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Cultural policy

Count down to 1993 and the United States of Europe—are you prepared? Everything you need to know about the European Commission and the Maastricht Treaty

Read this and keep it if you’re an artist, a dealer, an auctioneer, a collector, a museum curator, an academic, a publisher, an advertiser, a sponsor, a restorer, an architect, a lawyer or an arts administrator—inside or outside Europe

Thirty-four cultureless years?

Until the Maastricht Treaty last December, which included the first ever explicit references to culture, the EC had no formal competence in cultural matters. The intention of the founding fathers was never merely economic, however. Robert Schuman, former Prime Minister of France and one of the signatories of the European Coal and Steel Community Treaty (1951) wrote: “Europe before being a military alliance or an economic entity must be a cultural community”, and the Treaty of Rome (1957), which underlies the whole being of the EC, says that the signatories are “determined to lay the foundations of an ever closer union among the peoples of Europe”.

Very much on the British initiative, and spurred by fears of economic decline, in the mid-1980s the EC countries decided to implement the provisions of the Treaty of Rome concerning the internal market by 1992. Until then, only the customs union had been completed. In 1985, Lord Cockfield, the British Commissioner, put forward a detailed white paper to abolish physical, technical and fiscal barriers in order to create a single integrated market throughout the twelve member states. Its proposals will have significant impact on the arts—from the abolition of customs posts at frontiers to the approximation of VAT on works of arts and antiques. The determination and remarkable technical expertise of Lord Cockfield and the dynamism and tough political skills of his successor, Martin Bangemann, have been crucial in the implementation of the programme. At present, almost 80% of the 280 or so necessary legislative measures have been adopted and by the end of the year it is expected to be 90%.

The Maastricht Treaty provisions for culture were adopted against this background. The most important is the culture clause which lays down that the EC shall:

• take the cultural aspect into account in all its policies

•promote culture, respecting diversity

•support various measures including heritage conservation

•foster cultural co-operation among member states and with third countries.

Because of the reservations of some member states, notably Germany and the UK, the clause clearly restricts the scope of Community action. Any action has to be additional to member states’ own policies; it has to take into account the views of the region; it has to be adopted unanimously by the Council, and the European Parliament (EP) can veto it.

The Commission is careful to stress that it has no intention of developing a grand “European Cultural Policy”. Indeed, it is giving the impression of being much less ambitious and much more practical than in the past. It is considering three main areas:

The organisation of culture within an integrated market:

• measures to improve the information available about cultural activities

• creation of networks

• support for training programmes

• measures to increase access

• measures to favour sponsorship

2 Further specific measures in the field of heritage conservation (see below) and the translation of literary works;

3 Strengthening relations with non-EC countries, in particular those of Central and Eastern Europe.

The implementation of the packet depends on funding. DGX is aiming at increasing its current budget of ECU95 million by about 30%, but after negotiations with member states it may well only be in the region of 15%.

These are the Euro-culture men

Jean Dondelinger, Luxembourgeois, Commissioner for Information, Communication and Culture since 1989. He is a lawyer with a diplomatic career. He was Luxembourg’s Permanent Representative to the EC from 1970 to 1984, when he became Secretary General of Luxembourg’s Ministry of Foreign Affairs. He chaired the negotiating group on the Single European Act and was vice-chairman of the international conference on satellite television frequencies

Carlo Ripa di Meana, Italian, Commissioner for Environment, Nuclear Safety and Civil Protection since 1989. He is a Socialist, a journalist and regional politician. He was chairman of the Venice Biennale from 1974 to 1979 and served on the board of La Scala of Milan. From 1979 to 1984 he was an MEP. In 1985 he became Commissioner for Information, Communication and Culture

Martin Bangemann, German, Commissioner for the Internal Market and Industrial Affairs (DGIII) and Vice-President of the Commission since 1989. He is a lawyer by training and a liberal. A former member of the Bundestag, he was an MEP from 1973 to 1984, becoming Chairman of the Liberal and Democratic Group from 1979 to 1984. He then became German Federal Minister for Economic Affairs and president of his own party, the Freie Demokratische Partei

Europe and the rest of the world

Europe has repeatedly been accused of cultural imperialism, of being a trade fortress and a rich man’s club. Partly to counter these charges the EC has constantly tried to develop its relations with other countries and this applies also to cultural relations.

Its largest cultural programme is with the African, Caribbean and Pacific (ACP) countries. The treaty Lomé IV lays down that the two groups of countries should co-operate also in cultural matters, both in the wide, anthropological, sense of the term and the narrow one of the arts. The Commission has approximately ECU25 million at its disposal for this purpose over 1990-95. For instance, under Lomé III the Institute of National Musems of Zaire was backed by a grant of ECU300,000. Cultural cooperation with other developing countries is not equally well structured, but the Commission is bidding for ECU5 million to build it up. The EC will be running cultural cooperation programmes as a result of the association agreements with Poland, Hungary and Czechoslovakia. In particular, the Czechoslovakian agreement carries a cultural clause which covers conservation, training and special events alongside the audiovisual sector. The EC earmarked ECU1.4 million last year and ECU1.5 million this year for these programmes. In a recent speech, Colette Flesch, Director-General of DGX, said the EC should “concentrate its co-operation and support on intelligent development of cultural projects integrated into national, regional, and local development policy”, rather than on financing a few big prestige projects, or simply subsidising the old Communist subsidies system which those countries can no longer afford to finance. Eastern Europe—Poland, Hungary, Czechoslovakia, Bulgaria, Romania and, before the troubles, Yugoslavia— receive further help through the ECU785 million PHARE programme. This is mainly concerned with economic restructuring and agricultural development, a considerable part of it linked to the environment. But some of these projects clearly also have to do with the problem of conserving the built heritage. For instance, PHARE is spending ECU15.5 million on the study of pollution levels in Upper Silesia whose air-borne pollution is affecting the historic town of Krakow. PHARE also provided ECU70.5 million in 1990/91 to TEMPUS (Tran-European Mobility Scheme for University Studies) which involves the exchange of staff and students between Eastern European countries and at least two member states.

