EN Official Journal of the European Communities 13.10.2001L 272/32
DIRECTIVE 2001/84/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 27 September 2001
on the resale right for the benefit of the author of an original work of art
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,
Having regard to the Treaty establishing the European
Community, and in particular Article 95 thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the Economic and Social
Committee (2),
Acting in accordance with the procedure laid down in Article
251 of the Treaty (3), and in the light of the joint text approved
by the Conciliation Committee on 6 June 2001,
Whereas:
(1) In the field of copyright, the resale right is an unassignable
and inalienable right, enjoyed by the author of an
original work of graphic or plastic art, to an economic
interest in successive sales of the work concerned.
(2) The resale right is a right of a productive character
which enables the author/artist to receive consideration
for successive transfers of the work. The subject-matter
of the resale right is the physical work, namely the
medium in which the protected work is incorporated.
(3) The resale right is intended to ensure that authors of
graphic and plastic works of art share in the economic
success of their original works of art. It helps to redress
the balance between the economic situation of authors
of graphic and plastic works of art and that of other
creators who benefit from successive exploitations of
their works.
(4) The resale right forms an integral part of copyright and
is an essential prerogative for authors. The imposition of
such a right in all Member States meets the need for
providing creators with an adequate and standard level
of protection.
(5) Under Article 151(4) of the Treaty the Community is to
take cultural aspects into account in its action under
other provisions of the Treaty.
(6) The Berne Convention for the Protection of Literary and
Artistic Works provides that the resale right is available
only if legislation in the country to which the author
belongs so permits. The right is therefore optional and
subject to the rule of reciprocity. It follows from the
case-law of the Court of Justice of the European
Communities on the application of the principle of nondiscrimination
laid down in Article 12 of the Treaty, as
shown in the judgment of 20 October 1993 in Joined
Cases C-92/92 and C-326/92 Phil Collins and Others (4
),
that domestic provisions containing reciprocity clauses
cannot be relied upon in order to deny nationals of
other Member States rights conferred on national
authors. The application of such clauses in the
Community context runs counter to the principle of
equal treatment resulting from the prohibition of any
discrimination on grounds of nationality.
(7) The process of internationalisation of the Community
market in modern and contemporary art, which is now
being speeded up by the effects of the new economy, in
a regulatory context in which few States outside the EU
recognise the resale right, makes it essential for the
European Community, in the external sphere, to open
negotiations with a view to making Article 14b of the
Berne Convention compulsory.
(8) The fact that this international market exists, combined
with the lack of a resale right in several Member States
and the current disparity as regards national systems
which recognise that right, make it essential to lay down
transitional provisions as regards both entry into force
and the substantive regulation of the right, which will
preserve the competitiveness of the European market.
(9) The resale right is currently provided for by the
domestic legislation of a majority of Member States.
Such laws, where they exist, display certain differences,
notably as regards the works covered, those entitled to
receive royalties, the rate applied, the transactions
subject to payment of a royalty, and the basis on which
these are calculated. The application or non-application
of such a right has a significant impact on the competitive
environment within the internal market, since the
existence or absence of an obligation to pay on the basis
of the resale right is an element which must be taken
into account by each individual wishing to sell a work of
art. This right is therefore a factor which contributes to
the creation of distortions of competition as well as
displacement of sales within the Community.
(10) Such disparities with regard to the existence of the resale
right and its application by the Member States have a
direct negative impact on the proper functioning of the
internal market in works of art as provided for by
Article 14 of the Treaty. In such a situation Article 95 of
the Treaty constitutes the appropriate legal basis.
(1) OJ C 178, 21.6.1996, p. 16 and OJ C 125, 23.4.1998, p. 8.
(2) OJ C 75, 10.3.1997, p. 17.
(3
) Opinion of the European Parliament of 9 April 1997 (OJ C 132,
28.4.1997, p. 88), confirmed on 27 October 1999, Council
Common Position of 19 June 2000 (OJ C 300, 20.10.2000, p. 1)
and Decision of the European Parliament of 13 December 2000 (OJ
C 232, 17.8.2001, p. 173). Decision of the European Parliament of
3 July 2001 and Decision of the Council of 19 July 2001. (4) [1993] ECR I-5145.
EN Official Journal of the European Communities13.10.2001 L 272/33
(11) The objectives of the Community as set out in the Treaty
include laying the foundations of an ever closer union
among the peoples of Europe, promoting closer relations
between the Member States belonging to the
Community, and ensuring their economic and social
progress by common action to eliminate the barriers
which divide Europe. To that end the Treaty provides for
the establishment of an internal market which presupposes
the abolition of obstacles to the free movement of
goods, freedom to provide services and freedom of
establishment, and for the introduction of a system
ensuring that competition in the common market is not
distorted. Harmonisation of Member States' laws on the
resale right contributes to the attainment of these objec-
tives.
