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Towards more democratic land-use decision making in cultural sector: has the European Cultural Policy a 'territorial dimension'?

Sara Pugliese, Ricercatore di Diritto dell’Unione europea, Università
“Parthenope” di Napoli

Il lavoro intende verificare se la Politica Culturale Europea sta contribuendo alla diffusione nei sistemi amministrativi nazionali di metodi di governance basati sul coinvolgimento degli attori istituzionali e dei portatori di interessi privati.

La ricerca analizza le fasi che hanno condotto all’affermazione di modelli di governance partecipativa nella politica ambientale e nella politica di coesione.

In riferimento alla politica ambientale, lo studio sottolinea il contributo della Valutazione di Impatto Ambientale (VIA) e della Valutazione Ambientale Strategica (VAS) alla graduale affermazione di metodi di decision making basati sulla consultazione dei portatori di interessi e sulla valutazione di impatto.

In riferimento alla politica di coesione, la ricerca analizza la graduale affermazione di modelli di gestione dei Fondi Strutturali in cui l’ottenimento di finanziamenti da parte degli Stati e delle regioni è condizionato ad un pieno coinvolgimento dei portatori di interessi.

Proponendo nuovi metodi di decision making, entrambe le politiche hanno acquisito una “dimensione territoriale”.

Partendo da questi due esempi, la ricerca verifica se anche nella Politica Culturale Europea si siano affermati metodi di governance partecipativa. Lo studio rileva che, a dispetto della grande enfasi attribuita da atti e documenti delle Istituzioni sulla gestione multilivello e multi-stakeholder dei siti culturali, modelli di governance partecipativa di governo del territorio non possono considerarsi affermati a causa dell’eccessivo ricorso da parte delle Istituzioni europee a metodi “soft” di governance, come il metodo aperto di coordinamento.

In conclusione, sulla scorta dell’esempio delle due principali “politiche territoriali”, anche nella politica culturale il conferimento dei fondi e l’assistenza tecnica da parte dell’UE dovrebbero essere condizionati alla realizzazione di partnership pubblico private, alla valutazione di impatto e al coinvolgimento degli stakeholder, in vista di un rafforzamento dell’accountability, della coerenza inter-settoriale e dell’efficacia del decision making a livello europeo, nazionale e locale.

PAROLE CHIAVE: governo del territorio - processo decisionale - stakeholder - politica culturale - politica ambientale - politica di coesione

The paper verifies if the European Cultural Policy is contributing to spread into the national administrative systems methods of governance based on the involvement of all the institutional and private stakeholders.

The research analyses the steps which led to the affirmation of models of participatory governance in the Environmental and Cohesion Policy.

As it concerns the Environmental Policy, the study underlines the contribution of the Environmental Impact Assessment/EIA and Environmental Strategic Assessment/ESA to the gradual affirmation of methods of decision making based on the consultation of local stakeholders and on the impact assessment.

As it concerns the Cohesion Policy, also in the Cultural Policy the research highlights the gradual affirmation of Structural Fund management models conditioning the fund achievement to the full stakeholder involvement. Proposing new decision-making methods, both the Policies assumed a real “territorial dimension”.

Starting from these examples, the research investigates if also into the European Cultural Policy participatory methods of governance asserted themselves. The research observes that, in spite of a great emphasis on the necessity to realize a multilevel and multi-stakeholder management of cultural sites in the Institutions’acts and documents, a well-defined model of participatory land-use governance has not fully elaborated. The cause is the EU Institutions’excessive use of “soft methods of governance” as the Open Method of Coordination.

According to the work conclusions, following the example of the two principal “territorial policies”, also into the Cultural Policy fund granting and EU technical assistance have to be conditioned to the realization of public-private partnership, impact assessment and stakeholder involvement, able to strengthen the accountability, the cross-sectoral consistency and the decision-making effectiveness at EU, national and local level.