Keys to the labyrinth

Finding out about who does what in the EC and how the Brussels institutional web works is a complex and costly operation. While the Community is relatively open by the standards of some national bureaucracies, its sheer tortuousness creates a seemingly impenetrable wall between the ordinary citizen and the Brussels officals.

In order to break this down, good information sources are the key. They are few and expensive. The best daily or weekly news briefings on EC affairs are produced by two competing Brussels-based news services, Agence Europe and European Report 1. Both subscriptions cost about £800 per year and both have the nasty habit of being so voluminous as to go largely unread. Both are available in several languages, although the quality of translations—particularly of Agence Europe out of French—is unreliable. The engagingly eccentric editorials of veteran Brussels-watcher Emanuele Gazzo, founder of Agence Europe, gives his fly-sheet the decided edge in terms of amusement value. His news service is also more interesting in terms of content. Reference works for, and directories to, the Community are proliferating rapidly. Their standards vary greatly. Most of them include complete lists of the members of all the institutions and their senior staff, with addresses and telephone numbers. Some include potted guides to Euro-jargon and decision-making, with compendia of recent important legislation. Everyone who has regular dealings with Brussels needs at least one such directory. The best overall guide of this kind, in any language, remains the oldest and the cheapest: the quarterly journal Vacher’s European Companion , available only by postal subscription, from Vacher’s, Berkhamsted, at £35.50 annually. Add to that a good “who’s who” of EC officials and you have the makings of a basic Euro data-base. The best is probably Dod’s European Companion, although its coverage is still a little quirky.

Two directories worth considering are Europa Publications’ The EC Encyclopedia and Directory 1992, which costs a mere £155 and Chapman’s European Directory, at £65. Both provide Vacher’s style material “plus”, in a more attractive and reader-friendly way. The great problem however with such books is that their information dates very quickly. Similar publications are becoming available in French. The clearest and easiest to use is the Guide pratique du labyrinthe communautaire by D. Gueguen (Apogée, Rennes). More comprehensive is the Annal des Communautés Européennes (Delta, Brussels). In Germany, there are good reference books such as Europa Transparent by M. Brücker and Andrea Przyklenk (Dekker & Müller) and Europa von A bis Z by W. Weidenfeld and W. Wessels, published by Europa Union Verlag. This Bonn publishing house produces two very useful collections, “Europäische Schriften” and “Europäische Studien”, devoted to the history, institutions and policies of the EC.

For readers more interested in the substance of EC policies and decision-making processes, the best first stops, both available as cheap and cheerful paperbacks, are John Pinder’s European Community: Building of a Union (Oxford) and Kevin Featherstone’s The Successful Manager’s Guide to 1992 (Fontana). By contrast, the over-hyped Times Guide to 1992 now seems to have outlived its usefulness. More specifically, Who does what in Europe? by Rod Fisher (Arts Council) lists the sources of finance for the arts available from the EC among other international institutions.

A couple of handy dictionaries exist in French. Pascale Fontaine and Henri Malosse have published a short A to Z survey called Les Institutions Européennes (Retz), whilst François Visine has written Dictionnaire de l’Européen (Visine), a much longer and now somewhat dated, but still very useful book. The first volume of the new Oxford Encyclopedia of EC Law is quite outstanding in explaining the constitutional basis of the EC’s emerging political system. It is a labour of love by Professor A. G. Toth and primarily for specialists.

Notwithstanding the 1992 euphoria, EC books do not yet feature very prominently in the high street. The best bookshop is the Librairie Européenne in Brussels, while the London School of Economics bookshop in London makes a good second.

(1) Agence Europe, 10 Boulevard Saint-Lazare, 1210 Brussels, Belgium; European Report, European Information Service, 6 Rue de Genève, 1140 Brussels, Belgium.

You too can master the essential jargon

MEMBER STATES The European Community (EC) is composed of the twelve member states. The member states form the key governing bodies of the EC: the European Council and the Council of Ministers. The final word on the adoption of all EC proposals is with the latter. The member states appoint the Commissioners, the judges and Advocates General of the European Court of Justice, the members of the Economic and Social Committee and those of the Court of Auditors. Their representatives form the European Investment Bank. The electorates of the members states elect the European Parliament

EUROPEAN COUNCIL This is composed of the Heads of State or Government of the member states. It meets at least twice a year to decide the overall political and economic priorities of the EC, to resolve the most controversial outstanding issues within the Community and to discuss world affairs generally.

The European Council is not to be confused with the Council of Europe, based in Strasbourg, and founded in 1949 to organise cooperation between European parliamentary democracies and raise awareness of what Europe means in cultural terms (by means, for example, of a series of large exhibitions, of which the Vikings show currently in Paris is one, see p. 13). This is not an EC body, despite the EC having adopted its symbol, the circle of stars

COUNCIL OF MINISTERS Ministers from each country for the different departments of state meet in Council to discuss and decide on measures. The Presidency of the Council changes every six months. Each member state takes it in turn in alphabetical order: currently it is Portugal, and from July onwards it is the UK. The Council decides either unanimously or by qualified majority depending on the subject matter. According to the latter system each country is given a number of votes in relation to its size and to gain a majority a proposal has to obtain fifty-four votes out of a total of seventy-six and be approved by at least eight member states. Since 1986 the use of qualified majority has been progressively extended, in particular to most measures intended to complete the internal market i.e. the 1992 programme. Once the Maastricht Treaty enters into force next year, some further policy areas will be subject to majority voting. Measures to encourage cultural co-operation will have to be decided unanimously. In its work, the Council is assisted by a Secretariat and a Committee of Permanent Representatives known as COREPER. The latter, which brings together the twelve ambassadors accredited to the EC, is a crucial decision-making body.

