The Charter and cultural diversity: A general overview
In order to assess the Charter's relevance and potential added value in (re)shaping EU policy with a bearing on cultural diversity, it is important to provide a general overview of relevant Treaty provisions and the most relevant aspects of its contents. In accordance with Article 6(1) of the Treaty on European Union (TEU), the Union recognises the rights, freedoms and principles laid down in the Charter.1 The Treaty on the Functioning of the European Union (TFEU) further specifies that the Charter has 'the same legal value' as the TEU and the TFEU. EU primary law contains various provisions that provide guidance for determining the way in which the EU is to act in safeguarding cultural diversity.
Article 167 TFEU lays down the EU's general focus in the field of cultural policy. Culture is also introduced in the TFEU as a normative consideration to be taken into account in the context of other fields of EU policy-making. For example, Article 13 TFEU requires that member states' customs relating in particular to religious rites, cultural and regional heritage are considered when aiming for full respect for animal welfare requirements. Article 36 TFEU, analysed in Chapter 5, mentions the protection of national treasures possessing artistic, historic or archaelogical value as a ground justifying the prohibition of or restriction on imports or exports of goods. In other instances, however, concern for cultural diversity was only partially addressed or deliberately left out of the Treaties' provisions. For example, although Articles 10 and 19 TFEU contain the general commitment on the part of the EU to combat discrimination when defining and implementing its policies and activities and the specific commitment to take appropriate action in this respect, they only contain grounds such as 'race' and 'ethnic origin' but do not mention discrimination referring to the membership of a national minority or language (Toggenburg, 2012: 80-81).
These TEU and TFEU provisions will now have to be interpreted alongside and in the light of the CFR. Article 6 TEU instructs for the Charter itself to be interpreted in accordance with Articles 51-54 CFR (the so-called horizontal clauses) as well as with due regard to 'the
Explanations'.2 The Explanations contain an overview of the sources of each of the Charter's provisions and are intended to clarify them.3 They often refer back to TEU and TFEU provisions. The fact that the TEU and the TFEU have to be interpreted in the light of the CFR, but also vice versa, sometimes results in the 'Masters of the Treaties' having created an interpretational hall of mirrors.
With regard to the CFR horizontal provisions, Articles 51-53 CFR are significant because they lay down the scope of the Charter and the way in which it is to be interpreted in the light of other sources of fundamental rights. Article 51(1) CFR provides that the CFR is binding on the EU institutions, bodies and agencies in all situations, but on member states 'only when they are implementing Union law'. The wording with regard to member states is ambiguous. When precisely are member states 'implementing' Union law? The Court has clarified in Akerberg Fransson that the Charter applies whenever a member state acts 'within the scope of Union law'.4 In Pfleger it held, in line with its pre-Charter case law in ERT,S that a member state is also bound to comply with Union law fundamental rights with regard to measures by which it derogates from market freedoms.6 It should be noted that the Court's approach has so far circumscribed rather than prescribed matters: there are still considerable uncertainties as to when a situation falls 'within the scope of Union law' (Morijn, 2013). More precise guidance by the Court is needed in the interest of legal certainty.
Article 52(1) CFR provides that limitations on the exercise of the rights and freedoms recognised by the Charter need to respect the essence of those rights and freedoms, be provided by law, genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others, and be proportional. Significantly, the concept of 'Union objectives of general interest' differs from the 'legitimate limitations' laid down in Articles 8-11, para. 2, of the European Convention on Human Rights (ECHR), and provides for a potentially far wider list of justifications to limit Charter provisions than common in ECHR practice (Peers, 2004: 154).7 A good example is Schwarz, where the Court went through the Article 52(1)-test. It identified the policy objectives of the prevention of falsification of passports and their fraudulent use as the relevant 'Union objectives',8 without then linking them to a ECHR 'legitimate limitation'. A possible effect of this is that, within EU law, it may be easier to find a connection to a 'Union objective' than it is to find a 'legitimate limitation' connection under ECHR law. It is highly likely then that any cultural policy aim or accepted culture- related mandatory requirement in the EU treaties and the Court's case law will be seen as a 'Union objective of general interest'. Another aspect is that the Charter requires provisions with a counterpart in the ECHR to be interpreted in the light of the ECHR (Article 52(3) CFR). Also, an important distinction is made in Article 52(5) CFR, between CFR provisions that are principles and other CFR provisions that contain rights. 'Principles' would be a weaker category since they are judicially cognisable only in the interpretation, and the ruling on the legality of EU legislative and executive acts and member states' acts.
