The EU liberal approach of access to culture
The recognition of a limited EU competence in the field of culture has been discussed elsewhere in this volume. In what follows, the analysis explores the weakening of national cultural policies as far as the protection and promotion of the right to access culture is concerned, by EU law on negative integration and the limited development of EU cultural policies aimed at supporting access to culture. The sources of these two concurrent phenomena can be traced down in the institutional double asymmetry of EU law. Following Scharpf (2010: 362, 370), this asymmetry has favoured non-political decision-making processes - especially by the CJEU and the 'integration through law' paradigm - over political decision-making processes and, in parallel, negative integration, driven by (neo-)liberal agendas, over positive integration.
Access to culture before the CJEU
In its early case-law, the Luxembourg Court confirmed the application of the economic provisions of what was then the Treaty establishing the European Economic Community to the cultural sector.10 European scrutiny could be seen to have had both a procedural and a substantive impact on national cultural policies: at the procedural level, 'EU law requires member states to articulate and clarify the basis of their cultural policies, support them with convincing evidence, engage in consultations with those potentially affected and ensure that they operate in a transparent and non-discriminatory way' (Craufurd Smith, 2011: 877); at the substantive level, cultural policies must not obstruct the free movement of goods, services and persons or 'distort competition'. In this regard, the 'presumption of a violation of free market rules' (Scharpf, 2010: 372) can be denied only if the measure is justified and passes the CJEU's proportionality test.
Cultural democratisation motives as admissible justifications The CJEU admitted at an early stage a 'cultural rule of reason' with respect to the range of admissible justifications of national policy measures affecting the internal market. In Cinetheque11 and Libro,12 for instance, the CJEU held that national restrictive measures supporting the production of films, or books as 'cultural objects', could be justified under EU law. In general, the CJEU accepts that national measures may be justified by imperative reasons in the public interest when they are inspired by cultural diversity considerations, in the sense of protecting national or regional cultural identities,13 and, to a far lesser extent, when they are inspired by democratic considerations related to participation in cultural life.14 In the UTECA case, those two dimensions appear to have converged: the national measure at stake sought both to protect cultural identity (by offering protection to the official languages of Spain) and democratisation through participation in culture (by encouraging cinematographic production). This might explain the sensitivity of the CJEU towards a national film policy aimed at protecting national languages.15
The implicit recognition of a right to access member states' cultures Even when national cultural policy measures are rejected in light of internal market rules, cultural motives might not be absent. As was observed, 'beneath the surface of judgments, attempts sometimes lurk to guarantee multi-cultural standards for the frontier-less market space created' in order to increase the 'prospects of cultural interaction' (Psychogiopoulou, 2008: 194). The CJEU's jurisprudence could also be read from the perspective of providing guarantees of access for all Europeans to the cultures of the member states, and thus to a culture other than their own, and therefore to a 'diverse' cultural life. In interpreting free movement, the CJEU has indeed recognised and favoured access to culture from this perspective. In Commission v. Spain, for example, the CJEU held that 'by applying a system whereby Spanish citizens, foreigners resident in Spain and nationals of other Member States [... ] under 21 years of age benefit[ed] from free admission to national museums, while nationals of other Member States more than 21 years of age [were] required to pay an entrance fee', Spain had not respected its obligations under Articles 18 and 56 TFEU. The explicit reasoning of the CJEU relied on the freedom of movement, but access to culture received consideration through the linking of access to museums with the freedom of movement. According to the CJEU, 'since visiting museums is one of the determining reasons for which tourists, as recipients of services, decide to go to another Member State, there is a close link between the freedom of movement which they enjoy under the Treaty and museum admission conditions'.16