THE COMMISSION The Commission is, broadly speaking, the civil service of the EC. It is formed by seventeen Commissioners—the larger countries providing two and the smaller ones, one each —who run twenty-three main departments called General Directorates (DG). Eleven DGs are concerned with, or touch upon, fine art and heritage matters. The Commissioners are politically appointed and as a collegiate body establish policy priorities separate from those of the Council. They are appointed for four years. The Commission is pledged to act independently of national or sectional interests. It takes decisions by majority vote. It executes Council decisions and ensures that EC rules are correctly observed. It is politically accountable to the European Parliament, which may dismiss the Commissioners en bloc.

THE EUROPEAN PARLIAMENT The EP is composed of 518 directly elected members. Since the first direct elections in 1979, it has gradually increased its powers to supervise the Commission and to amend budgetary and legislative proposals. Originally these powers were largely advisory, although it could always sack the Commission and throw out the annual budget by a two-thirds majority of all its members. With the entry into force of the Maastricht Treaty, the EP’s approval will also be required for the Commission to enter office. In the budgetary field, the Parliament is able to exercise considerable influence on non-agricultural spending, e.g. social, regional, research and development. Through its legislative powers, the EP can amend proposals in all areas. Under the Maastricht Treaty a conciliation procedure between Council and Parliament will be introduced and the Parliament will gain a final right of veto. Areas covered will include culture. The EP will also appoint an Ombudsman to whom European citizens and residents will have access for redress in cases of maladministration.

THE ECONOMIC AND SOCIAL COMMITTEE & THE COMMITTEE OF REGIONS The first has existed since the setting up of the EC, and the second was created by the Maastricht Treaty. They are both advisory committees with very limited power, which give a voice to representatives of the professions, unions, and regional and local authorities.

THE EUROPEAN COURT OF JUSTICE AND THE COURT OF AUDITORS The Court of Justice is composed of thirteen judges and four Advocates Generals, who guard the interpretation and application of the Treaties and EC laws, over which it has final authority. It hears complaints and appeals brought by or against EC institutions, member states or individuals, and gives preliminary rulings on cases referred by the national courts. In 1986 a further Court was attached to it, in order to relieve its workload. The latter has limited powers to make judgments in the first instance, subject to the right of appeal to the the Court of Justice. The Court of Auditors, composed of nine members, examines the accounts of the Community, watches over financial management and assists the EP and the Council in exercising control over the implementation of the budget by the Commission.

EUROPEAN INVESTMENT BANK The EIB provides loans and guarantees in most economic sectors to promote the development of poorer regions, to restructure industry and assist member states in common projects, usually in the infrastructure field.

COMMUNITY MEASURES There are three legislative instruments with binding force. A Regulation is binding in its entirety and directly applicable in all member states. One area in which it has been widely used is agriculture. A Directive binds member states to certain specific objectives, but leaves them to implement the necessary measures through national laws. This legislative instrument is used in particular to bring various national legislations closer together (approximation), such as those governing the return of works of art illegally exported. A Decision is a binding administrative measure used in individual cases to implement the Treaties where the institutions themselves are responsible, such as the Commission decision to grant aid to the UK coal industry.

COMMUNITY FINANCE AND “DELORS II” The EC is financed by tariffs and levies, the total yield of which cannot currently exceed 1.2% of the EC’s GNP. Jacques Delors, President of the Commission, has recently presented a package to finance the measures adopted by the Maastricht Treaty over the next five years. In this so-called Delors II the percentage would rise to 1.37%. The budget is planned to rise by 30% from ECU66.6 billion in 1992 to ECU87.5 billion in 1997 to allow greater spending on regional aid, foreign policy, farm reform and a strengthened research and training effort to sharpen competitiveness. The arts and the heritage may benefit particularly from the latter. The package is yet to be approved by the member states and will be toughly negotiated.

RELATIONS WITH NON-EC COUNTRIES Relations with so-called third countries are more or less formalised. The EC has recently signed association agreements, involving reciprocal rights and obligations, common action and special procedures, with Hungary, Poland, Czechoslovakia, which are being ratified. The EC also has a longstanding relations with African, Caribbean and Pacific (ACP) Countries, signatories of the Lomé Convention. The first of these aid and trade agreements was signed in 1975 and has been renewed four times. Sixty-nine ACP countries have signed the so-called Lomé IV.

The knottiest problem: art export

Negotiations over the art export arrangement within an integrated market have reached a crucial phase and national delegations are negotiating toughly over the Commission’s proposals. .

From 1 January 1993, member states will only inspect imports and exports at their frontiers on a spot-check basis, so it will be more difficult to stop the illegal export of works of art. Some member states, particularly Italy, Spain and Greece, fear a haemorrhage of art works from their territories and from the EC as a whole. The UK, on the other hand, fears that any new arrangement may be a burden on trade; it has by far the largest share of the Community art market and a liberal export system. Greece, Spain and Italy have highly restrictive export systems and a weak art market, with illegal trade rife.

The Commission has tried to find a compromise between the “protectionist” and the “liberal” countries. It has put forward two revised proposals: a directive on the return of cultural objects unlawfully removed from the territory of a member state, and a short regulation on the export of cultural goods (see The Art Newspaper No. 16, March 1992, p.2). Both proposals, little changed in respect to the previous, have been controversial within the Commission itself and are still causing problems among the member states.

The directive says that member states shall return “cultural objects” which have been unlawfully removed from the territory of another member state. It lays down definitions of what is a cultural object in terms of age and a value threshold. It also says that it has to be a “national treasure under national legislation in the context of Article 36 of the Treaty”, thus by and large respecting each country’s right to define a national treasure as it pleases. The directive also applies to objects not returned at the end of a lawful temporary export. It sets up a committee to advise the Commission on any revision of the criteria and enjoins member states to co-operate in seeking any illegally exported cultural object and in assisting in its return.

The member state from which the object has been illegally exported—the “requesting state”—can take the possessor of the object to court in the country where the object is located—the “requested state”. It can do so only within five years from becoming aware of the location of the object and the identity of the possessor, and within thirty years of the illegal removal. The directive applies only to objects illegally exported after 1 January 1993 unless the member state wishes to extend its obligations.

