Recognition of the right to access culture under EU law
The right to participate in cultural life is a multifaceted human right; the right to access culture is a core component of it. The right to participate in cultural life has obtained broad recognition under international human rights law, initially through Article 27 of the Universal declaration of human rights, which thus provides a legal basis for the right to access culture. Participation in cultural life has been consistently interpreted as conferring as a minimum a right to access culture (Bidault, 2010; Donders, 2002, 2007; Goldrick, 2007; Hansen, 2002; O'Keefe, 1998; Romainville, 2014; Stamatopoulou, 2012). In particular, Article 15 of the International Covenant on economic, social and cultural rights, which provides the most comprehensive formulation of the right to participate in cultural life, encompasses access to culture but also the freedom of artistic expression, and the right to participate actively in cultural life and in the decisions concerning cultural activities. Civil and political rights instruments also protect, albeit indirectly, some aspects of the right to access culture, as illustrated by Articles 19 and 27 of the International Covenant on civil and political rights. Access to culture is also recognised in the International Convention on the elimination of all forms of racial discrimination (Article 5(e)(vi)), the Convention on the rights of the child (Article 31) and the Convention on the elimination of all forms of discrimination against women (Article 13). Protection is also offered through regional instruments, such as the Framework Convention for the protection of national minorities.
The European Convention on Human Rights (ECHR) does not protect directly the right to access culture. However, the European Court of Human Rights (ECtHR), in its Akdas judgement, has recognised that the right to information applies to cultural matters as well, including European literary heritage works. The ECtHR condemned Turkey for having seized Turkish translations of the novel The Eleven Thousand Rods by Guillaume Apollinaire and for having criminally convicted the Turkish publisher for publishing this book. On the basis of the right to receive (and thus access) information, the ECtHR ruled that the margin of appreciation national authorities enjoy in fulfilling their obligations under the ECHR should not hinder the public's access to an artwork (in a specific language) that formed part of the European literary cultural heritage.1 In the same vein, the ECtHR had previously recognised, in Khurshid Mustafa and Tarzibachi v. Sweden, a right to access cultural expressions in the case of foreign television programmes.2 Last but not least, the right to access culture is rooted in international and regional legal instruments concerning cultural policies. For instance, the United Nations Educational, Scientific and Cultural Organization Convention on the protection and promotion of the diversity of cultural expressions embodies explicit references to access culture, both as a requirement for, and as a limit to cultural diversity, and defines cultural policies in reference to access to culture.3
Most of the above-mentioned instruments tend to interpret the right to access culture in reference to cultural expressions, artistic creations and elements of cultural heritage. If, originally, the right to access culture was limited to oeuvres majeures de l'Humanite, it now encompasses a diverse set of cultural expressions, ranging from contemporary music to popular initiatives. Some commentators consider this opening of the right to access culture to diverse cultural expressions as insuf- ficient.4 They suggest interpreting the right to access culture in the light of a broader 'anthropological' conception of culture that extends to all 'distinctive ways of life'. It has been counter-argued, however, that cultural identity issues should not be addressed as such but only in relation to the core content of the right to access culture - the diversity of cultural expressions (Romainville, 2014). Crucially, if this broader anthropological interpretation is adopted, access to culture risks becoming a problematic legal concept too broad to be practicable on a legal level (Von Bogdandy, 2008: 243). On the contrary, if the right to access culture remains in the sphere of the diversity of cultural expressions, then it is possible to deduce precise negative and positive obligations imposed on states and to guarantee a certain level of justiciability of the right to access culture for individuals. At the political stage, access to culture understood in that perspective can also revitalise the 'democratic objective' of cultural policies that has been undermined throughout the years notably because of the focus on other cultural policy objectives, such as support for the creative economy (Blomgren, 2012; Mokre, 2007: 43; Pyykkonen, 2012: 548-549).
The Charter of Fundamental Rights (CFR or the Charter) of the EU does not safeguard a right to access culture for everyone. It only protects the right to participate in cultural life for the elderly in Article 25.5 Moreover, the drafters of the Charter decided to provide for a broad reference to cultural diversity in Article 22 CFR under the form of a general principle instead of a fundamental right to access culture or cultural diversity. The absence of a right to access culture or cultural diversity in the CFR can be explained by the relative invisibility of access to culture in the CFR's main sources of inspiration.6 However, Article 22 CFR, in conjunction with Article 3 of the Treaty on European Union (TEU) and Article 167 of the Treaty on the Functioning of the European Union (TFEU), which stress the importance of the dissemination of culture and of the common cultural heritage, do offer, to a certain extent, an indirect protection of the right to access culture, since the protection and promotion of cultural diversity is a prerequisite for the right to access culture. Furthermore, under EU law, a right to access culture could be considered as forming part of the 'common constitutional traditions' of the member states, because it appears to fulfil all three criteria established by the Court of Justice of the European Union (CJEU, former European Court of Justice, ECJ) for the identification of common constitutional traditions: recognition in a number of constitutional orders, connection with the structural principles of the EU and recognition in international and European human rights instruments.7 First, access to culture is recognised in several national constitutional orders (e.g. Belgium, France, the Czech Republic, Romania, the Slovak Republic, Poland and Portugal), whereas other member states safeguard the right to participate in cultural life for specific groups, such as minori- ties8 and young people.9 Second, access to culture can be seen as being closely connected to the idea of cultural diversity whose protection and promotion has been elevated to constitutional status under EU law. Third, as we have seen, the right to access culture is recognised by a broad range of international and European human rights instruments. Nevertheless, seeing that, in the eyes of the CJEU, the CFR codifies the range of EU fundamental rights, and that the CJEU enjoys discretion in determining the common constitutional traditions (Schutze, 2012: 418), an express recognition of the right to access culture as a common constitutional tradition of the member states is unlikely to happen.