Article 16: Preferential Treatment for Developing Countries

Troussard, Xavier; Panis-Cendrowicz, Valérie; Guerrier, Julien

doi:10.1007/978-3-642-25995-1_18

Xavier Troussard³,
Valérie Panis-Cendrowicz³ &
Julien Guerrier⁴

938 Accesses
3 Citations

Abstract

Protecting and promoting of the diversity of cultural expressions means creating the conditions for people to access, wherever they are, both their own cultural expressions and the expressions coming from all parts of the world. A key challenge for cultural policies and international cooperation is to facilitate cultural exchanges and effectively improve the accessibility of cultural goods and services from each State’s territory, while maintaining the capacity to develop and implement public policies which favour the diversity of cultural expressions. For developing countries and their cultural goods and services, the weaknesses of their local cultural industries aggravate their general difficulty in entering the markets of developed countries.

The views expressed represent solely the views of their authors and cannot in any circumstances be regarded as the official position of the European Commission.

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Notes

1.
While a large body of literature exists on the issue of special and differentiated treatment in the WTO and the trade environment in general, bibliography on preferential treatment applied to cultural goods, services and professionals in the meaning of Article 16 CCD is limited by definition, given the recent character of the notion. It also tends to focus on the first implementing measure of Article 16 taken by a developed Party after the adoption of the Convention, i.e. the EU-CARIFORUM Protocol on Cultural Cooperation, rather than on the analysis of Article 16 per se. The following is indicative of the current commentary: Sauvé, P., & Ward, N. (2009). The EC-Cariforum Economic Partnership Agreement: assessing the outcome on services and investment. http://ctrc.sice.oas.org/trc/Articles/EC-CARIFORUMEconomicPartnershipAgreement.pdf; Hahn, M. (2007). The Convention on Cultural Diversity and international economic law. Asian Journal of WTO and International Health Law and Policy, 2(2), 229–265; Bourcieu, E. (2008). Preferential treatment for developing countries in the field of culture: the case of the EU. Expert report. Experts group on Article 16. Unpublished document, on file with the authors; Singh, J.P. (2007). Culture or commerce? A comparative assessment of international interactions and developing countries at UNESCO, WTO, and beyond. International Studies Perspectives, 8(1), 36–53; van den Bossche, P. (2007). Free trade and culture: a study of relevant WTO rules and constraints on national cultural policy measures. Amsterdam: Boekmanstudies; Nurse, K. (2007). The cultural industries in CARICOM: trade and development challenges. Report prepared for the Caribbean Regional Negotiating Machinery. http://www.creativeindustriesexchange.com/index.php?option=com_docman&task=doc_details&gid=3&Itemid=99999999; Neil, G. (2006) The Convention as a response to the cultural challenges of economic globalisation. In N. Obuljen, %26 J. Smiers (Eds), UNESCO’s Convention on the Protection and the Promotion of the Diversity of Cultural Expressions: making it work (pp. 39–70). Zagreb: Institute for International Relations. http://www.culturelink.org/publics/joint/diversity01/Obuljen_Unesco_Diversity.pdf; Smith, E. K., %26 Marshall, A. Y. (2006). Trade liberalisation and the cultural industries sector in Barbados in light of the negotiations for the CARIFORUM European Economic Partnership Agreement. http://www.tradeteam.bb/cms/pstt/files/tradeupdates/Trade%20Liberalisation%20and%20the%20Cultural%20Industries%20Sector%20in%20Barbados%20in%20Light%20of%20Negotiations%20for%20the%20CARIFORUM%20European%20Economic%20Partnership%20Agreement.pdf; Graber, C.B. (2006). The new UNESCO Convention on Cultural Diversity: a counterbalance to the WTO? Journal of International Economic Law, 9(3), 553–574.
2.
Text of the Protocol available at http://ec.europa.eu/culture/our-policy-development/doc/cultural_cooperation_protocol.pdf.
3.
Cf. Article 17 of the Expert Draft, UNESCO Doc. CLT/CPD/2004/CONF-201/2 of July 2004, p. 9.
4.
Cf. Article 16 of the Consolidated Text, UNESCO Doc. CLT/CPD/2005/CONF.203/6—Add. of 29 April 2005, p. 13.
5.
UNESCO Doc. CLT-2002/WS/9 of 2002.
6.
UNESCO Doc. CLT-2002/WS/9 of 2002, p. 15.
7.