If the object is to be returned, the purchaser shall be entitled to fair compensation provided he exercised due care in the purchase. Once the object has been returned, the ownership law of the requesting state will apply. The cost of the court proceeding and any compensation will be borne by the requesting state, which, depending on national legislation, may have recourse to the person responsible for the illegal export.

The regulation on the export of cultural goods outside the EC says that they will need a licence. It defines a cultural good by the same criteria as the above directive. This definition does not affect each nation’s own definition and the regulation does not apply to trade between member states. The export licence will be issued by the member state in which the good is “lawfully and definitively located on 1 January 1993” and thereafter by any member state to which it has been “lawfully and definitively” exported. The regulation also sets up a Committee composed of representatives of the member states to advise the Commission on drafting the uniform document for the licence and on revising the definition of a cultural object.

The main areas of disagreement concern the directive and, in particular, the list of categories with their value and age limits. As far as state-owned items are concerned, Italy, Greece, Spain and Portugal oppose any time limit on requests to return an illegally removed object, on the grounds that it would be inalienable. The requirement that member states should co-operate to find and return such objects has also encountered the opposition of the UK and Germany. Nonetheless,the atmosphere around the negotiating table seems to be positive and the two proposals are likely to be adopted before the summer break.

The money you pay: The VAT conundrum

“At the moment the situation is completely chaotic.” So says a EC expert describing the negotiations over Value Added Tax on the sale of works of art, antiques and collector’s items.

VAT is a form of turn-over or sales tax, which is passed along the production chain and is eventually borne by the consumer. The approximation (bringing closer together) of the VAT systems and rates by the member states is one of the most important planks of the 1992 programme. It is also one of the most controversial, complex and obscure. Last December, member states were only able to agree over a transitional VAT arrangement, which according to a high-ranking Commission official amounted to a failure. There is as yet no final agreement on rates, but there is a working hypothesis of a minimum standard rate of 15% and a minimum reduced rate of 5%; no maximum rates would be set.

Because of these problems, discussion of the directive concerning second-hand goods and works of art (for VAT purposes considered one and the same) was postponed. Moreover, some of problems caused by this directive concern the second-hand car market rather than works of art. The present Portuguese Presidency is however pushing for a decision and has put forward a compromise solution.

The Commission proposes a margin scheme, i.e; VAT to be applied to the margin between the selling and the purchase price, not to the full price. This would make the European art market more competitive and, in particular, it would encourage the art trade in those member states which at present charge VAT on the full price. The scheme would apply to works of art, collector’s items and antiquities; it would not apply to precious metals and stones nor to works supplied by their authors or inheritors, all of which would pay VAT on the full selling price. This definition of works of art is controversial and so are the exclusions. In particular, the art trade fears that the exclusion of precious metals would have a devastating effect on the silver market.

Furthermore, the margin scheme applies only to goods sold by taxable dealers who have acquired them from a private individual or a very small dealer or a body exempt from VAT. Agents and auctioneers are to be treated as dealers, with VAT charged on the margin, rather than the commission. The art trade has argued effectively against this provision and now the Commission and the Portuguese Presidency acknowledge that special arrangements should be applicable to sales by public auction. The proposed arrangements however are rather obscure.

At least seven countries believe that the margin scheme is the only system that can be applied within one member state. Most countries also accept this scheme for trade between member states, but there is considerable disageement over how the tax should be administered. As far as works of art are concerned, four, perhaps five member states including the Presidency and the UK, believe that this tax should be collected at origin rather than at destination. Another four countries are against it.

The arrangements for trade with non-EC countries “is the real problem”, according to a Commission expert. The Commission had proposed to exempt imports and tax exports on the margin, which the art trade welcomed. The Commission argued that this was the best system because it would avoid both tax evasion and double taxation. In particular, it would encourage the repatriation of works of art and the conservation of the European cultural heritage. Taxation on importation, on the other hand, would impose a considerable fiscal burden on the importer, which would put the European markets at a severe disadvantage in relation to the US and Switzerland. It would also give an advantage to non-EC purchasers of European heritage. Only four member states, however, were in favour of the Commission proposals. The majority, including France, was against, while the UK was in favour.

The Portuguese Presidency has now reversed the Commission’s proposal, putting forward that VAT should be charged on imports, but that exports should be exempt. This approach would be in line with the current practice of most EC countries, with the exception of the UK and France. It would also be in line with previous EC VAT measures, but the art trade is adamantly opposed to this option and it also argues that its combination with the margin scheme is unworkable. The Commission, however, raised the possibility that importers (e.g. an auctioneer) could benefit from the temporary importation arrangements: VAT would be payable only if the item were sold, and it would be deductible. This device might provide the basis of a compromise solution.

The VAT rate to be applied to works of art is also a matter of debate. At least six member states would accept the standard rate. Some, in particular France and Germany, would like to give preferential treatment to living artists (and possibly also to the artists’ heirs) when selling their own works. The UK argues that the rate is a matter for the member states to decide.

The money you can get

Funds available for the built heritage

The largest source of grants is the European Regional Fund (ERDF). Over the period 1980-86 it spent ECU33.64 million on seventy-two projects concerned with safeguarding the architectural heritage. The main beneficiary was the UK, which received grants of ECU21.7 million as part of its rebate on over-contributions to the EC budget, followed by Italy with ECU8.9 million. Greece, Ireland and Belgium also received funds. In 1991 the Palacio do Beaux Sejours in Benefica received ECU 0.5 million from the fund for renovation to house the city study centre. In 1989 Conisborough Castle in South Yorkshire was given ECU 0.151 million for the construction of a heritage and visitor centre with audio-visual facilities. As the examples indicate, these are not straight conservation projects. Under the fund’s rules grants are given to projects if they promote the development of declining or under-developed regions, improve their infrastructure and create jobs. For instance, the Conisborough project is justified in terms of expanding tourism.

Currently the Commission is, however, considering giving grants towards pilot restoration projects in Venice, invoking the special clause of the structural funds which allows for grants to urban areas outside declining or under-developed regions. London has benefited from this in the past.

