Explanatory Memorandum to COM(2005)678 - Conclusion of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions

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dossier COM(2005)678 - Conclusion of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions.
source COM(2005)678 EN
date 21-12-2005


1. Context of the proposal

- Grounds for and objectives of the proposal

In October 2003 the General Conference of UNESCO decided unanimously to open negotiations on a convention on protecting the diversity of cultural contents and artistic expressions. Negotiations on a preliminary draft convention started in September 2004.

The Presidency and the Commission jointly forwarded a communication from the Community and its Member States to UNESCO on 15 November 2004, and the Council of Ministers adopted a Decision authorising the Commission to participate in negotiations on behalf of the Community on 16 November 2004.

Three sessions of negotiations involving government experts took place between September 2004 and June 2005, resulting, at the third session, in the adoption of a revised preliminary draft convention. In September 2005 the Executive Council of UNESCO adopted a decision recommending the adoption of the draft convention at the General Conference in October 2005.

The Convention was adopted by the General Conference of UNESCO on 20 October 2005.

The Council of Ministers, in authorising the Commission to negotiate on behalf of the Community in November 2004, handed down negotiating directives calling on it to ensure that the Convention included the necessary clauses for the Community to become party to it. Consequently, Article 27 of the Convention establishes the possibility for the European Community to become a contracting party and play an active role in the organs of the Convention, in particular the Conference of the Parties established by Article 22 of the Convention.

It is therefore important for the European Community to become a party to the Convention, together with the Member States of the European Union.

The purpose of the present proposal, which follows the approach taken in the negotiations, is therefore to authorise the approval of the UNESCO Convention by the European Community.

- General framework

The conditions for preserving and promoting cultural diversity in Europe and the world depend not only on economic conditions, but also on a multitude of other structural factors. The size of markets, the presence (or not) of linguistic minorities, territories with less widely spoken languages, links with national or regional identities, the material or non-material nature of traditions and cultural heritage, and historical links with other countries are also elements which influence the conditions for cultural expression, culture consumption and cultural exchanges.

At European level this diversity of situations is already the dominant reality and has been enriched by the recent historic enlargement, which brought in ten new Member States. Globalisation, although it introduces new possibilities for exchanges between cultures, can also threaten the more vulnerable cultures and give rise to standardisation phenomena which are likely to jeopardise cultural diversity.

The European Union has long recognised the dual nature — cultural and economic — of cultural goods and services, and Article 151 i of the Treaty establishing the European Community requires the Community to take cultural aspects into account in its overall action. Yet at international level there is no legally binding instrument recognising the specific nature of cultural expressions.

The UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, adopted in Paris on 20 October 2005, aims to fill a legal vacuum in world governance by establishing a series of rights and obligations, at both national and international levels, with a view to the protection and promotion of cultural diversity. This instrument should play a similar role for cultural diversity — at the same normative level — as World International Property Organisation conventions, World Trade Organisation agreements, World Health Organisation agreements and Multilateral Environment Agreements.

The full participation of the European Community and its Member States in implementing the Convention will in particular contribute to:

o establishing a new pillar of world governance with the aim of ensuring protection and promotion of cultural diversity;

o emphasising the specific and dual (cultural and economic) nature of cultural goods and services;

o recognising the role and legitimacy of public policies in the protection and promotion of cultural diversity;

o recognising the importance of, and promoting, international cooperation to respond to cultural vulnerabilities, in particular with regard to developing countries;

o defining appropriate links with other international instruments that enable the Convention to be implemented effectively.


- Existing provisions in the area of the proposal

As this is a procedural proposal, there are no provisions in force in the area of the proposal.

- Consistency with other policies and objectives of the Union

The UNESCO Convention is consistent with the obligation placed on the Community by Article 151 i of the EC Treaty to take cultural aspects into account in its action under other provisions of the Treaty, in particular in order to respect and to promote the diversity of its cultures.

The objectives of the proposal are consistent with the objectives of other Union policies such as external cooperation policy (especially development policy), the common commercial policy, completion of the internal market (particularly as regards intellectual property), audiovisual and information society policy, and cultural action.

The objectives of the proposal are also consistent with the Charter of Fundamental Rights, especially the principle of promoting cultural diversity (Article 22).
2. CONSULTATION OF THE STAKEHOLDERS
The stakeholders, in particular European cultural and audiovisual sector representatives, have had regular exchanges with the Commission throughout the convention negotiation process at UNESCO.

A consultation meeting was organised by the Commission on 4 July 2005 following the third session of negotiations between government experts, to discuss the revised preliminary draft convention.

In the course of the negotiations at UNESCO, a large number of stakeholders informed the Commission of their full support for the common standpoints of the European Union expressed at UNESCO and explicitly recommended the adoption of the Convention by the General Conference of UNESCO in 2005.

Consequently, following the negotiations on whether the Community should become party to the Convention, no additional consultation appeared necessary, as there had been no changes in the situation since the July consultation. The text adopted on 21 October by the UNESCO members is almost identical (apart from changes made by the lawyer-linguists) to the revised preliminary draft resulting from the third negotiation session.

- Obtaining and using expertise
No recourse to external expertise was necessary.
3. Legal elements of the proposal

- Summary of the proposed action

Proposal for a Council Decision on the conclusion of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions.

- Legal basis

Articles 89, 133, 151, 181 and 181a in conjunction with Article 300 of the Treaty establishing the European Community.

- Principle of subsidiarity

The principle of subsidiarity applies, owing to the mixed nature of the powers assigned by the UNESCO Convention.

As both Community and Member States' powers are concerned, joint ratification of the Convention by the Community and the Member States is required.
The proposal is therefore consistent with the principle of subsidiarity.

- Principle of proportionality

As it is a question of a procedural act, the principle of proportionality is not relevant.

- Choice of instruments
Proposed instrument(s): proposal for a Council Decision
Other means would not have been adequate for the following reason:

As it is a question of the ratification by the Community of an international normative text, a Council decision is the only appropriate legal instrument.
4. BUDGETARY IMPLICATIONS
The proposal has no implications for the Community budget.
5. Additional information

- European Economic Area

This draft act does not come under the EEA Agreement.