UNESCO Doc. CLT-2002/WS/9 of 2002, p. 14.
8.
UNESCO Doc. CLT-2002/WS/9 of 2002, p. 16.
9.
UNESCO Doc. CLT-2002/WS/9 of 2002, p. 16.
10.
Note on the use of the EC/EU terminology: The European Community (EC) became a Party to the CCD in December 2006. Since the Lisbon Treaty entered into force on 1 December 2009, the EC no longer exists as a legal entity. As of 1 December 2009, the EU gained legal personality and has become the legal successor of the EC. Hence the use of “EC” and “EU” in relation to the CCD process. For further details, see comment on Article 27 (para. 3) by Anja Eikermann/Johannes Jürging.
11.
For additional details on the EU preferential treatment system in the trade environment, please see section B.2. of the expert report on preferential treatment by Edouard Bourcieu: Bourcieu, E. (2008). Preferential treatment for developing countries in the field of culture: The case of the EU. Expert report. Experts group on Article 16. Unpublished document, on file with the authors.
12.
For a link to this Draft, see Annex of this Commentary.
13.
For further details on other frameworks of work on a new legal instrument outside UNESCO see http://portal.unesco.org/culture/en/ev.php-URL_ID=21630&URL_DO=DO_TOPIC&URL_SECTION=201.html.
14.
Emphasis added. For a link to the SAGIT Draft, see Annex of this Commentary.
15.
For a link to the INCP Draft, see Annex of this Commentary.
16.
The INCP is an international forum where national ministers responsible for culture can explore and exchange views on new and emerging cultural policy issues and develop strategies to promote cultural diversity in an informal venue. It was created in 1998 on the initiative of Canada. The Working Group on Cultural Diversity and Globalization, chaired by Canada, is a group of cultural policy experts who provide network ministers with advice and concrete proposals on how to advance their policies regarding cultural diversity, at both the national and international level. All INCP Members are invited to every meeting of the Working Group on Cultural Diversity and Globalization.
17.
For a link to the INCP Draft, see Annex of this Commentary.
18.
For further details, see the INCD website: http://www.incd.net/.
19.
For a link to this INCD Draft, see Annex of this Commentary.
20.
For a link to the INCD Draft, see Annex of this Commentary.
21.
For a link to the INCD Draft, see Annex of this Commentary.
22.
For a link to the INCD Draft, see Annex of this Commentary.
23.
European Commission (2003). Communication from the Commission to the Council and the European Parliament. Towards an international instrument on cultural diversity. EU Doc. COM(2003) 520 final of 27 August 2003.
24.
European Commission (2003). Communication from the Commission to the Council and the European Parliament. Towards an international instrument on cultural diversity. EU Doc. COM(2003) 520 final of 27 August 2003, p. 9.
25.
European Commission (2003). Communication from the Commission to the Council and the European Parliament. Towards an international instrument on cultural diversity. EU Doc. COM(2003) 520 final of 27 August 2003, p. 7.
26.
UNESCO Doc. CLT/CPD/2003-608/01 of 20 February 2004, p. 8.
27.
UNESCO Doc. CLT/CPD/2003-608/01 of 20 February 2004, p. 8.
28.
UNESCO Doc. CLT/CPD/2003-608/01 of 20 February 2004, p. 8.
29.
UNESCO Doc. CLT/CPD/2003-608/01 of 20 February 2004, pp. 9–10.
30.
UNESCO Doc. CLT/CPD/2003-608/01 of 20 February 2004, p. 10.
31.
UNESCO Doc. CLT/CPD/2004/602/6 of 14 May 2004, p. 10.
32.
UNESCO Doc. CLT/CPD/2004/603/5 of 23 June 2004, p. 7.
33.
UNESCO Doc. CLT/CPD/2004/CONF-201/2 of July 2004.
34.
UNESCO Doc. CLT/CPD/2004/CONF-201/1 of July 2004.
35.
These comments and proposed amendments are contained in the partly published UNESCO Doc. CLT/CPD/2004/CONF.607/1 of December 2004.
36.
UNESCO Doc. CLT/CPD/2004/CONF.607/6 of 23 December 2004, p. 122.
37.
UNESCO Doc. CLT/CPD/2004/CONF.607/1 of December 2004, Part II, p.87. Unpublished document, on file with the authors.
38.
UNESCO Doc. CLT/CPD/2004/CONF.607/1 of December 2004, Part IV, p. 8.
39.
See UNESCO Doc. CLT/CPD/2004/CONF.607/6 of 23 December 2004.
40.
See UNESCO Doc. CLT/CPD/2004/CONF.607/6 of 23 December 2004, pp. 82–83.
41.
UNESCO Doc. 33 C/23 of 4 August 2005, p. 9.
42.
UNESCO Doc. CLT/CPD/2005/CONF.203/6 of 3 March 2005, Appendix 1, p. 32.
43.
UNESCO Doc. CLT/CPD/2005/CONF.203/6 of 3 March 2005, Appendix 1, p. 32.
44.
UNESCO Doc. CLT/CPD/2005/CONF.203/6 of 3 March 2005.
45.
