Framework for dealing with culture in external trade policy

The successful negotiation and adoption of the UNESCO Convention in December 2005 laid the foundations for a new approach to cultural policy in the EU, both internally and externally. With regard to the latter, a more open, dynamic and positive position centring on cultural diversity has been advocated, abandoning to a certain extent the EU's traditional 'cultural exception' approach. The Convention's 'emphasis on the "connected" nature of contemporary cultural diversity' and its focus 'on the ability of cultural expressions to develop through a range of measures including exchange, cooperation and access to the global markets' (Balta Portoles, 2010: 7) has urged the EU to rethink its position and framework for implementing the Convention it so ardently supported.

A short while after the Convention's entry into force, on 10 May 2007, the European Commission (Commission) issued its Communication on a European agenda for culture in a globalising world (the Cultural Agenda), the first comprehensive policy document on culture at the EU level (European Commission, 2007a). According to the communication, the UNESCO Convention provides a basis to define the new role of cultural diversity at the international level and to contribute to mutual understanding and respect for shared values. All European actors, within their respective fields of competence and through appropriate instruments and channels, are called upon to develop and reinforce a new cultural pillar of global governance and sustainable development. Besides support for specific cultural actions and events, culture should be systematically integrated in external and development policies in general.

Welcoming the Commission's communication, the Council of the EU (Council) issued on 20 November 2008 its Conclusions on the promotion of cultural diversity and intercultural dialogue in the external relations of the Union and its member states. In line with the Cultural Agenda, EU actors are invited to reflect upon a strengthened role of culture within the framework of external relations and ways in which to promote the UNESCO Convention. Concretely, the Council requests the formulation of a European strategy for incorporating culture consistently and systematically in the external relations of the Union with due regard for complementarity between the Union's activities and those of the member states (Council, 2008b).

All actors share the general aim of taking culture seriously in the EU's external relations. In practice, the process will generate tensions, however, and these are already apparent in the complex division of competences regarding trade and culture-related issues. Article 167 of the Treaty on the Functioning of the European Union (TFEU) makes clear that the Union only has supporting and supplementary competences in the field of culture. Nevertheless, policy domains where the Union has prime responsibility often do have a cultural dimension, which explains the requirement set out in paragraph 4 of Article 167 TFEU for respect and promotion of cultural diversity in overall EU action. With the entry into force of the UNESCO Convention, the implementation of Article 167(4) TFEU needs to be made more explicit and visible, because 'Concerned to ensure a broader consideration of cultural diversity in the development of state policies, it could be argued that in effect, the Convention replicates the cultural mainstreaming obligation of Article 167(4) at the international level' (European Commission, 2010f: 3).

Cultural mainstreaming should thus not only apply throughout the EU and in the Union's policies (on the basis of Article 167(4) TFEU), but could and should be replicated worldwide via the UNESCO Convention. Needless to say that the EU should then provide leadership and guidance vis-a-vis other parties on how to apply cultural mainstreaming concretely when different policy domains and competence regimes meet. A case in point is dealing with policy issues that have a dual nature, related both to cultural policy and trade policy.

The EU's trade policy is an exclusive EU competence for all sectors (Article 207 TFEU). In addition, the Lisbon Treaty contributed to the simplification of the EU's common commercial policy by eliminating sectoral carve-outs,1 shared competences or mixed agreements.2 Nonetheless, the specificity of culture remains acknowledged. Article 207(4) subparagraph 3(a) TFEU explicitly stipulates: '[t]he Council shall also act unanimously for the negotiation and conclusion of agreements: (a) in the field of trade in cultural and audiovisual services, where these agreements risk prejudicing the Union's cultural and linguistic diversity.'

The difficult interpretation and implementation of this provision illustrates the tensions and practical complexity of pursuing trade interests, while simultaneously protecting and promoting cultural diversity. How will the provision function? Who will judge and measure that a risk exists for cultural and linguistic diversity - a concept that is not defined in the TFEU - and in what ways? How can one determine the threshold indicating that a risk exists for linguistic diversity, for example, in the case of minority languages such as Welsh or Gaelic? How many people would have to speak the minority language to indicate such a risk? Can this risk, moreover, be linked to the predominantly English-speaking media system or the vast inflow of American media content? If so, does this warrant protective measures of the minority language, and to what extent? In the context of the protocol on cultural cooperation with Korea (discussed later on), fears were expressed by, among others, Flemish animation sector representatives (Bouckaert et al., 2009). They claimed that a Flemish tradition in high quality and distinctively European animated audiovisual content would be thwarted if co-productions between companies from large EU member states and low-cost Korean animation companies would be facilitated by the protocol. Would Belgium then have a case to argue that the EU-Korea protocol would constitute a risk for cultural diversity? It would appear to be very complicated to demonstrate a risk for cultural and linguistic diversity before an agreement is implemented (Loisen et al., 2013: 70).3 It is clear that dealing with cultural aspects in the context of trade negotiations and agreements is both politically and practically complex, sensitive and often ambivalent.

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