A cultural policy by any other name?
If the EU has been as much a cultural and political project as an economic one, the founding Treaty establishing the European Economic Community (TEEC) did not wear its cultural aspirations on its sleeve. Admittedly, the preamble to the TEEC referred to the desire to create an 'ever closer union among the peoples of Europe', to enhance social as well as economic progress, to eliminate the barriers that divided Europe and to safeguard peace and liberty, but the substantive text of the TEEC mentioned 'culture' only once, in Article 131, which dealt with relations between the European Economic Community (EEC) and external territories associated with the member states. Article 131 TEEC confirmed the importance of strengthening economic links with these countries in order to enhance their prosperity as well as their social and cultural development, the link between economic and cultural development thus being explicit. With regard to internal relations among the member states, however, the cultural impact of economic integration received little attention: there was some protection for national treasures and intellectual property in relation to trade in goods (Article 36 TEEC); a social policy and social fund were established to address regional disparities among the member states (Articles 117-128 TEEC) and the agriculture provisions called for the structural and natural disparities between the different regions to be taken into account (Article 39(2) TEEC, see Von der Schulenburg, Graf and Rossi, 1961).
Some states concluded from this apparent omission that the EEC had no competence in the cultural field and that cultural matters were simply excluded. This, however, was to misunderstand the nature of the TEEC, which applied generally to cross-border economic activities, save for a few limited exceptions. The TEEC contained no exception for culture and, given the contested nature of the term, ranging from the high arts to everyday customs, as well as the overlap between culture and commerce, such an exception would have rendered the application of the TEEC both contentious and patchy. There were, moreover, specific indications in the TEEC that no such exclusion was intended: as noted above, Article 36 TEEC (now Article 36 TFEU) authorised states to derogate from the free movement of goods provisions on grounds of morality and to protect 'national treasures having artistic, historic or archaeological value' and intellectual property, provided such measures did not constitute a means of arbitrary discrimination or a disguised restriction on trade. Article 36 TEEC confirmed, therefore, that products reflecting even contested cultural practices and mores as well as more traditional 'elite' cultural expressions could all fall within the scope of the Treaty, along with measures designed to ensure funding for the cultural and creative sectors.
Subsequent state and judicial practice confirmed this view. Thus, a specific derogation for performing artists and musicians from the free movement of workers provisions during the transitional period was adopted in order to protect domestic performers from being undercut by foreign labour (Haase, 1975: 33). If any doubts remained, these were removed by the Court of Justice of the EU (former European Court of Justice, ECJ) in its 1968 Commission v. Italy art treasures ruling.1 This confirmed that the TEEC covered all products that could be the subject of commercial transactions, including the art treasures at issue in the case.2 If the TEEC was culturally blind in terms of its scope, it was not culturally agnostic in terms of its application. Its primary target was cultural chauvinism, in that for economic integration to be effective, member states would have to dismantle their exclusionary trade and employment rules, opening the way to a new culture of exposure, tolerance and accommodation. In particular, Articles 7 and 119 TEEC prohibited, within the scope of the TEEC, all discrimination on grounds of nationality and required equal pay for men and women for equal work. Products and workers could no longer be excluded from domestic markets simply on the basis that they originated in another member state or, in certain contexts, be discriminated against on the basis of their sex.
Three cultural aspects of economic integration merit particular attention here. The first is the extent to which the free movement and competition rules in the TEEC restricted the capacity of member states to steer cultural developments within their territories. Not only did the TEEC prohibit explicit forms of discrimination based on nationality or sex, it also put in place mechanisms by which even apparently nondiscriminatory measures could be monitored to ensure that they did not operate indirectly to perpetuate discrimination. In an important line of cases, finding its roots in Dassonville,3 and Cassis de Dijon,4 the ECJ held that the free movement provisions of the TEEC could apply to domestic rules that indirectly impede access to foreign goods, services and workers. As a result, a range of culturally motivated regulations that many states would have expected to fall outside the scope of the TEEC were brought under judicial scrutiny. The ECJ, however, also acknowledged that 'indistinctly applicable measures' of this type could potentially be justified on a range of public interest grounds, which subsequent cases have confirmed include cultural concerns, such as the maintenance of media pluralism,5 and linguistic diversity.6
All such restrictions must be proportionate, however, and not constitute a disguised form of protection. Member states have often failed to convince the ECJ in this respect.7 Where the cultural expression plays a defining role in establishing group identity, such as a language, or is closely linked to a state's fundamental values, such as human dignity, the ECJ has been more willing to allow restrictive measures to be retained.8 In other cases it has been prepared to let the logic of the internal market run its course.9 The TEEC did not, however, prevent states from regulating solely domestic industry in order to preserve indigenous products or distinctive practices, thereby enhancing cultural diversity 'from within'.10
Where states provide financial support for domestic cultural bodies the EU state aid rules come into play (Articles 107-109 TFEU). There was no specific derogation for aid for cultural purposes until 1992, when a new derogation for 'aid to promote culture and heritage conservation' (now Article 107(3)(d) TFEU) was added by the Maastricht Treaty, with the caveat that this should not unduly distort trading conditions and competition in the Union. Financial aid for specific cultural sectors, such as the film industry, was considered quite early on to be problematic, potentially distorting competition among producers in different member states. This was so even though the major competitors across most of Europe were the US studios. Similarly, from the early 1980s, commercial broadcasters began to question the legitimacy of state funding for domestic public service broadcasters (Donders, 2012a). Quite central elements of domestic cultural policy, specifically designed to address deficiencies in the market provision of cultural goods and services, were thus subjected to EU oversight and scrutiny (De Vinck and Pauwels, 2008: 298-300).
