In Defense of Member State Culture: The Unrealized Potential of Article 151(4) of the EC Treaty and the Consequences for EC Cultural Policy

Cornell International Law Journal

Volumn 34, Issue 1, 2001, Pages 119-162

  Cunningham, Collette B ^a  

^a NONE

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EID: 0035616350     PISSN: 00108812     EISSN: None     Source Type: Journal    
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References (279)

1. DESMOND DINAN, EVER CLOSER UNION? AN INTRODUCTION TO THE EUROPEAN COMMUNITY 2 (1994).
2. This entity was the European Coal and Steel Community (ECSC). TREATY ESTABLISHING THE EUROPEAN COAL AND STEEL COMMUNITY, Apr. 18, 1951, 261 U.N.T.S. 140 [hereinafter ECSC TREATY]. The Community, which included France, Germany, Italy, Belgium, the Netherlands, and Luxembourg, began operating in August 1952, after ratification by the Member State Parliaments. DINAN, supra note 1, at 25-26.
3. The European Community began accession negotiations on March 31, 1998 with Cyprus, the Czech Republic, Estonia, Hungary, Poland, and Slovenia. The EC invited Bulgaria, Latvia, Lithuania, Romania, the Slovak Republic, and Turkey into partnerships to speed their applications for membership. Finally, Malta reactivated its application for membership in October 1998. Europa, Enlargement: Introduction, at http:// europa.eu.int/comm/enlargement/intro/index.htm (last visited Mar. 3, 2001).
4. The Community has competence in a field when a particular Treaty provision authorizes it. See generally PAUL CRAIG & GRAINNE DE BURCA, EU LAW 110-19 (2d ed. 1998).
5. A definition of culture is elusive because of the word's many connotations and meanings. For a sampling of definitions that indicate the scope of the word, see LOMAN ET AL., CULTURE AND COMMUNITY LAW: BEFORE AND AFTER MAASTRICHT (1992). The traditional view of culture includes "the highest intellectual achievements of human beings: the musical, philosophical, literary, artistic and architectural works, techniques and rituals which have most inspired humanity and are seen by communities as their best achievements." Lyndel V. Prott, Cultural Rights as Peoples' Rights in International Law, in THE RIGHTS OF PEOPLES 94 (James Crawford ed., 1988). Another definition offers a more anthropological perspective, and includes "the totality of the knowledge and practices . . . of each of the particular groups of a society . . . ." C. Guillaumin, Women and Cultural Values, in CULTURES (1979). This Note broadly defines culture as the abstract collection of all that is valued within a particular society. Applying this broad definition to the European Community, one readily acknowledges that culture is a pervasive concept. Every practice in society impacts culture in some way, from the practice of labeling wine to the manner in which football players are selected. The EC has not defined culture in a restrictive manner and the current discussion does not require such a limitation. For potential criticism of adopting such a broad definition of culture and the author's responses, see infra note 260.
6. Comm'n of the Eur. Communities, Community Action in the Cultural Sector, BULL. EUR. COMMUNITIES, 1977, Supp. 6-1977 ¶ 3, at 5 [hereinafter Community Action in the Cultural Sector].
7. Comm'n of the Eur. Communities, The Hague Summit, Final Communiqué of the Conference (2 Dec. 1969), BULL. EUR. COMMUNITIES, 1970, 1-1970 ¶ 4, at 12 [hereinafter Hague Summit Final Communiqué]. See also quote cited infra note 51.
8. TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY, Mar. 25 1957, 298 U.N.T.S. 11 [hereinafter EEC TREATY], amended by TREATY ON EUROPEAN UNION, Feb. 7, 1992, O.J. (C 224) 1 (1992) [hereinafter TEU], amended by TREATY OF AMSTERDAM AMENDING THE TREATY ON EUROPEAN UNION, THE TREATIES ESTABLISHING THE EUROPEAN COMMUNITIES AND CERTAIN RELATED ACTS, Oct. 2 1997, O.J. (C 340) 1 (1997) [hereinafter TREATY or AMSTERDAM]. The Treaty is now known as the TREATY ESTABLISHING THE EUROPEAN COMMUNITY, Nov. 10, 1997, O.J. (C 340) 3 (1997) [hereinafter EC TREATY].
9. TEU tit. IX (as in effect 1993) (now tit. XII). This Title contained one article -Article 128-on Culture. Article 128 was amended and renumbered by the Treaty of Amsterdam and is currently Article 151 of the Consolidated Version of the EC Treaty. This Note refers to the Article as currently numbered, though it should be noted that most of the documents cited were written prior to implementation of the Treaty of Amsterdam and thus internally refer to Article 128.
10. The text of Article 151 reads as follows: 1. The Community shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore. 2. Action by the Community shall be aimed at encouraging cooperation between Member States and, if necessary, supporting and supplementing their action in the following areas: - improvement of the knowledge and dissemination of the culture and history of the European peoples; - conservation and safeguarding of cultural heritage of European significance; - non-commercial cultural exchanges; - artistic and literary creation, including in the audio-visual sector. 3. The Community and the Member States shall foster cooperation with third countries and the competent international organizations in the sphere of culture, in particular the Council of Europe. 4. The Community shall take cultural aspects into account in its action under other provisions of this Treaty, in particular in order to respect and to promote the diversity of its cultures. 5. In order to contribute to the achievement of the objective referred to in this article, the Council - acting in accordance with the procedure referred to in Article 189b and after consulting the Committee of Regions, shall adopt incentive measures, excluding any harmonization of the laws and regulations of the Member States. The Council shall act unanimously throughout the procedures referred to in Article 189b; - acting unanimously on a proposal from the Commission, shall adopt recommendations. EC TREATY art. 151 (emphasis added, denoting phrase added by the Treaty of Amsterdam). The TEU also mentioned "culture" in two other areas and amended the EC Treaty accordingly. Article 3(q) now sets forth as one of the activities of the Community contributing to "the flowering of the cultures of the Member States." EC TREATY art. 3. Article 87 (formerly article 92) on aids granted by States includes "aid to promote culture and heritage conservation where such aid does not affect trading conditions and competition in the Community to an extent that is contrary to the common interest" as aid that is considered compatible with the common market. Id. art. 87(3)(d).
11. Id. art. 151(4).
12. See id. tit. 1 (focusing on free movement of goods), tit. III (focusing on free movement of persons, services and capital).
13. Communication from the Commission to the European Parliament, the Council and the Committee of the Regions: First European Community Framework Programme in Support of Culture (2000-2004), 1998 O.J. (C 211) 18 [hereinafter First European Community Framework Programme in Support of Culture]; Proposal for a European Parliament and Council Decision Establishing a Single Financial and Programming Instrument for Cultural Cooperation (Culture 2000 Programme), 1998 O.J. (C 211) 18 [hereinafter Proposal for a Single Financing and Programming Instrument].
14. EC TREATY art. 151(4).
15. Id. ("The Community shall take cultural aspects into account in its action under other provisions of this Treaty.").
16. This analysis is based on the author's own evaluation of historical Community documents.
17. ECSC TREATY.
18. CRAIG & DE BURCA, supra note 4, at 9.
19. FRANCOIS DUCHENE, JEAN MONNET: THE FIRST STATESMAN OF INTERDEPENDENCE 239 (1994).
20. EEC TREATY.
21. TREATY ESTABLISHING THE EUROPEAN ATOMIC ENERGY COMMUNITY, Mar. 25, 1957, 298 U.N.T.S. 167 [hereinafter EURATOM TREATY].
22. CRAIG & DE BURCA, supra note 4, at 11. The aims of the Treaty, set forth in the preamble and Article 2, were to establish a common market, approximate the economic policies of the Member States, develop economic activities in the Community, increase stability, raise the standard of living, and promote closer relations between Member States. Id.
23. EEC TREATY art. 3.
24. The United Kingdom originally intended to remain outside the EEC and initiated the European Free Trade Association (EFTA) with Norway, Sweden, Austria, Switzerland, Denmark, and Portugal. In 1961, the U.K. applied for Community membership but the application was vetoed by France. Not until General Charles de Gaulle resigned from the French presidency was the U.K. accepted into membership. See CRAIG & DE BURCA, supra note 4, at 14-15. The U.K., Ireland, and Denmark joined the EEC in 1973, followed by Greece in 1981, and Spain and Portugal in 1986. Id. at 15. Austria, Sweden, and Finland subsequently joined the Community in 1995, bringing the current total to fifteen Member States. Id. at 29-31.
25. SINGLE EUROPEAN ACT, Feb. 17, 1986, 25 I.L.M. 503 (effective July 1, 1987) [hereinafter SEA].
26. CRAIG & DE BURCA, supra note 4, at 21.
27. TEU.
28. The European Union encompasses three pillars. The first is the Community pillar, which contains the EC, ECSC, and Euratom Treaties - the constitutive treaties of the European Union. The second pillar is the Common Foreign and Security Policy. The third pillar is Police and Judicial Co-Operation in Criminal Matters. CRAIG & DE BURCA, supra note 4, at 32-45. For a discussion of the pillar structure under the TEU prior to the Treaty of Amsterdam amendments see id. at 25-29.
