Trade, culture and the European Union cultural exception

ABSTRACT

The article examines how the European Union has addressed the ‘trade and culture debate’ in its international trade agreements. From a cultural exception approach based on an attempt to detach culture from trade provisions, the European Union economic agreements seem to evolve to a broader and more holistic position aiming to promote cultural exchanges through cooperation, while still safeguarding policy space in cultural matters through its traditional cultural exception. The article provides an overview of the European positions to defend the specificity of the audio-visual services sector at the multilateral (World Trade Organization Agreements), regional and bilateral levels. It also examines how the implementation of the 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions has led the European Union to negotiate cultural cooperation provisions in parallel to some of its recent bilateral and regional trade agreements and the way this Convention may impact the understanding of the ‘trade and culture debate’.

KEYWORDS:

• International trade agreements
• cultural cooperation
• cultural diversity
• European Union
• digital cultural content

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. Article 167 TFEU (former article 151 of the TEC introduced by the Maastricht Treaty) prescribes that

2. The national treatment obligation implies non-discrimination between foreign and national products and services, which means applying to partner countries the same treatment as to its own products and services.

3. The most-favoured-nation treatment requires non-discrimination in the treatment applied to different foreign trade partners.

4. The US, Australia, Canada, Chile, Chinese Taipei, Colombia, Costa Rica, the EU, Hong Kong, Iceland, Israel, Japan, Liechtenstein, Mauritius, Mexico, New Zealand, Norway, Pakistan, Panama, Peru, South Korea, Switzerland and Turkey (EC (European Commission) 2018b).

5. Negotiations of this agreement have been paused ‘since the US Presidential elections in November 2016, pending clarity in the US trade policy’ (EC (European Commission) 2018a, 10).

6. The EU Member States agreed in June 2013 to exclude audio-visual services from the European Commission negotiations mandate for the TTIP. Commitments in sectors covered under the information and communication technology services could possibly be used to circumvent to a certain extent this exception in the digital context. The TTIP negotiations halted indefinitely in late 2016, despite some willingness to resume the negotiations expressed since mid-2017.

7. Technological neutrality implies that regulation and international provisions do not impose or discriminate based on the use of a technology (EU (European Union) 2002), thus not requiring that a party renegotiate its international commitments along with technological developments.

8. The CARIFORUM is a subgroup of the African, Caribbean and Pacific Group of States comprising the 15 Caribbean Community states and the Dominican Republic.

9. The PCC with South Korea has been provisionally applied since 2011. The trade agreement is in force since December 2015.

10. The European Union – Central America Association Agreement (EU (European Union) 2012a) was signed on 29 June 2012 with Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Panama. The trade part of the agreement has been provisionally applied since 2013.

11. The Agreement on Cultural Cooperation with Colombia and Peru (EU (European Union) 2011a) is not yet in force but was negotiated in parallel to a trade agreement signed on 26 July 2012 and provisionally applied since 2013 (EU (European Union) 2012b).

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Lilian Richieri Hanania

Lilian Richieri Hanania is an attorney and mediator (Paris Bar and São Paulo Bar), PhD in International Law from the University Paris 1 – Panthéon-Sorbonne, qualified by the International School of Alternative Dispute Resolution Methods (EIMA, Paris Bar) and a Collaborative law practitioner. She graduated from the Law School of the University of São Paulo (USP – Brazil) in 2001. She obtained a master’s degree in International Economic Law in 2003 and a PhD in International Law in 2007 at the University Paris 1. Her PhD thesis and recent publications and lectures address International Economic Law, International Cultural Law and Sustainable Development, with an emphasis on creative industries, new technologies and the 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions. Besides her activity as a consultant in International Law since 2003, she worked in law firms in São Paulo, Paris and Houston (TX, USA), as legal counsel in a global technology firm, and at the International Economic Affairs Division of the French Ministry of Foreign Affairs. She taught International Law and International Relations at the University Paris 1 for four years and currently teaches at Sciences Po in Paris and at the University Paris Descartes. She is also among the first members of the RIJDEC (Réseau international de juristes pour la diversité des expressions culturelles), an international network of lawyers founded at the Law School of Laval University in Québec.