Why we need European cultural policies: the impact of EU ...

Even though the author thought that Article 128 had only confirmed the principle of subsidiarityand explicitly enabled involvement in the field of culture, which in reality already existed, shebelieved that the inclusion of this Article had contributed to the greater engagement of legaland economic experts in describing the role of culture. Before 1992 those debates had beenexclusively the territory of cultural policy and cultural studies theoreticians. In that context, shecorrectly pointed to the fact that it was only after the inclusion of this Article that the Commissionpublished a document that presented all existing instruments and activities of the Community inthe field of culture.34Niedobitek, however, argued that the importance of Article 128 has been overestimated and that,in fact, it did not bring anything new. Analyzing some directives having an impact on culture, whichwere adopted before the inclusion of Article 128 in the Maastricht Treaty, he argued that Article128, and paragraph 4 in particular, did not bring any new competences nor does it limit the abilityand the rights of the Community to act in the field of culture.35 According to Niedobitek, the onlyreal contribution of Article 128 towards extending the scope of European institutions on culturalmatters was its explicit call to include cultural aspects when making all decisions in all commoninstitutions. This meant that the competences of the Community were not reduced exclusivelyto legal measures, but also extended to those instruments of supervision that the Commissionadopted in fulfilling its role as the `guardian of the Treaty’.36According to Kaufman and Raunig, in a detailed analysis of Article 151 and its significance, thefirst paragraph at once pointed to a tension between two crucial concepts – an assumed sharedhistory on the one hand, and the cultural diversity of the people now living in Europe on the other(Kaufman and Raunig 2002). The authors interpreted the second paragraph as a new sign ofresponsibility of the European Union for cultural matters. Smiers arrived at a similar interpretation(Smiers 2002a).Paragraph 3 calls for enhanced cooperation with third countries (countries outside the Union)and international organizations; Kaufman and Raunig judged it to be an important step forward,but with some reservation, because artists and cultural operators in third countries do not haveto abide by the same legal and financial preconditions for successful implementation of whateveris the subject of exchange and cooperation. In that context, this paragraph should have enabledthe Commission to take a more proactive position and to have opened up different cooperationprogrammes to the candidate countries, to other member countries of the Council of Europe andalso to countries in the Euro-Mediterranean partnership.At the 2004 Congress of the Academy of European Law, Crawfurd Smith discussed the roleand interpretation of Article 151, analyzing primarily the jurisprudence of the European Courtof Justice. She assessed the legal value of the Article from different viewpoints. Although sherecognized the importance of including a specific article about culture in the Treaty she drewattention to the lack of a clear definition of culture, which means that the courts have had tointerpret its meaning in individual cases.34Part 2 European Union, culture and cultural policy: the impact of EU enlargement