29. See generally TEU.
30. TREATY OF AMSTERDAM.
31. ELIES STEYGER, NATIONAL TRADITIONS AND EUROPEAN COMMUNITY LAW 2 (1997).
32. Case C-415/93, 1995 E.C.R. I-5040, [1996] 1 C.M.L.R. 645 (1995).
33. STEYGER, supra note 31, at 2.
34. See, e.g., EC TREATY art. 30 (formerly art. 36) (allowing restrictions on the free movement of goods when justified, inter alia, to protect "national treasures possessing artistic, historic or archaeological value").
35. International agreements and general principles of law are also sources of EC law. See INNS OF COURT SCHOOL OF LAW EUROPEAN COMMUNITY COMPETITION LAW IN PRACTICE 195 (2d ed. 1999).
36. EC TREATY art. 249 (formerly art. 189). Article 249 states: In order to carry out their task and in accordance with the provisions of this Treaty, the European Parliament acting jointly with the Council, the Council and the Commission shall make regulations and issue directives, take decisions, make recommendations or deliver opinions. A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States. A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. A decision shall be binding in its entirety upon those to whom it is addressed. Recommendations and opinions shall have no binding force. Id.
37. See CRAIG & DEBURCA, supra note 4, at 106 n.2 (giving examples of Treaty articles that require legislation by way of regulation), 109 & nn.17-18 (giving examples of treaty articles that require policy-making by way of decision).
38. ECJ decisions have interpreted the effects of each type of legislation more broadly than the original interpretations. For example, the ECJ has held that directives have direct effect and that Member States can be liable in damages for nonimplementation of a directive. CRAIG & DEBURCA, supra note 4, at 109.
39. Id. Thus, the method of implementation is left to the State addressed.
40. EC TREATY arts. 155-63.
41. Id. arts. 145-54.
42. Id. arts. 137-44.
43. MICHAEL HOPKINS, POLICY FORMATION IN THE EUROPEAN COMMUNITIES 3 (1981). The twenty members, including at least one representative from each Member State, make decisions through majority vote. CRAIG & DE BURCA, supra note 4, at 50.
44. EC TREATY art. 145. Each Member State has one representative that is authorized to commit the government of that state. Id. art. 146.
45. CRAIG & DEBURCA, supra note 4, at 67, 70-72. The European Parliament is the most populous body, comprising over 600 representatives elected directly by EU citizens. There are currently 626 representatives in Parliament. The Treaty of Amsterdam amended the EC Treaty to cap the number of members at 700. EC TREATY art. 189 (formerly art. 137). Parliament's role as a deliberative and consultative body, HOPKINS, supra note 43, at 6, means it is often the first institution to initiate discussion, as was the case in the realm of culture. Parliamentary documents help mark the emergence of new ideas, as those ideas first surface in Parliament discussions and then gain acceptance within the Community. Commission documents go one step further, setting forth the concrete policy proposals that the Council and Parliament will consider.
46. EC TREATY arts. 220-45 (formerly arts. 164-88). A Court of First Instance was created in 1989 to ease the caseload of the ECJ. CRAIG & DE BURCA, supra note 4, at 78-95 (providing information on the ECJ and the Court of First Instance); DAVID MEDHURST, A BRIEF AND PRACTICAL GUIDE TO EC LAW 33 (1990). The ECJ currently comprising fifteen judges, one selected by each Member State. As a court of general jurisdiction, the ECJ hears cases covering all topics, and its rulings bind the Member States and their inhabitants.
47. The current Commissioner charged with culture is Viviane Reding, Commissioner for the Education and Culture Directorate-General. For more information on Ms. Reding, see Europa, Commissioner Viviane Reding, at http://europa.eu.int/comm/ commissioners/reding/index_en.htm (last visited Mar. 3, 2001).
48. LOMAN ET AL., supra note 5, at 142. A separate Cultural Council was also created to prepare for these meetings. Id.
49. EUROPARL, Rules of Procedure of the European Parliament, Annex VI, § XIII (14th ed. 1999) (detailing the responsibilities of the Committee on Culture, Youth, Education, and the Media), at http://www.europarl.eu.int/home/default_en.htm.
50. CRAIG & DE BURCA, supra note 4, at 4.
51. See Hague Summit Final Communiqué, supra note 7, ¶ 4, at 12. At the Hague, the Heads of State or Government of the Member States declared that they regarded Europe as an "exceptional seat of . . . progress and culture." Id.
52. See Comm'n of the Eur. Communities, The First Summit Conference of the Enlarged Community, Declaration, BULL. EUR. COMMUNITIES, 1972 10-1972, ¶ 3, at 15-16. At the Paris Summit, the Heads of State or Government of the Member States declared that economic expansion was not an end in itself and should "emerge in an improved quality of life as well as an improved standard of life," recognizing, in particular, intangible values. Id.
53. See Comm'n of the Eur. Communities, The Communiqué on European Identity, BULL. EUR. COMMUNITIES, 1973, 12-1973, at 118. This communiqué, adopted at the Copenhagen Summit, made specific references to culture, in contrast to the more extemporaneous remarks at the 1969 and 1972 summit meetings. The Heads of State or Government stated that the European states wished "to preserve the rich variety of their national cultures," id. ¶ 2501(1), at 119, and that "the diversity of cultures within the framework of common European civilization" gave Europe "its originality and its own dynamism," id. ¶ 2501(3), at 119.
54. The Parliament's first resolution related to culture, issued in 1974, was aimed at protecting European cultural heritage and requested Commission action in areas such as the exchange of cultural works, provision of services by cultural workers, taxation of cultural institutions, protection of cultural heritage, restoration of monuments, and preservation of works of art. Resolution on the Motion for a Resolution Submitted on Behalf of the Liberal and Allies Group on Measures to Protect the European Cultural Heritage, ¶¶ 9-13, 1974 O.J. (C 62) 5. Parliament issued a second resolution of more limited scope in 1976. Resolution on Community Action in the Cultural Sector, 1976 O.J. (C 79) 6. This resolution was short and simply acknowledged the Commission document on Community Action in the Cultural Sector, supra note 6; requested a timetable for implementation of its suggestions; addressed cultural exchanges; and suggested integrating Member State cultural policies into the Union. Id.
55. LOMAN ET AL., supra note 5, at 144.
56. Community Action in the Cultural Sector, supra note 6, ¶ 1, at 5.
57. Id. ¶ 3, at 5.
58. Id.
59. The Treaty did not contain authorization to act on the basis of culture until 1992, when the EEC Treaty was amended by the Treaty on European Union. See infra Part II.
60. Community Action in the Cultural Sector, supra note 6, ¶ 3, at 5. To avoid the appearance of a cultural policy, which it was not authorized to pursue, the Commission characterized its actions as applying the EEC Treaty to the cultural sector. "Most Community action in the cultural sector is nothing more than the application of the EEC Treaty to this sector. . . . The legal basis is the Treaty itself." Id. ¶ 5, at 7. The Commission focused on the free movement of cultural goods, id. ¶¶ 6-7, at 7; free movement of workers, id. ¶ 13, at 10; harmonization of taxation, id. ¶¶ 15-19, at 11-12; and harmonization of copyright, id. ¶¶ 20-35, at 12-17. Regarding free movement of goods, the concern was that "administrative formalities impede(d) the free movement of cultural goods between the countries of the Community." Id. ¶ 7, at 7. Also addressed was the issue of preventing thefts of cultural goods. Id. ¶¶ 8-12, at 7-10. One aspect of freedom of movement of workers includes workers' awareness of opportunities for employment in other Community countries. The Commission noted the unsatisfactory level of such information available to cultural workers and the need to address the problem. Id. Three discussion topics emerged regarding harmonization of taxation. The first involved the tax barriers faced by cultural foundations and patrons-two main sources of funding for cultural activities. The second involved the effects of making cultural goods subject to a value added tax (VAT). The third dealt with the negative tax effects experienced by cultural workers. Id. The discussion pertaining to harmonization of copyright focused on problems relating to the harmonization of copyright, the resale rights of creative artists in the plastic arts sector, and protection of the property of cultural craftsmen. Id.
61. Comm'n of the Eur. Communities, Stronger Community Action in the Cultural Sector, BULL. EUR. COMMUNITIES, 1982, Supp. 6-1982 [hereinafter Stronger Community Action in the Cultural Sector].
62. Id.
63. Id. at 5. "The Community is concerned with creators . . . and performers . . . seen in terms of their social situation as employees or self-employed people and not of their artistic personality which is their business and theirs alone." Id. Thus the focus is on "cultural workers," not "artists." Id.
