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ROCZNIKI KULTUROZNAWCZE
Tom XII, numer 4 – 2021
DOI: http://doi.org/10.18290/rkult21124-3
ANNA MAGDALENA KOSIŃSKA
THE ROLE OF THE COURT OF JUSTICE
IN CREATING STANDARDS
FOR THE IMPLEMENTATION OF CULTURAL RIGHTS
1. INTRODUCTORY NOTES
The aim of this study is to answer a question whether CJEU case law in
cases concerning the implementation of broadly understood cultural policies
may in reality affect the extent of implementation of cultural rights—that is
access to products of culture, participation in cultural life and freedom of artistic
creativity—at the level of Member States. The answer to this question is
problematic in the fact that culture, pursuant to Article 6 of the Treaty on the
Functioning of the European Union,1 remains only a competence supporting
the activity of Member States while cultural rights are guaranteed generally at
the constitutional level and thus the EU law does not apply to them. However, it
seems that due to the abundant acquis culturalis, the achievements of EU law
and the case law pertaining to the implementation of cultural policies during the
last half a century,2 such a question seems valid and necessary since EU law
profoundly pervades national legal systems that concern products of culture,3 as
seen in, for example, the adoption of relevant new regulations.4
Dr hab. ANNA MAGDALENA KOSIŃSKA —Associate Professor at the University of Szczecin,
Faculty of Law and Administration, Institute of Legal Studies; address for correspondence:
Wydział Prawa i Administracji US, ul. Narutowicza 17A, 70-240 Szczecin, Poland; e-mail:
anna.kosinska1@usz.edu.pl; ORCID: https://orcid.org/0000-0002-0915-874X.
1 Treaty on the Functioning of the European Union, consolidated version OJ C 202, 7.06.2016, p. 47.
2 More on acquis culturalis in Anna M. KOSIŃSKA, Prawa kulturalne obywateli państw trzecich
(Lublin: Wydawnictwo KUL, 2018), 172ff.
3 See Witold SOBCZAK, “Ochrona dziedzictwa kultury w systemie prawnym Unii Europejskiej,”
Środkowoeuropejskie Studia Polityczne, no. 3 (2009): 105–23.
4 Regulation (EU) 2019/880 of the European Parliament and of the Council of 17 April 2019 on
the introduction and the import of products of culture, OJ L 151, 7.6.2019, pp. 1–14.
42 ANNA MAGDALENA KOSIŃSKA
The article presents the current constitutional guarantees concerning the
cultural rights and seeks to find out whether the legal provisions of EU law,
and in consequence its interpretation of the Court of Justice of the EU, have
the real impact on the realisation of the right to culture at the national level.
Moreover, the second part of the article, based on selected CJEU judgments
connected with the area of the constitutional guarantees (right to participate
in cultural life, right to access to cultural heritage, freedom of art) is intended
to prove that the interpretation of the EU legal provisions and elaborated
standards could became a real and useful guideline for national institutions
and bodies with respect to implementing guarantees of cultural rights.
2. DOMESTIC REGULATIONS ON CULTURAL RIGHTS
Cultural rights are traditionally regulated by the constitutions of the EU
Member States.5 Cultural rights are classified by legal scholars and commen-
tators as second generation rights (economic, social and cultural rights), and
are composed of: the right to participate in cultural life, the right to access
products of culture and freedom of artistic creativity (also classified as a first
generation freedom besides personal and political rights that guarantee the
individual’s freedom from state interference).
The 1997 Polish Constitution locates cultural rights outside Chapter 2
(“Freedoms, rights and obligations of persons and citizens”)—in Chapter 1,
“Republic”. Article 5 of the Constitution stipulates that “the Republic of Poland
shall safeguard the independence and integrity of its territory and ensure the
freedoms and rights of persons and citizens, the security of the citizens,
safeguard the national heritage and shall ensure the protection of the natural
environment pursuant to the principles of sustainable development.”6 In turn,
Article 6 of the Constitution reads that “the Republic of Poland shall provide
conditions for the people’s equal access to the products of culture which are
the source of the Nation’s identity, continuity and development.” As scholars
emphasize, locating cultural rights in the categories of general rules in
Chapter I of the Constitution evidently diminishes the legal protection of the
5 See Anna M. KOSIŃSKA, Kulturalne prawa człowieka (Lublin: Wydawnictwo KUL, 2014), 204ff;
Anna FRANKIEWICZ, “Konstytucyjna regulacja dostępu do dóbr kultury i wolności korzystania z kultury,”
Przegląd Prawa Konstytucyjnego, no. 3 (2013): 57-77; Anna MŁYNARSKA-SOBACZEWSKA, “Prawo do
kultury w katalogu praw człowieka,” Przegląd Prawa Konstytucyjnego, no. 3 (2013): 27–55.
