Questioning the System

by Friedrich Pohl published in Tanz 3/2021

Nearly an entire ensemble has been kicked out of their company. The Nicht-Verlängerung (non-renewal) of their contracts was justified in each case with the simple statement: change of Intendant. Is that in keeping with the times? Friedrich Pohl raises an objection.

The manifesto by the Schwerin dancers questions the fundamental nature of the system under which dancers work in Germany. The ensemble, almost every member of which had their contact not prolonged for another season due a change in artistic directorship recently, attacks the current non-renewal practice and thus questions this decades-long custom. The legal background of the non-renewal, regulated by the collective agreement NV Bühne, is the possibility to repeatedly employ artists only on a temporary basis for at least fifteen years. The theater can decide annually whether the contracts of the artists are not automatically renewed for another season and, after an obligatory discussion, declare non-renewal. In the case of changes of artistic directors, no further justification is even required.

It is no surprise that such a practice weakens artists’ positions, becoming constantly dependent on their director for their livelihood which in turn fosters abuse of power. Non-renewals play a central role in maintaining rigid top-down structures in German theaters. Artists are threatened with potential unemployment every year. Under such circumstances, who would open their mouth to voice criticism? It was no coincidence that Chloé Lopes Gomes recently made public her accusation of racism against her employer, the Staatsballett Berlin (tanz 1/21), only after her current contract was not prolonged for another season. A courageous step, as every non-renewal plunges those affected into fear for their future and self-doubt. To be willing to be the subject of a public debate nevertheless shows how serious Gomes and now also the Schwerin dancers are.

The descriptions the Schwerin dancers give about their non-renewals, in addition to their subjective experience of humiliation, document the objectively observable behavior of a management that lacks a minimum of respectful treatment towards its own employees. This raises fundamental questions: is a theater system still valid whose artists repeatedly report that they feel restricted and powerless in it? Are permanently limited-employment contracts for artistic stage personnel still compatible with the reality of the creative process today? And does the non-renewal scheme of the NV Bühne adequately take into account the interests of the employed dancers?

The employers' side as represented by the Deutsche Bühnenverein (German Stage Association) will answer in the affirmative, and they have case law from the highest courts behind them. As recently as December 2017, the Bundesarbeitsgericht (Federal Labor Court) confirmed the use of temporary contracts and non-renewal practices for artistic employees.

The fact is that under German law, including the Teilzeit- und Befristungsgesetz (TzBfG - Part-Time and Fixed-Term Employment Act) which applies here, as within the European Union, permanent employment relationships should generally be the rule.

However, § 14 Abs. 1 S. 2 Nr. 4 of the TzBfG provides that more extensive fixed-term contracts are also possible if justified by the Eigenart der Arbeitsleistung (the specific nature of the work). Theaters are thus permitted to invoke thepeculiarity of the work, namely art, as a case for fixed-term contracts. This has been common practice for decades and is covered by case law. The reasoning behind the fixed-term employment of artistic staff is supported by the right of stages to Freiheit der Kunst (freedom of art), Art. 5 Par. 3 Grundgesetz (German constitution). In addition to artistic freedoms, the audience's need for variety is used as grounding. Conceptually, the need for artistic staff (ie: dancers) is based around the creative concept of the artistic director. According to German law, performance artists are not recognized as involved in the creation of the works of art or creative concepts, but merely implement them. As constitutionally guaranteed under ‘freedom of art’, maximum flexibility is given to employers – in this case the stage – in terms of personnel who have a direct influence on executing the creative concept.

Nonetheless, justified fixed-term contracts - i.e., also those pursuant § 14 Abs. 1 S. 2 Nr. 4 of the TzBfG - are not always permissible. The constitution requires that the affected fundamental rights of those who are restricted by the stage’s artistic freedom be weighed in each individual case. In concrete terms, this means that the interest of the dance management in hiring a dancer only on a temporary basis and remaining flexible in terms of personnel must outweigh the dancer's interest in securing permanent employment. In the event of a dispute, courts fulfill the role of the scales. If necessary, the courts can intervene in autonomous agreements between private contracting parties, such as an employment relationship – namely when the constitution requires the court to protect fundamental freedoms.

In practice, said balancing of interests is prevented in court. This is because § 2 NV Bühne states that the relevant contracts, in consideration of the artistic interests of the stage, are “Zeitverträge” (permanently limited-employment contracts) and regulates non-renewal in this context. The courts presume that the permanently limited-employment contracts established in NV Bühne are based on a balancing of opposing interests, while upholding a minimum standard of protection. This presumption refers to the fact that expert collective bargaining parties have agreed to these terms. The court's scope of reviewing these practices is considerably reduced because the collective bargaining parties are granted a so-called Einschätzungsprärogative (assessment prerogative) based on the assumption that the interest groups know the actual issues much better than the judges. Courts only take action when a disproportionate infringement of fundamental rights is blatantly obvious. In other words, the courts have so far been reluctant to subject the interests of artists in non-renewal practices to a legal ‘proportionality’ test and to judge non-renewals as disproportionate, in other words invalid.