64. Id. ¶¶ 7-9. Article 30 of the EC Treaty allows Member States to prohibit or restrict the export of "national treasures possessing artistic, historic, or archaeological value." EC TREATY art. 30 (formerly art. 36). However, the Commission stated that barriers to freedom of trade in cultural goods, specifically works of art, would not be allowed as they ran "counter to the interests of creative artists, traders, and the influence of national cultures." Stronger Community Action in the Cultural Sector, supra note 61, ¶ 7.
65. Stronger Community Action in the Cultural Sector, supra note 61, ¶ 11. As a "labor intensive sector," the cultural sector was seen as a "resource for combating unemployment." Id.
66. Id. ¶¶ 19-23. In this context, the Commission stressed that the legal basis for the preservation of architectural heritage lay "in the fact that it is a contribution to a rich resource that generates economic activity . . . and that conservation . . . is . . . an economically and socially viable activity." Id.
67. Id. ¶¶ 53-57. The Commission defined European socio-cultural activities as activities whose "field of application w[ould] extend to all the countries of the Community," id. ¶ 54 - those activities intended to "encourage active participation in cultural life," id. ¶ 55.
68. Id. at 5.
69. Id. ¶ 24.
70. SEA.
71. A Fresh Boost for Culture in the European Community, COM(87)603 final.
72. Id. at 5.
73. Id.
74. By contrasting the proposal with an economic or social integration, perhaps the Commission envisioned a cultural integration; that is, an EU-guided plan to unify Europe into one larger cultural identity. If this was indeed the case, the Member States later rejected the development of cultural policy solely along these lines, in favor of one that respected the multitude of European cultures. The 1997 amendment to Article 151 amended subsection 4 to read: "The Community shall take cultural aspects into account in its action under other provisions of this Treaty, in particular in order to respect and to promote the diversity of its cultures." EC TREATY art. 151. The Commission has recently reaffirmed that the EU must take account of Europe's individual cultures. Europa, Commission Communication, Strategic Objectives 2000-2005, Shaping the New Europe (Jan. 9, 2000), available at http://europa.eu.int/comm/external_relations/news/01_00/doc_00_ 4.htm. Political integration must be pursued taking full account of our national and regional identities, cultures and traditions. . . . [P]eople want effective, accountable institutions that involve them in the way Europe is governed and which take account of their rich and diverse cultures and traditions. . . . Europe is increasingly expected to make an effective contribution to . . . affirming European citizenship by recognizing our rich and diverse cultural, linguistic and ethnic heritage. Id.
75. The three fronts were cultural action in the framework of the Community system, coordination, and cooperation. See A Fresh Boost for Culture in the European Community, supra note 71.
76. See id.
77. Id. at 9-25.
78. The first field - creation of a European cultural area - was most reflective of the past Community documents. The creation of such an area meant "giving priority to the free movement of cultural goods and services, improving the living and working conditions of those involved in cultural activities, creating new jobs in the cultural sector . . . and encouraging the emergence of a cultural industry . . . ." Id. at 9.
79. The second field of the framework - promotion of the European audiovisual industry - included measures to improve the free movement of goods within the Community, id. at 14 (discussing the Media program), and the success of European goods in the world market, id. at 17-18 (focusing on the development of high-definition television). It explicitly recognized the threat American and Japanese programs posed to European cultural independence. Id. at 13.
80. The third field - access to cultural resources - focused on multilingualism, promoting culture in the regions of Europe, preserving cultural heritage, and implementing a "young people's pass" for entrance to museums and cultural events. Id. at 18-20.
81. The fourth field stressed the need to train cultural administrators, sound and vision specialists, journalists, and restoration specialists. Id. at 21-24.
82. Id. The fifth field - dialogue with the rest of the world - established the goal of coordinating European cultural events outside of the Community and welcoming cultural events from non-Member States inside the Community. Id. at 24-25.
83. Id. at 6, 7.
84. Id. at 7.
85. See Resolution on a Fresh Boost for Community Action in the Cultural Sector: "Education, Culture, Société-Le Chantier Est Immense," 1989 O.J. (C 69) 180 [hereinafter Resolution on a Fresh Boost for Community Action in the Cultural Sector].
86. Id. ¶¶ A-H, at 183.
87. Valsamis Mitsilegas, Culture in the Evolution of European Law: Panacea in the Quest for Identity?, in EUROPE'S OTHER: EUROPEAN LAW BETWEEN MODERNITY AND POSTMODERNITY 116 (Peter Fitzpatrick & James Henry Bergeron eds., 1998).
88. See id.
89. Id. at 117.
90. EC TREATY art. 30.
91. Mitsilegas, supra note 87, at 117.
92. In January 1990, Jacques Delors, President of the European Commission proposed to hold an Intergovernmental Conference (IGC) on Political Union. RICHARD CORBETT, THE TREATY OF MAASTRICHT FROM CONCEPTION TO RATIFICATION: A COMPREHENSIVE REFERENCE GUIDE at xvii (1993). One factor crucial to movement toward European Political Union (EPU) was a reconciliation between France and Germany following Mitterand's opposition to German unification. DINAN, supra note 1, at 165. The conference on Political Union was in addition to the IGC already scheduled to take place on European Monetary Union (EMU). CORBETT, supra, at 6, 127. The European Council formally agreed to the principle of an IGC on Political Union on June 25-26, 1990, id. at xvii, and shortly thereafter the Parliament adopted detailed proposals for action to be taken at the IGC. Resolution on the Intergovernmental Conference in the Context of Parliament's Strategy for European Union (11 July 1990) [hereinafter Martin II Report], reprinted in CORBETT, supra, at 112. The Commission published its opinion on Political Union in October of 1990. European Commission: Formal Opinion Pursuant to Article 236 of the EEC Treaty on the Proposal for Amendment of the Treaty Establishing the European Economic Community with a View to Political Union (Oct. 21, 1990), reprinted in CORBETT, supra, at 165. Here the Commission acknowledged that while "cultural affairs should . . . be a matter for the Member States," the Treaty should include an article on the "cultural dimension of Community activities." Id. pt. IV.1.g, at 170. The Parliaments of the European Community agreed. Conference of Parliaments of the European Community: Final Declaration ¶ 11 (Nov. 30, 1990), reprinted in CORBETT, supra, at 199. While the European Council did not request a specific article on culture, it asked the IGC to consider enlarging Community competence to "safeguard . . . the diversity of the European heritage and promot[e] cultural exchanges and education." Conclusions of the European Council Meeting, pt. 4.viii (Dec. 14-15, 1990), reprinted in CORBETT, supra, at 103. When a decision had to be made, most Member States supported the expansion of Community competence through "the development of a cultural policy for the Community." European People's Party Dublin Congress Document: For a Federal Constitution of the European Union ¶ 4 (Nov. 15-16, 1990), reprinted in CORBETT, supra, at 202. The IGC on EPU opened in December 1990.
93. Martin II Report, supra note 92, ¶ 14, at 114. The article at issue was Article 117, which noted the need to promote improved working conditions and standard of living. See EC TREATY art. 117 (as in effect in 1990) (now art. 136).
94. See Martin II Report, supra note 92, ¶ 14, at 114. In a separate resolution, the Parliament confirmed that regardless of the type of action taken, "far-reaching competences" in the field of culture would remain with the Member States. Resolution on the Principle of Subsidiarity ¶ 9 (12 July 1990) [hereinafter Giscard d'Estaing Report], reprinted in CORBETT, supra note 92, at 120.
95. CORBETT, supra note 92, at 51.
96. Belgian Senate Resolution on the Achievement of European Union and the Preparation of the Parliamentary Assizes on the Future of Europe, pt. III.b (13 July 1990) [hereinafter Belgian Senate Resolution], reprinted in CORBETT, supra note 92, at 141.
97. Id. In a discussion on citizenship, the Spanish Government specifically confirmed that cultural policy was being transferred to the Community. Spanish Government Proposals Towards a European Citizenship (Sept. 1990), reprinted in CORBETT, supra note 92, at 156. Denmark, France, Germany, the Netherlands, and Spain had proposed expanding the Community's competence to include culture, and a Belgian senate resolution and Spanish government memo confirm that this proposal was "embraced." Id; see also Belgian Senate Resolution, supra note 96.
98. Dutch Government First Memorandum: Possible Steps Towards European Political Union (May 1990) [hereinafter Dutch Government First Memorandum], reprinted in CORBETT, supra note 92, at 133.
99. Danish Government Memorandum, Approved by the Market Committee of the Folketing (Oct. 4, 1990), reprinted in CORBETT, supra note 92, pt. VI.2, at 161. Denmark also proposed drafting a chapter "concerning cultural cooperation within the Community and with third countries" with the aim of promoting "cross-border cultural exchanges." Id. The Dutch advocated adding a provision to allow for the consideration of culture, rather than the development of a special Community policy. See Dutch Government Policy Document on European Political Union, pt. 1.6(d) (Oct. 26, 1990), reprinted in CORBETT, supra note 92, at 177.