Article 53 CFR, finally, clarifies that the Charter provides for a minimum protection level and should not be interpreted as restricting or adversely affecting fundamental rights laid down in international agreements - to which the Union or all its member states are party - and in member states' constitutions. The Court interpreted this clause in Melloni, holding that national authorities and courts remain free to apply national fundamental rights protection standards in so far as the primacy, unity and effectiveness of EU law are not thereby compro- mised.9 This could have a significant effect on cultural diversity. More particularly, it could make it more difficult to apply a number of culture- related national constitutional provisions that offer a higher standard of protection than the Charter. Examples are the absolute prohibition of prior censorship of expression, as protected by the Dutch and German constitutions, the right to education and the financial equal treatment of public/private education as protected by the Dutch constitution, and the rights of ethnic, linguistic or cultural minorities as protected by the Belgian, Czech and Hungarian constitutions (FIDE, 2012: 70). It is not likely that Melloni has closed the debate. Which substantive argument precisely justifies setting aside decades' old national constitutional norms, entrenching precisely what makes for national constitutional originality and culture, while providing a higher protection of rights than Charter standards? We need a fuller explanation (Morijn, 2013).
On the other hand, the Court's approach with regard to Article 53 CFR has been actually conducive to providing for a higher standard of protection when it comes to international human rights law treaties. Even if the language of this provision refers to international treaties ratified by 'all' member states - an example is the United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on the protection and promotion of the diversity of cultural expressions10 - the Court has not used that as an argument not to apply CFR articles that, according to their Explanations, need to be applied in the light of such treaties. An example is the Revised European Social Charter,11 and the way the Court approached Article 34 CFR in Kamberaj.12 Another relevant treaty with respect to cultural diversity is the Framework Convention on national minorities (Toggenburg, 2012: 84).13
The Charter's substantive provisions are subdivided into six so-called titles. The provisions most relevant to cultural diversity are situated mainly in Titles 2, 3 and 4 (freedoms, equality and solidarity),14 and pertain to Articles 10 (thought, conscience and religion), 11 (expression and information), 13 (arts and sciences), 14 (education), 17(2) (intellectual property), 21 (non-discrimination), 22 (cultural, religious and linguistic diversity) and 36 (access to services of general economic interest, SGEI). The clarification in the Charter's preamble that it was drafted in the light of changes resulting from technological developments has special significance for interpreting and asserting many of these culture-related provisions in our web 2.0 world (Psychogiopoulou and Anagnostou, 2012: 5).
It is useful to highlight a number of significant aspects of these rights, particularly the way that their interpretation is to be interwoven with other interests. Article 10(1) and Article 11 CFR have the same scope and meaning as Articles 9 and 10 ECHR. Article 11(2) CFR is innovative in that it places specific stress on the freedom and pluralism of the media. The Explanations to Article 11(2) CFR refer specifically to the Court's case law, recognising the aim of safeguarding cultural pluralism in the audiovisual sector as a mandatory requirement,15 as well as to other interests such as the protection of consumers, the fairness of commercial transactions and competition.16 Article 13 CFR holds, inter alia, that the arts shall be free of constraint.17 The Explanations clarify that this right is deduced from Articles 9 and 10 ECHR, both of which (as we have seen) have counterparts in the CFR which have to be interpreted with reference to the ECHR. In this sense it is noteworthy that the Explanations concerning Article 52(3) CFR do not indicate that the relevant parts of Article 13 CFR, just like Articles 10 and 11 CFR, are to be interpreted as having the same meaning and scope as Articles 9 and 10 ECHR. This is an illustration that the Explanations do not, or no longer, provide a fully comprehensive instrument to interpret the CFR provisions (Morijn, 2014).
