Economic evaluation of cultural policies and proportionality

Despite occasional links drawn between free movement and access to culture considerations, the CJEU has not considered the value of national cultural measures that protect or promote access to culture in a systematic manner. In fact, in the vast majority of cases, relevant measures were rejected.17 This is because the CJEU's reasoning is based on a definition of culture that essentially rests on economic terms (Littoz- Monnet, 2007: 152-156). Also, there is no 'preferential treatment' of culture when the CJEU applies the principle of proportionality.18 As explained by Loic Azoulai (2013: 167), the current configuration of the proportionality test leads to a 'depoliticisation' of national policies, especially when it comes to matters that for the most part are excluded from the EU institutions' competences, such as culture. As for the economic interpretation of culture by the CJEU, the ambivalent nature of cultural goods and services has a key role to play. Because of this ambivalence, cultural policy concerns often merge with economic concerns (Romainville, 2015). A cultural policy cannot function effectively if it is not supported by economic arrangements, which are aimed at guaranteeing resources for its realisation. This point was made particularly clear in the case of Bond van Adverteerders v. the Netherlands. The system under scrutiny had economic goals (i.e. to provide the national broadcasting system with sufficient financial resources by restricting and organising advertising) that were intrinsically linked with cultural ones (i.e. to support the diversity and accessibility of the media landscape in the Netherlands).19 The CJEU's resolve to ensure that protectionist goals do not undermine the establishment and proper functioning of the internal market, under the guise of cultural concerns (Psychogiopoulou, 2008: 141), has prevented a comprehensive assessment of the national restrictive measure from the perspective of access to culture.

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