100. Luxembourg Presidency "Non-Paper": Draft Treaty Articles With a View to Achieving Political Union, tit. XVI(1) (Apr. 12, 1991) [hereinafter Luxembourg Presi-dency Non-Paper], reprinted in CORBETT, supra note 92, at 268 (1993). The entire draft was as follows: 1. The Community shall contribute to the flowering of the cultures of each Member State, at the same time bringing European identity and the European cultural dimension to the fore. 2. Action by the Community, which shall respect the diversity of cultures in Europe, shall encourage cooperation between Member States and, if necessary, support and supplement their action in the following areas: - improvement of the knowledge and dissemination of the culture and history of the European peoples; - conservation and safeguarding of the cultural heritage; - cultural exchanges; - artistic and literary creation; - training in the cultural field; - development of the European audio-visual sector. 3. The Community and the Member States shall foster cooperation with third countries and the appropriate international organizations in the sphere of culture. 4. The Council, acting on a proposal from the Commission [role of the European Parliament], shall adopt measures to contribute to the attainment of the objectives referred to in this article. Id.
101. Luxembourg Presidency "Draft Treaty on the Union," art. 3(p) (June 18, 1991) [hereinafter Luxembourg Presidency Draft Treaty], reprinted in CORBETT, supra note 92, at 294. The draft amended section one to state that Community contributions would "respect . . . [Member State] national and regional diversity." Id. tit. XIX(1), at 309. The prior focus on "European identity and . . . European cultural dimension," Luxembourg Presidency Non-Paper, supra note 100, tit. XVI(1), at 276, was removed. The draft also deleted the phrase in section two on respecting the diversity of cultures in Europe.
102. EC TREATY art. 151(1). It should be noted that the text of Article 128(2) - the precursor to Article 151(2) - also underwent several drafts. The initial draft was as follows: "Action by the Community, which shall respect the diversity of cultures in Europe, shall encourage cooperation between Member States . . . ." Luxembourg Presidency Non-Paper, supra note 100, at 268. A later draft deleted the phrase on respecting the diversity of cultures in Europe. Luxembourg Presidency Draft Treaty, supra note 101, at 294. The reason for this change is not clear, 7though it is possible that it was simply considered unnecessary due to the existing reference to the Member States.
103. TEU art. 6(3) (formerly art. F).
104. Luxembourg Presidency Non-Paper, supra note 100, art. 3(p), at 276.
105. Luxembourg Presidency Draft Treaty, supra note 101, art. 3(p), at 294.
106. Dutch Presidency Draft Union Treaty art. 3(q) (8 Nov. 1991), [hereinafter Dutch Presidency Draft Union Treaty], reprinted in CORBETT, supra note 92, at 349. It also condensed the areas for action, addressing the audiovisual sector as part of artistic and literary creation. Id. tit. XIX(2), at 361.
107. EC TREATY art. 3(q).
108. The Luxembourg Presidency Draft Treaty renamed the article "Culture" and removed training in the cultural field from the list of areas where the Community was to encourage cooperation. Luxembourg Presidency Draft Treaty, supra note 101, tit. XIX(2), at 309. The Title encouraged cooperation with international organizations, particularly the Council of Europe. Id. tit. XIX(3), at 309. Finally, the draft set forth the procedure for decision making - qualified majority voting by the Council "on a proposal from the Commission in cooperation with the European Parliament." Id. tit. XIX(4), at 309-10. This is the procedure under Article 252. See EC TREATY art. 252 (formerly art. 189c). Additional changes were made, but reversed in later drafts. The Community's role to "support and supplement" became "support and complement." Luxembourg Presidency Draft Treaty, supra note 101, tit. XIX(2), at 309. "Conservation and safeguarding of the cultural heritage" became "restoration of the cultural heritage." Id.
109. See EC TREATY art. 151(5). The initial change was made in the Dutch Presidency Draft Union Treaty, supra note 106, tit. XIX(5), at 361. That draft allowed the Council to adopt "recommendations and incentive measures" and forbid "harmonization of the legislative and regulatory provisions of the Member States." Id.
110. See generally BERMANN ET AL., CASES AND MATERIALS ON EUROPEAN COMMUNITY LAW 430 (1993).
111. EC TREATY arts. 94-97 (formerly arts. 100, 100a-d, and 102).
112. This change came after a meeting of the foreign ministers. Dutch Presidency Note in the Light of Discussions at the Noordwijk "Conclave" of Foreign Ministers 12-13 November 1991 Proposing Modifications to its Working Document [hereinafter Dutch Presidency Note], reprinted in CORBETT, supra note 92, at 375. The original draft of the Article did not specify a voting procedure, presumably because a decision on the procedures for adopting cultural measures had not yet been made. Luxembourg Presidency Non-Paper, supra note 100, tit. XVI(4), at 276.
113. There are three decision-making procedures under the EC Treaty: consultation -the procedure under Article 250 (formerly article 189a); co-decision - Article 251 (formerly article 189b); and cooperation - Article 252 (formerly article 189c). Under consultation, the Commission proposes a measure, and the Council acts on it, with a consultative role for the Parliament. Under cooperation, the Parliament is able to propose amendments or reject the Council's position, though the Council can still adopt the act by unanimity. Co-decision gives the Parliament the strongest role, by providing for a Conciliation Committee to work out disagreements between Parliament and the Council. CRAIG & DE BURCA, supra note 4, 131-37 (detailing the three procedures).
114. Dutch Presidency Note, supra note 112, tit. II.12(b), at 377; see also TEU art. 128(5).
115. Id.
116. CRAIG & DE BURCA, supra note 4, at 14. In 1965, when the Council planned to shift to QMV for all proposals, chaos erupted, and the resolution was to use QMV only in exceptional circumstances. See id. at 13.
117. Id. at 142. This can be a simple majority or a qualified majority; the latter currently requires sixty-two out of a possible eighty-seven votes. Id.; see also EC TREATY art. 205(2) (formerly 148(2)). For a discussion on the number of votes held by each Member State, the current use of QMV, and other specifics on voting, see CRAIG & DE BURCA, supra note 4, at 142-43,
118. EC TREATY arts. 18, 42, 47, 67, 71, 137. Prior to the Treaty of Amsterdam, only two articles required co-decision and unanimity - the article on culture and Article 130(i), which addressed the Research Framework Program. EC TREATY art. 130(i) (as in effect in 1995) (now art. 166); see also EUR. COMM'N, INTERGOVERNMENTAL CONFERENCE 1996: COMMISSION REPORT FOR THE REFLECTION GROUP 77 (1995). The decision-making process was further complicated by the final version of the TEU, which introduced another body to the policy-making process - the Committee on Regions (COR). EC TREATY arts. 263-65 (formerly arts. 198a-c). This advisory assembly was created to ensure that low-level officials are consulted on certain EU proposals. Eur. Union, Introducing the Committee of the Regions, at http://www.cor.eu.int/overview/Intro/intro_eng. html (last visited Jan. 20, 1999). Cultural proposals must be referred to the COR, though Council recommendations do not. EC TREATY art. 151(5).
119. Europa, Culture: Current State and Prospects, at http://europa.eu.int.scadplus/ leg/en/lvb/129001.htm (last visited Mar. 4, 2001).
120. Many have advocated the introduction of QMV, yet even at the IGC in early 2000 there was no proposal to change the procedure under Article 151(5). See infra notes 184, 199 and accompanying text.
121. Dutch Presidency Draft Union Treaty, supra note 106, tit. XIX(4), at 361 ("The Community shall take cultural aspects into account in its action under other provisions of this Treaty.").
122. ABNER J. MIKVA & ERIC LANE, AN INTRODUCTION TO STATUTORY INTERPRETATION AND THE LEGISLATIVE PROCESS 24 (1997).
123. RENAUD DEHOUSSE, THE EUROPEAN COURT OF JUSTICE 128 (1998).
124. EC TREATY art. 151(4). See generally Europa, Information, Communication, Culture, Audiovisual Media, at http://europa.eu.int/en/comm/dg10/index_en.html (last visited Mar. 4, 2001) [hereinafter Information, Communication, Culture, Audiovisual Media]. 125. The Treaty was ambitious, and the ratification process proved to be very difficult. In states that held national referendums, the results demonstrated that ratification was far from certain. In France, the vote was narrowly in favor, 51.05% to 48.95%. DINAN, supra note 1, at 187. The first referendum held in Denmark voted against approval of the Treaty. After complex negotiations through which Denmark opted out of select Treaty provisions, a second referendum found 56.8% of the voters in favor. Id. at 191. See generally id. at 168-83 (detailing the Maastricht Treaty negotiations), 183-93 (discussing the ratification crisis); CRAIG & DE BURCA, supra note 4, at 24.
