Genesis and rationales for European intervention in media

Caroline Pauwels

Introduction

The audiovisual sector is just about the most important culture-related domain where the intervention of the European institutions, meaning the European Commission, the Council of Ministers and the European Parliament (for a short description, see chapter by Donders, Loisen and Pauwels), has become more overt as well as more obtrusive over the years. In addition to actions that point to negative integration through the years, i.e. the breaking down of existing national measures that represent an obstacle to European unification, the EU has also set positive integration in motion, i.e. specific Community legislation and policy for the audiovisual sector. However, the Member States and other players have not accepted this increasing interference without a fight – on the contrary. The intervention by the EU is still contested today. Too economically inspired for some and not ambitious enough for others. Or simply a question of the impermissible exceeding of powers for those strongly invoking the principle of subsidiarity in this regard (see Loisen et al., 2013). For the latter, the audiovisual sector is mainly cultural and therefore an essentially national area of competence. However, there are also others who point to the predominantly economic and transnational character of the audiovisual sector and then plead in turn for more European interventionism, and even dirigisme.

In short, the acceptance or rejection of Community intervention in the cultural and, in this case, the audiovisual sector has been and still is accompanied by different arguments or rationales. For the sake of convenience and in a somewhat simplified way, we distinguish, looking back at the history of the increasing intervention of the EU in the audiovisual sector, between the political-rhetorical, the formalistic and the pragmatic discourse in that order. It is, in particular, the latter discourse that has held the upper hand over the years and has resulted in concrete actions.

Looking at the interference by the European Union in the audiovisual sector, we can also see a number of transitions in rationale and policy approach. The aim of this chapter is to first focus on the rationales and rhetorics that have supported EU intervention in the audiovisual sector over the years. We then take a look at the transitions and differences in policy discourse and approach, at least insofar as is applicable to the media and cultural, i.e. in this case audiovisual sector.

From rhetorics over formalism to pragmatism: an overview of the three justifying rationales for EU intervention in media  

The political-rhetorical discourse

With the approval of the Treaty of Maastricht, now the TFEU (Treaty on the Functioning of the European Union), cultural and audiovisual services were provided with a legal basis, among other things under Article 128 at the time, now Article 167 of the TFEU. This has not always been the case. With the exception of the German text of Article 36, neither the Treaty of Rome nor the Single European Act mentioned

the word ‘culture.’ However, this did not prevent reference being made to culture in official declarations and documents from the late 1960s on several occasions, underlining that economic expansion was not an end in itself. Reference was made in this regard to the preamble of the Treaty of Rome, in which the signatory Member States declared their willingness to use their European cooperation project to also bring about a stronger union between the peoples of Europe, to increase their quality of life, as well as to guarantee freedom and peace. At the end of the 1960s, the plea to go beyond the merely economic dimension became ever louder and this was included in the final declarations of the summits at The Hague (1969), Paris (1972), Copenhagen (1973) as well as Stuttgart (1983) (Massart-Piérard, 1986; Grégoire, 1978, 1984). These declarations often went hand in hand with a certain frustration and alienation caused by the economically and technocratically limitative nature of European integration. At the same time, ways were being sought to refloat the European project, among other things through expanding the Community’s sphere of activity. These various declarations of intent were at the root of the concept of a genuine European Union that was to have not only an economic but, rather, also a political, social and cultural dimension. Maastricht was to provide the idea of a European Union with a legal form. Prior to Maastricht, examples of this line of thought included the Tindemans report approved in 1975, the draft European act by ministers Colombo and Genscher (1981), as well as the draft treaty for the establishment of a European Union by former MEP Spinelli (1984) (Massart-Piérard, 1986; Sassatelli, 2009). These reports and declarations first allude to terms such as the European identity and consciousness, common cultural heritage, Europe for citizens and culture (Sassatelli, 2009, pp. 64ff.). Although their objectives were undoubtedly noble on paper, there did appear to be limitations to this political rhetoric in practice. Indeed, the question arose in this regard as to whether the European Community at that time could intervene in the cultural sector at all and, if so, how?