Similar considerations apply to the loans granted by the European Investment Bank under the title of urban renewal. For instance, in 1989 the EIB lent ECU12.3 million to Genoa to restore its Ducal Palace and convert it into an arts centre to attract tourists. A spokesman for the bank stressed that it is difficult to identify the EIB’s specific contributions to heritage. It contributed to the financial package for the land consolidation works above Catanzaro and for a sophisticated park and ride system for Orvieto, both in Italy. The two projects are primarily environmental and transport projects, but also contribute to the preservation of the historic city centres of the two towns.

Grants specifically for heritage are provided by the small Historic Monuments and Site Fund run by DGX. Since its inception in 1984, the Fund has spent ECU14 million on 176 projects. For instance, in 1990 Glasgow received ECU 0.13 million to restore two Georgian terraced houses. The grants are usually tied to a theme and conditions. In 1991 this was the industrial heritage, including work on the fourteenth-century watermill and workshops of the Prodromos Monastery in Timios, Macedonia, and on the eighteenth-century Royal French Flag Manufactory in Dijonval, Sedan. This year the theme is the conservation of monuments and their immediate environment.

DGX also contributes towards the restoration of buildings of exceptional significance. Since 1983 it spent a total of ECU5.3 million for this purpose. The lion’s-share of these funds—ECU3.5 million—has been spent on the Parthenon and the Athens acropolis, mainly reassembling and consolidating stonework. The EC has also contributed to the restoration of the MountAthos monastery, to the reconstruction of the Chiado area in Lisbon, destroyed by the 1988 fire, and to the renovation of a building of the Coimbra University intended for the European College.

Further funds flow from the Kaleidoscope programme. Since its inception in 1991 it has had ECU2.9 million to spend in order to increase the knowledge of the culture and heritage of the Community countries and to support artistic innovation. It finances hundreds of projects and events, such as heritage classes for children in Spain, Italy and France, and European Heritage Day. Finally, since 1989, DGX has granted a few scholarships to specialise in restoration and conservation. Total expenditure in this field has been ECU 0.72 million.

Both DGXII (Science, R&D) and DGXI (Environment) have schemes which touch upon the heritage. DGXII, as part of the EC’s large R&D programme, supports projects which study the impact of environmental factors on the heritage. For this purpose the current research project has about ECU6 million to spend over a period of two and a half years. The previous programme provided ECU 0.342 million over three years to the School of Conservation of the Royal Danish Academy of Fine Arts in Copenhagen to develop a standard test to evaluate the stability characteristics of metal objects from archaeological sites. The funds available for such projects are expected to increase substantially.

DGXI is also developing muscle in this area. The Green Paper put forward by the Commissioner, Ripa di Meana, proposes that the EC should provide more substantial financing for the conservation of historic buildings and areas of European significance as well as study whether a EC listing system woud be feasible and beneficial. So far DGXI has mainly supported studies, seminars and networks between cities to explore urban management problems.

Artistic subsidies: open to all?

The adoption of the cultural paragraph at the Maastricht Summit last December was not the only outcome of Maastricht relevant to the cultural sector. Maybe even more important is the revision of Article 92 of the EC Treaty, which sets out the following magic formula:

“Aid to promote culture and heritage conservation may be viewed as compatible with the single market where such aid does not affect trading conditions and competition in the Community to an extent that is contrary to the common interest.”

This regards the question as to whether or not national cultural support measures conflict with the principle of free competition, the cornerstone of the EC Treaty. By including this new phrase in Article 92 member states have apparently retained complete freedom to administer cultural subsidies and funds, and guide their cultural policy in whatever direction they choose. However, what we are dealing with here is a magic formula of a type which has characterised legislation from Brussels before. The Commission and the member states can draft as many biblical texts as they like, but the European Court of Justice has the last word and provides us with the ultimate truth. In some respects European law is based more on case law than on statute. At the moment, therefore, interpreting the new treaty involves a degree of extrapolation from case law yet to come—a difficult business.

Cultural support measures by member states have a centuries-old tradition behind them. Today most states have subsidy and funding structures for the promotion of national art and culture, but tradition appears to run counter to the reality of the EC Treaty. Before the recent revision of Article 92, state-financed support measures, in whatever form, violated the principle of free competition. Therefore they had to be prohibited. Film-production funds, for example, could no longer be considered compatible with EC law, nor could support funds for the visual arts and for authors and translators of literary works (the latter being particularly important in the smaller language areas of Europe).

Funding and subsidy schemes were only to be allowed provided they were open to all artists in the Community. This, of course, is no basis for national cultural policies. On the other hand, no funds and no subsidy schemes at all would mean an end to cultural policies. However, things are never only black or white. The European Commission did accept support measures in Denmark and Greece, for example, on condition that these did not include nationality requirements (discrimination on grounds of nationality is in any case forbidden by Article 7 of the Treaty). Here financial support could not be given directly to Danish or Greek film makers, but was still permissible when used to promote the development of Danish or Greek film-making in general. Recently the Commission has taken Germany to court because its law relating to the support of its film industry retains the requirement of German nationality when handing out subsidies. The case is still in progress.

Another, slightly curious development was the Commission’s judgment on the Dutch film scheme, which stipulates that only Dutch producers, or foreign producers who have lived in the Netherlands for at least two years, qualify for subsidies. The Commission decided that this was discriminatory and demanded that the two-year residency requirement should also apply to Dutch nationals. The conclusion is, apparently, that a residency requirement is still acceptable as a criterion for granting subsidies, while a nationality requirement obviously is not.

These cases represent an understandable but not always comforting compromise within the framework of the EC Treaty. That is why the European Summit in Maastricht last December decided to clarify the situation. The new text of Article 92, quoted above, now explicitly gives the member states leeway for support measures with specifically cultural objectives. It thereby implicitly recognises that culture does indeed have a meaning different from that of beef or grain.

