Access to culture in EU secondary law

The adoption of the first legislative EU instruments concerning culture was driven by economic arguments and was aimed at liberalising the cultural sector (Dumont, 1992). Consequently, in the 1980s, some member states attempted to reorient the purely economic approach that was followed through supranational mechanisms, cultural cooperation at the intergovernmental level and the initiation of cultural programmes and projects. The European institutions 'started focusing on the need to further cultural cooperation [particularly] in order to promote a sense of European identity among European citizens' (Littoz-Monnet, 2007: 54). The objective was to develop a European identity and citizenship through the 'new politics of cultural belonging' (Tsaliki, 2007: 157-182).

These developments towards a more 'positive' cultural policy gradually translated into the recognition of an express, albeit limited, EU cultural competence in primary EU law, and the integration of cultural considerations in EU secondary law, including an 'access to culture' perspective. For instance, Article 14 of the Audiovisual Media Services Directive promotes national measures ensuring that major sporting and cultural events are freely accessible to the public (European Parliament and Council of the EU (Council), 2010). Article 1(3)(a) of Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services, in turn, as modified by Directive 2009/140/EC, recognises 'a right to access a network' by requiring any restriction to access to networks to be proportionate and to take due account of the human rights linked with access to a network (European Parliament and Council, 2002a, 2009b). This right to access networks is, in our digital world, an indispensable tool to access digital culture and information about cultural life, which are both elements of the right to access to culture. In certain instances, EU copyright law has shown sensitivity towards objectives concerned with the dissemination of culture, as discussed in more detail in Chapter 7 in this volume, and it could therefore be viewed from an access to culture standpoint. In addition, the Structural Funds and the EU's cohesion policies have been enriched with an access to culture component, through the allocation of subsidies to cultural activities, focused for instance on access to ICT technologies, or the development of cultural institutions whose aim is to democratise culture.20

However, the driving forces underlying the various European legal instruments affecting culture are of an economic and liberalising nature: their aim is more to stimulate culture as a source of growth, competitiveness and employment and to facilitate cultural consumption in a free market than to facilitate genuine access to culture and to cultural life through cultural mediation, cultural education, dissemination of cultural information and so on. This is also the case in the field of state aids, where a specific derogation from the general principle of state aid prohibition has been introduced for state aids to promote culture and heritage conservation (Article 107(3)(d) TFEU), examined in Chapter 9 in this volume. Although the European Commission (Commission) has generally developed a positive stance as regards cultural state aid, on certain occasions, it has endorsed a restrictive definition of 'heritage', excluding, for instance, state aids to museums which do not strictly engage in the dissemination of the arts from the scope of the cultural state aid derogation (European Commission, 2004c, 2005g), thus adopting a constrained understanding of the promotion of access to culture. Also, the Commission has restricted substantially the exemptions admitted in Articles 106 and 107 TFEU for audiovisual services driven by the general interest. In the BBC Digital Curriculum case (European Commission, 2003), the BBC services eligible for state support provided multimedia educational resources and covered literacy and history in a broad manner: they were thereby closely connected to access to culture on the Internet. The Commission, however, considered that these services exceeded the limits of the BBC's public service mission, noting that the extension of the educational vocation of the BBC from radio and television services to the Internet was a 'digression' that did not fall under the scope of the BBC's 'existing aid', accepted under EU law. The result is that the Commission has reduced possibilities for an adaptation of 'classic' cultural policies to the promotion of access to culture in the digital era.

The EU's cultural policy proper has undoubtedly acquired an access to culture dimension. Of particular relevance in this respect has been the Culture 2000 programme, which put emphasis on the notion of common values and on the need for a better balance between cultural and economic considerations. The programme evoked 'improved access to and participation in culture in the European Union for as many citizens as possible' as one of its main objectives, emphasising the importance of the activities funded for 'facilitating access to culture and wider cultural participation by the people in Europe, in all their social, regional and cultural diversity, in particular young people and the most underprivileged' (European Parliament and Council, 2000b: Article 1(h); Annex I, point I, 1(i)). In the Culture 2007-2013 programme, although the importance of access to culture was stressed in the preamble of the programme's decision as a tool for fighting social exclusion, access to culture disappeared from the objectives of the programme and received only indirect support through the encouragement of the 'transnational circulation of works and cultural and artistic products' and the promotion of 'intercultural dialogue' (European Parliament and Council, 2006a). The current Creative Europe programme lists among its specific objectives 'the transnational circulation of cultural and creative works and transnational mobility of cultural and creative players, in particular artists', as well as 'reach[ing] new and enlarged audiences and improv[ing] access to cultural and creative works in the Union and beyond, with a particular focus on children, young people, people with disabilities and under-represented groups' (European Parliament and Council, 2013a: Article 4). However, these objectives have not yet led to the funding of activities that address genuine obstacles to accessing culture (e.g. the lack of desire for culture, the lack of 'keys' to understand culture, and symbolic barriers). It seems therefore that the 'democrati- sation' project is limited to a mere cultural diffusion project without consideration given to the development of a cultural mediation policy.

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