The Position of Artists and Intellectuals in the Post-Maastricht Era by Vangelis Kassos

The European Court has recently issued a resolution with regards to taxation of the arts (i.e. artistic activities). It could be considered to be but another "routine resolution" or interpretation of European directives concerning the VAT.

In my opinion, however, it is a very significant resolution not only in terms of the mandatory part itself, but also because it can have a symbolic impact on the discussion concerning the position of artists and intellectuals within Europe of the post-Maastricht era.

The resolution is called the Tolsma affair (C-16/93) and was passed on the 3rd March 1994.

In reference to the file documentation of the proceedings, the European Court relates to the fact (1), that Tolsma is an artist who plays a barrel organ in the streets of the Netherlands' cities. During his musical activity, he would produce a plate to those passing by and ask them to offer him some money as a reward. He would sometimes even knock at the door of households or shops as well, in order to ask from the owners a small contribution, without, at any rate, laying claim to being payment in the form of a fee.

Due to the above mentioned activity, a Dutch inspector demanded that he pay the corresponding VAT. Tolsma sued the act of the tax imposition on him by the inspector. His plea was rejected and thus Tolsma took recourse to the 'Gerechtsjof to Leowarden', which, in turn, raised two prejudicial questions before the European Court. Both are concerned with the interpretation of article 2, case 1 of the 6th Directive 77/388/EEC of the Council.

According to the European Court, a provision of service is implemented by way of an "onerous cause", as seen by article 2, case 1, of the 6th Directive. Therefore, an artistic activity is liable to taxation only if there exists a legitimate relation between the provider of the said service and its recipient (s). That is to say, during the activity such a relation exists that provisions of reciprocal nature are exchanged. There is, for example, the fee collected by the party providing the service, while a specific service is provided to the recipient.

However, there is the one case, as in this principal trial, when by necessity it should be accepted that these prerequisites do not occur.

Subsequently, the legal argumentation must be reconstructed. For instance, when a musician performing in a public street collects financial contributions by passers-by, this revenue cannot be deemed to be a counter-provision in view of services rendered, that is, a direct payment for what the former provides to the latter.

More specifically, it has to be stated that, on the one hand, no agreement exists between the two parties, given that passers-by offer their money voluntarily, allotting occasionally the amount at will, while on the other hand, no necessary connection exists between the service provided when such musical pieces are performed and the sums of money paid for it. Indeed, passers-by would not think of asking that a specific piece should be played for them. In addition to this, they will not give money on the grounds that the service consists of music; rather they give as a result of subjective motives. They can originate in sentiments of sympathy. Certain persons will place, indeed, a considerable sum of money into the musician's plate without stopping, while other persons will listen to the music for some time without giving anything.

I referred to the Tolsma affair quite exhaustively because I wanted to stress the seriousness of the case to be faced by either the national or European judges when having to handle the question of a wandering artist and whose artistic product cannot be easily incorporated into being of a specific material commodity. It is doubtful whether something like that could have happened, chronologically speaking, prior to the institutionalisation of culture taking place now because of the Maastricht Treaty. Personally speaking and due to the fact that I have been reading the jurisprudence of the European Court ever since the years of my postgraduate studies at the University of Strasbourg (1980), I have not stumbled upon any similar case before. Have, so to speak, my reflexes improved as to cases concerning culture during the post-Maastricht period or else have the vigilance and attention of judicial authorities - either at a national or a European level - been intensified with regards to cultural issues? As a matter of fact, it is more likely that the latter is the case. At the same time, I have, of course, little doubt that the European judge would have resolved this case in the same way if still in a pre-Maastricht period.

Still, I greatly doubt whether any national judge would ever have considered a similar case to be so worthwhile as to forward it to the European Court.

Thus, there is a need to behold what may be the first great gain as a result of the institutionalisation of culture within the context created by the Maastricht Treaty? In terms of a national judge's conscience, what must be taken now into account is that even a wandering musician's musical activity can affect the juridical interpretation of a European directive with regards to VAT.

I do believe that this gain will be multiplied very soon and that the assignment of cases concerning culture to the European Court for resolution will be more frequent in future.

However, in terms of this specific case and not just because such concurrence has contributed to the recognition of the fact that a material cultural product does not need to exist as a result of an artistic activity, the significant fold of the case is that from now on the European artist himself is recognised directly, i.e. his face illuminated upon clearly. It underlines that attention should no longer be given entirely to the cultural product the latter creates. With regards to the cultural sector, the 'commercial shadow' has until now been covering the creator's face at a European level.

