Bursting the Bubble

The Situation of an Unduly Neglected Human Right in the EU

18 April 2014 | by

From a cultural human rights perspective, the European Union represents a rather unique case. Instead of developing its own policy, it rather, on the one hand, works in conjunction with and becomes party to the documents of other international organisations with a focus on culture and cultural rights, such as the UNESCO and the Council of Europe; on the other, it establishes the positive and supportive socio-economic environment which enables cultural rights to flourish. The most significant was the establishment of the common market. The market is a place where people, goods, capital and services may circulate unhindered; respecting and promoting cultural rights. This evokes three different trajectories: ensuring access to one’s culture in the state of origin, guaranteeing access to one’s culture in a Member State other than the state of origin, and securing access to the cultural life of a Member State other than the state of origin.

Given the absence of a precise legal basis for the formulation of genuine cultural rights action, the EU constitutional texts do not contain any cultural rights as such. Though revised on several occasions since the 1957 Treaty of Rome, there is no provision that binds the EU to actively pursue a cultural rights policy. Notwithstanding, various clauses included in the Treaties and the Charter of Fundamental Rights of the European Union  may have a role to play in the protection and promotion of cultural rights. For instance, Article 22 of the Charter of Fundamental Rights stipulates that, “the Union shall respect cultural, religious and linguistic diversity” and in the Treaty on European Union (TEU), as a general statement, Article 6(1) proclaims that “The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles, which are common to the Member States”.  The reference made to human rights potentially covers all categories of human rights, thus also cultural rights. Article 6(2) further provides that “the Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms as they result from the constitutional traditions common to the Member States, as general principles of Community law”. Though the European Convention on Human Rights, signed by all EU Member States and in a short time by the European Union itself, accords priority to political and civil rights, many of its provisions can also be read as incorporating cultural rights in the broader sense.

Culture, a fundamental Union right

EU cultural action under Article 167 TFEU (ex Art. 128 Maastricht Treaty)

The Treaty of Maastricht, adopted in 1992, brought culture within the Union’s sphere of responsibility. Introducing a new “Culture” chapter, Article 128 (Art. 167 at present), it also set out the principle whereby the Union should contribute, “to education and training of quality and to the flowering of the cultures of the Member States”.

Within this new area of responsibility, the Union takes action only if the objectives envisaged cannot be sufficiently achieved by the Member States (Article 5). Community action is therefore not a substitute for action by the Member States, but is designed to supplement it, in order to encourage cultural cooperation. The legal basis for the launch of culture-related initiatives may be found in paragraph 5 of this Article, which restricts the instruments that may be used for the attainment of EU cultural policy objectives to mere incentive measures and recommendations. The situation is not facilitated by the condition that unanimity is imposed for the adoption, and harmonization of the laws or regulations of the Member States is excluded.  The soft law approach prescribed has translated into a number of support measures, designed to give vent to creativity and rejuvenate the distribution of cultural goods and services. Between 1996 and 1999, three sectoral framework programmes were launched, providing financial assistance to cooperation projects carried out by operators from various Member States: Kaleidoscope focusing on performing, visual and applied arts; Ariane supporting books and reading and Raphael which engaged the theme of heritage protection.

With a view to increasing the effectiveness as well as consistency of Community cultural action, a single guidance and programming framework for cultural cooperation was introduced in 2000 (Culture 2000). The programme operated for four years with the aim to establish ‘a cultural area common to the European people’ through the intensification of cooperation between cultural operators in all artistic and cultural disciplines. Amongst its key objectives were the ‘improved access to and participation in culture in the European Union for as many citizens as possible’. In 2001, a wide-ranging evaluation exercise was carried out and building on the conclusions a more coordinated approach to cultural cooperation was developed in the Culture 2007-2013 framework. For the 2014-2020 Multi-Annual Financial Framework (MFF), a new framework programme for the cultural as well as creative sectors (CCS) brings together the former Culture, MEDIA and MEDIA Mundus programmes to create an entirely new facility to improve these sectors’ access to finance – the ‘Creative Europe’ Programme. By specifically targeting the needs of the cultural and creative sectors aiming to operate beyond national borders, plus a strong link to the promotion of cultural as well as linguistic diversity, the programme complements other European Union programmes. These programmes include the structural fund support for investment in the cultural and creative sectors, heritage restoration, cultural infrastructure plus services, digitisation funds for cultural heritage, as well as the enlargement and external relations instruments.

However, not only community-level framework programmes promote culture in the EU, but European people strive for their cultural rights as well. ‘A Soul for Europe’ is a bottom-up civil society initiative embracing countries beyond the European Union.  From bases in Amsterdam, Belgrade, Berlin, Brussels, Porto and Tbilisi, it is building an international network of European cities and regions, the cultural sector and business as well as European policy-makers. The aim of ‘A Soul for Europe’ is to implement concrete steps and coordinate projects to ensure that Europe makes better use of its cultural assets, aside from raising awareness of Europe as a cultural project. It emphasizes that access and participation in culture develops community and a sense of belonging; that culture and cultural actors are strong mechanisms for the development of civic values.

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