6 Constitution of the Republic of Poland of 2 April 1997, Dz.U. (Journal of Laws) of 1997,
No. 78, item 483.
THE ROLE OF THE COURT OF JUSTICE IN CREATING STANDARDS 43
individual and makes it impossible to implement those rights using legal
instruments in the event of a country failing to fulfil its obligations.7
Only the freedom of artistic creation and the freedom to enjoy the products
of culture guaranteed in Article 73 of the basic law are constitutional norms
that safeguard the claims of individuals if the state fails to implement
protective actions.
Poland is also bound by international agreements relating to the protection
of human rights that guarantee implementation of culture-related entitlements.8
3. EU AUTHORITY IN THE REALM OF CULTURE
As has been mentioned above, the Union’s competences in the area of cultural
policies are so-called supporting competence (Article 6 TFUE),9 which means
that the Union only supports, coordinates or supplements the activity of its
Member States. The treaty basis for the implementation of actions in the sphere
of culture is enshrined in Article 167 TFEU.10 According to this provision,
action by the Union shall be aimed at encouraging cooperation between Member States
and, if necessary, supporting and supplementing their action in the following areas:
– improvement of the knowledge and dissemination of the culture and history of the
European peoples,
– conservation and safeguarding of cultural heritage of European significance,
– non-commercial cultural exchanges,
– artistic and literary creation, including in the audiovisual sector.
7 Anna FRANKIEWICZ-BODYNEK, Konstytucyjna regulacja dziedzictwa narodowego oraz dóbr
kultury (Toruń: Adam Marszałek, 2019), 44. The author notes that the enumeration of values
protected by Article 5 also contributes to the weakening of this legal norm.
8 We can list here first of all the UN International Covenant on Economic, Social and Cultural
Rights (opened for signature at New York on 19 December 1966), p. 3, and the Convention Concerning
the Protection of the World Cultural and Natural Heritage adopted in Paris on 16 November 1972 by
the General Conference of the United Nations Educational, Scientific and Cultural Organization at its
seventeenth session, Dz.U. of 1976, No. 32, item 190.
9 Jean-Claude PIRIS, The Lisbon Treaty and Political Analysis. Cambridge Studies in European
Union Law (New York: Cambridge University Press, 2011), 75. On the practical dimension of
implementation of this competence within the EU see Dorota JURKIEWICZ-ECKERT, “Cultural Policy
of the EU – How it Works in Practice,” in Introduction to European Studies: A New Approach to
Uniting Europe, ed. Dariusz Milczarek, Artur Adamczyk, and Kamil Zajączkowski (Warsaw: Centrum
Europejskie, Uniwersytet Warszawski, 2013), 729–62. See also Anna KĘSKIEWICZ, “Specyfika
określenia desygnatów nazwowych dóbr o szczególnym znaczeniu dla kultury na gruncie prawnym,”
Zeszyty Naukowe Uniwersytetu Rzeszowskiego, Seria Prawnicza 101 (2018): 244.
10 See Dorota JURKIEWICZ-ECKERT, “Rethinking Europe through Culture,” in MILCZAREK,
ADAMCZYK, and ZAJĄCZKOWSKI, Introduction to European Studies, 711–12.
