Cultural action elsewhere
In the exercise of its cultural competences, the Union is restrained as regards the measures it may adopt. These can only be recommendations and incentive measures (i.e. the cultural support measures discussed above), with no harmonisation of the laws and regulations of the member states. In reality, however, there exists a broad range of EU measures with a cultural dimension, many of which are, in fact, harmonising measures. Such measures do not bear the title of 'cultural' measures. This is because they are not adopted under the EU's 'nominal' cultural policy but under a broader array of EU policies.
This is a long-standing practice of the EU institutions, which since the Maastricht Treaty finds concrete expression in EU primary law. Pursuant to Article 167(4) of the Treaty on the Functioning of the European Union (TFEU), the EU is required to take 'cultural aspects' into account in its action overall. Cultural objectives can accordingly be integrated in, and pursued by, measures which are devised to attain other EU policy goals, for example, economic or social goals. There are two important caveats nonetheless. First, the integration of cultural considerations in EU policies other than culture must aim at the respect and promotion of cultural diversity. Second, such 'wider' or 'indirect' EU cultural action cannot be adopted for the sake of respecting and promoting cultural diversity as such. In contrast with the cultural measures adopted under the EU cultural policy proper, all other EU measures with a cultural component must principally be adopted to attain the specific aims mentioned in the treaty article that serves as their legal basis (De Witte, 2008b).
It becomes evident then that the EU policy-maker, in pursuing cultural diversity objectives in the frame of other EU policies, must first establish a credible link between the measures adopted and the core, non-cultural objectives that these measures are in principle meant to attain. This entails that EU policies, as a result of their own rules and aims, are bound to regard cultural diversity matters from their own standpoint. If these resonate well with the principal goals pursued, their integration in the measures introduced will be easier. In light of the economic mindset of most of the EU's action, indirect intervention in the field of culture has mainly taken the form of measures which sought to bolster cultural production and reinforce the distribution of and access to cultural content. These were 'cultural' aims which matched conveniently the economic goals pursued, namely to open up domestic (cultural) markets and ensure the proper functioning of a common (cultural) market. Simultaneously, market strengthening measures were taken as well, mainly in order to promote production markets of sufficient size, create new market opportunities for creative talent and diversify content sources and distribution platforms. Copyright harmonisation, and regulation in the fields of audiovisual services and electronic communications networks and services, testify to this. Crucially, cultural diversity was approached in this context from a pluralist perspective. The emphasis has been on establishing contacts with other cultures, content diversification and access to a diverse offer of cultural goods and services, rather than protecting member states' national and regional cultures.
Notably, some protection functions were also assumed. For instance, besides the adoption of measures aimed at safeguarding member states' cultural heritage (see indicatively Council, 2009; European Parliament and Council, 2014a), copyright harmonisation refrained from imposing a uniform set of copyright exceptions and limitations on the member states (European Parliament and Council, 2001b: Article 5). Domestic authorities were allowed to select the exceptions and limitations which fitted their cultural policies neatly, for example with respect to acts of reproduction made by publicly accessible libraries, educational establishments, museums and archives, or in relation to uses of copyright protected content for the purpose of illustration for teaching or for reporting on current events. In recognition of their importance for society, audiovisual regulation allowed member states to designate certain events for free-to-air television, thus precluding that these become exclusively available through pay-per view or subscription-based services, hampering national cohesion (European Parliament and Council, 2010: Article 14). Also, national authorities were permitted to impose reasonable, proportionate and transparent must-carry obligations on undertakings providing electronic communications network services for specified radio and television broadcast channels, in view of the latter's societal value (European Parliament and Council, 2002b: Article 31). Moreover, in the field of state aids, a fairly positive control attitude was developed, giving the member states considerable leeway in granting aid, in support of national, regional or minority cultures, in accordance with domestic cultural policy priorities. This is despite the fact that a number of procedural constraints were imposed in order to ensure that state aid is proportionate, genuinely concerns culture, and in the case of public service media, is granted in the pursuit of democratic, social and cultural objectives instead of commercial aims.
The EU's economic reading of culture has been equally important in the context of its external relations. Here, however, a more readily recognisable protection stance was adopted, especially in a trade context, with the EU seeking to create room for its 'regional' treatment of culture within global governance. The story of the EU 'cultural exception' battle fought in the World Trade Organization (WTO) is well told, and although this focused on audiovisual services rather than on cultural services in general, it was clearly meant to restrain the impact of trade liberalisation on member states' cultural distinctiveness. The EU's cultural struggle resulted in multilateral trade rules offering some flexibility in terms of preserving national (and EU) cultural policy capacity. It was not, however, successful in establishing a cultural carve-out as such. This explains the efforts deployed by the EU to build alliances in recognition of state cultural sovereignty elsewhere, and the intensification of its activity within the United Nations Educational, Scientific and Cultural Organization (UNESCO), whose cultural discourse proved more appeasing. Such intensified activity took the form of a key role played in the negotiations, signature and entry into force of the Convention on the protection and promotion of the diversity of cultural expressions (the UNESCO Convention or Convention) (Psychogiopoulou, 2012b), and thus the nesting of EU cultural action and policies in UNESCO's work.