125. Adam Breeze, A Culture That Will Obey Diktat, TIMES (London), July 12, 1992, LEXIS, News Library, TTIMES File.
126. DINAN, supra note 1, at 168-83 (discussing the many issues raised in negotiating and drafting of the treaty).
127. Information, Communication, Culture, Audiovisual Media, supra note 124.
128. New Prospects for Community Cultural Action, COM(92)0149. The communication confirmed the responsibilities outlined in Article 151 (formerly Article 128) and suggested various courses of action. Id.
129. Id. ¶ 3. This was deduced from the language of Article 151(1).
130. This refers to sections one and two. EC TREATY art. 151(1)-(2).
131. Conclusions of the Ministers of Culture, supra note 130, ¶ 7.
132. Id. ¶ 3.
133. Id. ¶ 7. The Ministers also made reference to agreements with non-EU countries and invited the Commission to present annual outlines of its proposals in the cultural area. Id. ¶¶ 9, 10.
134. The fifth section sets out the voting procedure to be followed when acting under the article. EC TREATY art. 151(5).
135. Id. art. 151(1). The remainder of Article 151(1) states: "and at the same time bringing the common cultural heritage to the fore." Id. The fact that the provision addresses both Member State culture and the broader cultural heritage only supports the assertion in Part II that Article 151 endeavors to protect more than a common Euro-culture. The Community's use of section 151(1) contrasts sharply with non-use of section 151(4).
136. Id. art. 151(2).
137. Id. art. 151(3).
138. Id. art. 151(4).
139. The Community has acted under Article 151(3), but that topic is outside the scope of this note.
140. The projects fall into two main areas: first, transnational and local cultural projects, and second, projects in which culture functions as an instrument of economic development. EUR. COMM'N, INVESTING IN CULTURE: AN ASSET FOR ALL REGIONS 5 (1998). The first group includes such things as funding an International Celtic Film Festival, id. at 7; renovating a synagogue in Cracow, id.; and aiding the creation of an Internet site showing works of art from several European regions, id. at 8. The second group of projects recognizes that culture can generate employment and economic development by "creating jobs in the cultural and heritage sectors, by making a region more attractive to tourists and potential investors, and by contributing to the social integration of marginalized groups." Id. at 5. Programs seen as economically advantageous are not confined to one genre and include such efforts as restoration of the Queluz National Palace in Portugal, id. at 18, and the construction of a large scale venue for the visual arts in Salford, England, id. at 17.
141. One city of culture was chosen each calendar year "to open up to the European public particular aspects of the culture of the city." Resolution of the Ministers Responsible for Cultural Affairs, Meeting Within the Council, of 13 June 1985, Concerning the Annual Event 'European City of Culture,' 1985 O.J. (C 153) 2 [hereinafter Resolution of the Ministers Concerning the City of Culture].
142. See Resolution of the Ministers With Responsibility for Cultural Affairs, Meeting Within the Council of 13 November 1986 on the Protection of Europe's Architectural Heritage, 1986 O.J. (C 320) 1.
143. This was discussed repeatedly by the Council and Parliament. See Council Resolution of 9 November 1987, 1987 O.J. (C 309) 3 (promoting the translation of major works of European culture); Resolution on a Fresh Boost for Community Action in the Cultural Sector, supra note 85, ¶¶ 57-64, at 189; Resolution of the Council and the Ministers Responsible for Cultural Affairs Meeting Within the Council of 18 May 1989 Concerning the Promotion of Books and Reading, 1989 O.J. (C 183) 1.
144. This was known as the Media program. See A Fresh Boost for Culture in the European Community, supra note 71, at 14-15 (laying an early foundation for the program); Council Decision of 21 December 1990 Concerning the Implementation of an Action Programme to Promote the Development of the European Audiovisual Industry (Media) (1991 to 1995), 1990 O.J. (L 380) (adopting the Media program).
145. Resolution of the Council and the Ministers for Culture Meeting Within the Council of 14 November 1991 on European Cultural Networks, 1991 O.J. (C 314) 1.
146. The framework program proposed in December of 1987 was scheduled to expire in 1992. A Fresh Boost for Culture in the European Community, supra note 71.
147. Resolution on Community Policy in the Field of Culture, 1994 O.J. (C 44). This was the first time the Official Journal devoted a section specifically to culture. Id. at 184. The Resolution expressed the desire to expand future action beyond the past focus on architectural heritage, books, reading, and the audiovisual sector. Id. ¶ H, at 185. Parliament asked the Commission to "draw up proposals for the benefit of music, theater, dance, the plastic arts, literature, historical research, cinema and all other forms of art." Id. ¶ 15, at 187. The resolution encouraged the creation of an EC cultural policy in order to promote a European cultural identity. Id. ¶ 19, at 187. The Parliament also advocated an increase in budgetary resources devoted to culture. Id. ¶ 12, at 186 (noting that the Parliament "deplores the inadequate funding of the cultural sector" and the Structural Funds should be used to help fund cultural measures). On the budgetary point the Council was more conservative, preferring to limit the budget to prevent the Community from expanding action too much, thus interfering with Member State action. See, e.g., Culture/Audiovisual Council: Public Broadcasting and Book Prices on Agenda for November 17, EUR. REP., Nov. 11, 1998, LEXIS, News Library, EURRPT File. The budgetary struggle thus began, with Parliament advocating a substantial budget for culture and the Council suspicious of the purpose of such spending. This debate nearly derailed the new cultural policy before it even became a reality.
148. In August 1994, the Commission proposed three incentives for action. See Commission Communication on Community Action in Favour of Culture (Aug. 2 1994), discussed in EU: Commission Adopts Framework to Promote Culture, AGENCE. EUR., Aug. 3, 1994. Each incentive was based on prior measures.
149. Parliament and Council Decision No. 2085/97/EC of 6 October 1997 Establishing a Programme of Support, Including Translation, in the Field of Books and Reading (Ariane), 1997 O.J. (L 291) [hereinafter Decision Establishing Ariane]. Ariane was not the first effort in the field of books and reading. From 1990 to 1995, the Commission ran a pilot scheme for the translation of works, gave a prize for literature and a prize for translation each year, and provided grants to translation schools. Europa, European Union Support in the Books and Reading Sector, at http://eruopa.eu.int/comm/culture/ cpariane99_en.html (last visited Mar. 12, 2001).
150. See Parliament and Council Decision No. 719/96/EC of 29 March 1996 Establishing a Programme for Artistic and Cultural Activities with a European Dimension (Kaleidoscope) for the Period 1996-1998, 1996 O.J. (L 99) [hereinafter Decision Establishing Kaleidoscope 1996-1998]. The Kaleidoscope program was originally set up in 1990 and had three initiatives: supporting artistic and cultural events with a European dimension, encouraging artistic and cultural creation, and encouraging cultural cooperation in the form of networks. Europa, at Kaleidoscope Programme 1999: Support for Cultural Co-operation Projects in the EU, http://europa.eu.int/comm/culture/ cpkaleidescope99.en.html (last visited Mar. 12. 2001). The 1994 proposal was designed to support artistic and cultural creation and cooperation in the field of theater arts (dance, music, theater, and opera), the plastic or spatial arts (three-dimensional art, such as sculpture or bas-relief, and visual arts, such as painting, sculpture, or film), the applied arts (art put to practical use), and audiovisual creation.
151. See Parliament and Council Decision No 2228/97/EC of 13 October 1997 Establishing a Community Action Programme in the Field of Cultural Heritage (Raphael) 1997 O.J. (L 305) [hereinafter Decision Establishing Raphael]. Cultural heritage had long been an area of Community action, and four initiatives were underway when the Raphael program was established. The Community distributed grants to projects devoted to the conservation of European architectural heritage, gave subsidies to centers that trained nationals in conservation and restoration, provided direct subsidies to restore monuments, and gave aid to initiatives to raise public awareness. See Europa, supra note 150.
152. EC TREATY art. 151(4).
153. Id. art. 151(1).
154. Central to the delay was the procedure implemented by Article 128, requiring the fifteen Council members to unanimously adopt proposals. See supra notes 115-19 and accompanying text.
155. EU: Broad Agreement on Need to Revise Article 128 of EU Treaty, AGENCE EUR., Mar. 1, 1996. Though the Commission proposed these programs in 1994, Kaleidoscope was not adopted until March 1996 and the others not until late 1997. Decision Establishing Kaleidoscope 1996-1998, supra note 152 (signed Mar. 1996); Decision Establishing Ariane, supra note 151 (signed Oct. 6 1997); Decision Establishing Raphael, supra note 153 (signed Oct. 13 1997). Despite the delayed adoption, Kaleidoscope has achieved some success. EP News, IRISH TIMES, Nov. 28, 1998, at 20 (noting that 1428 cultural programs were backed by the EU from 1996-1998).
