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Brussels, 19 July 2001
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Frits Bolkestein, the member of the Commission responsible for the internal market,
said: "This Directive is a major step in Community action to ensure the proper
working of the modern and contemporary art market in the European Union. I am
very glad that we have been able to end the discrimination suffered by some artists
resulting from where it their works are resold."
But Mr Bolkestein also had to admit to some disappointment: "I would have preferred
to see a higher level of harmonisation and earlier implementation". Emphasising this
second point, he said: "Ten years is better than the fifteen the Council were originally
contemplating, but it is still a very long time. These time limits must remain the
exception in order to guarantee the effectiveness of Community action within the
single market.”
The Directive will ensure that the EU’s modern and contemporary art market works
well, by generalising and harmonising resale rights within the single market.
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Member States must transpose the Directive into national law by 1 January 2006.
But those which do not apply resale rights when the Directive comes into force will
be able to restrict its application to living artists for a further four years until 1 January
2010. And if the Member State requests, that can be extended for a further two years
subject to a consultation and transparency mechanism in which the Commission will
play a part.
The time limits for implementation had been at the heart of the disagreement
between the Commission and the Council during the Council’s discussion of its
common position.
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Under the Directive, resale rights will apply to any sale where the price exceeds
¼ 7KLV PHDQV WKDW VRPH ZRUNV RI DUW ZKLFK UDUHO\ DWWDLQ VXFK SULFHV ² HJ
sketches, engravings and photographs — are in practice unlikely to be covered by
the Directive. It is primarily sculpture and paintings which are likely to give rise to the
payment of resale rights.
The Commission regrets that this restriction on the scope of the Directive will prevent
many artists from benefiting from its harmonising effects. Even so, the effect of the
restriction is tempered by the option given to Member States of applying resale rights
to sales of less than ¼LQWKHVHFDVHVWKHGLUHFWLYHSURYLGHVIRUDUHVDOHULJKWRI
not less than 4% of the selling price.
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Resale rights constitute an intellectual property right which allows an artist or his
heirs to receive a percentage of the selling price of a work of art when it is resold by
an art-market professional such as an auctioneer, a gallery or any other art dealer.
The aim is to allow artists and their beneficiaries to share in the seller’s profit on the
increased value of their works. It restores some balance between the economic
situation of artists and that of other creative workers who have the possibility of
exploiting their works several times over.
The right is written into the Berne Convention and the legislation of 11 of the 15
Member States. In practice, nine actually apply it, but their approaches differ
substantially in the type of work subject to resale rights, the type of transaction giving
entitlement to payment, and the rates applicable.
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The European art markets’ main competitor for the sale of modern and contemporary
works is New York. The USA does not recognise resale rights, and art market
professionals fear that sales will shift to the United States or Switzerland.
Every precaution has been taken in the Directive to prevent any such shift taking
place. To ensure that there is no incentive to move sales of modern art in the highest
price-brackets outside the Community, the Directive introduces the principle of a
tapering scale of rates. Artists will receive a percentage of the resale price of their
works ranging from 4% to 0.25% in five bands of selling price:
-
4% for the bottom band up to ¼RUDW0HPEHU6WDWHV¶GLVFUHWLRQ
3% for the band from ¼WR¼
1% for the band from ¼WR¼
0.5% for the band from ¼WR¼
0.25% for any amount over ¼
In addition, the maximum an artist can receive as resale rights on a single sale is
limited to ¼
The Commission has also agreed that once the Directive has been adopted and the
Council has given the go-ahead, it will open negotiations to extend artists’ resale
rights internationally.
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