44 ANNA MAGDALENA KOSIŃSKA
However, this article is not directly effective since, as is emphasized by legal
scholars and commentators: it only includes competence- and task-related norms.11
The Charter of Fundamental Rights of the European Union (Charter) also
protects cultural rights in a very selective manner. Admittedly, according to
Article 22 thereof, “the Union shall respect cultural, religious and linguistic
diversity,” but guarantees of classically understood protection of cultural rights
and freedoms are only located in Article 13, whereby “the arts and scientific
research shall be free of constraint. Academic freedom shall be respected.”12
Moreover, it needs to be stressed that guarantees of freedom of artistic creativity
are protected under the Charter to the extent to which institutions and Member
States apply the Union’s law.13
The law of the European Union, according to the primacy and supremacy
rules developed by the CJEU,14 is directly effective and in the event of a collision
of norms of national and EU law, primacy is held by the EU legal norm. The
Court of Justice in its case law, has contributed to the development of a model
of protection of, for example, fundamental rights despite the fact that in the
then status of EU law, the Community did not have a catalogue of protected
human rights in place.15 When it comes to the exercise of cultural policies, in
the initial period of its decision-making activity, the Court linked the subject
matter of products of culture with the freedom of flow of goods within the
internal market and with the issues of competition protection16. However, as
emphasized by Rachael Croud Smith, the Member States were left a wide
margin of freedom in specifying objectives of the cultural policy17.
11 See Anna KOSIŃSKA, Prawa kulturalne obywateli państw trzecich w prawie Unii Europejskiej,
160— as quoted in: Anna SIWEK-ŚLUSAREK, “Komentarz do art. 167 TFUE,” in Traktat o funkcjono-
waniu Unii Europejskiej. Komentarz, vol. 2, ed. Krystyna Kowalik-Bańczyk, Monika Szwarc-Kuczer,
and Andrzej Wróbel, articles 90–222 (Warsaw: Wolters Kluwer, 2012), LEX electronic version.
12 Charter of Fundamental Rights of the European Union, OJ C 202, 7.10.2012, pp. 389–405.
13 See Article 51 of the Charter.
14 See Nigel FOSTER, Foster on EU Law (Oxford: Oxford University Press, 2006), 141; Bruno de
WITTE, “Direct Effect, Primacy and the Legal Nature of the Legal Order,” in The Evolution of the EU
law, 2nd ed., ed. Paul Craig and Grainne de Burca (Oxford: Oxford University Press, 2011), 323.
15 See the following judgments: Judgment of the ECJ of 21 September 1988, Case Pascal Van
Eycke v ASPA NV, C 267/86 (ECLI:EU:C:1988:427); Judgment of the ECJ of 13 December 1979,
Case Liselotte Hauer v Land Rheinland-Pfalz, C 44/79 (ECLI:EU:C:1979:290).
16 Rachael CRAUFURD SMITH, “The Evolution of the Cultural Policy in the European Union,” in
CRAIG and de BURCA, The Evolution of the EU Law, 875; Izabela SKOMERSKA-MUCHOWSKA,
“Kultura,” in Polityki Unii Europejskiej: polityki społeczne. Aspekty prawne, ed. Jan Barcz (Warsaw:
Instytut Wydawniczy EuroPrawo, 2010), 84; Monika NIEDŹWIEDŹ, “Obrót dobrami kultury w Unii
Europejskiej – konsekwencje dla Polski,” Kultura Współczesna 40, no. 2 (2004): 122; Viktoriya
SERZHANOVA and Jan PLIS, “Ochrona dziedzictwa narodowego jako przesłanka ograniczenia swobód
rynku wewnętrznego UE,” Studia Europejskie – Studies in European Affairs, no. 4 (2017): 141–61.
17 CRAUFURD SMITH, “The Evolution of the Cultural Policy,” 878.
THE ROLE OF THE COURT OF JUSTICE IN CREATING STANDARDS 45
The Court’s case law in matters of broadly understood culture was largely
developed by means of questions referred for a preliminary ruling. Pursuant
to Article 267 TFEU, the national court of a Member State may suspend
proceedings and direct the question to the Court in a situation when it has
doubts as to interpretation of the law and compliance of national law with
that of the EU. The reply to such a question is binding on the national court
and in practice questions referred for a preliminary ruling usually broadly
affect the practical implementation of the EU law in the Member States to
a large extent. Admittedly, legal scholars and commentators do not fully
accept the principle of loyalty “which asks to repeal or at least to cease the
application of a national law that the Court deemed non-compliant with the
EU law in the preliminary ruling procedure.… This obligation is to bind not
only the state whose laws were examined in the question referred, but also
all other laws that have similar regulations.”18 In my opinion, however, the
Court’s case law in the so-called cultural matters may be a set of general
principles and good practices which contribute to a fuller implementation of
cultural rights at the national level, even if the particular legal problem which
is being examined by the Court does not appear in a specific Member State.