156. The Framework Program encompasses several documents, including the First European Community Framework Programme in Support of Culture, supra note 13 and the Proposal for a Single Financing and Programming Instrument, supra note 13. The Commission made every effort to avoid the mistakes of past Community action in the cultural sector by conducting an in-depth consultation process to target relevant concerns. One source of information was the Commission's First Report on the Consideration of Cultural Aspects in European Community Action, COM(96)0160 final. The evaluation conducted by the Commission in 1998 came to seven conclusions: the current programs were too rigid; there was too little recognition of the cultures present in Europe; as a driving force in society, cultural creation should be made a priority; cultural goods and services are unique and should not be governed uniformly by market regulating mechanisms; culture is able to strengthen social cohesion; culture is an asset for the Union's external policy, and each European citizen must have the right of access to culture and the right to express his creativity. First European Community Framework Programme in Support of Culture, supra note 13, § II, pt. 3. Italy had initially suggested creating a single fund for all resources allocated to Community cultural activities in June 1997. Culture Council: Support Gathers for Common Cultural Fund, EUR. REP., July 2, 1997, LEXIS, News Library, EURRPT File.
157. First European Community Framework Programme in Support of Culture, supra note 13, § I.
158. Id. § III.
159. Id. § I.
160. Proposal for a Single Financing and Programming Instrument, supra note 13, pmbl., ¶ 5.
161. As explained in the Treaty, subsidiarity means that action shall be taken "only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or the effects of the proposed action, be better achieved by the Community." EC TREATY art. 5 (formerly art. 3b). The SEA first introduced the subsidiarity principle into Community law, though only in the context of environmental policy. Id. arts. 174-76 (formerly art. 130r-t). The TEU extended the scope of the principle to all Community action not within the exclusive competence of the Community. See TEU art. 2 (formerly Article B); BERMANN ET AL., supra note 110, at 46-47.
162. Proposal for a Single Financing and Programming Instrument, supra note 13, ¶¶ 9, 14.
163. Id. The framework program proposed three main types of projects for implementation. The first type are integrated projects covered by cultural cooperation agreements. Id. art. 2(a), annex I(1). These "cultural cooperation agreements" would be for a period of three years or less and would involve large-scale cultural events, cultural events and tours within the Community, measures involving numerous disciplines, measures to train and mobilize those in the cultural professions, and measures directed to increase awareness of cultural heritage. Id. annex I (1). The second type are considered major projects of European or worldwide significance. Id. art. 2(b), annex I(2). Major projects encompass such events as the European City of Culture program, a European Union cultural festival, and other projects that are "substantial in scale and in scope." Id. annex I(2). The third type are specific, innovative, or experimental projects to encourage new forms of creativity and cultural expression. Id. art. 2(c), annex I(3). These projects must involve at least four Member States, making the cooperative nature their defining characteristic. Id. annex I(3). This framework was intended to replace the Kaleidoscope, Ariane, and Raphael programs. Press Release, Comm'n of the Eur. Communities, Commission Approves the First European Union Framework Programme in Support of Culture (2000-2004) (May 6, 1998), available at http://www.europa.eu.int/ comm/press_room/index_en.cfm; see also Proposal for a Single Financing and Programming Instrument, supra note 13, art. 2 (setting forth the three types of cultural action to be pursued).
164. It has since become final under the name Culture 2000. Decision No. 508/ 2000/EC of the European Parliament and of the Council of 14 Feb. 2000 Programme, 2000 O.J. (L 63).
165. Europa, "Culture 2000": 219 Projects Selected in the First Year, at http:// europa_eu.int/comm/culture/cp2000_en.html (last visited Mar. 12, 2001).
166. Resolution on the Commission Communication Entitled 'New Prospects for Community Cultural Action,' 1993 O.J. (C 42) 17 [hereinafter Resolution on New Prospects for Action].
167. Id. ¶ 29(k), at 179. The resolution also stated that "economic integration w[ould] have to go hand in hand with a genuine social dimension." Id. ¶ K, at 175.
168. Conclusions of the Ministers of Culture, supra note 130, ¶ 7.
169. Debates on cultural issues continued to arise within Community institutions and among the Member States. One French member of Parliament (MEP) tentatively suggested reducing the number of EU working languages from eleven to five. EU: Belgium and the Netherlands Against Reducing Number of Working Languages to Five, AGENCE EUR., Dec. 22, 1994. Other MEP's reacted with disbelief, asserting the proposal would be contrary to Article 151(1) (formerly 128(1)). See id. The Council responded to this debate by reaffirming that "[l]inguistic diversity is a component of the national and regional diversity of the cultures of the Member States referred to in Article 128" and reiterating the equality of the official languages with the working languages. Council Conclusions of 12 June 1995 on Linguistic Diversity and Multilingualism in the European Union, reprinted in, TEXTS CONCERNING CULTURE AT EUROPEAN COMMUNITY LEVEL, 1993-1997 at 79 (COUNCIL OF THE EUROPEAN UNION GENERAL SECRETARIAT, Supp. 1998).
170. Opinion on the Proposal for a European Parliament and Council Decision Establishing a Support Programme in the Field of Books and Reading - Ariane, ¶ 2.7, 1996 O.J. (C 100) 35.
171. The COR deduced these principles from prior Commission statements, determining that "any Community incentive measures must support and supplement efforts by the Member States, regions and local authorities, while respecting the principle of subsidiarity." Id. ¶ 2.3.
172. Id. Further, the opinion reminded the EU to limit itself to useful programming. Id. ¶ 2.6. This was seen as a way to prevent the EU from taking over small-scale projects that should really be in the hands of the Member States. Id. These suggestions envisioned a Community policy that was not focused solely on funding projects to promote some form of Euro-culture. Breeze, supra note 126 (accusing the EC of "dreaming up countless schemes to create a homogeneous, bland 'Euro-culture'"). Finally, the COR urged a continual evaluation of the EU actions in the cultural area. Opinion on the Proposal for a European Parliament and Council Decision Establishing a Support Programme in the Field of Books and Reading - Ariane, supra note 172, ¶ 2.8. This suggestion came to fruition. Resolution on the First Report on the Consideration of Cultural Aspects in European Community Action, 1997 O.J. (C 55) 37 [hereinafter Resolution on the First Report of the Commission].
173. Early 1996 was an appropriate time to assess the article, since an Inter-Governmental Conference was scheduled for March 29 to discuss EU institutional reform. Numerous suggestions for improving Article 151 (formerly Article 128) were made in the weeks leading up to the ICG, all focused on possible amendments to the Treaty. Some recognized that the Article should be used not simply as a justification for allocating funds to cultural projects, but as a tool to bring culture into the legal and political realm. The European Forum for the Arts and Heritage detailed several amendments, including changing the wording in Article 151(2) to support the culture of non-Europeans living in Europe and to protect commercial exchanges. Culture: Tightening Up Maastricht's Provisions, EUR. REP., Feb. 24, 1996, LEXIS, News Library, EURRPT File. This change was not made when the Treaty was amended. EC TREATY art. 151(2). A
174. Culture: Tightening up Maastricht's Provisions, supra note 175.
175. Id. The meeting was held on February 23, 1996 in Amsterdam and was sponsored by the European Cultural Foundation and the European Parliament's Committee for Culture. Id.
176. EU: Broad Agreement on Need to Revise Article 128 of EU Treaty, supra note 157.
177. Id.
178. Culture: Tightening Maastricht's Provisions, supra note 175.
179. First Report on the Consideration of Cultural Aspects in European Community Action, supra note 158. This report was a substantial effort with five parts: Culture and the Single Market-Regulatory Aspects, Culture in the Community's Internal Policies, Audiovisual Policy, Culture in Community Foreign Relations, and Conclusions. Id. 182. This topic included a chapter on each of the following; freedom of movement and professionals in the cultural sector; copyright; taxation; competition policy; movement of cultural assets; traditional and regional agricultural produce; and culture in the judgments of the European Court of Justice. Id. pt. I.
180. This topic included a chapter on culture, cohesion, and balanced regional development; culture, social, and human resources policy; culture and advanced information and communications technologies; and culture and other internal policies, such as the environment, tourism, research, small and medium enterprises, social economics, and European town-twinning. Id. pt. II.
181. This topic included a chapter on regulatory aspects and a chapter on support actions. Id. pt. III.
182. This topic included a chapter on external cooperation actions and a chapter on commercial policy. Id. pt. IV.
183. Id. pt. V.
184. Commission's First Report on the Consideration of Cultural Aspects in European Community Action, supra note 158, pt. V.1.
185. For example, the report made two observations. First, the Commission observed that decisions of the ECJ and legislative acts of the Community had "to reconcile achievement of the objectives of the Treaty with the specific objectives of cultural policies." Id. pt. V. In certain sectors this meant that "cultural aspects . . . have not received the priority treatment which may be accorded to them in certain Member States." Id. Second, the Commission observed that "a great majority of the policies and actions implemented by the Community now include a cultural dimension." Id. The Parliament noted these conclusions with disdain, pointing to their insignificance then criticizing the Commission for failing to act on the findings. Resolution on the First Report of the Commission, supra note 174, ¶ G. A further criticism was that the Commission did not evaluate the programs implemented under Article 151 (formerly Article 128), including the Ariane, Raphael, and Kaleidoscope programs. Id. ¶ D.