The work leading to this Consolidated Text of the Chairman is also presented as such in the report of the Director-General of 4 August 2005, cf. UNESCO Doc. 33 C/23 of 4 August 2005, p. 11.
46.
Part I—Results of the Work of the Drafting Committee (Arts 1 to 11, with the exception of Art. 8); Part II—Results from the Informal Working Group on Rights and Obligations relating to International Cooperation, whose mandate was to revise Articles 12, 14, 16, 17 and 18 of the previous text of the Preliminary Draft Convention with a view to producing a more coherent alternative text on International Cooperation; and Part III—Plenary Session Comments on the Remainder of the Text (Art. 8, former Art. 15, former Art. 13 and Art. 19, Arts 20 to 34 and Annexes).
47.
Later published separately as UNESCO Doc. CLT/CPD/2005/CONF.203/6—Add. of 29 April 2005.
48.
UNESCO Doc. CLT/CPD/2005/CONF.203/6—Add. of 29 April 2005, p. 13.
49.
By replacing the terms “shall facilitate” by “shall endeavour to facilitate”.
50.
It can be noted that the preliminary report of the Director-General of 3 March 2005, made after the second session, already included a footnote to the new text of Article 14 indicating that “one delegation requested that a reference to domestic law should be included in this article”, UNESCO Doc. CLT/CPD/2005/CONF.203/6 of 3 March 2005, Appendix 1, p. 32, fn. 11.
51.
See also, comment on Article 18 by Roland Bernecker.
52.
UNESCO Doc. 33 C/23 of 4 August 2005, Annex V, p. 9.
53.
UNESCO (2005). Oral report of the Rapporteur, Mr Artur Wilczynski at the closing of the third session of the Intergovernmental Meeting of Experts on the Draft Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions. http://www.unesco.org/culture/culturaldiversity/docs_pre_2007/oral_report_wilczynski_en_03062005.pdf, pp. 6 et seq.
54.
UNESCO (2005). Closing remarks by Professor Kader Asmal, Chairman of the Conference. Third Intergovernmental Meeting of Experts on the Draft Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions, UNESCO, 25 May–3 June 2005. http://www.unesco.org/culture/culturaldiversity/docs_pre_2007/speech_asmal_en_03062005.pdf, p. 2.
55.
UNESCO Doc. 33 C/23 of 4 August 2005, p. 14.
56.
UNESCO (2005). Third session of the Intergovernmental Meeting of Experts on the Preliminary Draft Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions. Recommendation. http://www.unesco.org/culture/culturaldiversity/docs_pre_2007/recommendation_en_03062005.pdf.
57.
The USA and Israel voted against, and Australia, Honduras, Liberia, and Nicaragua abstained.
58.
Australia: “Australia declares that it considers that the obligation in Article 16 on developed countries to ‘facilitate cultural exchanges with developing countries by granting, through the appropriate institutional and legal frameworks, preferential treatment to artists and other cultural professionals and practitioners as well as cultural goods and services from developing countries’ is not intended to affect the content or interpretation of domestic legislation, regulations, rules or criteria relating to eligibility for immigration visas or permits, or the exercise of discretion under legislation or regulations or in respect of rules or criteria.” New Zealand: “[…] AND DECLARES that it considers that the obligation in Article 16 on developed countries to ‘facilitate cultural exchanges with developing countries by granting, through the appropriate institutional and legal frameworks, preferential treatments to artists and other cultural professionals and practitioners as well as cultural goods and services from developing countries’ is not intended to affect the content or interpretation of domestic legislation, or rules or criteria relating to eligibility for immigration visas or permits, or the exercise of discretion under legislation, or in respect of rules or criteria, but is intended to reflect the way in which the entry of those eligible for visas or permits may be facilitated, such as through special procedures for processing applications”. See http://portal.unesco.org/en/ev.php-URL_ID=31038&URL_DO=DO_TOPIC&URL_SECTION=201.html#RESERVES.
59.
For a link to these Guidelines, see Annex of this Commentary.
60.
The IGC met from 23 to 25 March in an extraordinary session dedicated to the elaboration of OG on Article 16. This session had been prepared by a group of experts tasked to deliver reports on Article 16 clarifying the meaning of preferential treatment prior to the meeting. In addition, the Secretariat of the Convention had sent out a questionnaire to the Parties to prepare the draft OG submitted to the IGC at its March meeting.