Judgments in culture-related cases passed by the CJEU often concern
the rights and obligations of EU citizens.19 As noted by Engin F. Isin, EU
citizenship may be defined as a “relational … institution of domination and
emancipation that governs who European citizens (insiders), strangers, outsiders
and abjects (aliens) are and how these European subjects are to govern
themselves and each other in that space constituted as Europe.”20 Thus, EU
citizenship is a binding factor for establishing common standards in the im-
plementation of cultural rights. The crucial rule connected with the institution
of European Union Citizenship is the right of equal treatment, guaranteed in
Article 18 of the Treaty on the Functioning of the European Union, under its
provision that “any discrimination on grounds of nationality shall be
prohibited”. Despite the fact that cultural rights are mainly implemented on
the basis of constitutional rights and those resulting from international
18 Paweł MARCISZ, Koncepcja tworzenia prawa przez Trybunał Sprawiedliwości Unii Europejskiej
(Warsaw: Wolters Kluwer, 2015), 303.
19 Citizenship of the Union was established by virtue of the 1992 Maastricht Treaty and pursuant
to the currently valid Article 20 TFEU, citizens of the Union shall enjoy the rights such as: the right to
move freely, the right to vote and to stand as candidates in municipal elections in their Member State of
residence, the right to vote and to stand as candidates in elections to the European Parliament, the right
to diplomatic and consular protection and the right to apply to the European Ombudsman.
20 Engin F. ISIN, “Claiming European Citizenship,” in Enacting European Citizenship, ed. Engin
F. Isin and Michael Saward (Cambridge: Cambridge University Press, 2013), 27.
46 ANNA MAGDALENA KOSIŃSKA
agreements, increasingly in contemporary world they take the form of rights
implemented transnationally (as in the case of tourists—EU citizens who
travel to other EU Member States).
Given the above, it seems valid to claim that the CJEU case law that relates
to acquis culturalis may be a source of principles for a fuller and more effective
implementation of constitutional guarantees of cultural rights in Member States.
4. CJEU CASE LAW
The cases processed by the Court presented in this paper serve as an
illustration. They present the Court’s broad decision-related spectrum and
a linking of cases with the subject matter of the Union’s citizens’ exercise of
cultural rights in the territory of individual Member States.
4.1 FREEDOM OF ARTISTIC CREATION
Case Johan Deckmyn and Vrijheidsfonds VZW v Helena Vandersteen and
Others was an excellent example of when the Court expressed its opinion on
the freedom of artistic creativity,21 in which it interpreted the term parody.
The case concerned accusations from the heirs of the creator of the comic
series Suske en Viske towards Mr Johan Deckmyn, member of the political
party Vlaams Belang. At the beginning of 2001, Mr Deckmyn gave away
calendars which had a parody of the cover of a 1961 comic authored by
Willy Vandersteen, De Wilde Weldoener (The Compulsive Benefactor), on
their cover. Willy Vandersteen was a popular Belgian illustrator and from
1946 he illustrated a series of comic books which in Belgium were published
as Suske en Wiske. The comic series became immensely popular in other
European countries and is also known under its English title Spike and Suzy.
The total of 270 issues of the comic were published. Its characters became
pop-culture icons and appear on murals, postal stamps and even have their
own statutes.22
The image that is the subject of dispute in the national proceedings
presented the mayor of Ghent, who, dressed in a white tunic with a rainbow
21 Judgment of the CJEU of 3 September 2014 in Case Johan Deckmyn and Vrijheidsfonds VZW
v Helena Vandersteen and Others, C 201/13 (ECLI:EU:C:2014:2132); hereinafter Case C 201/13.