The formalistic discourse

One reaction to the timid aspirations of the Community institutions in the cultural sector in the meantime was the failing formalistic discourse. By virtue of the Treaty of Rome and the Single European Act not expressly referring to culture, it was initially argued in the formalistic discourse that the Community and culture had nothing to do with each other. The United Kingdom, Germany and Denmark, in particular, questioned the involvement of the Community in a sector they saw as being a national or regional matter (Forrest, 1987, Sassatelli, 2009). A number of other arguments were, and still are, cited in this regard. It is emphasised that other institutions, such as the Council of Europe, had already looked after the cultural interests of the Member States for longer and have done this better. Interference in the cultural sector also means additional financial strain. Some people furthermore threatened with the spectre of a Euro-culture or tasteless European melting pot – the so-called Euro-pudding (Forrest, 1987, p. 328). This, from a narrowly formalistic viewpoint, legitimate resistance – the Treaty of Maastricht was not voted on until 1992 – moved the Community institutions in the beginning to adopt a very moderate, minimalistic profile in the cultural sector. The European Commission, for example, shied away from using the term ‘cultural policy’ for a long time, just as it restrained from developing a cultural philosophy (Grégoire, 1978, p. 230). The first official policy

document, a communication published in 1977, therefore only referred in a timid way to “Community action in the cultural sector” (emphasis added by the author). Or, as Sassatelli quoted from this first communication: “as the cultural sector is not culture, so community action in the cultural sector is not a cultural policy” (Sassatelli, 2009, p. 50). On the occasion of the publication (on 8 October 1982) of the second communication on ‘Strengthening Community action in the cultural sector,’ the President of the Commission, Gaston Thorn, confirmed this minimalistic purport:

“I would like to point out that this communication does not expound a philosophy of culture, for that would imply coming out in favour of specific ideological and aesthetic options, which is something the Community has no right to do. [...] Our communication clearly shows that to serve culture there is no need for the Community to encroach on the responsibilities of governments or of other international organizations. Without ruffling any feelings, it simply has to keep firmly within the bounds of competence assigned to it. [...] One expression seems to me to epitomize the spirit in which we compiled this paper: instead of speaking about ‘artists’ we speak about ‘cultural workers’” (Commission, 1982, p. 5).

With Maastricht, it became clear that the supporters of this formalistic discourse had increasingly less ground to stand on. In the words of Loman et al. (1989, p. 4), Maastricht meant that culture was extracted from the white zone into the grey and even black zone of the Community sphere of action. The white zone alludes to the policy areas in which Europe has no influence or only very little influence, in contrast to the grey or black zone where Community law determines and restricts the actions of the Member States to an increasing extent. It was already clear that the former Article 128 concerning culture, now Article 167 of the TFEU, would once again provide food for thought in the discussion between the advocates and opponents of Europe interfering in the domain of culture, with the wording and points of departure of the article giving rise to a great deal of uncertainty. The so-called culture article 167 bases the division of competences between the Member States and the EU on the principle of subsidiarity. This principle should guarantee the cultural autonomy of the Member States. Subsidiarity means, in the European context, that only those competences that cannot be performed in an optimum manner by the local, regional or national authorities are assigned to the Community. What was expected, or even feared, at the time was that the supporters of the formalistic discourse would invoke the principle of subsidiarity in order to prevent an extensive interpretation of Article 167, maybe even putting a certain Community acquis at risk again (Delors, 1991). For some people, the vagueness of Article 128 at the time meant that unwanted Community interference in culture could be deterred or at least slowed down while others were, on the other hand, of the view that the lack of clarity of the article precisely opened a lot of new perspectives for the Community institutions. In this case, the EU would assume or be formally granted a lot more powers in the area of culture (Kleekamp, 1992; Lange, 1993, pp. 83ff.; Loman et al., 1992, p. 202). Further history has shown in the meantime that the cultural ambitions of Europe were still meagre and that the culture article was and is only invoked piecemeal to make the pendulum swing in the direction of more or less EU intervention in culture (Sassatelli, 2009). Member States proved to be persistent over the years in holding on to their sovereignty in the area of cultural media and have also not exactly been generous when it is a matter of financial support programmes for the cultural sector. This has certainly also been their attitude towards EU intervention in the audiovisual sector.