Sommario:

I. Introduction. - II. The first EC instruments to interfere with the national land-use decision making: binding acts and fund granting. - III. The gradual elaboration of the European Spatial Development Perspective: intergovernmental initiatives and soft methods of governance. - IV. The direct EU intervention in favour of land-use participatory methods of governance: the Partnership Agreement within the Cohesion Policy. - V. The influence of the policies concerning the land use on the cultural sector: has Culture evolved towards a “territorial policy”? - VI. Conclusions. - NOTE


I. Introduction.

On 17th May 2017, the European Parliament and the Council approved Decision 2017/864 on a European Year of Cultural Heritage (2018) [1]. The Decision acknowledges that ‘the ideals, principles and values embedded in Europe’s cultural heritage constitute a shared source of remembrance, understanding, identity, dialogue, cohesion and creativity for Europe’ and that ‘cultural heritage plays a role in the European Union’ [2]. It stresses that, ‘in order to realise fully the potential of cultural heritage for European societies and economies, the safeguarding, enhancement and management of cultural heritage require effective participatory (i.e. multi-level and multi-stakeholder) governance and enhanced cross-sectorial cooperation’ [3]. From this point of view, the designation of 2018 as the European Year of Cultural Heritage was conceived as an instrument to promote, at Union, national, regional, and local level, «innovative models of participatory governance and management of cultural heritage, involving all stakeholders, including public authorities, the cultural heritage sector, private actors and civil society organisations» [4]. As a consequence, specific initiatives were set up to «promote debate and raise awareness of the importance and value of cultural heritage and to facilitate engagement with citizens and stakeholders» [5]. In reality, the necessity to affirm forms of participatory cultural governance at EU, national and local level have been highlighted by the Commission for a long time [6], but, due to the close relationship between cultural site management and the national administrative and land-use systems, usually the States show themselves very jealous of their autonomy in this field, not accepting EU interference. Indeed, they fear that the Commission uses the culture as a vehicle to affect the national territorial management. This problem is part of the more general issue of the State resistance to the EU Institutions’attempts to influence the national administrative systems. It has to be noticed that, starting from the assumption that principally the national PAs has the task of enforcing the EU regulation, the scholarship focused principally on the changes that the national PAs have to make to their structures and procedures in order to comply with the obligations coming from the EU law [7]. These changes often consist in the [continua ..]

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II. The first EC instruments to interfere with the national land-use decision making: binding acts and fund granting.

The first examples of a subtle incidence of the EC regulation on the national land-use decisions could be found within the environmental regulation, more specifically within the Council Directive 79/409/EEC on the conservation of wild birds [10]. Imposing the States to reserve some zones with specific natural features for conservation and protection purposes (so-called “protected areas”) [11], the Directive influenced directly the national rules establishing the functions of specific areas (so-called ‘zoning’ [12]). However, the Directive did not impose any method for the management of protected areas. Therefore, the States were free to maintain their national land-use systems, only being obliged to ensure the fulfilment of the conservation and protection objectives established by the Directive. Some years later, Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment [13] was the first to address directly the problem of inserting the impact assessment (Environmental Impact Assessment – EIA) and the consultation of the ‘public concerned’into land-use decision-making procedures [14]. Later, with the “Habitat” Directive [15], the EC Institutions tried to affect both the national ‘zoning’ systems – through the establishment of “special area of conservation” [16] – and national land-use decision making – through methods of environmental assessment [17]. Nevertheless, the focus, which specifically centred on biodiversity protection, stimulated an ‘elitist’approach that favoured the involvement of scientific expertise rather than of the public concerned when it came to select the habitats to be protected. The sub-mentioned Directives represented the EC Institutions’attempt to modify the national administrative systems imposing on them specific obligations. In order to react to these impositions directly affecting their sovereignty, the States started to slow down the EC law enforcement, as it is demonstrated by the copious case law on the environmental law infringements [18]. Well-conscious that ought to be cautious with the imposition of stringent obligations to the States in the ambit of the land use, the EC Institutions experimented other methods to lead the States towards objectives established at EU level. For example, through [continua ..]