Thus, we have reached the point where the Schwerin dancers find themselves at a dead end. After years of hard work and dedication to their profession and their theater, they must accept a humiliating dejection. They are subjected to a regulatory regime that, despite their high qualifications, places them in a purely instrumental, interpretive function - which does not do justice to the current role of dancers in the creative process.

To maneuver out of the Schwerin impasse, stage artists must do two things.

First, they should unleash a wave of unionization and become active themselves within the committees. The collective bargaining agreement must be reinvented with vigor. The employer-side hurdles to non-renewals should be greatly increased and the two-tier system of divisions ended. Choir members have long since negotiated considerable special rights, orchestra musicians enjoy legal protection against dismissal. For the remaining artists, a non-renewal can be justified in a general way - as in Schwerin - with a "change of artistic director". Is this acceptable? Don't those affected deserve an artistic justification that at least relates to their person? In my opinion: yes. Since such non-renewal practices are covered by artistic freedom and are subsequently not subject to any control in terms of content, severance pay obligations should be improved and expanded. Rates should be set high enough to enforce prudence during the decision-making process. The legal process of non-renewal decisions should reflect the reality of cooperative creative processes and recognize employee co-determination by means of new governance frameworks.

Secondly, artists should take their non-renewal cases to the highest German courts and attack the practice of fixed-term contracts. The actual situation is so serious that sooner or later the courts will no longer be able to sidestep a more detailed examination of the practice. It is necessary to succeed in subjecting the non-renewal right of the NV Bühne to a judicial examination and demand a full consideration of artists’ fundamental rights. The Schwerin dancers note that they have not been helped by their union. The fact that the Genossenschaft Deutscher Bühnen-Angehöriger (GDBA - Cooperative of German Stage Members) is not actively involved is regrettable, but it is consistent with the logic of the system. After the 2017 judgement, its legal department would have to challenge its own contribution to the negotiations as insufficient and admit that the union did not live up to its prerogative of assessment.

Dancers and actors have set up strong interim representations through grassroots organisations. In their networks, they are gathering the evidence that will be needed before the courts. Massive exploitation of artists to maintain underfinanced stage operations combined with managements’ irresponsible handling of an outdated non-renewal privilege has already been publicly documented and exposed. Numerous artists have long since joined in as cultural-political players and networkers - keep it up!

The employers' side, as represented by the Deutsche Bühnenverein (German stage association), must explain the meaning and purpose of the non-renewal scheme to artistic directors and company managers. It is a matter of making reasonable decisions with due consideration for employees' interests. Currently, the objectionable handling of non-renewal interviews in particular proves that the procedure is perceived as an annoying choreography. No effort is made to make a case to justify the decision - in Schwerin as elsewhere - but instead attempts are made to thwart procedural errors and severance payments. To ensure respectful and substantive communication, directors should be required to attain relevant leadership qualifications by the time of appointment.

Instead of fearing the end of ensemble theater in the face of foreseeable financial bottlenecks, it must be reinvented. It is high time to do so because the door to the permanent employment of stage artists may have already cracked open. In October 2018, the European Court of Justice ruled in favor of an Italian corps de ballet dancer who sued for the continuation of a permanent employment contract with the Opera di Roma. Even if the legal situation is not directly applicable to the situation here, one sentence of the Luxembourg ruling should make people sit up and take notice. In passing, the court expresses its scepticism as to whether and to what extent the programming of the stage in question requires flexibility in terms of personnel. Isn’t the technical and charismatic spectrum of dancers becoming a crucial requirement? Shouldn't they be able to perform the widest possible range of styles already, thus allowing for flexibility in programming?

If one reads the case law and literature, it seems that artistic freedom is a right of the Intendant. But it is and remains a “Recht der Bühnen” (right of the stages), according to the wording in the parliament’s explanation of the law. Should and can the concept of an Intendant really be the only parameter that sets the tone, or does the artistic freedom of the stage not also argue on the side of dancers? Hasn't the creative process in many places long since become a collaborative process with multiple co-authors and jointly made decisions? So far there is not space for a corresponding management concept. Couldn't the elimination of fixed-term contract usage in combination with the creation of incentives that pave the way for a transition into a post-dance career motivate new generations of dancers to the pinnacle of performance? 

The financial situation will become even tighter, as everyone is aware. Artists offer themselves as allies and are willing to fight together with their networks – such as ensemble-netzwerk and dancersconnect - side by side with directors for a secure and strengthened cultural environment. Such solidarity will be needed moving forward.



Friedrich Pohl danced with Ballett am Rhein Düsseldorf/Duisburg from 2013 until 2018. He cofounded the cultural political network "dancersconnect" in 2015 and is currently studying law at Humboldt University in Berlin.

Translation by Dominic Hodal, a dancer with the Staatsballett Berlin and a board member of “dancersconnect”.