(12) The Sixth Council Directive (77/388/EEC) of 17 May
1977 on the harmonisation of the laws of the Member
States relating to turnover taxes -- common system of
value added tax: uniform basis of assessment (1), progressively
introduces a Community system of taxation
applicable inter alia to works of art. Measures confined
to the tax field are not sufficient to guarantee the
harmonious functioning of the art market. This objective
cannot be attained without harmonisation in the field of
the resale right.
(13) Existing differences between laws should be eliminated
where they have a distorting effect on the functioning of
the internal market, and the emergence of any new
differences of that kind should be prevented. There is no
need to eliminate, or prevent the emergence of, differences
which cannot be expected to affect the functioning
of the internal market.
(14) A precondition of the proper functioning of the internal
market is the existence of conditions of competition
which are not distorted. The existence of differences
between national provisions on the resale right creates
distortions of competition and displacement of sales
within the Community and leads to unequal treatment
between artists depending on where their works are
sold. The issue under consideration has therefore transnational
aspects which cannot be satisfactorily regulated
by action by Member States. A lack of Community
action would conflict with the requirement of the Treaty
to correct distortions of competition and unequal treat-
ment.
(15) In view of the scale of divergences between national
provisions it is therefore necessary to adopt harmonising
measures to deal with disparities between the laws of the
Member States in areas where such disparities are liable
to create or maintain distorted conditions of
competition. It is not however necessary to harmonise
every provision of the Member States' laws on the resale
right and, in order to leave as much scope for national
decision as possible, it is sufficient to limit the harmonisation
exercise to those domestic provisions that have
the most direct impact on the functioning of the internal
market.
(16) This Directive complies therefore, in its entirety, with the
principles of subsidiarity and proportionality as laid
down in Article 5 of the Treaty.
(17) Pursuant to Council Directive 93/98/EEC of 29 October
1993 harmonising the term of protection of copyright
and certain related rights (2
), the term of copyright runs
for 70 years after the author's death. The same period
should be laid down for the resale right. Consequently,
only the originals of works of modern and contemporary
art may fall within the scope of the resale right.
However, in order to allow the legal systems of Member
States which do not, at the time of the adoption of this
Directive, apply a resale right for the benefit of artists to
incorporate this right into their respective legal systems
and, moreover, to enable the economic operators in
those Member States to adapt gradually to the aforementioned
right whilst maintaining their economic viability,
the Member States concerned should be allowed a
limited transitional period during which they may
choose not to apply the resale right for the benefit of
those entitled under the artist after his death.
(18) The scope of the resale right should be extended to all
acts of resale, with the exception of those effected
directly between persons acting in their private capacity
without the participation of an art market professional.
This right should not extend to acts of resale by persons
acting in their private capacity to museums which are
not for profit and which are open to the public. With
regard to the particular situation of art galleries which
acquire works directly from the author, Member States
should be allowed the option of exempting from the
resale right acts of resale of those works which take
place within three years of that acquisition. The interests
of the artist should also be taken into account by
limiting this exemption to such acts of resale where the
resale price does not exceed EUR 10 000.
(19) It should be made clear that the harmonisation brought
about by this Directive does not apply to original manuscripts
of writers and composers.
(20) Effective rules should be laid down based on experience
already gained at national level with the resale right. It is
appropriate to calculate the royalty as a percentage of
the sale price and not of the increase in value of works
whose original value has increased.
(21) The categories of works of art subject to the resale right
should be harmonised.
(1) OJ L 145, 13.6.1977, p. 1. Directive as last amended by Directive
1999/85/EC (OJ L 277, 28.10.1999, p. 34). (2) OJ L 290, 24.11.1993, p. 9.
EN Official Journal of the European Communities 13.10.2001L 272/34
(22) The non-application of royalties below the minimum
threshold may help to avoid disproportionately high
collection and administration costs compared with the
profit for the artist. However, in accordance with the
principle of subsidiarity, the Member States should be
allowed to establish national thresholds lower than the
Community threshold, so as to promote the interests of
new artists. Given the small amounts involved, this
derogation is not likely to have a significant effect on the
proper functioning of the internal market.
(23) The rates set by the different Member States for the
application of the resale right vary considerably at
present. The effective functioning of the internal market
in works of modern and contemporary art requires the
fixing of uniform rates to the widest possible extent.