By the resolution of the European Court as of December 1968 with regards to "works of art", it was resolved that products of art would not be excluded from the application field of the treaty. In as much as its compilers would characterise it as "financial", wishing, according to Italy's argumentation, to restrict the application of its provisions to only "consumer's goods", the Tolsma resolution is, in my opinion, the second major step of the European legislation. It concerns the cultural sector since, as we have seen, even in this indirect way it exceeds the stage of the 'deification' of a cultural activity. As such it encroaches upon the stage of its "humanisation".

Nevertheless, European artists and intellectuals should not, of course, expect the formation of a fixed common jurisprudence, in order to claim their position in the "European public space".

Ever since the founding of the European Community until most recently, the position of intellectuals with regards to procedures of European integration has ranged, at most, from indifference to hostility.

As a phenomenon, it is strange, but easy to explain. It is strange because, as Jeanne Hersch (2) puts it correctly, the more a continent is wrought by history and subject to changes which stem to a certain extend from human will, the more significant becomes the role intellectuals play in the formation of theses changes. Without making public decisions themselves, Hersch explains, they nevertheless affect not only those who take them, but also generally people's way of thinking, judging and sensing who else is involved.

Thus the question begs an answer: how was it possible that on this "continent of history", one which keeps "affecting" the other continents and where everything has followed in its orbit since Second World War basically the course of the European Community, European intellectuals would behave somehow like "ideological immigrants"? (3)

This phenomenon is not so difficult to be explained. To begin with, most of them had adopted the Marxist theory. Inevitably they resigned themselves to the socialist vision and to the public life of Eastern European countries which they supported to materialise that vision. This they continued to do so until very recently, that is until the painful truth about the said regimes started to be revealed after their spectacular collapse.

On the other side, the European integration had been keeping until recently a mainly financial profile, that is, until the Maastricht Treaty. The latter changed within a very short period of time the basic orientation. Europe itself is now heading towards a political union. True is also that only very recently it has become possible for us to talk about an integrated "European public space". Its fate ought to be a concern of every intellectual.

Thus there are two factors which have contributed to what appears to be a steady reorientation shift on the side of intellectuals in favour of Europe and, more specifically, of European integration.

I think it is appropriate to make here a parenthesis and clarify that I accept what Andrι-Jean Belanger has said precisely about the term "intellectual"(4 ). He ascribes to intellectuals the quality of being "the creator of symbols which express by virtue of some quality a view on what is the state's great orientations". It means that in this concept are also included producers of contemplation and producers of art, that is, thinking people and artists. I close the parenthesis.

I want to return now to an old question: what position can intellectuals take up with regards to the "European public space"?

According to Dominique Wolton and the views she unfolds in her book "The Last Utopia" (La Derniθre Utopia, Flammarion 1993), European intellectuals can acquire today the following three profiles:

The first one is being the prince's advisor (conseiller du prince). That has a classical tradition and Andre Malraux may figure to be perhaps its best symbol.

The second model is the intellectual who distances him- or herself from authority out of intellectual desires. As a matter of fact, it is about the intellectual prophet or the organic intellectual. However, a contradiction exists in this case. The intellectual's attitude of this category can be described as follows: on the one hand, he wishes to inspire and influence and, on the other hand, he does not want to be exposed to responsibilities of management. "Liable but not guilty", Dominique Wolton (5) would underline pungently.

The third model refers to the so-called critical intellectual. The intellectual of this sort is committed, but he respects the natural difference existing between the sector of his activity (knowledge) and the one of politics (action). He will not lay claim to be the direct or indirect inspiration of the prince's action.

This last model of the critical intellectual has become the object of exhaustive discussions during recent years and has undergone a very ambitious processing. Basically, Pierre Bourdieu was the first to circumscribe a model of processing by critical intellectual in his work: "The Rules of Art. The Genesis and Structure of the Literary Field (Les Rθgles de l'Art. Genθse et Structure du Champ Littιraire)". Bourdieu deals in that book with the idea what would it take to develop such a 'realistic programme for intellectuals' so that collective action becomes possible. He sees that, as a matter of fact, in creating an international intellectuals' parliament. It would be the incarnation of the intellectuals' critical power and help to constitute a collective intellectual who would be capable of making the word of freedom be heard.

