The “Rougemarine Dilemma”: how much trust does a state deserve when it subsidises cultural goods and services?

This paper focuses on the way welfare states distribute subsidies to cultural industries. It takes the example of the film industry and analyses jurisprudence which addresses socalled “selective state aid” schemes based upon European and Swiss law. States grant selective aid as opposed to “automatic aid” by asking independent experts to decide upon the merits of projects according to criteria that usually refer to subjective elements such as quality or cultural value. Decisions founded on such experts’ opinions normally cannot be challenged in the courts. In fact, these decisions constitute a legal “no man’s land” through which these states preserve a strong decision-making power that allow them to reject projects for “implicit” or “tacit” reasons under the cover of stated conditions and reasons that leave a broad margin of assessment. If states abuse this power, they are able to censor content as well as tolerate and even facilitate forms of clientelism and corruption that can eventually destroy artistic creativity and entrepreneurial innovation. These possible consequences are not only detrimental to the competitiveness of the cultural industries affected by such practices, but also to cultural diversity within and beyond the borders of the states that proceed in this way. The author of this paper therefore advocates protecting cultural industries not only from market economies that suffer from oligopolitic private power, but also from the abuse of the power of the states to correct market failures that damage cultural diversity. He suggests the introduction of the constitutional principle of an effective separation between the state and the culture by analogy of the separation between the church and the state as inspired by the rationale underlying the French “principe the laïcité”. This new principle should promote freedom of opinion and expression by protecting the authors of contemporary cultural expressions from the control of states, their bureaucracies and favouritism in a way that would be legally enforceable.