(24) It is desirable to establish, with the intention of reconciling
the various interests involved in the market for
original works of art, a system consisting of a tapering
scale of rates for several price bands. It is important to
reduce the risk of sales relocating and of the circumvention
of the Community rules on the resale right.
(25) The person by whom the royalty is payable should, in
principle, be the seller. Member States should be given
the option to provide for derogations from this principle
in respect of liability for payment. The seller is the
person or undertaking on whose behalf the sale is
concluded.
(26) Provision should be made for the possibility of periodic
adjustment of the threshold and rates. To this end, it is
appropriate to entrust to the Commission the task of
drawing up periodic reports on the actual application of
the resale right in the Member States and on the impact
on the art market in the Community and, where appropriate,
of making proposals relating to the amendment
of this Directive.
(27) The persons entitled to receive royalties must be specified,
due regard being had to the principle of subsidiarity.
It is not appropriate to take action through this
Directive in relation to Member States' laws of succession.
However, those entitled under the author must be
able to benefit fully from the resale right after his death,
at least following the expiry of the transitional period
referred to above.
(28) The Member States are responsible for regulating the
exercise of the resale right, particularly with regard to
the way this is managed. In this respect management by
a collecting society is one possibility. Member States
should ensure that collecting societies operate in a transparent
and efficient manner. Member States must also
ensure that amounts intended for authors who are
nationals of other Member States are in fact collected
and distributed. This Directive is without prejudice to
arrangements in Member States for collection and
distribution.
(29) Enjoyment of the resale right should be restricted to
Community nationals as well as to foreign authors
whose countries afford such protection to authors who
are nationals of Member States. A Member State should
have the option of extending enjoyment of this right to
foreign authors who have their habitual residence in that
Member State.
(30) Appropriate procedures for monitoring transactions
should be introduced so as to ensure by practical means
that the resale right is effectively applied by Member
States. This implies also a right on the part of the author
or his authorised representative to obtain any necessary
information from the natural or legal person liable for
payment of royalties. Member States which provide for
collective management of the resale right may also
provide that the bodies responsible for that collective
management should alone be entitled to obtain informa-
tion,
HAVE ADOPTED THIS DIRECTIVE:
CHAPTER I
SCOPE
Article 1
Subject matter of the resale right
1. Member States shall provide, for the benefit of the author
of an original work of art, a resale right, to be defined as an
inalienable right, which cannot be waived, even in advance, to
receive a royalty based on the sale price obtained for any resale
of the work, subsequent to the first transfer of the work by the
author.
2. The right referred to in paragraph 1 shall apply to all acts
of resale involving as sellers, buyers or intermediaries art
market professionals, such as salesrooms, art galleries and, in
general, any dealers in works of art.
3. Member States may provide that the right referred to in
paragraph 1 shall not apply to acts of resale where the seller
has acquired the work directly from the author less than three
years before that resale and where the resale price does not
exceed EUR 10 000.
4. The royalty shall be payable by the seller. Member States
may provide that one of the natural or legal persons referred to
in paragraph 2 other than the seller shall alone be liable or
shall share liability with the seller for payment of the royalty.
EN Official Journal of the European Communities13.10.2001 L 272/35
Article 2
Works of art to which the resale right relates
1. For the purposes of this Directive, `original work of art'
means works of graphic or plastic art such as pictures, collages,
paintings, drawings, engravings, prints, lithographs, sculptures,
tapestries, ceramics, glassware and photographs, provided they
are made by the artist himself or are copies considered to be
original works of art.
2. Copies of works of art covered by this Directive, which
have been made in limited numbers by the artist himself or
under his authority, shall be considered to be original works of
art for the purposes of this Directive. Such copies will normally
have been numbered, signed or otherwise duly authorised by
the artist.
CHAPTER II
PARTICULAR PROVISIONS
Article 3
Threshold
1. It shall be for the Member States to set a minimum sale
price from which the sales referred to in Article 1 shall be
subject to resale right.
2. This minimum sale price may not under any circumstances
exceed EUR 3 000.
Article 4
Rates
1. The royalty provided for in Article 1 shall be set at the
following rates:
(a) 4 % for the portion of the sale price up to EUR 50 000;
(b) 3 % for the portion of the sale price from EUR 50 000,01
to EUR 200 000;
(c) 1 % for the portion of the sale price from EUR 200 000,01
to EUR 350 000;
(d) 0,5 % for the portion of the sale price from
EUR 350 000,01 to EUR 500 000;
(e) 0,25 % for the portion of the sale price exceeding
EUR 500 000.
