continued to fulfill its original purpose—something absolutely essential to the group’s survival. However, it emerges quite clearly from the analysis that, from the very beginning, it was neither a legal text nor one that was correctly drafted or perfectly interpreted.
The Artist's Statute
Sometimes, it’s the silliest issue that ends up bringing down the house of cards. Just like what happened to Al Capone, the bomb went off because of taxes. In this case, a writer publicly denounced the tax authorities for penalizing him because, as a retiree, he continued his literary work. Added to this was the issue of the cultural VAT, and from there, one after another, the shortcomings of the previously analyzed regulations and the need for comprehensive reform became apparent.
There was talk of passing a so-called “artists’ statute,” akin to a Roman codex. A parliamentary subcommittee was created with participation from all political groups represented in the Congress of Deputies—a truly unique and commendable initiative—which drafted a thorough report containing a long list of recommendations for reforming Royal Decree 1435/1985 back in June 2018[1]. The goal: to provide the artistic community with a stable legal framework tailored to its specific needs.
It is in this context—following several regulations with limited scope[2], numerous court rulings[3], and the ongoing pandemic—that Royal Decree-Law 5/2022, dated March 22, has finally been enacted, adapting the special employment regime for individuals engaged in artistic activities, as well as the technical and auxiliary activities necessary for their performance, and improving working conditions in the sector (Official State Gazette [BOE] of March 23, 2022).
To begin with, and as with everything, the regulatory reform has its strengths and areas for improvement, but it is by no means a “Roman Codex.” Among other reasons, this is because the grand ambition of consolidating all sector-specific regulations into a single regulatory text would be a task bordering on the impossible, given the immense scope of regulations of varying significance that this would entail.
The reform is, therefore, modest, in that it does not involve the creation of any new legislation, but rather a specific—and, it must be said, thorough—amendment to existing laws.
On the contrary, the legal reform was absolutely essential. Essential for survival, we might even say, considering that it is a response to Royal Decree-Law 32/2021, dated December 28, on urgent measures for labor reform, the guarantee of job stability, and the transformation of the labor market, which was set to take effect in its entirety just a few days later.
The New Regulations
The first change concerns the very basis of these new regulations. Article 2(e) of the Workers’ Statute has been reworded and, at long last, expands its scope of application beyond performers in public shows. Specifically, the special regime now applies to “…artists who work in the performing, audiovisual, and musical arts, as well as individuals who perform technical or auxiliary activities necessary for the carrying out of such work.”
As for Royal Decree 1435/1985, it is not entirely clear why a comprehensive revision of the legal text was not undertaken. Since it is being revised anyway, the new regulations even change its name, although they retain its numbering.
However, the new regulations leave many tasks and practical matters to be addressed in subsequent implementing regulations, which we sincerely hope will be adopted shortly.
Expanding the scope of application is, of course, essential, but the text does not define what constitutes the “…technical or auxiliary activities necessary for the performance of said activity.” Does this mean that, despite all efforts, there will continue to be technicians and auxiliary staff who will randomly fall within or outside the system? A definition of what is considered necessary for the performance of the activity, at this point, would be greatly appreciated. Especially since the second paragraph of Section 3 of Article 1 of the Royal Decree no longer refers to them as“necessary”but rather considers them“essential for its execution”—which, of course, is not the same thing.
Article 1, paragraph 2, of the new regulation provides a definition of what the regulation means by “special relationship,” identifying not only the worker—as Article 2(e) of the Workers’ Statute does—but also defining the conditions of the employer, apparently equating it with the status of a production or development company. In my humble opinion, this regulation violates the principle of the hierarchy of laws, in that the Royal Decree imposes a requirement that the underlying law (the aforementioned Article 2(e)) does not require. Furthermore, does this mean that all companies in technical industries that provide special services to producers and developers are automatically excluded from the regulation?
Article 5, Section 2, second paragraph of the new text also includes a new provision. It eliminates, in one fell swoop, the very premise on which the special regime operates: its temporary nature. Temporariness as a premise—and without justification—disappears from the regulation; a justifiable cause is now required for its application, which must be specified “…precisely in the contract, ” including “…the grounds for the temporary contract, the specific circumstances justifying it, and its connection to the anticipated duration.”
The economic model of companies in this sector is intrinsically linked to a production budget, with productions varying in content, quality, and duration based on factors entirely external to the organizing company itself—factors typically tied to the project’s success (public reception). Although there are a few privileged companies that do manage to string together productions with enough regularity to remain active year-round, this is by no means the general rule. Even in the case of the most active employers, the type of production significantly determines the type of professional needed in each case; hence, the foundation of the system is—and must be—the intermittent nature of the activity. Was a change that would turn the tables really necessary, when the system has been functioning smoothly—specifically in this regard—for the past 17 years?
In short, we trust that the heads of the Ministry of Labor and Social Economy and the Ministry of Inclusion, Social Security, and Migration will wisely exercise the regulatory authority granted to them by the fifth final provision of the approved law, in order to issue implementing regulations that will fully pave the way and establish “the stable legal framework tailored to their specific circumstances” that the parliamentary subcommittee deemed this group deserved when it raised the need for the Artists’ Statute. May it be so.
- [1]https://www.congreso.es/backoffice_doc/prensa/notas_prensa/61825_1536230939806.pdf
- [2] https://elpais.com/cultura/2019/04/26/actualidad/1556277965_430302.html
- [3] https://www.elindependiente.com/tendencias/cultura/2019/02/26/javier-reverte-gana-juicio-seguridad-social-cobrara-derechos-autor-pension/
By: Mabel Klimt