The Member States worked hard within the Treaty of Amsterdam, for example, for the inclusion of the Amsterdam Protocol, intended to avert or at least mitigate the increasing interference in public broadcasting by the EU through its competition unit (Donders, 2012; Donders & Pauwels, 2008) The negative attitude of the Member States to strong EU intervention resulted just as much from the low financial resources they were willing to invest in the MEDIA programme, intended to stimulate the audiovisual industry. Over the years, and taking account of inflation and the increase in the number of Member States, there is more a case of stagnation and even scaling down of support to the audiovisual sector under MEDIA than a real increase adapted to the needs of the sector (see De Vinck & Pauwels, 2008; see also chapter by De Vinck), and this notwithstanding the discourse also currently being conducted in relation to the Creative Europe initiative. Creative Europe wants to centralise all resources allocated to culture and media, including MEDIA, and makes mention in this respect of a substantial increase in financial support for culture and media, with €1.8 billion to be made available. Although this does sound like a lot of money, it actually comprises not much more than the total funding spent on MEDIA, Media Mundus and Culture. Furthermore, the current Creative Europe discourse, as expressed by EU Commissioner Androulla Vassiliou, strongly echoes an economically oriented approach without much reference to any European cultural ambition:

“The cultural and creative sectors offer great potential to boost jobs and growth in Europe. EU funding also helps thousands of artists and cultural professionals to reach new audiences. Without this support, it would be difficult or impossible for them to break into new markets” (Vassiliou, 2011).i

The pragmatic rationale still prevails today over an overarching cultural ambition, which indeed appears to be a common thread in the history of EU intervention in the audiovisual sector.

The pragmatic discourse

If the political-rhetorical discourse appears too utopian and the narrowly formalistic discourse too categorical, European intervention in the cultural sector, in this case the audiovisual sector, will then indeed actually be realised along pragmatic lines. The pragmatic discourse is situated somewhere between the formalistic and the political-rhetorical discourse. It was clear to the supporters of the pragmatic discourse that the formalistic yes-no discussion could be settled in favour of European intervention, at least insofar as there are also economic aspects associated with the cultural domain. This resulted in the European Union having authority in many important areas of cultural policy. The fact that the Treaty of Rome or the Single European Act did not expressly mention culture therefore did not really pose any difficulty for the pragmatists. Attempts were made to reassure the supporters of the formalistic discourse by ensuring them that Europe could only proceed and perform if culture also involved economic aspects. The pragmatic discourse, on the other hand, did not start so much from the rhetorical question of what Europe can do for culture but, rather, the other way round, i.e. what can culture do for the economy. The first question – i.e. What can Europe do for culture? – provides the basis for a number of fragmented, but otherwise very creditable actions, such as the Year of Music or the Year of Film, protection of the architectural heritage, the European Literature Prize,

the European Capital of Culture, etc. (Sassatelli, 2009). The other question – i.e. What can culture do for the economy? – results in economic and social policy relating to the cultural and, therefore, also the audiovisual sector. Not a cultural policy, as suggested by Thorn above but, rather, a policy inspired by the economic articles contained in the Treaty of Rome and succeeding treaties. This did not prevent some elements from the political-rhetorical argument also turning up in the pragmatic discourse: indeed, it was stated that some cultural benefits will also result from the economic and industrial policy. The pragmatism of this argument emerged precisely from the subtle blend of cultural and economic arguments.

A reflection of this pragmatic policy option can be found in the action programmes initiated by the Community in the cultural sector, the first of which was announced in 1977 (Grégoire, 1978, pp. 229 ff.; 1984, pp. 56ff.; Forrest, 1987; Massart-Piérard, 1986; Sassatelli, 2009). The pragmatic discourse was based on the question of how the Treaty of Rome, and the succeeding treaties now, can be applied to release and stimulate the economic potential of the cultural sector. This means, on the one hand, the question to what extent culture stands in the way of economic unification (negative integration). On the other hand, it highlights the prospects of the cultural, in this case the audiovisual, sector itself in terms of economic profit. With the emergence of the so-called information society, this discourse was becoming increasingly more explicit and compelling in the Community discourse and also gradually resulted in actions towards positive integration.