61.
Other articles of the Convention, outside of international cooperation, e.g. Articles 9, 20 and 21, also consist of binding obligations.
62.
Neil, G. (2006) The Convention as a response to the cultural challenges of economic globalisation. In N. Obuljen, & J. Smiers (Eds), UNESCO’s Convention on the Protection and the Promotion of the Diversity of Cultural Expressions: making it work (pp. 39–70). Zagreb: Institute for International Relations. http://www.culturelink.org/publics/joint/diversity01/Obuljen_Unesco_Diversity.pdf, p. 56.
63.
See also, comment on Article 15 by Jens Kåre Rasmussen/Laura Gómez Bustos.
64.
See also, comment on Article 17 by Lilian Richieri Hanania/Hélène Ruiz Fabri.
65.
For a link to these Guidelines, see Annex of this Commentary.
66.
See Para. 3 subpara. 3 subsubpara. 2 of the OG on Article 16: “measures […] may include but are not limited to […]”. For a link to these Guidelines, see Annex of this Commentary.
67.
For a link to these Guidelines, see Annex of this Commentary.
68.
For a link to these Guidelines, see Annex of this Commentary.
69.
See also, comment on Article 9 by Christine M. Merkel.
70.
UNESCO Doc. CE/10/4.IGC/205/Dec. of 10 December 2010, Annex to Decision 4.IGC 7, para. 5 bis. In accordance with the Operational Guidelines for Article 16 of the Convention concerning preferential treatment for developing countries, developed countries will describe how they have implemented their obligations in conformity with this Article.
71.
Parties, in particular developed countries, indicate separately the measures they have taken to foster preferential treatment for developing countries.
72.
See also, comment on Article 1 by Michael Hahn.
73.
See also, comment on the Preamble by Peter-Tobias Stoll/Sven Mißling/Johannes Jürging.
74.
See also, comment on Article 2 by Toshiyuki Kono.
75.
See also, comments on Article 6 by Ivan Bernier and on Article 7 by Sven Mißling/Bernd M. Scherer.
76.
See also, comment on Article 14 by Edna dos Santos-Duisenberg.
77.
See also, comment on Article 15 by Jens Kåre Rasmussen/Laura Gómez Bustos.
78.
See also, comment on Article 13 by David Throsby.
79.
For a link to these Guidelines, see Annex of this Commentary.
80.
Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007.
81.
See Section 3 of Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007.
82.
See also, comment on Article 14 by Edna dos Santos-Duisenberg.
83.
UNESCO Doc. CE/09/2.EXT.IGC/208/4.
84.
See, in particular, the following in Para. 3 subpara. 3 subsubpara. 2 of the OG on Article 16: “funding arrangements and resource-sharing, including supporting access to cultural resources of developed countries” (lit. a sublit. v); “providing financial aid which may take the form of direct or indirect assistance” (lit. b sublit. v), “fostering private sector investment in the cultural industries of developing countries” (lit. b sublit. viii); “ensuring that development aid public policies of developed countries also give adequate attention to cultural sector development projects in developing countries” (lit. b sublit. x). For a link to these Guidelines, see Annex of this Commentary.
85.
UNESCO Doc. CE/09/2.EXT.IGC/208/INF.4 of 3 February 2009, p. 104.
86.
UNESCO Doc. CE/09/2.EXT.IGC/208/INF.3 of 4 February 2009, p. 8.
87.
See Para. 3 subpara. 3 subsubpara. 2 lit. a sublits iii and iv of the OG on Article 16. For a link to these Guidelines, see Annex of this Commentary.
88.
UNESCO Doc. CE/09/2.EXT.IGC/208/INF.4 of 3 February 2009, p. 103.
89.
UNESCO Doc. CE/09/2.EXT.IGC/208/INF.3 of 4 February 2009, pp. 13, 15.
90.
UNESCO (2009). Intergovernmental Committee for the Protection and Promotion of the Diversity of Cultural Expressions. Second extraordinary session. Paris, 23–25 March 2009. Information document. Reference documents concerning Article 16 of the Convention. http://unesdoc.unesco.org/images/0018/001803/180342E.pdf, p. 14.
91.
See also, comment on Article 20 by Peter-Tobias Stoll.
92.
UNESCO Doc. CE/09/2.EXT.IGC/208/INF.4 of 3 February 2009, p. 102.
93.
For a link to these Guidelines, see Annex of this Commentary.
94.
For a link to these Guidelines, see Annex of this Commentary.
95.