This idea of Bourdieu must have been the main cause for the organisation undertaken by Christian Salmon. He directs "Cross-roads of European Literature's" which is an institution that has been operating in Strasbourg since 1989. He brought about a whole conference in November 1993 in Strasbourg with the aim of compiling the constitutional chart of such a parliament. It was attended by fifty writers.

The reason that inspired Bourdieu to express such a proposal stems mainly from the fact that artists, writers and scientists are really excluded from the "public debate". Should they wish, he says (6), to find the position they deserve in the social field, they should forget once and for all the myth of the "organic intellectual". They should claim this without, thereby, succumbing, on the other hand, to the supplementary mythology of the scholar who has withdrawn himself from everything. Rather they should work collectively together, in order to stand up for their interests. It would help to elevate them into a position of an international power of criticism and vigilance against technocrats.

Admitting that I am myself enchanted by the vigour of Bourdieu's idea, I would like to remark at the same time that I am a bit discerned because there is an inexplicable determinism in it: why be against technocrats a priori and why only against them?

Who are those notorious technocrats? According to a definition by Lucian Goldmann's (7), the term "technocrat" does not mean at all a higher technical clerk, that is someone interested solely in the production procedure; rather it means that a member of this stratum participates in the taking of important and fundamental decisions about life in society. Thus, there are the technocrats of education, politics, economy, cultural life etc. and, of course, also of production.

What sort of technocrats had Bourdieu in mind? Would they be rather those of production?

Since his apprehension commences with the largest possible participation of intellectuals in "public debate", why should he regard as the sole solution that... intellectuals' knitting together in one body make up the establishment of an "intellectual union"? It would be running the risk of not only being accused of corporatism, as he himself fears, but also of reducing intellectuals being excluded from "public debate" to that of being an institution of perpetual exile?

Has not the controversy around the largest possible participation of intellectuals in the "public debate" taken too long, while, on the other hand, we will risk overseeing what technocratic role is played by intellectuals themselves in their effort to contribute to both culture and civilisation?

In my opinion, a fourth intellectual's model imposed by our times is this one of the "technocratic intellectual". Indeed, especially after the institutionalisation of culture by the Maastricht Treaty, the above model appears to be more necessary than ever before.

Europe is currently seeking her heart, which only intellectuals can give her.

On the juridical base provided by paragraph 4, of article 128 of the Maastricht Treaty, according to which the Community takes into account the cultural aspects when it takes action by dint of other provisions of the treaty, a European Centre of Culture could be created in the context of the Commission's competence.

Technocrats of all fields could work together and co-operate with technocrats of culture within this Centre. It would allow the participation in drawing up significant and fundamental resolutions affecting the entire life in Europe. More specifically, it would give to the European Union with regards to culture the unique occasion to exercise an exclusive competence.

They would not be, in this case, mere advisors of the 'prince' because, by acquiring their power form the supranational nature of Commission's competencies, they would play a really active role in the formation of Communal policies and gain the position they deserve in the "European public space". This would not exclude at all the function of being critical intellectuals. However, they should not exercise in this case criticism that is general and vague, that is in a deterministically condemning mood against technocrats, but be more specifically against "technocrat intellectuals". Thus they will maintain a certain sensibility, by definition, via culture. This corresponds really to being "critical intellectuals".

References

1. Bulletin for the activities of the Court and of the First Instance Court of European Communities, no. 7-94, p. 12 - 13.

2. Jeanne Hersch, "Les Intellectuels Contre l'Europe?", Caomos Magazine, No. 7, autumn 1979, pp. 48-58.

3. Ibid.

4. A. J. Belanger, "Intellectuel", Encyclopιdie philosophique universelle, vol. II, Les Notions philosophiques, Paris: PUF, 1990, p. 1329.

5. Dominique Wolton, "Le Derniere Utopie. Naissance de l'Europe Dιmocratique", Flammarion 1993, p. 341.

6. Pierre Bourdieu, "Les Regles de l'Art. Genese et Structure du Champ Littιraire", Seuil 1992, p. 472.

7. Lucien Goldmann, "La Creation Culturelle dans la Societe Moderne", Denoel, Gonthier 1971, p. 57.

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The Position of Artists and Intellectuals in the Post-Maastricht Era by Vangelis Kassos