Nonetheless, the cultural “market” too is just that—a market. Economic interests always compete with cultural considerations. In some cultural sectors these economic interests are measured on a very large scale. The audio-visual sector, for example, is a booming market. This explains why the Commission wishes to exercise some degree of control over the freedom to subsidise. Therefore it has inserted the reservation, based on “common [economic] interest”. How widely this reservation is to be applied in practice has sooner or later to be defined by the Court of Justice. For the moment, though, a certain room for manoeuvre has been considered acceptable, and has probably even been increased. After all, subsidy schemes have to be very far-reaching before they endanger “common interests”.

The prohibition of discrimination on grounds of nationality remains a cornerstone of unification. Will artists from different member states therefore be able to dip into foreign national funds again and again? Probably not, and for the following reasons.

First, there is the residency requirement already mentioned, which member states can impose when handing out subsidies. This has the Commission’s approval. Second, cultural funds and subsidies are not handed out wilfully. In virtually all member states, subsidies are granted first and foremost on the basis of quality requirements. This quality test is often applied by a panel of experts, and such tests are an element over which EC law cannot (and, of course, must not) exert any influence. Governments within the Community, the European Commission included, do not act as judges of art. At least, they are not expected to do so.

Finally, the same arrangements for art and cultural subsidies do not apply in all member states, and the budgets involved also vary. It would therefore seem unfair if generous funds in one member state were plundered by artists from other, less well-endowed countries. Funding and subsidy schemes in the member states are not harmonised, and will not be, according to the new cultural paragraph.

A special case relating to the Netherlands and Flanders, which speak the same language, is noteworthy in this connection. The Dutch Literary Fund, which administers scholarships for Dutch writers, is now considering twenty applications from Flemish authors. The Fund does not at present set a residency requirement, so few if any arguments are left for keeping Flemish bees away from the Dutch honey pot. Obviously the Dutch Minister of Culture will approach her Flemish colleague with a request that Flanders reciprocate; proportionate funds are needed on the Flemish side in order to create similar opportunities for Dutch authors in Flanders.

Summing up: there is not much chance of an artist from one member state receiving subsidies from another. It is still possible for member states to shut doors, if they want to. The scope for member states to promote their own culture through funds and subsidies remains. It may even have been increased by the new Article 92, in spite of the continuing ban on discrimination on the basis of nationality. In practice, cultural matters within Europe have followed their own course. A growing European consciousness has pervaded the arts. This finds expression in large-scale European events, co-productions and festivals (e.g. European Cities of Culture) and also in a growing number of European cultural networks. An active cultural policy, therefore, means creating the conditions and incentives for international cooperation—and not only within Europe. Member states would therefore be well advised to take heed of the increasing “Europeanisation” of the arts and to participate actively in that process.

Peter Mulder, Head of the Bureau for Multilateral Cultural Co-operation at the Ministry of Welfare, Health and Cultural Affairs in the Netherlands.

The anti-smoking brigade may also reduce arts sponsorship

In the last few years, the European Commission has been assessing its potential role in fostering pan-European business support for the arts. As a first step in that direction, together with the different national sponsorship associations in Europe, it helped to create Cerec (Comité Européen pour le Rapprochement de l’Économie et de la Culture). Cerec aims to increase pan-European, private sector support for the arts.

Other EC initiatives, however, also have indirect but nonetheless serious implications for arts sponsorship, in particular in the area of tobacco sponsorship. The European Parliament recently voted on the draft directive to prohibit tobacco advertising. The proposal does not refer to sponsorship as such, but it does state, in convoluted Euro-language, that “a ban should therefore be imposed on such indirect forms of advertising which while not actually mentioning the tobacco product, use trade marks, emblems, symbols or other distinctive elements associated with tobacco products... Advertising made in order to publicise the sponsoring of an event... falls within the scope of the ban”. The Council of Ministers will now have to reach a decision by qualified majority on this controversial measure.

The precise import of the text is uncertain, but Roland Bligh of Gallaher says, “It would seem that there is a very real risk that Gallaher sponsorship activity may be curtailed in the medium term”.

It can be very significant: for instance, Venice kept its museums, including the Doge’s Palace, open for the whole of 1991 thanks to Philip Morris. The implication for arts organisations of a ban may be similarly grim.

The directive echoes the French “Loi Evin”, adopted in 1991, which bans the advertising of tobacco completely, and of alcohol partially. The “Loi Evin” does not contain a specific mention of sponsorship. As a result, brand name activity is no longer permissible whereas corporate is, or at least still goes on. According to Emmanuelle Gorsse of Admical, the French sponsorship association for the arts, the monopolised French tobacco distribution company, SEITA, can go on supporting the arts for the foreseable future. In the year 1990/91 this support was worth some FFr20 million (£2.06 million; $3.6 million) .

At a European level tobacco companies are continuing to support the arts. Sean Murray of Philip Morris said that their considerable arts programme will not be affected for a long time, and that the legislation is designed to prohibit brand promotion, not corporate publicity.

Some arts organisations like the Tate already have anti-tobacco policies. Others, like the Royal Academy which has been a significant beneficiary of tobacco sponsorship in recent years, see the ban in a gloomy light. Ruth Seabrook, Sponsorship Director, said: “It is difficult enough getting sponsors without the field of potential benefactors being reduced”.

Anne Vanhaeverbeke, Secretary General, Cerec Professional mobility

Qualifications: let’s become ever more international in the museums and universities

Article 57 of the Treaty of Rome as amended by the Maastricht Treaty requires the Council to issue directives for “the mutual recognition of diplomas, certificates and other evidence of formal qualification” so that anyone who qualifies in one member state is allowed to work freely in another.

One continuing problem, however, in terms of nationals of one state seeking employment in another state is Article 48. This says that the provision of free movement for workers does not apply to the “employment in the public service”. This provision has caused a great deal of controversy since different countries have classified certain jobs as public functions, which they may not be in other countries, and this domestic classification has been used as a bar to foreign nationals applying for those jobs.