UNESCO (2009). Intergovernmental Committee for the Protection and Promotion of the Diversity of Cultural Expressions. Second extraordinary session. Paris, 23–25 March 2009. Information document. Reference documents concerning Article 16 of the Convention. http://unesdoc.unesco.org/images/0018/001803/180342E.pdf, pp. 15 et seq.
96.
The Indian delegation withdrew its amendments on traditional knowledge and intellectual property, which was a difficult point for certain Members to accept, notably the EU, in recognition of the language agreed on visas.
97.
Initial compromise on the draft Para. 3 subpara. 3 subsubpara. 2 lit. a sublit. iv of the Draft OG, before revision by the Secretariat and adoption by the IGC on 25 March 2009. Unpublished document, on file with the authors.
98.
See UNESCO Doc. CE/09/2.EXT.IGC/208/Dec. of 25 March 2009, p. 8.
99.
Text of the Protocol available at http://ec.europa.eu/culture/our-policy-development/doc/cultural_cooperation_protocol.pdf.
100.
See also, comment on Article 6 by Ivan Bernier and comment on Article 7 by Sven Mißling/Bernd M. Scherer.
101.
Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007.
102.
The concept of civil society hereby comprises all non-governmental actors active in the cultural sector, including the private sector. See also the definition of civil society in Para. 3 of the OG on Article 11. For a link to these Guidelines, see Annex of this Commentary.
103.
For a link to these Guidelines, see Annex of this Commentary.
104.
Regular consultations as well as two ad hoc civil society dialogue meetings were organised by the EU in 2007 and 2008.
105.
For a link to these Guidelines, see Annex of this Commentary.
106.
Neil, G. (2006) The Convention as a response to the cultural challenges of economic globalisation. In N. Obuljen, & J. Smiers (Eds), UNESCO’s Convention on the Protection and the Promotion of the Diversity of Cultural Expressions: making it work (pp. 39–70). Zagreb: Institute for International Relations. http://www.culturelink.org/publics/joint/diversity01/Obuljen_Unesco_Diversity.pdf, p. 66.
107.
See also, comment on Article 19 by Christine M. Merkel.
108.
For further information, see http://ec.europa.eu/culture/our-policy-development/doc1577_en.htm.
109.
Text of the Protocol available at http://ec.europa.eu/culture/our-policy-development/doc/cultural_cooperation_protocol.pdf.
110.
For further details on this Article, see comment on Article 20 by Peter-Tobias Stoll.
111.
European Commission (2007). Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on a European agenda for culture in a globalizing world. EU Doc. COM (2007) 242 of 10 May 2007.
112.
For further information on this Agenda, see http://ec.europa.eu/culture/our-policy-development/doc399_en.htm.
113.
Text of the EPA available at http://trade.ec.europa.eu/doclib/docs/2008/February/tradoc_137971.pdf.
114.
Text of agreements available at http://ec.europa.eu/development/geographical/cotonou/cotonoudoc_en.cfm.
115.
The Commission plays an important role in providing regular support to African arts events and festivals with a regional and international dimension. This includes the FESPACO film festival in Ouagadougou, the DAK’ART contemporary arts fair in Dakar, the African Photography Encounters in Bamako, the African Dance Festival in Antananarivo, etc. This is an important contribution to the visibility of African arts and to promoting encounters and exchanges between African artists. It also supports the regional Pacific Arts Festival. The Commission finances support programmes for cultural initiatives. These programmes primarily aim at strengthening the innovative and organisational capacity of cultural actors—typically artists, private operators, museums, local authorities, etc. Such programmes exist in five African countries—Benin, Burkina Faso, Ghana, Mali and Senegal, while a regional cooperation programme links countries in West Africa. They contribute to a lively and creative cultural sector and its longer-term development. Since 2000, the Commission also supports a variety of other cultural projects, such as the creation or renovation of museums and arts schools. For example, the EC co-financed the creation of Aruba’s National Museum, which will display archaeological artefacts and contemporary works of art as well as the rehabilitation of Kenya’s and Mali’s National Museums. It also co-financed the “Ecole des sables” near Dakar, which specialises in traditional and contemporary African dances. Again, the emphasis is both on preserving heritage and supporting the living dimension of culture. See in particular Section 2.3.7. “Cultural