French Government Paper Argues for Reconsideration of EU Cultural Cooperation Protocol model

A strategy paper just released by the French Foreign and European Affairs Department argues for a rethinking of the cultural cooperation protocol recently incorporated by the European Union (EU) into its trade agreements. The document also makes the case for coordinated work among States to promote the principles and objectives of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions in trade agreements and at the WTO consistent with Articles 20 and 21 of the Convention.

The document, entitled "For a new European Union external cultural strategy - Communication by France" focuses on two main themes.
First, it asserts that the UNESCO Convention must remain the spine of the entire European strategy in cultural matters. Then, it argues for the systematic and explicit exclusion of audiovisual services for any negotiation of a trade agreement between the
EU and third countries.

So far, according to the document, the first two examples of cultural cooperation protocols attached to trade agreements by the EU—first with CARIFORUM states and most recently with South Korea—carry "the risk of allowing a de facto reintroduction of audiovisual services into trade negotiations, which is reflected in an excessive focus on access for audiovisual co-productions to European television broadcast quotas (…)".

The paper further warns that including provisions along the lines of ‘market access’ commitments in protocols linked to bilateral and regional trade negotiations carries the risk that the European Union could come under pressure to make similar commitments in a multilateral context—specifically, at the World Trade Organization.

Instead, the document argues for a strategy that is both comprehensive and adapted to the specific realities of each partner.

First and foremost, the approach must be comprehensive since any cultural cooperation initiative must have as its goal the effective implementation of the 2005 UNESCO Convention. The document underscores the importance of clearly establishing and maintaining a clear distinction between the cultural cooperation protocol or agreement and the economic or trade agreement. This distinction is essential in order to avoid the cultural sector becoming a bargaining chip in trade negotiations—and to ensure that any such agreement is not subordinated to trade-based rules and mechanisms.

Second, within this overarching approach, the content and type cooperation framework must be tailored to the particular circumstances of each partner. Fundamentally, two principal distinctions must be considered. The first involves the level of development of the cultural industries in the partner country. A determination can be made to resort to preferential treatment (implementation of Article 16 of the Convention) only if the partner has relatively under-developed industries.

The second key distinction hinges on whether or not the partner country has exercised exemptions from the most-favoured nation (MFN) clause in terms of its commitments at the World Trade Organization (WTO).

If the country has exercised such exemptions regarding culture, the cultural cooperation framework could then be legally divorced from the trade agreement and included in the cooperation segment of the comprehensive agreement.

The French paper argues that it is only in cases where such exemptions have not been established by a prospective partner that it is useful to attach the cultural cooperation framework to the trade agreement in order to accord the party certain preferential arrangements. Even in such situations, the paper emphasizes the importance of separating the negotiation of the content of the cooperation pact, and its subsequent application, from the trade processes.

Again, with the objective of avoiding any subordination of the cultural cooperation framework to the trade agreement, the document suggests incorporating specific safeguards, including specifically:

- during negotiations, having teams focused on the concerns of the cultural sector, with culture authorities having the lead role, and a negotiation timetable that is completely independent of the trade timetable.
- for the monitoring and implementation of the cultural cooperation frameworks, establishing a separate cultural cooperation committee and a specific dispute resolution mechanism.

Finally, the French document suggests that the EU bilateral and regional strategy ought to be part of a multilateral strategy. This should include actions by the EU to promote the UNESCO Convention at the WTO. To this end, it is crucial to implement Articles 20 and 21 of the Convention regarding the relationship to other international instruments. It is also important to closely follow the multilateral negotiations currently underway and to explain to new members of the WTO the risks inherent in making commitments in the cultural sector. Finally, the document states that it would be useful to develop a strategy for disputes arising at the WTO over the cultural sector.

The paper concludes by recommending that the EU continue to actively promote the implementation of the UNESCO Convention and its visibility.

The document has been circulated to relevant bodies of the European Commission, the European Parliament, to the offices of the incumbent and future Chairperson of the EU as well as to various European partners.
Its content was developed by a working group of representatives from various French government departments and cultural stakeholders, including the French Coalition for Cultural Diversity.