Mercato interno e politiche culturali nazionali: La difficile ricerca di un equilibrio nel processo di auto-costituzione dell’ordinamento interindividuale comunitario

This article addresses the interaction between internal market rules, and in particular the freedom of circulation of goods, on one side, and the national cultural policies of Member States, on the other side. The goal is to show how the EC/EU interindividual legal system tends to extend its realm in areas of the law that would appear, at first sight, to be excluded from its scope of application. Culture is a good example thereof. While this might happen, in a number of areas of cultural action, without impinging upon the sovereignties of its Member States, the present article addresses some cases where this extension has the potential of restricting the capability of Member States to pursue their cultural policy aims. Two examples are analysed. First, the abolition of physical controls on goods crossing internal borders is scrutinized, together with the legislation adopted to ensure that goods pertaining to national cultural heritage, which are unlawfully removed from the territory of one Member State, be given back to it. The initial approach followed by Directive 93/7 is compared with the recent Directive 2014/60, and it is shown that, while the former imposed a (partially) uniform approach to the definition of national cultural heritage, thus essentially depriving art. 36 TFEU provision of its effet utile in the field, the latter restores a correct relationship between internal market and national cultural policies. More than just that: the 2014 Directive approach is understood as the only way to really respect fundamental principles of the EU legal system such as democracy, openness, subsidiarity, sincere cooperation, and proportionality. Second, the reach of the prohibition of measures equal to quantitative restrictions in the field of book prices’ policies is taken into account. The article shows how the ECJ case law in this field obstructs the efforts of Member States to promote a coherent policy of promotion of “culture-intensive” publishing, and one of widespread presence of culturally active and specialized bookstores. The relevant case law is analysed as an example of an out-dated approach, that fails to reconcile different but concurring raisons d’être of the EU project, and is no longer tenable in light of the overall features of the EC/EU interindividual legal system.