dialogue and cooperation with ACP countries” of the Commission Staff Working Document “Inventory of Community actions in the field of culture”, Accompanying document to the Communication from the Commission on a European agenda for culture in a globalizing world: European Commission (2007). Commission staff working document. Accompanying document to the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on a European agenda for culture in a globalizing world. Inventory of Community actions in the field of culture. EU Doc. SEC(2007) 570 of 10 May 2007, p. 37. European Commission (2010). Commission working document. The European Agenda for Culture – progress towards shared goals. Accompanying document to the Commission Report to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the Implementation of the European Agenda for Culture. EU Doc. COM(2010) 390 of 19 July 2010, p. 53
116.
The first is the Film and Television Support Programme, which co-finances the production, distribution and promotion of audiovisual works from ACP countries, including movies, TV series and animated films. This focus on cinema and audiovisual cooperation reflects the economic importance of the sector and the importance of audiovisual media as a vehicle of culture. The second is the Cultural Industries Support Programme, which provides support to cultural actors. While the programme is open to all ACP countries, particular emphasis will be put on strengthening the culture sector in five pilot countries with a view to maximising the sector’s economic and job potential. The programme will also support the creation of an ACP Cultural Observatory, which will allow a better overview and understanding of the cultural sector in the ACP region and will help structure the sector on a professional and political level. See in particular Section 2.3.7. “Cultural dialogue and cooperation with ACP countries” of the Commission Staff Working Document “Inventory of Community actions in the field of culture”, Accompanying document to the Communication from the Commission on a European agenda for culture in a globalizing world: European Commission (2007). Commission staff working document. Accompanying document to the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on a European agenda for culture in a globalizing world. Inventory of Community actions in the field of culture. EU Doc. SEC(2007) 570 of 10 May 2007, p. 37.
117.
For further information, see http://www.unesco.org/new/en/culture/themes/cultural-diversity/cultural-expressions/programmes/technical-assistance/.
118.
See also, comment on Article 14 by Edna dos Santos-Duisenberg.
119.
“The Agreement will provide for a progressive and reciprocal liberalisation of trade in services aiming at assuring a comparable level of market access opportunities, consistent with the relevant WTO rules, in particular Article V of the GATS, taking into account the level of development of the ACP countries concerned. Les Accords prévoiront que les services audiovisuels feront l’objet d’un traitement distinct au sein d’accords spécifiques de coopération et de partenariat culturels entre les parties. Ces accords permettront de garantir la possibilité pour l’Union européenne et ses États membres ainsi que pour les ACP de préserver et développer leur capacité à définir et mettre en œuvre leurs politiques culturelles et audiovisuelles pour la préservation de leur diversité culturelle, tout en reconnaissant, préservant et promouvant les valeurs et identités culturelles des ACP, pour favoriser le dialogue interculturel par l’amélioration des possibilités d’accès au marché pour les biens et services culturels de ces pays, en conformité avec les dispositions de l’article 27 de l’Accord de Cotonou” (Council of the European Union (2002). Council Decision of 17 June 2002 authorising the Commission to negotiate Economic Partnership Agreements with the ACP countries and regions. Emphasis added.
120.
Council of the European Union (2002). Council Decision of 17 June 2002 authorising the Commission to negotiate Economic Partnership Agreements with the ACP countries and regions.
121.
Article 151 TEC, now Article 167 of the Treaty on the Functioning of the European Union (TFEU), is the provision, of the respective Treaty, on culture. Its 4th paragraph required the Community, and now requires the EU, to “take cultural aspects into account in its action under other provisions of this Treaty, in particular in order to respect and to promote the diversity of its cultures”.