22 See, for example, the sculpture of Spike and Suzy at https://www.flickr.com/photos/
lindadevolder/41999158835 (accessed 21 June 2021); postal stamps with Spike and Suzy at https://
www.allnumis.com/stamps-catalog/belgium/cartoon-comic-strip/9-francs-1987-spike-and-suzy-18034
(accessed 21 June 2021).
THE ROLE OF THE COURT OF JUSTICE IN CREATING STANDARDS 47
sash, gives away money to persons whose physical features (e.g., dress or
skin colour) suggest that they are migrants. The original picture presented
a mysterious stranger who floated in the air, who was also dressed in a white
tunic and scattered gold coins among the city citizens. There was no doubt
about similarity of the two pictures. Mr Vandersteen’s heirs claimed that the
parodied picture had a discriminatory message and violated their copyrights.
Mr Deckmyn, in turn, claimed that the image was a parody and met the
requirements of a parody regulated in the national act on copyright and related
rights.23 The national court decided to stay the proceedings and to refer
a question to the CJEU for a preliminary ruling, asking if the concept of
parody is an autonomous concept of the Union law and should the answer be
affirmative, what features should such parody have.24
The Court, ruling on the question, decided that the concept of parody
included in Article 5(3)(k) of Directive 2001/29/EC25 is an autonomous concept
of the EU law while
essential characteristics of parody are, first, to evoke an existing work, while being
noticeably different from it, and secondly, to constitute an expression of humour or
mockery. The concept of ‘parody’, within the meaning of that provision, is not subject
to the conditions that the parody should display an original character of its own, other
than that of displaying noticeable differences with respect to the original parodied
work; that it could reasonably be attributed to a person other than the author of the
original work itself; that it should relate to the original work itself or mention the
source of the parodied work.26
However, parody should be a work that guarantees a balance between
respect for the authors’ rights and the creator’s freedom of expression.
Nevertheless, the Court decided that the assessment of whether the picture
submitted for examination in national proceedings meets the requirements of
parody and of whether we can apply provisions of the Union’s law rests with
the national court.
The content of the judgment in question clearly states that freedom of artistic
creation is subject to limitations. Freedom, though guaranteed at the constitution
level, is specified in the provisions of national law. Due to membership in the
23 Judgment in Case C 201/13, paras. 11 and 12.
24 Judgment in Case C 201/13, para. 13.
25 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the
harmonisation of certain aspects of copyright and related rights in the information society, OJ L 167,
22.6.2001, pp. 10–19.
26 Operative part of the judgment, para. 2 sent. 1 of the judgment in C 201/13.
48 ANNA MAGDALENA KOSIŃSKA
EU, special legislative acts that may limit the freedom of artistic creation also
include acts of the EU law, such as directives implemented to the national order
in this case. Directive 2001/29 was implemented in Belgium as Law of 22 May
2005 transposing Directive 2001/29/EC of 22 May 2001 on the harmonization
of certain aspects of copyright and related rights in the information society into
the Belgian law,27 while in Poland it was done by means of the Act of 1 April
2004 on amending the act on copyright and related rights.28
In consequence, the scope of freedom of artistic creation does not solely
result from the national law, but also from the provisions of EU law, which
regulate the creator’s rights more precisely.
4.2 RIGHT OF ACCESS TO PRODUCTS OF CULTURE
Case C-388/01 Commission v Italy addressed the issue of access to
products of culture in museums.29 The Commission requested that a violation
of non-discrimination be declared due to the operation in the national law of
the provision of Article 4(3) Decree No 507 of the Ministry of Cultural
Assets and Natural Sites of 11 December 1997, titled “Regulation introducing
tickets for admission to monuments, museums, galleries, archaeological
digs, parks and gardens classified as national monuments.”30 Pursuant to this
provision, free entry to museums was guaranteed to children and young
people under the age of 19 and to seniors (in the original version of the
decree—persons aged 60 and older, whereas in the amended version to
persons aged 65 and older) who held Italian citizenship. The Commission
received numerous complaints towards the end of 1990s concerning access
to the Doge’s Palace Museum in Venice and to the Municipal Museum in
Padva, Treviso and Florence and conducted an investigation declaring
violation of non-discrimination towards tourists from other Member States
or persons who were not residents of the Italian Republic. The Commission
turned to the Italian government pointing to the obligation of equalling the
rights of access to museums for citizens of Italy and citizens of other Member
27 Loi du 22 mai 2005 transposant en droit belge la Directive 2001/29/CE du 22 mai 2001 sur
l’harmonisation de certains aspects du droit d’auteur et des droits voisins dans la société de
l’information, Moniteur Belge; published on 27 May 2005, pages 24997-25012; information
available at https://eur-lex.europa.eu/legal-content/pl/NIM/?uri=CELEX:32001L0029.