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III. The gradual elaboration of the European Spatial Development Perspective: intergovernmental initiatives and soft methods of governance.

Still fearing the excessive EC intrusion in their land-use regulation and management, the States tried to gather the EC actions impacting on these issues into a set of objectives established in the ambit of the inter-State cooperation. Thus, in 1999, after a long negotiating process [25], the Informal Council of Ministers responsible for Spatial Planning adopted the ‘European Spatial Development Perspective’ document (ESDP) [26] which “…provides a general source of reference for actions with a spatial impact, taken by public and private decision-makers” [27]. Starting from an analytical reconstruction of European territorial features and following an ‘urbanistic’approach, the ESDP tried to attribute a function to each zone of the European Space, emphasizing especially the role of the big cities in promoting economic activities (so-called ‘polycentric development’) [28]. In practice, the ESDP was attempting a sort of ‘zoning’ of the European territory. The method of governance proposed by the ESDP worked towards ‘close co-operation among the authorities responsible for sectoral policies and those responsible for spatial development at each respective level (horizontal co-operation) and between actors at the Community level as well as the transnational, regional and local levels (vertical co-operation)’ [29]. More  specifically, the document recommended the involvement of the regional and local authorities, in line with a ‘bottom-up’ approach [30]. Nevertheless, it should be underlined that, although the ESDP insisted on the involvement of all the institutional actors concerned, excluding some generic references to the “public participation in the political debate” [31], the document appears rather reticent about the role of the public in spatial decision making. In practice, even if it pursued expressly the aim to orient also the private decision makers, it proposed a model of multi-level governance where the individuals were not directly involved, and the local authorities should be in charge with representing their communities’needs and the territorial stakeholders’ requirements and preferences. Moreover, the ESDP was the result of a process based on “soft” methods to lead the States towards common objectives, such as mutual learning, cooperation, and exchange of experiences among [continua ..]

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IV. The direct EU intervention in favour of land-use participatory methods of governance: the Partnership Agreement within the Cohesion Policy.

Over time, the enthusiasm sparked by the ESDP ‘spatial strategy’ waned. Indeed, the EU Institutions considered the ESDP a too intergovernmental instrument and tried to bring the territorial aspects back within the sphere of EU competence. Therefore, the Commission resorted to the concept of ‘territorial cohesion’, defined as a way ‘to help achieve more balanced development by reducing existing disparities, preventing territorial imbalances and by making both sectorial policies which have a spatial impact and regional policy more coherent’ [44]. Due to its close connection with local development, ‘territorial cohesion’ has a broader perspective than the ESDP ‘spatial dimension’, placing less emphasis on territorial ‘zoning’ approaches, and more on the social, economic and redistributive territorial community needs. When the financial crisis burst, ‘territorial cohesion’ was considered one of the principle instruments with which to combat economic and social emergencies. Indeed, well-conscious of the close interconnection with the local socioeconomic characteristics and with the local environmental and cultural resources, the Commission saw in territorial cohesion a vehicle for fostering the harmonious and sustainable development of all the territories [45]. But the promotion of ‘territorial cohesion’ implied the need to involve the local stakeholders in decisions concerning the allocation of funds and the management of land use [46]. The 2013 reform of Cohesion Policy directly addressed the problem of involving the territorial stakeholders in all phases of Structural Fund programme preparation, implementation, monitoring and evaluation (the so-called ‘programme cycle’). Indeed, Regulation 1303/2013 [47]establishes that the States should organise ‘a partnership with the representatives of competent regional, local, urban and other public authorities, economic and social partners and other relevant bodies representing civil society’ [48]. The purpose of such a partnership is to conform the European Structural and Investment (ESI) Fund planning to the principle of multi-level governance as well as to ‘ensure the ownership of planned interventions by stakeholders and build on the experience and the know-how of relevant actors’ [49]. In practice, the partnership aims to ensure that the ESI planning [continua ..]