This pragmatic purpose was already manifesting itself at an early stage in relation to EU interventions in the audiovisual sector, although the legitimizing discourse will also be supplemented by a number of cultural and more emotional arguments. While the tasks at the European summits held in the late 1960s were mainly about going beyond the economic dimension, the Commission had already taken its first initiatives in the audiovisual sector. The Commission and the EU Council were active early on in the area of film. In four directives, with the first of these dating back to 1963, attempts were made to eliminate the discriminatory measures applied by the Member States with regard to the freedom of establishment and provision of services in the cinematographic segment. European competence was also confirmed a few years later in relation to broadcasting: the Sacchi judgement handed down by the European Court (1974) ruled that television reports and news, including advertising messages, should by their nature be regarded as service operations (Schwartz, 1984, 1985, 1986; Donner, 1992, p. 72). Despite the fact that this confirmed Community competence in the audiovisual sector in a legal way, audiovisual policy continued to be a non-issue up to the early 1980s, with actions in the sector remaining marginal. In contrast, from the 1980s on, the Community institutions became particularly active in mapping out boom and doom scenarios concerning their intervention in the audiovisual sector. In the course of the years and increasing from 1990, audiovisual policy is also articulated in various directives, including the Television without Frontiers and (its successor) Audiovisual Media Services directives (see chapters by Katsirea and Valcke, Ausloos & Lefever), and the various directives on copyright (and taxation), and an industrial support programme for the audiovisual sector (MEDIA) in operation since 1990. Competition policy is also actively deployed in the media sector, with all the criticism and impact this entails (Harcourt, 2006; Pauwels et al., 2007; see also chapters in part four of this collection). All initiatives and specific policy implementations are now supported by the pragmatic discourse that was also applied at the beginning and in

which arguments of both an economic as well as cultural and legal order could be distinguished.

Pragmatism unravelled: economic, cultural and legal arguments for EU intervention in media 

The economic argument

First and foremost, there have been (and still are) indications of economic potential in the audiovisual and, by extension, the telecommunication sectors in terms of employment and growth (Ungerer, 1988, p. 5). Europe used to have considerable strengths in both sectors but, because of a lack of concerted action and as a result of national fragmentation, these strengths were not exploited, consequently undermining the economic potential. European action was therefore needed. To boost their argument, the Community institutions identified two external adversaries, i.e. Japan and America, which were a menace to Europe in both economic (in the area of hardware) and cultural terms (in the area of software). As far as the audiovisual sector was concerned, this message was repeatedly emphasised from 1982 on by both the European Parliament and the European Commission (Collins, 1994, p. 44).

The next step in the Commission’s legitimation offensive was the publication of the White Paper in 1985 which, due to the Single European Act entering into force at the beginning of July 1987, would form the basic programme of the Community over the ensuing years. Its intention was to inject new life into the idea of an internal market and it provided for around 282 legislative initiatives to this end. These were to be carried out according to a clear timetable. The four freedoms also included in the Treaty of Rome, i.e. free movement of goods, persons, services and capital, had to be realised by 31 December 1992 at the latest. The establishment of a single market for broadcasting and telecommunication was also described in the white paper as an urgent task for Europe (Commission, 1986, p. 7). The European dimension was able to offer these sectors new growth prospects. Conversely, these sectors themselves contribute to the realisation of a European dimension in other economic sectors. The unification of the audiovisual market can, for example, act as a driving force for both the underexploited advertising market as well as for the waning consumer electronics segment (Porter, 1991a). The references to the cost of a non-Europe, as calculated in the Cecchini report, also date from that period (Cecchini, 1988, pp. 92ff.). The Commission states the following in its brochure published in 1988 with the title ‘The audiovisual sector in the greater European market:’

“Florence demonstrated that the European dimension was capable of making a significant contribution to the audio-visual sector in the Community countries and that, by the same token, the preservation of national barriers, the 'non-Europe' would cost the sector itself a fortune; the same also applies to other sectors of the economy. However, the non-Europe would not only lead to the loss of markets, profits and jobs in the audiovisual sector on account of its cultural and political impact; it would mean also that the images which inform or inspire European audiences, and which often constitute their models or references, would be devised and selected elsewhere, using criteria which are not shared by the Europeans” (Commission, 1988, pp. 53-54).