Article 14 CFR lays down the right to education, including vocational training, as well as the freedom to found educational establishments.18 With regard to the latter aspect, the Explanations clarify that this freedom 'is guaranteed as one of the aspects of the freedom to conduct a business'.19 This is a freedom that itself is also mentioned in the Charter, in Article 16 CFR. Article 17 CFR protects the right to property. Its first paragraph is similar to Article 1 of Protocol 1 to the ECHR. Its second paragraph is innovative in comparison with other fundamental rights texts since it mentions intellectual property separately, owing to its great relevance to EU policy as well as developments in information society that may put specific strain on this right. It includes literary and artistic property as well as patent law and trademark law protection and related areas of industrial property (EU Network of Independent Experts on Fundamental Rights, 2006: 168).
Article 21 CFR lays down the right to non-discrimination. Unlike Articles 10 and 19 TFEU discussed above, Article 21 CFR also includes 'national minority' and 'language' among its discrimination grounds,20 and more generally is formulated in a non-limitative way. Judged by its wording, Article 22 CFR would appear to be a central provision in the field of cultural diversity, even if it was not even included in the very first drafts of the Charter (EU Network of Independent Experts on Fundamental Rights, 2006: 197). It has been attempted to interpret it broadly as providing a right of non-interference on the part of the EU in order to preserve at least one of its three constituent parts: linguistic diversity (Arzoz, 2008a: 145). It is probably more realistic, particularly in the light of the Court's application of Article 22 CFR in Anton Las,21 to view the clause as little more than a restatement of the various provisions in the TEU and TFEU. Perhaps its main added value is as an additional justification (maybe even a non-regression clause) for accepting cultural policy considerations as a mandatory requirement that could justify a barrier to trade (EU Network of Independent Experts on Fundamental Rights, 2006: 198).
Article 36 CFR22 restates Article 14 TFEU about SGEI, but phrases it in terms of access to such services. Examples of services concerned are energy supply, public transport, postal services, telecommunications, but also more elementary matters such as gas, water and electricity (EU Network of Independent Experts on Fundamental Rights, 2006: 312-313). Protocol 26 attached to the Treaties states that the shared values in respect of SGEI mentioned in Article 14 TFEU include the differences in the needs and preferences of users that may result from different cultural situations (Toggenburg, 2012: 80-81). It has been argued that a deprivation from access to such facilities could have inherent detrimental implications for the enjoyment of private life (Article 7 CFR), and at its extreme even for the right to dignity (Article 1 CFR). Even if this were to be accepted, it is not immediately evident that each of these aspects potentially giving Article 36 CFR additional gravitas would be triggered by the cultural aspects of the infringement alone. Although it is not clearly stated in the Explanations as regards
Article 52(5) CFR, it is likely for Articles 22 and 36 CFR to be seen as 'principles', so that they do not themselves create (new) substantive rights.
With respect to Article 167(4) TFEU, arguably, the substantive culture- related obligations flowing from the CFR provide an additional legal rationale for the Union institutions to assure that cultural aspects are taken into account when formulating or adapting Union policies. In addition, given that the CFR is also directed to member states once they act within the scope of Union law, the CFR arguably requires them (on their own motion) equally to take into account those cultural diversity-related CFR provisions. This may become of practical relevance in the sense that, read in combination, Article 167(4) TFEU and the CFR no longer presuppose that the initiative for asserting attention for cultural diversity is to be at Union level. Member states are under an independent obligation actively to assert culture-related CFR provisions, that is, irrespective of whether these aspects have been or are being acknowledged at Union level.