186. Resolution on the First Report of the Commission, supra note 174.
187. Id. ¶ 1; see also supra notes 114-16 and accompanying text (discussing QMV).
188. Resolution on the First Report of the Commission, supra note 174, ¶ 2.
189. Id. ¶ 3. Fourth, it suggested enlarging the scope of Article 128 to provide broader protection for European languages. Id. ¶ 5. Specifically, the Parliament advocated changing Article 151 (formerly Article 128) to reference "the safeguarding and protection of European languages both inside and outside of Europe" and to protect "predominately cultural objectives." Id. The latter was suggested as a replacement to the language in Article 151(2) protecting only "non-commercial cultural exchanges." EC TREATY art. 151(2). Fifth, it asked the Commission to submit integrated cultural programs to ensure consistency between Articles. Resolution on the First Report of the Commission, supra note 174, ¶ 5. Finally, it proposed an increase in the overall funding for culture. Id. ¶ 13. Though it noted the need for increased funds, Parliament indicated that a specific fund for Community cultural activity was not desirable. Id. The Parliament also called on the Commission to use a zero rate VAT and apply fixed prices for books with homogeneous language areas, as measures to eradicate illiteracy and encourage reading. Id. ¶ 24.
190. See Unisionn Mac Dubhghaill, Ministers Warned Over Role of Cultural Issues in EU, IRISH TIMES, Sept. 26, 1996, 1996 WL 12402645.
191. Id.
192. Unisionn Mac Dubhghaill, EU Ministers Take to Heart UCD Professor's Devastating Critique of Policies on Culture, IRISH TIMES, Sept. 30, 1996, 1996 WL 12402994.
193. Id.
194. Mac Dubhghaill, supra note 193. Mr. Aad Nuis, the State Secretary of Education, Culture and Science in the Netherlands, agreed that "the EU has only scratched the surface of the possibilities inherent in Article [151] of the Maastricht Treaty. In particular, he pointed out that paragraph 4 of the article gives the EU the legal authority to involve cultural considerations in every area of EU activity." Mac Dubhghaill, supra note 195.
195. What happened is a mystery, due partly to the lack of a paper trail. The Draft treaty drawn up by the Dutch Presidency embodied none of these suggestions. Resolution on the Draft Treaty, 1997 O.J. (C 200) 70. While stressing that the monetary dimension of the EU was still dominant, the draft only addressed culture in the context of embracing language as a dimension of cultural policy. Id. ¶ 4(e). "Language policy must be specifically recognized as a dimension of cultural policy and Article [151] of the Treaty must be adjusted accordingly." Id. 199. A European Union Culture Forum was held in Brussels the 29th and 30th of January 1998. This forum brought together 350 people from the European institutions, Member States, other European countries, international organizations, and various cultural figures. Europa, Le Forum Culturel de L'Union Européenne, at http://europa.eu.int/ comm/culture/forum_fr.html (last visited Mar. 12, 2001). Organized by the Directorate General X to formulate ideas for the future action program, commentators criticized it for accomplishing little, with too many speeches and not enough discussion. Cultural Policy: The Future After 1998, EUR. REP., Apr. 22, 1998, LEXIS, News Library, EURRPT File.
196. Some commentators had also recommended adding a section on culture to the preamble. European Union/IGC: Calls for Maastricht Treaty Improvements, EUR. REP., Mar. 6, 1996, LEXIS, News Library, EURRPT File. This addition was also not made in the final Treaty. EC TREATY pmbl.
197. DEHOUSSE, supra note 123, at 128.
198. Mitsilegas, supra note 87, at 122. Mitsilegas summarizes the situation succinctly: After the entry into force of the Maastricht Treaty the European Court of Justice dealt with a number of cases involving culture. In these rulings the Court did not refer to the new provisions of the Treaty, but continued to view these cultural aspects in the light of their relationship with the free movement of persons, services and capital. Id. The statute of the ECJ requires the court to state the reasons on which their judgments are based. ECJ STATUTE art. 33; see also CRAIG & DEBURCA, supra note 4, at 86. ECJ decisions should thus indicate whether the court is basing decisions on Article 151.
199. Parliament actually threatened to institute proceedings against the Council in order to force the ECJ to rule on the scope of Article 151 (formerly Article 128). EU: EP/ Institutions - Article 128: Parliament is Considering Proceedings Against the Council so as to Oblige the Court of Justice to Rule on the Scope of Article 128 on Culture, AGENCE EUR., Jan. 25, 1997.
200. The ECJ first mentioned Article 151 (formerly Article 128) in 1993, shortly before the Treaty on European Union went into effect. In a challenge to the legality of the Treaty, Brunner v. European Union Treaty, 1 C.M.L.R. 57 (BVerfG 1993) (F.R.G.), the German Federal Constitutional Court found the culture provisions to be legal because they only allowed the Community to encourage cooperation among Member States and to give support for their measures. Id. at 92. A later case confirmed that basic cultural policy remained a matter for the Member States. Case 1/94, Re Uruguay Round Treaties, 1994 E.C.R. I-5276, [1995] 1 C.M.L.R. 205 (1994). Both decisions were in line with Member State concerns mentioned above. Another case, Case C-360/92P, Re Net Book Agreements: Publishers Association v. Commission, 1995 E.C.R. I-54, [1995] 5 C.M.L.R. 33 (1995), will be discussed infra Part U.C. In Portugal v. European Community Council, Case C-268/94, 1996 E.C.R. I-6207, [1997] 3 C.M.L.R. 331 (1996), the court upheld an agreement between the EC and India that included culture as a basis of cooperation, even though the Council was not involved. Id. ¶¶ 36-37. It determined that the Member States were not committed to any particular type of action by the agreement. Thus, they did not need Council participation in the agreement. Id.
201. Mitsilegas, supra note 87, at 117.
202. Case C-415/93, 1995 E.C.R. I-5040, [1996] 1 C.M.L.R. 645 (1995).
203. Id. ¶ 133.
204. Id.
205. Id.
206. For further analysis of the Bosman decision, see Rachel B. Arnedt, Comment, European Union Law and Football Nationality Restrictions: The Economics and Politics of the Bosman Decision, 12 EMORY INT'L L. REV. 1091 (1998).
207. Case C-11/95, 1996 E.C.R. I-4153, [1997] 2 C.M.L.R. 289 (1996).
208. Id. ¶ 58.
209. Id. ¶ 59.
210. Id.
211. Case C-309/96, 1997 E.C.R. 17505, [1998] 2 C.M.L.R. 187 (1997).
212. Id. ¶ 24.
213. Id.
214. Mitsilegas, supra note 87, at 123.
215. One recent case, Case C-200/96, Metronome Musik v. Music Point, 1988 E.C.R. I-1971, was sympathetic to the use of Article 151, recognizing the relevance of the Article in the context of copyright works, even though the directive at issue was adopted prior to the time the article entered into force. Id. ¶ 22.
216. Book Price Maintenance: German and Austrian Publishers Urged to End Pact, EUR. REP., Jan. 17, 1998, LEXIS, News Library, EURRPT File.
217. LOMAN ET AL., supra note 5, at 101.
218. Id.
219. Book Price Maintenance, supra note 220.
220. Id.
221. The first action was initiated against the Netherlands and Flemish Associations of Publishers and Booksellers (the VBBB/VBVB agreement). Commission Decision 82/ 123 of 25 November 1981, 1982 O.J. (L 54) 36. The second was initiated against a system between the U.K. and Ireland (the Net Book Agreements). Commission Decision 89/44 of 12 December 1988, Publishers Association - Net Book Agreements, 1989 O.J. (L 22) 12. The third was initiated against two German-Austrian RPMs (the Sammelrevers/Einzelrevers agreement). Commission Decision IV/34.657 of 23 February 1996, Notification of Book Price Agreements in the German Language Area, 1996 O.J. (C 54) 2.
222. EC TREATY art. 81 (formerly art. 85). The text of that article reads as follows: 1. The Following shall be prohibited as incompatible with the common market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market, and in particular those which: (a) directly or indirectly fix purchase or selling prices or any other trading conditions; (b) limit or control production, markets, technical development, or investment; (c) share markets or sources of supply; (d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; (e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts. 2. Any agreements or decisions prohibited pursuant to this Article shall be automatically void. 3. The provisions of paragraph 1 may, however, be declared inapplicable in the case of: - any agreement or category of agreements between undertakings; - any decision or category of decisions by associations of undertakings; - any concerted practice or category of concerted practices; which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not: (a) impose on the undertaking concerned restrictions which are not indispensable to the attainment of these objectives; (b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.
223. Case 54/36, VBBB & VBVB v. Commission, 1984 E.C.R. 29; Re The Net Book Agreements: Publishers Association, 1995 E.C.R. I-54; [1995] 5 C.M.L.R. 33.