With this quote, we have finally arrived at the cultural and legal arguments put forward by the Community institutions for their intervention in the audiovisual sector. We first note, however, that the economic potential of the audiovisual and telecommunication sectors in the 1990s, and again after 2000, is advanced as an argument for further community actions, i.e. harmonisation and liberalisation, in these sectors. Both the White Paper published in 1993 on growth, competitiveness and employment (Commission, 1993, pp. 82, 101, 114) and the Bangeman report (Commission, 1994), the i2010 strategy and the Digital Agenda proposed or propose the creation and realisation of the information society as the solution to European economic growth. The metaphor of the European knowledge society has, in other words, remained omnipresent from the 1980s up to the present day as the driving force for European action.

The cultural argument

The second argument for supporting European intervention in the audiovisual sector was more cultural and contained elements from the political-rhetorical discourse. The pragmatism of the European argument appears here in the way the cultural advantages of intervention are weighed up against the cultural disadvantages of non-intervention. Boom and doom scenarios are therefore also cited here. The technological determinism of the economic reasoning is linked to a cultural pessimism in this regard (Collins, 1994, pp. 41ff.). Non-intervention will entail an invasion by foreign, and especially American audiovisual material as well as marginalisation of European consumer electronics vis-à-vis its Asian competitors. On the other hand, intervention meant, among other things, the free movement of audiovisual, i.e. European programmes, the creation of pan-European broadcasters - an idea that caught on in the early 1980s in particular, but would eventually turn out to be a fiasco – or support for the European programme industry. So many different ways then of realising “the stronger union between the peoples of Europe” postulated in the preamble to the Treaty of Rome and, at the same time, stimulating the European identity and consciousness. This was also suggested by the Adonnino report on ‘A People’s Europe,’ which was adopted by the European Council of Milan in June 1985:

“In order to bring the peoples of Europe closer together, the Committee proposes that the European Council recommend to each Member State of the Community and to the Community institutions that they consider which legal and technical steps [...] should be taken so that every citizen may have access to the greatest number of programmes broadcast by the various channels of the Community countries, in conformity with the Treaty” (Commission, 1986, p. 7).

It was furthermore claimed that the provisions of Article 10 of the European Convention on Human Rights (ECHR) and Article 19 of the Universal Declaration of Human Rights were met. With its intervention in the audiovisual sector, Europe did indeed profess to aim at extending the freedom and right of each citizen to information (Commission, 1986). In the context of this cultural legitimation, reference was also frequently made to a quotation that was wrongly attributed to Jean Monnet but is still used today, both appropriately and inappropriately (Sassatelli, 2009, p. 50). An illustration of this is provided by the brochure published by the Commission in 1984 with the title ‘Towards a European television policy’ (Commission, 1984),

which ends with a revealing quote and takes note of the blending of cultural and economic elements:

“‘If we were beginning the European Community all over again,’ said Jean Monnet, its founding father, ‘we should begin with culture.’ By linking together European culture and the new technologies, which hold the key to future prosperity and employment, a European television policy is now a major imperative” (Commission, 1984, p. 11).

The legal argument

The Community institutions finally evoked a legal argument for their intervention. If European culture is to be preserved and the economic potential of the audiovisual sector stimulated, then the European Union, still the Community at that time, was the most appropriate institution for this. The directives and regulations introduced by it are, after all, legally binding. On the one hand, the inability of the fragmented national legislations to tackle a number of problems that had become transnational as a result of technological developments was pointed out in this regard. On the other hand, the limited legal force of the initiatives from a different transnational, i.e. intergovernmental policy player, the Council of Europe, was alluded to.

The Council of Europe, which began drawing up a legal framework for transnational broadcasting at roughly the same time as the Community institutions, has actually been involved in the cultural sector more and for longer than the former Community. It also covers a larger geographical area but does not have any direct methods of coercion at its disposal vis-à-vis its members. The Council can only make recommendations. Its declarations have primarily a moral and psychological significance. Ratification of a convention proposed by the Council of Europe is not mandatory on the part of the national parliaments. The Council’s conventions and declarations are therefore only the expression of (almost) generally accepted legal principles that each member of the international Community has to strive for (Klaver, 1982, p. 105; Weisglas, 1991, pp. 437ff.). This has not prevented the Council of Europe from taking important initiatives in the audiovisual domain. Examples of this are the convention on transnational broadcasting, which entered into force in May 1993 with the ratification by the Vatican City State, as well as the establishment of Eurimages, a coproduction and distribution fund, in 1988. As a body setting the agenda and the tone, the Council of Europe has therefore proved to be very important, although many of its initiatives and actions will actually be ratified within the EU institutions.