122.
See below, section on Article 3 of the Protocol.
123.
Central Product Classification (CPC) 9619 Entertainment services (other than audio-visual)
96191 Theatrical producer, singer group, band and orchestra entertainment services
96192 Services provided by authors, composers, sculptors, entertainers and other individual artists
96193 Ancillary theatrical services n.e.c.
96194 Circus, amusement park and similar attraction services
96195 Ballroom, discotheque and dance instructor services
96199 Other entertainment services n.e.c.
124.
Article 3 para. 1 of the Protocol stresses that it is important to create possibilities for artists, cultural professionals and practitioners to temporarily enter the territory of the other Party if they are not supplying services in the meaning of Article XXVIII lit. b GATS, which defines the “supply of service” as production, distribution, marketing, sale and delivery of a service. To make sure that all cultural professionals as well as amateurs and semi-professionals engaged in cultural activities are covered by this provision, the terms “artists and other cultural professionals and practitioners” are defined broadly in Article 1 para. 4 of the Protocol. The activities of interest and particular relevance to artists and cultural professionals and practitioners during their temporary stay could be, for example: shooting of a film or TV programme in the host country’s location (the partner country’s professionals would come to shoot for themselves and would not sell the “production service”); sound recording (using a host country’s facilities and expertise); using the libraries, museums and other archives to develop ideas and concepts for a script; taking part in conferences, seminars, fairs, etc.; coming for a study visit; coming to find and rent necessary equipment, theatrical properties or costumes, or to recruit artists, technicians etc., either to employ them in their country or to use their services at the location.
125.
Article 4 of Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007.
126.
Council Directive 89/552/EEC of 3 October 1989.
127.
Directive (97/36/EC) of the European Parliament and of the Council of 30 June 1997.
128.
Formerly Article 151 para. 4 and Article 157 TEC.
129.
Article 4 of Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007.
130.
Cf. Preamble recital 19. See also, comment on the Preamble by Peter-Tobias Stoll/Sven Mißling/Johannes Jürging.
131.
Text of the Protocol available at http://ec.europa.eu/culture/our-policy-development/doc/cultural_cooperation_protocol.pdf.
132.
UNESCO (2004). Communication from the Community and its Member States to UNESCO on the Preliminary Draft UNESCO Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions, 15 November 2004.
133.
See the definition of “European works” in Article 1 lit. n sublit. i third indent of Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007: “works co-produced within the framework of agreements related to the audiovisual sector concluded between the Community and third countries and fulfilling the conditions defined in each of those agreements”.

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European Commission, Rue de la Loi/Weststraat 200, 1049, Brussels, Belgium
Xavier Troussard & Valérie Panis-Cendrowicz
Unit 1 General Coordination, Directorate General Enterprise and Industry, European Commission, 1049, Brussels, Belgium
Julien Guerrier

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Xavier Troussard
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Valérie Panis-Cendrowicz
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Julien Guerrier
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Correspondence to Xavier Troussard .

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Sabine von Schorlemer
, Institute of for International Law, Georg August University of Göttingen, Platz der Göttinger Sieben 5, Göttingen, 37073, Germany
Peter-Tobias Stoll

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Troussard, X., Panis-Cendrowicz, V., Guerrier, J. (2012). Article 16: Preferential Treatment for Developing Countries. In: von Schorlemer, S., Stoll, PT. (eds) The UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-25995-1_18

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DOI: https://doi.org/10.1007/978-3-642-25995-1_18
Published: 28 March 2012
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