224. Re The Net Book Agreements: Publishers Association, 1995 E.C.R. I-54; [1995] 5 C.M.L.R. 33.
225. Id.
226. Id.
227. Id. ¶ 60.
228. Christine E. Zandvliet, Note, Fixed Book Prices in the Netherlands and the European Union: A Challenge for Community Competition Law, 3 COLUM. J. EUR. L. 413 (1997/ 98).
229. See Council Decision of 22 September 1997 on Cross-Border Fixed Book Prices in European Linguistic Areas, 1997 O.J. (C 305) 2. "Those articles" most likely meant the articles detailing free movement and competition. See EC TREATY arts. 23-31 (formerly arts. 9-37) (free movement of goods), arts. 39-60 (formerly arts. 48-73h) (free movement of persons, services, and capital), arts. 81-89 (formerly arts. 85-94) (common rules on competition).
230. The failure of the Commission to address the issue was noted by two questions posed by Jessica Laruive. Written Question No. E-O 772/98 by Jessica Larive (ELDR) to the Council, 1998 O.J. (C 310) 126; Written Question No. E-O773/98 by Jessica Larive (ELDR) to the Commission, 1999 O.J. (C13) 8.
231. Re Net Book Agreements: Publishers Association.
232. Book Price Maintenance, supra note 220. This was not a final decision. Id.
233. Id.
234. Book Price Fixing: German-Austrian Publishers Fighting to Maintain Pact, EUR. REPORT, Apr. 1, 1998, LEXIS, News Library, EURRPT File.
235. Id.
236. Id.
237. See First European Community Framework Programme in Support of Culture, supra note 13; First Report on the Consideration of Cultural Aspects in European Community Action, supra note 13.
238. Germans Have No Plans to End Book Price Pact, EUR. REP., Jan. 24, 1998, LEXIS, News Library, EURRPT File.
239. Competition Policy: Commission to Clarify the Issue of Cross-Border Book Price Fixing, EUR. REP., Oct. 25, 1997, LEXIS, News Library, EURRPT File [hereinafter Competition Policy]; European Parliament Resolution on Common Book Price-Fixing Across Borders, 1998 O.J. (C 379).
240. Press Release, Comm'n of the Eur. Communities, 2195th Council Meeting on Culture/Audiovisual, Luxembourg (June 28, 1999), LEXIS, News Library, RAPID File.
241. See Press Release, Comm'n of the Eur. Communities, Reaction by Commissioner Mario Monti to the Agreement on the Fixed Book Price (Germany and Austria) (Feb. 23, 2000), LEXIS, News File, RAPID File.
242. Written Question P-1989/99 by Norbert Glante (PSE) to the Commission (28 October 1999), Answer Given by Mr. Monti on Behalf of the Commission (15 November 1999), 2000 O.J. (C 170 E) 134 [hereinafter Commission Answer to Mr. Glante]; see also Written Question No. E-0773/98 by Jessica Larive, supra note 234.
243. Competition Policy, supra note 243.
244. Commission Answer to Mr. Glante, supra note 246.
245. Competition Policy, supra note 243.
246. See, e.g., Re Net Book Agreements: Publishers Association, 1995 E.C.R. I-54, [1995] 5 C.M.L.R. 33. The opinion of the Advocate General did not find that Article 151 (formerly Article 128) added anything to the already established case law of the ECJ. See supra notes 229-32 and accompanying text.
247. EC TREATY art. 151(4).
248. Commission Answer to Mr. Glante, supra note 246.
249. The internal market is defined in Article 14 (formerly Article 7a) of the EC Treaty as "an area without internal frontiers in which the free movement of goods, persons, services, and capital is ensured." EC TREATY art. 14(2). The common market is a separate concept, and it is in that context that the rules on competition are relevant. LOMAN ET AL., supra note 5, at 23.
250. EC TREATY art. 30.
251. Article 30 (formerly art. 36), which applies to the free movement of goods, allows prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. EC TREATY art. 30.
252. CRAIG & DE BURCA, supra note 4, at 786 (noting that the exceptions have been interpreted narrowly both by the ECJ and in a series of directives).
253. LOMAN ET AL., supra note 5, at 23 (noting a possible cultural exception to the freedom of movement laws). Further, a rule of reason developed in the context of the internal market provisions, specifically Article 28 (formerly article 30). Specifically, in the context of the article prohibiting "[quantitative restrictions on imports and all measures having equivalent effect" - Article 28 (formerly article 30). Id. at 44. This was seen as a step toward recognizing a cultural exception. See id. The rule of reason is distinct from the exceptions in Article 30 (formerly article 36). 2 LAW OF THE EUROPEAN COMMUNITIES 119 (David Vaughan ed., 1986).
254. See supra Parts I.C, II.
255. Note, however, that the ECJ and the Commission did, at times, seem to make exceptions for culture. See, e.g., Joined Cases 60 & 61/84, Cinetheque v. Federation Nationale des Cinemas Francais, 1985 E.C.R. 2605.
256. EC TREATY art. 151.
257. Given that Member State culture can be implicated in such a multitude of ways, critics of my proposal might argue that to require an assessment of the cultural variable would be to undertake an overwhelming and potentially impossible task. While the argument has some merit, there are two responses. First, the Community recognized the importance of the cultural variable when it made the affirmative decision to add Article 151 to the EC Treaty. That Article requires the Community to consider the cultural dimension of its actions; the provision becomes meaningless if culture is not considered in the decision-making process. Second, while many practices have a cultural dimension, there is admittedly a threshold at which the cultural dimension becomes important enough to consider. Clearly, when the parties to the Commission or ECJ proceedings assert that a challenged practice has cultural value, the Commission or the ECJ must properly consider that argument. While this is already being done to a certain extent, this Note argues that neither the Commission nor the ECJ has given enough weight to the mandate of 151(4) in that both tend to dismiss assertions of cultural value without giving them serious consideration. Surely, according more legal weight to an argument that is already being asserted will not jeopardize the functioning of the ECJ or the Commission.
258. The TEU also added titles on public health, EC TREATY tit. XIII (formerly tit. X), and consumer protection, id. tit. XIV (formerly tit XI). These titles were similar in scope to the title on culture, yet their impact was notably clearer, as protection of health was already an exception under Article 30 (formerly 36).
259. See supra Part II.
260. The provisions that could have been amended to add a cultural exception include Article 30 et seq. (formerly Article 36) concerning free movement of goods; Article 39 et seq. (formerly Article 48) concerning free movement of persons; Article 43 et seq. (formerly Article 52) concerning right of establishment; Article 49 (formerly Article 59) concerning free movement of services; Article 56 et seq. (formerly Article 73b) concerning free movement of capital; and Article 81 (formerly Article 85) concerning competition. EC TREATY.
261. Technically, the TEU created a title on culture with Article 128 (now Article 151) as the sole article. Id. tit. IX (now tit. XIII).
262. See supra notes 92-107 and accompanying text.
263. "The community shall take cultural aspects into account in its action under other provisions of the Treaty." EC TREATY art. 151(4). This language can reasonably be interpreted as addressing the provisions mandating creation of an internal market and the provisions regulating competition.
264. Id. art. 5 (formerly 3b); see also supra note 163.
265. EC TREATY art. 5.
266. BERMANN ET AL., supra note 110, at 47.
267. The cultural cooperation agreements and specific projects would include events left to Member State control, though the former would also encompass large-scale Community events. See supra note 92.
268. STEYGER, supra note 31, at 88. Elies Steyger notes that power lies in the accumulation of money. If state budgets for culture were to decline, Community funding might replace national subsidies, thus giving the Community control over eligibility criteria for financing. Id.
269. There is also concern that EU officials might abuse their power by funding projects that should not receive EC funds, but would be more appropriately funded by a national government. See, e.g., EP News, supra note 157.
270. Marcelino Oreja, Speech entitled Culture and European Integration: Foundations of the European Community's Cultural Activities (Mar. 6, 1997) [hereinafter Oreja Speech] (noting that "culture has distinct characteristics"), at http://europa.eu.int/en/ comm/dg10/oreja/0603en.html (last visited Mar. 1, 1998).
271. Id. (noting that "cultural goods . . . are not commodities like others").
272. See supra note 5 (providing two distinct definitions of culture).
273. As noted by one author, not all books are considered to have cultural value. LOMAN ET AL., supra note 5, at 49.
274. Carl Honore, Fortress Europe: Who Are We?, HOUSTON CHRON., Dec. 9, 1998, at A24.
275. See supra note 3.
276. Oreja Speech, supra note 274.
277. Id.
278. See supra Part III.B.
279. This is the type of analysis contemplated under Article 30 (formerly Article 36). Exceptions to the free movement of goods provisions are set out with the proviso that to gain an exception, the restriction must not be an "arbitrary discrimination or a disguised restriction on trade." EC TREATY art. 30.