The second notable aspect of European integration stems directly from the first. As the power to influence the cultural life of the country shifts away from the state, so the power of the market and the individual as joint drivers of cultural change is enhanced. The internal market created new opportunities for individuals to actively select from the enhanced range of cultural opportunities and points of reference now available, rather than simply follow established practices and value systems through habit, legal requirement or the absence of viable alternatives. Exposure to different cultures as a result of travel, study or work abroad; the presence of foreign products, services and workers within one's own state; access to foreign television or radio programmes, literature or cinema; all encourage a comparative perspective where automatic superiority is no longer ascribed to any one set of cultural practices (Kurzer, 2001). This cosmopolitan sensibility is, of course, more a matter of choice for some than others - travel to another member state, for example, is often an economic necessity (Beck, 2006: 157), while for those who do not wish to engage with this diversity, cosmopolitanism poses unwanted challenges to cherished certainties often disturbingly close to home.
The third aspect is that where market forces are considered problematic from a cultural point of view or supplementary action deemed desirable, regulatory intervention increasingly takes place at the European rather than the national level. As Stephen Weatherill (1995) observes, European economic integration characteristically involves a process of deregulation at the domestic level and re-regulation at the European one. Although prior to the adoption of the Maastricht Treaty in 1992 the European Commission (Commission) was careful to emphasise that it had no direct competence to develop cultural policy at the European level, it did recognise the need to take targeted action to support the cultural sector within the economic framework provided by the TEEC (European Commission, 1977, 1982). Thus, the Commission proposed a range of legislative initiatives designed, inter alia, to facilitate the free movement of cultural workers and objects; address the illicit trade in art objects; create training opportunities for young cultural workers; and harmonise the copyright and tax rules in the field. A pilot support programme for Europe's fragmented audiovisual sector was introduced in 1986 (European Commission, 1986;for early concerns see European Commission, 1964), followed by the first MEDIA programme in 1991. This was adopted by the Council of the European Economic Community (1990) (now Council of the EU, Council) under Article 235 TEEC, which allowed for supplementary action to realise EEC objectives where there was no express basis in the TEEC (now Article 352 TFEU).
Many of these measures were attractive to the member states because they provided a level of protection that it would have been difficult for states to achieve on their own. The introduction, for example, of a scheme for geographic indications under the agricultural provisions in the TEEC provided a level of pan-European protection for traditional food and drink that previously would have required a complex network of bi- and multilateral treaties to take effect.11 Such measures also reflect a long-standing awareness on the part of the EU that culture can be an important driver of economic development and the Structural Funds, in particular, have provided significant funding for culture-related projects to support economic development in Europe's most disadvantaged areas.12
Despite these potential advantages, the cultural logic of economic integration remained deeply troubling for certain member states - creating a new focus for identity beyond the nation state and displacing established cultural connections. EEC initiatives intended to foster a sense of European or common identity were consequently often stalled or, alternatively, contained through limited funds in order to make them acceptable to the more sceptical member states (regarding the EEC's largely unsuccessful attempts to create a European identity through media initiatives see Theiler, 1999; Collins, 1994). The absolute ability of states such as the UK or Denmark to block initiatives that could encroach on their own competence in the cultural field was undermined by the move to Council qualified majority voting for internal market measures in 1987.13 Oblique or inadequate attention to cultural considerations in EU legislation has also been a product of the relatively low ranking of cultural ministries and directorates within both domestic and EU governmental hierarchies (Schindler, 2012: 17-18).