28 Dz.U. of 2004, No. 91, item 869.
29 Judgment of the CJEU of 16 January 2003 in Case Commission of the European Communities
v Italian Republic, C 388/01 (ECLI:EU:C:2003:30). The judgment in question was passed on the
basis of Article 258 TFEU; this complaint means the so-called infringement proceedings due to failure
of Member States to fulfil their obligations under the Treaties (Articles 258–260 TFEU).
30 GURI No 35 of 12 February 1998, p. 13.
THE ROLE OF THE COURT OF JUSTICE IN CREATING STANDARDS 49
States. In response, the Italian government announced changes in the national
law. The Commission’s further investigation confirmed, however, that these
changes did not include Municipal Museums, but only national museums.31
Exchange of letters between the Commission and Italy lasted between 1999
and 2001. Owing to not having introduced uniform rules of access to all
museums for seniors, the Commission decided to initiate proceedings before
the CJEU. The Italian government argued that it charged foreigners for
tickets because they did not pay taxes in the territory of Italy and due to the
costs of maintaining these places.32 The Court deemed such arguments as
contrary to the Union’s laws. The Italian government also considered itself
not fit for the responsibility for the rules of access to museums since due to
the division of powers between central administration and regions, it is the
regions and local governments that are in part responsible for managing
museums.33 The Court also threw in this argument concluding that while the
Member States have the autonomy to divide competences between central
administration and local government, in the light of Union law a Member
State is solely responsible for the activity of all administration bodies
operating in its territory.34 Thus, the Court recognized the responsibility of
the Italian Republic for the violation of non-discrimination due to failure to
ensure equal access to museums to seniors.
It needs to be noted that the Court had already ruled earlier on similar
circumstances in Commission v Spain, in which it examined the existence of
violation of obligations under the Treaties by the national law regulating
access to museums.35 Spanish laws ensured free museum access to citizens
of Spain and to residents and citizens of EU states below the age of 21. The
Court then linked leisure travel with the Union’s freedom of services on the
internal market and concluded that there must be no discrimination against
citizens of other EU states.
The judgment invoked clearly shows the obligation of equal treatment of
a state’s own citizens and other EU citizens in access to products of culture.
On the one hand, this is associated with the principle of non-discrimination
laid down in the Treaties in Article 18 TFEU, which is a foundation of
citizenship of the Union. On the other hand, Union citizenship is an instrument
31 Judgment in Case C 388/01, paragraph 8.
32 Ibid., para. 18.
33 Ibid., para. 26.
34 Ibid., para. 27.
35 Judgment of the CJEU of 15 March 1994 in Case Commission of the European Communities
v Kingdom of Spain, C-45/93 (ECLI:EU:C:1994:101).
50 ANNA MAGDALENA KOSIŃSKA
guaranteeing satisfaction of cultural needs in the dimension of post-modern
community life where travel in order to see a particular museum exhibition,
thanks to the operation of the Schengen Area and availability of means of
transport, has become a common occurrence.
4.3 RIGHT TO PARTICIPATE IN CULTURAL LIFE
The right to participate in cultural life may be exercised by accessing
various cultural media, such as the book.