All in all, the argument and reasoning of the EU since the early 1980s can be summarised in one sentence and has really remained unchanged. If audiovisual Europe does not wish, with a view to the inevitable, but also promising technological developments, to concede ground in the economic or cultural domain, there is only one legally adequate instrument, i.e. Community law. Jacques Delors, President of the European Commission from 1985 to 1995 and instigator of the European economic recovery, left no doubt about the need for Community action in the audiovisual sector:

“Ce que l’on pourrait appeler l’industrie de la culture sera demain une des industries les plus importantes, créatrices de richesses et d’emplois. Au terme du Traité nous

n’avons pas les moyens de mettre en oeuvre une politique culturelle; mais nous allons tâcher de l’aborder par le biais économique. Il ne s’agit pas simplement de programmes télévisés. Il s’agit de bâtir une puissante industrie européenne de la culture qui nous permettra d’être maîtres à la fois du contenant et du contenu, de maintenir nos valeurs de civilisation et d'encourager nos créateurs” (quoted in Schwartz, 1985, p. 502).

Old wine in new bottles, or maybe not?

Notwithstanding the fact of Europe legitimizing its intervention in the cultural and audiovisual domains in a relatively similar way over the years, it is erroneous to think that the narrative is repeated without further ado. With the approval of the Treaty of Maastricht and extending the powers this entails, strong changes in emphasis have to be noted. These relate to the delicate exercising of balance that subsidiarity actually involves and has implications precisely for the cultural and audiovisual sectors, given that the Community’s integration and enlargement process towards new policy areas and new Member States joining is a matter of give and take. In other words, what the Member States surrender to the EU, they want to see compensated for in return. Equally, the EU institutions must, with the extension of powers and the accession of new Member States, also be able to manage the associated complexity in an efficient way. These developments, initiated and intensified with Maastricht, lead to two important shifts of emphasis. On the one hand, the discourse will gradually evolve from the focus on cultural unity and common cultural heritage to emphasising cultural diversity and national identities. On the other hand, Maastricht did not start off a process of greater centralisation per se but, rather, a development towards more decentralisation and responsibility at the lower levels. This is also expressed in explicit terms in the culture paragraph included since Maastricht.

In contrast to the original EC Treaty and the Single European Act, in which the term did not occur once or only indirectly (see above), reference is made to culture several times in the Treaty of Maastricht (Loman et al.,1992, p. 190). This occurs, for example, in recital 4 of the preamble to the EU Treaty, where the heads of the Member States express their desire to deepen the solidarity between their peoples with due regard for their history, culture and tradition.ii Article F of the declarations of principle then stipulates that the Union shall respect the national identity of its Member States. Article 3.3 of the Treaty on European Union finally specifies that the Union shall help to promote the cultures and linguistic diversity of the Member States. In addition to these general principles, a new provision on culture was also inserted (now Article 107.3 d TFEU) in the former article on support measures. Finally, a specific culture paragraph was also included (Article 128, now Article 167 of the TFEU).iii

The nature of EU intervention in culture can be inferred directly from the wording of the principles in the preamble as well as from Article 3 of the TEU. Possibilities for a European cultural policy are created, though based on respect for and the guarantee of cultural identity and autonomy of the Member States themselves. The principle of subsidiarity to the effect that the Member States have to protect against excessively far-reaching interference by the Community institutions also forms the basis of the culture paragraph. Some people see in this the winning over of the concept of European cultural diversity for European cultural unity. This cultural diversity

concept will also resonate at international level with the adoption of the 2005 Unesco Convention on the protection and promotion of the diversity of cultural expressions (see chapters by Richieri Hanania & Ruiz Fabri, and Loisen).