The European Court of Justice has, however, built up some case law which begins to narrow the definition of what is meant by “in the public service”. It held, for example, that Italy was in breach of its obligations under the Treaty when it required that researchers employed by the Consiglio Nazionale delle Ricerche had to be Italians because they were civil service posts. The European Court also decided in favour of two Spanish and British foreign language tutors at the University of Venice, who had been denied contracts of indefinite duration on the grounds that the posts were in the public service and that they were not Italians. The European Court overrode Italian civil law and stated that it did not consider these posts to be in the public service.

These decisions have meant that museum professionals, art historians and others in the art sector cannot be refused employment in another member state by reason of their foreign nationality unless the post “involves direct or indirect participation in the exercise of powers conferred by public law in the discharge of functions whose purpose is to safeguard the general interests of the State or of other public authorities”. As regards training activities, the Council resolved in 1988 that conservation and restoration were “priority areas”. Apart from the scholarships granted by DGX (see article on heritage) there have been no other specific measures. A Council resolution of 7 June 1991 also emphasised separately the importance it attached to the training of arts administrators and agreed to encourage existing initiatives in this area at a European level. It also called upon the Commission to co-operate more closely with the Council of Europe and UNESCO on such initiatives in Europe.

Artists’ Rights: Fifty-year copyright may be extended to seventy years

The duration of copyright may be extended across the European Community to a uniform seventy years from the year of death of the artist or author. The EC Commission has just put forward proposals to this effect. They are likely to be welcomed by Germany and France, but there is already a considerable lobby against them by Italian book publishers who would like to retain existing rules as to when material enters into the public domain.

Artists obtain certain rights, collectively known as copyright, on the origination of any artistic work. The primary right is to prevent any unauthorised “reproduction”, but this right extends not just to restricting an exact duplication or a pirate copy of the particular work, but to any reproduction, in any form, such as book illustrations, catalogue reproductions and even representations in another medium—such as a photograph of a sculpture. Reproduction can be authorised by granting a copyright licence. The protection period however does expire eventually and, thereafter, the copyright holder has no further rights; the work is then “in the public domain” and can be freely reproduced and adapted without payment of a royalty.

At present there are varying degrees of protection within the EC. The standard UK period of protection is for the life of the author and fifty years. In France the post-mortem period is, typically, fifty years but those authors and artists affected by the two World Wars were granted a prolongation of the copyright term, giving an effective expiry of just over sixty-four years after their death.

Germany, on the other hand, has a number of different duration periods. Simple photographs, perceived to have little artistic quality are afforded copyright protection for only twenty-five years after death whereas editorial photographs and “artistic” photographs are given periods of protection of fifty years and seventy years after death, respectively.

The varying periods of copyright have caused difficulties: Paul Klee for instance, who died in 1940, is in copyright in France and Germany and therefore monographs on the artist and other reproductions of his works require a royalty to be paid on the books circulated in those countries. However, this does not apply to books from the same print-run circulated in the UK since his works have now come into the public domain in that country.

“The aim is that the creative function, which is necessary for European identity will be protected”, he has said. “We cannot have a situation where no more books are written, where no more scenarios of films are made, or more music is composed. It is also very important economically, not just for the creativity in itself.”

Although the period of protection for copyright may be extended to a uniform period, the extension of the term would not renew or re-establish copyright in any works where copyright may have expired. There may remain other discrepancies in the treatment of copyright works within the EC. The UK, for instance, now permits copyright works of art to be reproduced for the purposes of advertising their sale. This allows auction houses and galleries to reproduce these works of art—mostly twentieth-century works—without the need for permission of the copyright owner and without paying a reproduction fee. France, however, does not yet have this provision and catalogues, posters and advertisements, showing works for sale still need to be cleared through the relevant collecting society and a reproduction fee paid. In 1991, the Maurice Utrillo estate obtained civil and criminal orders against Sotheby’s France and its then president, Julian Barran, for the unauthorised reproduction of Utrillo works in Sotheby’s catalogues circulated in France.

The draft directive is likely to be adopted by Council in the autumn and would not come into force before 1993. Member States would normally be given eighteen months within which to incorporate the directive objectives into their domestic laws, but it may well be that in this case a shorter period is specified.

Can Venice be put under EC authority?

Last October the Commissioner for the Environment Carlo Ripa di Meana suggested placing Venice under EC authority to over-come the inefficiency of the Italian authorities (The Art Newspaper No.15, Feb 1992, p.1). The EC does not have the powers to do this. The idea bears some analogy to the 1951 European Coal and Steel Community which brought these industries under an international authority to defuse the conflict of interest between Germany and France which was held to have been responsible for two world wars. Ripa di Meana’s idea would, however, require an international treaty whereby Italy would relinquish sovereignty over the town in exchange for the other member states financing its revitalisation.

How the French auctioneers keep Sotheby’s and Christie’s at bay

France’s 441 auctioneers (commissaires-priseurs), the most protected and privileged of Europe, might have been faced in 1993 with the biggest shake-up since their status was established by decree of Henri II in 1552. According to Articles 52-54 of the Treaty of Rome, all nationals may live and work and conduct their business freely in any of the member states. In other words, foreign auction houses should have beeen able to start holding auctions in Paris in 1993, and as the two big auction houses are much more powerful and widely expert than any French auctioneering partnership, the commissaires-priseurs had good reason to be frightened. As it is, they can still hide behind Article 55 of the same treaty, which says that “activities taking place in the exercise of public authority are not subject to the Treaty of Rome”. This is because technically they are State officials. The French government actually wants this archaically hide-bound professional body to reform itself and become more competitive, but is expecting it to come up with a solution itself. In the meanwhile, the cautious and complex decrees of the first liberalising steps decided last year were ratified by the Prime Minister last month. They still guard the interests of the smallest and most protectionist of the country’s auctioneers who would be bankrupted by an open market. They dismay the big auctioneers, such as Jacques Tajan of Ader-Tajan, and the modern paintings specialist Guy Loudmer, who believe competition from foreign countries not only to be beneficial to native companies of their importance, but also essential for Paris’s development as an art market.