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V. The influence of the policies concerning the land use on the cultural sector: has Culture evolved towards a “territorial policy”?

Unlike the Environmental and Cohesion Policies, the first ECC interventions in the cultural sector did not contain specific reference to the land-use management, nor they set basic principles of the EC action in cultural sector [57]. These interventions consisted essentially in sporadic contributions in favour of the preservation of the architectural heritage, of the development of cultural exchanges, of the promotion of socio-cultural activities [58]. Later, regulative interventions disciplined the cultural good trade [59] and the copyright [60]. These actions insisted on both material and intangible cultural goods. They aim essentially to preserve the cultural goods by the risks coming from the realization of the internal market and to promote the cultural heritage and expressions able to symbolize the European identity [61]. The first cultural funding programs launched after Treaty of Maastricht [62] had the same approach, pursuing rather disparate objectives and focusing on different, and somewhat uncoordinated, cultural issues [63]. It is necessary to wait for the 2007 Communication titled ‘European agenda for culture in a globalizing world’(the so-called European Cultural Agenda) to find specific reference to the method of governance the Commission intended to incentivise in the cultural sector and to the management models the Commission wanted to promote within the States [64]. The implementation method used by the European Cultural Agenda was based on the involvement of both public entities (States and regions) and private stakeholders (professional organisations, cultural institutions, non-governmental organisations, European networks, and foundations) [65]. In order to encourage these subjects to contribute to EU cultural objectives, in addition to setting up funding programmes, the Commission expressed its intention to contribute to the construction of a partnership involving all the actors. Furthermore, for the first time the Commission expressed the intention to implement the European Cultural Policy through the Open Method of Coordination (OMC), more broadly defined than in the 2001 White Paper on Governance [66]. This method of governance was reputed, as in the ESDP, the most effective instrument to approximate national decision-making methods concerning actions affecting cultural sites and to strengthen their connection with the territory, local communities, and [continua ..]

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VI. Conclusions.

The EU Institutions attempted to influence the national land-use management through several instruments, able to act directly on the domestic rules, procedures and structures, or having an “indirect” effect, able to trigger – without impose – reform of the national “administrative culture”. The EU Institutions’choice to resort to soft methods has not to be conceived as a signal of weakness. Rather, it appears the way to lead the States towards the EU objectives which are not too distant from their original systems, avoiding generating closure reactions by them. In practice, the resort to soft instruments is devoted to maximizing the effectiveness in the realization of EU objectives, confirming that the EU legitimacy conserves a substantially “out-put driven” feature [76], being still based essentially on the technical capability and result efficacy. Nevertheless, stashing too much trust in the soft methods could have some negative effects. Firstly, leveraging only on “soft effects”, as for example the “moral suasion” or the “naming and shaming”, could generate opportunistic and elusive behaviours by the States (so-called “free riding”). Secondly, it has to take into account that the “cultural reforms” generate always resistances, mainly if they impact on bureaucratic and crystallized systems, staff unaccustomed to the changes, decision makers not used to be careful to the EU Institutions orientations [77]. In effect, the EU Institutions’choice to leverage principally on soft instruments to realize the cultural objectives seems the principal factor causing the failure of the European Cultural Policy in proposing effective methods of participatory governance. Indeed, while the clear national PAs’obligation to involve NGOs in the Partnership Agreements as well as in the ESA and EIA procedures allow forms of “civic monitoring” on the respect of the procedures of consultation and participation, in the cultural sector, the vagueness of the guidelines contained within the Commission Communications and the resort to merely “soft sanctions” make real difficult to control the real activation of participatory mechanisms. Nevertheless, the coherent application in all the policies with land-use repercussions (Cohesion, Environment, Culture) of similar democratic, inclusive and result-oriented methods of [continua ..]

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NOTE

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