Former Article 128 (now Article 167 of the TFEU), the specific culture paragraph, comprises 5 elements. The first paragraph specifies the general objectives of the Community in relation to culture. The second paragraph contains the specific areas of action in which the Community adopts an encouraging or, if necessary, supportive and supplementary role. Loman et al. (1992) see confirmation of the principle of subsidiarity in the phrase ‘if necessary.’ The audiovisual sector is mentioned explicitly under Article 128, Paragraph 2. The third paragraph provides for cooperation between the Community, the Member States, third parties and other organisations whose area of competence involves culture (such as the Council of Europe). The fourth paragraph specifies the relationship between the culture article and the other articles of the Treaty (principle of policy integration). Finally, the fifth paragraph names the legal instruments and procedures to be involved in the realisation of the stated objectives.

An important aspect when considering Article 128 is that those drawing up the article evidently draw a distinction between measures striving for a cultural objective and those aimed at activities of a mixed economic and cultural nature. Article 128 applies in the first case. In the second case, however, the other articles of the Treaty also apply. It is therefore impossible for Article 128, later Article 167 of the TFEU, to be invoked by the Member States for the purpose of preventing or undoing actions such as the Television without Frontiers Directive or its successor, the Audiovisual Media Services Directive.

A strict legal procedure is established, however, to achieve the objectives of Article 128. Article 128, Paragraph 5 sets out a co-decision-making procedure between the Council and the European Parliament and also contains a provision that the decisions at Council level – in this case, support measures or recommendations - shall only be adopted unanimously. In addition, only the recommendation of what is a weak legal instrument is considered for the realisation of the objectives of Article 128 (now 167 TFEU). All of these provisions appear to confirm the will of the Member States to limit the interference of the Community in the cultural sector as far as possible, entirely in line with the principle of subsidiarity (Loman, Mortelmans, Post and Watson, 1992, p. 197). On the other hand, of course, there is still the possibility of activities with a mixed economic and cultural nature coming under other Treaty rules and being adopted, if necessary, by way of a qualified majority.

Opinions differ on the positive effects or not of the inclusion of a culture paragraph in the Treaty of Maastricht. Not ambitious enough, according to some. Too far-reaching, according to others. By formally recognising the cultural objective as a Community concern, the Court of Justice can henceforth take account of cultural interests when interpreting the provisions of the Treaty.

The implementation of the culture article will obviously depend on the way in which the principle of subsidiarity is dealt with by the Member States and the European Commission. For instance, the objectives set out in the Treaty, such as the realisation of the single market, can possibly be used to avoid application of the principle of

subsidiarity at the cultural level. According to some people, however, the danger does not lie so much in the debatable application of the principle of subsidiarity but, rather, in the budgetary restraints on policy imposed by the Member States since Maastricht. It can be feared, for example, that the budget restrictions will primarily affect expenditure on culture. This can result in a merely symbolic cultural policy with a discrepancy between the objectives in the area of culture and the resources that are or can be made available for this at the Community and national level. The Creative Europe ambitions do not now appear to be very reassuring in this area, notwithstanding the discourse.

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i See http://ec.europa.eu/culture/creative-europe/ (accessed 28 April 2013).ii See preamble to the TEU: Desiring to deepen the solidarity between their peoples while respecting their history, their culture and their traditionsiii Article 128 stipulates the following:1. The Community shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore.2. Action by the Community shall be aimed at encouraging cooperation between Member States and, if necessary, supporting and supplementing their action in the following areas:- improvement of the knowledge and dissemination of the culture and history of the European peoples,- conservation and safeguarding of cultural heritage of European significance,- non-commercial cultural exchanges,- artistic and literary creation, including in the audiovisual sector.3. The Community and the Member States shall foster cooperation with third countries and the competent international organisations in the sphere of culture, in particular the Council of Europe.4. The Community shall take cultural aspects into account in its action under other provisions of the Treaties, in particular in order to respect and to promote the diversity of the cultures.5. In order to contribute to the achievement of the objectives referred to in this Article, the Council shall:- acting in accordance with the procedure under Article 189B and after consulting the Committee of the Regions, adopt incentive measures, excluding any harmonisation of the laws and regulations of Member States. The Council shall, during the entire procedure of Article 189B, adopt decisions by way of a unanimous vote;- by way of a unanimous vote, adopt recommendations on a proposal from the Commission.