Criticisms on protocols on cultural cooperation

A first cluster of criticisms revolved around the division of competences between the Commission and the EU member states. In particular, negotiating a bilateral free trade agreement with Korea in parallel with a protocol on cultural cooperation was criticised as 'the Brussels Commission has no mandate to sign this agreement under conditions that threaten cultural diversity' (French Minister of Culture Christine Albanel in Berretta, 2009, author's translation). Several stakeholders argued that the specific character of culture, and of audiovisual goods and services in particular, was made inferior to reaching an agreement on the bilateral trade issues. The fact that both the EU-CARIFORUM and the EU-Korea protocols were discussed in the Trade Policy Committee, while, for example, the Directorate General for Education and Culture of the Commission played a secondary role, reinforced this impression. Given the ambivalence in the division of competences discussed above, it is questionable that the Commission had no mandate, yet concerns about the absence of a cultural reflex in the negotiations did and continue to deserve attention (Loisen and De Ville, 2011: 260).

A second cluster of criticisms concerned the consistency of the Commission's approach. The adoption of protocols on cultural cooperation in parallel to bilateral trade agreements, and this as an implementation of the UNESCO Convention, appeared at odds with the UNESCO Convention's intention, which is to exclude culture from trade negotiations. The French Ministry of Foreign and European Affairs (2009: 5) was particularly worried about the trend-setting effect of the protocols, which 'run the risk of allowing a de facto reintroduction of audiovisual services into trade negotiations'. The observation of consistency was strengthened also by the contents of the protocols, targeting exchange in audiovisual goods and services. To some extent the 'facilitation of exchange' was considered to mimic market access provisions that can be found in other bilateral trade agreements and WTO contracts. Other cultural exchanges that can contribute to cultural diversity are covered much less extensively in the protocols' provisions, which, moreover, are of a soft 'best endeavour' nature (Thiec, 2009).

A final cluster of criticisms related to some countries' and sector stakeholders' concern about classifying Euro-Korean co-productions as 'European works'. The AVMS Directive foresees that co-productions with third countries - and thus not only developing countries - can benefit from such a classification and, hence, be captured by the quota for European works. For the critics, such a beneficial treatment of co-productions is, however, only acceptable when they concern cooperation with developing countries (i.e. on the basis of Article 16 of the Convention). As Korea is not a developing country, the treatment of Euro-Korean co-productions was regarded as a threat to European domestic production and not in line with the goal of reciprocity the Commission put forward earlier. The Commission (2009f: 3) announced a study on the effects of the provision on European domestic production. An ex ante study would however be difficult, owing to speculation on parameters and actor behaviour. At the same time, it is unclear whether a negative outcome of an ex-post study could turn back the EU-Korea protocol on cultural cooperation. Hence, the worries of the critical stakeholders are aggravated, certainly in light of future talks with other parties having an even stronger audiovisual sector (Pauwels and Loisen, 2010: 182-186).

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