Within the EU there have been a number of developments that, working in tandem, could mitigate these concerns, though their potential has yet to be fully realised. The first was the introduction in the original culture article, Article 128 of the Treaty establishing the European Community (TEC),14 of a requirement that the European Community (EC) should 'take cultural aspects into account in its action under other provisions of the Treaty', subsequently amended by the Treaty of Amsterdam to include the phrase 'in particular in order to respect and to promote the diversity of its cultures' (Psychogiopoulou, 2008, especially 55-84). This underlines that 'taking culture into account' has both protective and promotional dimensions: not only is the EU required to step back from action that could be detrimental for cultural diversity but also to consider whether additional support is needed for culture in, for example, its various funding programmes.
Academics and those working in the cultural sector have been generally critical of the operation of the 'cultural mainstreaming clause' (now Article 167(4) TFEU) (Gordon, 2010; Psychogiopoulou, 2008: 347-348; Schindler, 2012: 6). Undoubtedly, cultural concerns have been accommodated in specific measures and, in some contexts, taken extremely seriously.15 Christopher Gordon, however, cites a number of cases where the cultural impact of legislation was simply overlooked, while Jorg Schindler notes that out of approximately 13,300 ECJ decisions between 1997 and 2012 the number of cases where cultural aspects were explicitly mentioned was in the lower two digit range (Gordon, 2010: n. 34 at 109-110; Schindler, 2012: 8). To this extent, the high hopes of those who supported the introduction of the horizontal mainstreaming clause on the basis that it would lead to more transparent, empirically based, decision-making were not realised.
In response, Schindler proposes the inclusion of a paragraph on culture in the Commission's Impact Assessment Guidelines, backed by more detailed guidelines, drawn up with the participation of civil society organisations (Schindler, 2012: 21). Considerable work has, in fact, already been carried out by the EU to establish workable indicators for the cultural sector, which, together with studies by national and international bodies such as the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the Council of Europe (CoE), provides an extensive empirical and theoretical base on which systematic cultural impact assessments could be built (Bakhshi, Freeman and Hitchen, 2009;Schindler, 2012: Fig.1, 12; ESSNET-Culture, 2012; KEA et al., 2006). Evangelia Psychogiopoulou (2008: 348) has also suggested the appointment of 'key officials responsible for a cultural mainstreaming strategy' and the provision of training for the development of 'culturally sensitive policies' in order to improve the way in which cultural issues are analysed and integrated in EU policy-making in the future.
The second development, identified as a priority in the 2007 Commission Agenda for culture in a globalizing world (the Cultural Agenda) (European Commission, 2007a: 11-12), concerns the way in which the Commission has sought to 'map' and pull together the rather atomised cultural and civil society organisations working in the field to form panEuropean networks. These networks enable a more effective exchange of information and representative consultations on EU policy development. If Article 167(4) TFEU is to be taken seriously then more structured dialogue with the cultural sector along these lines is essential. Informal input into EU policy development is also facilitated by the Cultural Fora organised each year by the Commission, providing an opportunity for representatives from the sector, policy-makers and administrators to meet and discuss key concerns or developments.
The third development is the ascription of Treaty status to the Charter of Fundamental Rights (CFR) of the EU by what is now Article 6 of the Treaty on European Union (TEU). Articles 22 and 25 CFR call on the EU to 'respect cultural, religious and linguistic diversity' and to respect the 'rights of the elderly... to participate in social and cultural life'. The Charter also underlines the balance that may have to be struck between cultural diversity and other Charter values such as human dignity. If Article 22 CFR establishes principles rather than rights then it is likely to operate primarily as an interpretative tool, though principles can also found actions for judicial review of EU and member state implementing measures (Article 52(5) CFR). It is arguable that the scope for review extends beyond those measures specifically designed to give effect to the Charter principle at issue (see Advocate General Cruz Villalon, 2013: para. 70). The 'explanatory notes' to the Charter state that principles cannot, however, be used as the basis for claims for positive action on the part of the EU or member states (Praesidium, 2007: 35).
If understood as establishing a right to respect for cultural diversity, Article 22 CFR would have to be considered in the context of specific fundamental rights impact assessments and could encourage greater attention to cultural issues in the well-established gender and environmental impact assessments (Schindler, 2012). Though the exact status of Article 22 CFR has still to be established, it is clear that respect for cultural diversity, a largely implicit objective underlying the early moves towards economic integration, is now an express and fundamental value of the European legal order (Arzoz, 2008a; Craufurd Smith, 2014). This is further confirmed by the inclusion of new Article 3(3) TEU, which states that the Union 'shall respect its rich cultural and linguistic diversity, and shall ensure that Europe's cultural heritage is safeguarded and enhanced'.