The Convention seeks to safeguard and foster the capacity of parties, including the EU (see Council, 2006), for cultural policy-making by enshrining their right to formulate and implement cultural policies and measures, while encouraging international cooperation in the field. In its wake, the EU determined, as a key objective of EU cultural action, the integration of culture as a vital element in its international relations (European Commission, 2007a). In practice, the EU has sought to implement the Convention by drawing on a number of external policies and by developing new models of cultural cooperation with its partners, alongside the use of more 'traditional' cultural cooperation instruments encouraging sustainable development, in addition to promoting 'knowledge of and understanding for Europe's cultures' (ibid.: 10). Experimentation with new cultural cooperation tools has not been without criticism, especially when these were associated with the EU's trade policy, and quite importantly did not lead to cohesive action. This prompted the Council to advocate the establishment of a comprehensive strategy for incorporating culture into the EU external relations, tailored to the socio-economic features of the third countries concerned, the state of their cultural exchanges with the EU and the characteristics of their cultural sectors (Council, 2008b). Calls for a coherent EU strategy were also made by the European Parliament, which placed emphasis on the potential of EU cultural exchanges with third countries for 'strengthen[ing] civil society, foster[ing] democratisation and good governance, encourag[ing] the development of skills, promot[ing] human rights and fundamental freedoms and providing] building blocks for lasting cooperation' (European Parliament, 2011: para. 11).
In response to such calls, a 2013 preparatory action on 'culture in the EU external relations' mapped existing approaches and policies, and also assessed the expectations of third country stakeholders, so as to reflect on the potential added value of EU action. A report, published in 2014, revealed that Europeans had been successful 'in projecting to the world an image of their shared space as one of cultural creativity and diversity' (Isar et al., 2014: 8). However, efforts should henceforth 'go beyond representation alone' and encourage engagement with partner countries through 'mutual learning and sharing' in 'a spirit of global cultural citizenship that recognises shared cultural rights as well as shared responsibilities, hinging upon access and participation for all in a framework of cosmopolitan solidarity' (ibid.). The study put forward a number of recommendations for that purpose.
Whether the study's recommendations will feed developments is yet unclear. What is worthwhile stressing here is that a similar process of reflection could greatly benefit EU cultural action by means of the EU's internal policies as well. The Convention, which is relevant both for the EU's external and internal policies (Council, 2006: Annex 1(b)), puts forward an understanding of cultural diversity that lies in its importance not only for socio-economic development but also for democratisation, participation and empowerment (Pyykkonen, 2012). The Convention highlights in particular, the significance of equitable access to cultural resources, participation in the creation, production, dissemination, distribution of and access to cultural expressions, balanced cultural exchanges and openness to other cultural points of reference.1 The EU's internal policies and their economic outlook are certainly in line with a reading of cultural diversity whereby the aim is to promote exposure to other cultures while harnessing the socio-economic potential of culture. A number of recent initiatives are enlightening in this respect, underlining the contribution that culture can make towards achieving the Europe 2020 strategy goals, especially in terms of boosting the EU economy, ensuring the preservation, sustainable management and development of cultural resources, and strengthening social cohesion (Council, 2011a, 2014b). At the same time, it is clear that the EU's 'internal' and 'external' treatment of culture are only partially aligned - the protection function is more pronounced in the latter - and that the impact of UNESCO's activity has been one-sided - confirming for the most part and strengthening pre-existing arrangements and understandings about the role of culture in socio-economic development.
It should be acknowledged, nevertheless, that the market alone, and all related EU policies, do not deliver equity and fairness in cultural participation for citizens and societal groups, attachment to common values and eventually respect for diversity. Especially in a period of economic downturn, cultural conflicts have been exacerbated, raising key questions about how the recognition of cultural differences can be reconciled with the social reproduction of trust and solidarity that is necessary in contemporary democracies. The EU's cultural support programmes could offer a helping hand in this respect, but the recent emphasis on the economic potential of culture might downplay measures designed to mitigate tensions between cultures and community groups, reinforce respect for fundamental rights and promote shared principles and democratic values. The cultural OMC might be more helpful in this regard, since it has embraced such themes as access to culture and intercultural dialogue. Its ability to influence domestic and EU policies, however, is contingent upon a number of factors, more conspicuously the existence of political will for the uptake of the policy recommendations put forward. Perhaps the strengthened role of the EU in the field of fundamental rights offers some potential. The EU Charter of Fundamental Rights (CFR) includes a number of culture- related provisions which are binding on the EU institutions, and also the member states when these act within the scope of EU law. Moreover, several useful measures, particularly from the standpoint of countering discrimination, have been adopted at the EU level (see in particular Council, 2000a, 2000b). Notwithstanding, considerable limits exist. The EU treaties contain no provision enabling the EU to develop a fully fledged fundamental rights policy, while important cultural rights are missing in the text of the CFR.