The new texts mean that by 1993, Sotheby’s, Christie’s and Philllips will still only be able to prospect, but not sell, in France.

The national monopoly has disappeared and auctioning in France has been opened up to other Europeans, but auctioneers will remain officers appointed by the Minister of Justice. They will, under certain restrictive conditions, be allowed to practise anywhere in the country, instead of only in their place of residence (or abroad), as previously. Auctioneers will still be required to buy a licensed auctioneer’s office at anything from FFr500,000 (£51,000; $92,000) to FFr20 million (£204,000; $368,000), and that right will be reserved for persons but not firms, thus still excluding the likes of Sotheby’s and Christie’s.

VAT rates of 5.5% and 18.6% on imported works of art, peculiar to France, are also dissuasive, as is the French droit de suite tax of 3%, which may one day be extended to the whole of Europe. “France is the only big art market still closed to us. It was worth £350 million last year. The 9% buyer’s premium is a big step in the right direction. But we don’t want to break the door down; we will come when the whole of the French auctioneering profession is ready to welcome us”, says François Curiel, Director of Christie’s Europe. That is expected to be in about four to six years.

Data Protection

“We are writing to ask you whether you would like to receive junk mail?”

The EC Commission has proposed a directive on data protection, which may have extremely restrictive implications for fund-raising by art bodies. The draft directive, which echoes current German legislation, would extend detailed data protection laws to all twelve EC member states. At present only seven, including the UK, have such laws. The draft directive is currently being considered by the European Parliament. The EP rapporteur Geoffrey Hoon (UK, Labour) explained: “The collection and processing of data permeates the daily life of almost everyone in the European Community, concern grows over possible abuses. History used to be written only about the activities of the small group of men and women who held positions of power. It is no exaggeration to say that today in the EC it would be possible to write a detailed personal history of every man, woman and child from the information contained in a variety of computer files. Such a situation poses a threat to privacy which this draft directive quite properly addresses”.

The draft directive has, however, been criticised because not only would it extend data protection to manual data such as card indexes —exempt under much existing legislation—but it would also have a substantial impact on charities which depend on direct mail to get support and sponsorship. The proposal may also cause difficulties in the following areas:

• Client lists held by art dealers and auction houses detailing purchases, preferences and special interests

• Data-base information on living artists

• Mailing lists of potential sponsors and Friends

• The exchange of lists and contact sheets between arts organisitions with similar aims

There may be a limited exemption for non-profit-making bodies and foundations, provided that the data is used only “as part of their legitimate aims” and “on condition that they relate only those members and corresponding members who have consented to being included therein and that they are not communicated to third parties”. Accordingly, the reciprocal exchange of membership lists may require a specific consent from all those persons on the lists. The position may, however, be resolved in another way by allowing individuals the right to opt out, rather than requiring the relevant organisation to obtain specific permission from the person on the list first. Revised proposals are expected from the Commission later this year, before they are put back for a second reading at the European Parliament. Since they are highly controversial, it is possible that the Council will not be able to approve the directive before next year; then member states will have two years to comply with it.

How to lobby the EC

Byzantine procedures and inefficient information systems—but friendly

As the EC role increases, many people are asking what they can do to influence its decision-making process. Badly drafted legislation betraying a startling ignorance of an issue or a sector make the experts itch to get involved and enlighten the Eurocrats.

Despite its bad press, the European Commission is an open, welcoming and surprisingly small bureaucracy. Whereas the French Ministry of Culture alone has 7,000 officials, the entire European Commission has less than double (12,911) to deal with all policies. The cultural unit of DGX has less than thirty staff. Its workforce is multinational and multi-disciplinary and highly qualified academically, but few of its officials have extensive work experience outside the EC institutions.

When, for instance, one official has to prepare proposals to harmonise VAT on second-hand goods (which includes works of art) he is likely to have little idea of the workings of an auction house. Sitting in Brussels, his information sources are very limited so that, if the legislation is to be effective, the official depends on information brought to him from outside. Unlike national civil servants who are bound by strict rules on secrecy, the Brussels officials are happy to trade information and ideas in return for expert input.

This is lobbying. A growing band of trade associations, pressure groups, company representatives and independent consultants now stalk the corridors of the Commission and the Parliament, talking to officials and politicians in the hope that their views and interests will be taken into account as the draft legislation passes through the system.

The best lobbying is early, well-informed and targeted. Good lobbyists know, at an early stage, when an important directive is being drafted. This means keeping close tabs on what is happening in Brussels. It also means getting to know the official responsible for the drafting of a legislation and establishing a working relationship with him. As the directive moves through the legislative system, the lobbyist will follow it. The proposed directive goes to the European Parliament for comment and amendment, where the lobbyist will brief and advise the MEPs. Simultaneously, the national government officials will start negotiation and the lobbyist should also brief them. A high-level meeting with a Minister on an important issue can reinforce the message and add political weight

The objective at every stage of lobbying is to provide comments and reactions to those who influence the legislative process. Even if the lobbyist is not entirely successful in putting across his point of view, he may have limited the potential damage of the new legislation. The problem of lobbying for the non-specialist is the Byzantine procedures and the inefficient, often nonexistent, information systems of all the European institutions. EC information centres in national capitals try to be helpful but are frequently understaffed, understocked and ill-informed by Brussels.

However, help is at hand from other sources. Government departments can provide considerable degree of information. Most trade associations such as the Design and Artist Copyright Society now have an understanding of EC issues. Your local MEP will guide you to a colleague with specialised knowledge on the culture, tax or copyright issue which interests you. When your needs become more specific, there are a host of consultants, lawyers, accountants and public affairs specialists who can help. Little however replaces first hand experience. A trip to Brussels to meet the responsible officials can turn up a mine of information. Cultivate these contacts, keep informed and the doors will open.

Catherine Stewart, Independent lobbyist in Brussels

Originally appeared in The Art Newspaper as 'Count down to 1993 and the United States of Europe—are you prepared? Everything you need to know but have been too bashful to ask'