In Case C 174/15,36 a national court requested that the CJ interpret the
term “lending” used in Directive 2006/115.37 The case concerned compliance
with the Union’s law of remote lending of electronic books. The national
court asked for an answer to the question of whether “lending” in compliance
with the Union’s law may mean “making copyright-protected novels,
collections of short stories, biographies, travelogues, children’s books and
youth literature available for use, not for direct or indirect economic or
commercial advantage, via a publicly accessible establishment: by placing
a digital copy (reproduction A) on the server of the establishment and
enabling a user to reproduce that copy by downloading it onto his/her own
computer (reproduction B) in such a way that the copy made by the user when
downloading (reproduction B) is no longer usable after a limited period, and
other users cannot download the copy (reproduction A) onto their computers
during that period.”38 Therefore, the practice introduced by Dutch libraries
was an example of modern book lending, which was analogous to the classical
process of borrowing paper books. The Court, analysing provisions of the
directive on the rental right and lending right and on certain rights related to
copyright in the field of intellectual property concluded that such lending
process in not compliant with the Union’s law. It needs to be noted that at
the moment the lending of digital books is gaining in popularity by allowing
quick and direct contact with belles-lettres and scientific literature. Such
contact gained in value especially in the time of the COVID-19 pandemic
and the IBUK service run by the PWN group is one of the most available
and popular book rental facilities in Poland.39
36 Judgment of the CJEU of 10 November 2016 in Case Vereniging Openbare Bibliotheken
v Stichting Leenrecht, C 174/15 (CLI:EU:C:2016:856).
37 Directive 2006/ 115 / EC of the European Parliament and of the Council of 12 December 2006
on rental right and lending right and on certain rights related to copyright in the field of intellectual
property (codified version), OJ L 376, 27.12.2006, pp. 28–35
38 Judgment in Case C 174/15, para. 26.
39 https://www.ibuk.pl/ (accessed 21 June 2021).
THE ROLE OF THE COURT OF JUSTICE IN CREATING STANDARDS 51
The Court’s ruling in the case C 301/15 also pertained to the subject
matter of access to books, but the Court investigated the issue of protection
of authors’ rights with regard to the so-called out-of-print books in the light
of Directive 2001/29.40 A French court referred a question to the Court for
a preliminary ruling. Pursuant to a French national law, the so-called out-of-
print book means “a book published in France before 1 January 2001 which
is no longer commercially distributed by a publisher and is not currently
published in print or in digital format.”41 A national register of such books
was created to ensure public access to them. Pursuant to the provisions of
national law, where an author of such a book did not bring any claims within
6 months from placing this title in the register, a competent national authority,
named by the legislator, gained the right to reproduce it and present it in
digital format.42 When investigating the case, the Court decided that such
national regulation is contrary to the Union’s law as it fails to provide
authors of such “forgotten books” the opportunity to withdraw from third
parties the right to exercise their copyright. Certainly, the French legislator’s
intentions deserve credit—the regulation in dispute allows readers access to
books which have not been reprinted for years. However, in the Court’s
opinion, the author of the book should decide how his work is made available.
He may also decide to withdraw his works from the market thus limit the
right of access to products of culture.
5. FINAL NOTES
The analysis of the CJEU’s judgments presented in this paper lets me
confirm the research hypothesis that the Court’s case law shapes standards of
access to products of culture, participation in cultural life and freedom of artistic
creativity that contribute to the more effective implementation of cultural rights
guaranteed in the national law of Member States and in international agreements
to which these Member States are parties. This follows from the nature of the
Union’s law, which penetrates a national system and thanks to the principle of
direct effect and supremacy truly affects the situation of the Union’s citizens.
40 Directive 2001/ 29 / EC of the European Parliament and of the Council of 22 May 2001 on the
harmonisation of certain aspects of copyright and related rights in the information society, OJ L 167,
22.6.2001, pp. 10–19.
41 Judgment in Case C 301/15, para. 15.
42 Ibid.
52 ANNA MAGDALENA KOSIŃSKA
As has been emphasized in this study, the acquis of the Court in the sphere
of culture has formed largely on the basis of guarantees of the functioning of the
internal market—mainly on the basis of freedom of services, ensuring “legal
dynamics of integration.” 43
As emphasized by Rachael Craufurd Smith, “EU
law introduces an important modification to the way in which domestic cultures
evolve over the time; it sets in motion a process of regulatory competition, with
consumers centrally placed to determine, through their economic choices, which
products and, ultimately regulatory regimes will survive.” 44
The judgments discussed in this paper only serve as an example and
illustration of the problem at issue, hence the call for a comprehensive
elaboration of “acquis culturalis”, as was the case of the body of judicial
decisions of the European Court of Human Rights pertaining to cultural
rights.45 Such a study might realistically influence the operation of Member
States’ national bodies and courts adjudicating in cases associated with
a broadly understood cultural policy.
