The ‘Cultural’ Criterion in the European Commission’s Assessment of State Aids to the Audio-Visual Sector

Abstract

According to the 2001 Cinema Communication, in order to benefit from the cultural state aid derogation of Article 107(3)(d) of the Treaty on the Functioning of the European Union (TFEU), state aid schemes for audio-visual creation must target content that qualifies as ‘cultural’ on the basis of ‘verifiable’ national criteria. The purpose of this article is to examine the Commission’s practice with respect to the enforcement of the cultural criterion of the Cinema Communication and to explore its effects for Member States’ cultural policies. This article argues that despite rhetoric assertions that definitional matters are for the Member States to deal with, a more restrictive control of the cultural criteria Member States are required to devise in order to authenticate audiovisual works as cultural products takes place from the mid-2000s onwards, curtailing national cultural autonomy. This is mainly due to a constrained interpretation of the concept of culture under the European Union (EU) state aid rules, which leads to inconsistent EU intervention in the audio-visual field.