Figure 1. Cover of Johan Deckmyn’s calendar.
Source: https://www.standaard.be/cnt/dmf20110117_145
43 Loic AZOULAI and Renaud DEHOUSSE, “The European Court of Justice and the Legal Dynamics of
Integration,” in The Oxford Handbook of the European Union (Oxford: Oxford University Press, 2012), 350.
44 CRAUFURD SMITH, “The Evolution of the Cultural Policy,” 882.
45 Cultural Rights in the Case-Law of the European Court of Human Rights (Council of Europe,
European Court of Human Rights, 2011).
THE ROLE OF THE COURT OF JUSTICE IN CREATING STANDARDS 53
Figure 2. Cover of 1961 Willy Vandersteen’s comic book.
Source: http://stripinfo.be/reeks/strip/10739_Suske_en_Wiske_44_De_wilde_weldoener
Figure 3. Doge’s Palace Museum.
Source: Museum’s official website
(https://palazzoducale.visitmuve.it/it/il-museo/la-sede-e-la-storia/sede)
54 ANNA MAGDALENA KOSIŃSKA
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THE ROLE OF THE COURT OF JUSTICE IN
CREATING STANDARDS
FOR THE IMPLEMENTATION OF CULTURAL RIGHTS
Summary
The present study seeks to answer the question whether the case law of the Court of Justice of
the European Union in cases concerning the exercise of broadly understood cultural policies may in
reality affect the extent of implementation of cultural rights —that is, access to products of culture,
participation in cultural life and freedom of artistic creativity — at the level of Member States.
Cultural rights are traditionally regulated by the constitutions of EU Member States and are
classified by legal scholars and commentators as second generation rights. Culture, in turn,
according to primary legislation of the European Union, is only a supporting competence (Article 6
of the Treaty on the Functioning of the European Union). However, a review of the Court’s case law
demonstrates that CJEU’s judgments form standards that contribute to a more effective implementation
of cultural rights guaranteed in the national law of the Member States and international agreements
to which they are parties. This results from the nature of the Union’s law, which penetrates
a national system and thanks to the principle of direct effect and supremacy truly affects the
situation of EU citizens.
Keywords: cultural rights; freedom of arts; CJEU case law; access to culture; participation in
cultural life.
56 ANNA MAGDALENA KOSIŃSKA
ROLA TRYBUNAŁU SPRAWIEDLIWOŚCI UNII EUROPEJSKIEJ
W TWORZENIU STANDARDÓW REALIZACJI PRAW KULTURALNYCH
Streszczenie
Prezentowany artykuł podejmuje próbę odpowiedzi na pytanie, czy orzecznictwo Trybunału
Sprawiedliwości Unii Europejskiej w sprawach dotyczących realizacji szeroko rozumianych polityk
kulturalnych może realnie wpływać na zakres realizacji praw kulturalnych – tj. dostępu do dóbr
kultury, uczestnictwa w życiu kulturalnym oraz wolności twórczości artystycznej – na poziome
państw członkowskich. Prawa kulturalne są tradycyjnie regulowane przez Konstytucje państw
członkowskich UE i ujmowane w doktrynie jako prawa II generacji. Dziedzina kultury natomiast,
zgodnie z prawem pierwotnym Unii Europejskiej, jest określana jedynie jako kompetencja wspiera-
jąca (art. 6 Traktatu o funkcjonowaniu Unii Europejskiej). Ilustracyjny przegląd orzecznictwa Try-
bunału wskazuje jednak, że wyroki TSUE kształtują standardy wpływające na skuteczniejszą reali-
zację praw kulturalnych gwarantowanych w prawie krajowym państw członkowskich i umowach
międzynarodowych, których państwa członkowskie są stronami. Wynika to z charakteru prawa
Unii, które przenika system krajowy i dzięki zasadzie direct effect oraz supremacy realnie wpływa
na sytuację obywateli Unii.
Słowa kluczowe: prawa kulturalne; wolność sztuki; orzecznictwo TSUE; dostęp do dóbr kultury;
uczestnictwo w życiu kulturalnym.