However, the total amount of the royalty may not exceed
EUR 12 500.
2. By way of derogation from paragraph 1, Member States
may apply a rate of 5 % for the portion of the sale price
referred to in paragraph 1(a).
3. If the minimum sale price set should be lower than
EUR 3 000, the Member State shall also determine the rate
applicable to the portion of the sale price up to EUR 3 000;
this rate may not be lower than 4 %.
Article 5
Calculation basis
The sale prices referred to in Articles 3 and 4 are net of tax.
Article 6
Persons entitled to receive royalties
1. The royalty provided for under Article 1 shall be payable
to the author of the work and, subject to Article 8(2), after his
death to those entitled under him/her.
2. Member States may provide for compulsory or optional
collective management of the royalty provided for under
Article 1.
Article 7
Third-country nationals entitled to receive royalties
1. Member States shall provide that authors who are
nationals of third countries and, subject to Article 8(2), their
successors in title shall enjoy the resale right in accordance
with this Directive and the legislation of the Member State
concerned only if legislation in the country of which the author
or his/her successor in title is a national permits resale right
protection in that country for authors from the Member States
and their successors in title.
2. On the basis of information provided by the Member
States, the Commission shall publish as soon as possible an
indicative list of those third countries which fulfil the condition
set out in paragraph 1. This list shall be kept up to date.
3. Any Member State may treat authors who are not
nationals of a Member State but who have their habitual residence
in that Member State in the same way as its own
nationals for the purpose of resale right protection.
Article 8
Term of protection of the resale right
1. The term of protection of the resale right shall correspond
to that laid down in Article 1 of Directive 93/98/EEC.
2. By way of derogation from paragraph 1, those Member
States which do not apply the resale right on (the entry into
force date referred to in Article 13), shall not be required, for a
period expiring not later than 1 January 2010, to apply the
resale right for the benefit of those entitled under the artist
after his/her death.
3. A Member State to which paragraph 2 applies may have
up to two more years, if necessary to enable the economic
operators in that Member State to adapt gradually to the resale
right system while maintaining their economic viability, before
it is required to apply the resale right for the benefit of those
entitled under the artist after his/her death. At least 12 months
before the end of the period referred to in paragraph 2, the
Member State concerned shall inform the Commission giving
its reasons, so that the Commission can give an opinion, after
appropriate consultations, within three months following the
receipt of such information. If the Member State does not
follow the opinion of the Commission, it shall within one
month inform the Commission and justify its decision. The
notification and justification of the Member State and the
opinion of the Commission shall be published in the Official
Journal of the European Communities and forwarded to the European
Parliament.
EN Official Journal of the European Communities 13.10.2001L 272/36
4. In the event of the successful conclusion, within the
periods referred to in Article 8(2) and (3), of international
negotiations aimed at extending the resale right at international
level, the Commission shall submit appropriate proposals.
Article 9
Right to obtain information
The Member States shall provide that for a period of three
years after the resale, the persons entitled under Article 6 may
require from any art market professional mentioned in Article
1(2) to furnish any information that may be necessary in order
to secure payment of royalties in respect of the resale.
CHAPTER III
FINAL PROVISIONS
Article 10
Application in time
This Directive shall apply in respect of all original works of art
as defined in Article 2 which, on 1 January 2006, are still
protected by the legislation of the Member States in the field of
copyright or meet the criteria for protection under the provisions
of this Directive at that date.
Article 11
Revision clause
1. The Commission shall submit to the European Parliament,
the Council and the Economic and Social Committee not
later than 1 January 2009 and every four years thereafter a
report on the implementation and the effect of this Directive,
paying particular attention to the competitiveness of the
market in modern and contemporary art in the Community,
especially as regards the position of the Community in relation
to relevant markets that do not apply the resale right and the
fostering of artistic creativity and the management procedures
in the Member States. It shall examine in particular its impact
on the internal market and the effect of the introduction of the
resale right in those Member States that did not apply the right
in national law prior to the entry into force of this Directive.
Where appropriate, the Commission shall submit proposals for
adapting the minimum threshold and the rates of royalty to
take account of changes in the sector, proposals relating to the
maximum amount laid down in Article 4(1) and any other
proposal it may deem necessary in order to enhance the effectiveness
of this Directive.
2. A Contact Committee is hereby established. It shall be
composed of representatives of the competent authorities of
the Member States. It shall be chaired by a representative of the
Commission and shall meet either on the initiative of the
Chairman or at the request of the delegation of a Member
State.
3. The task of the Committee shall be as follows:
-- to organise consultations on all questions deriving from
application of this Directive,
-- to facilitate the exchange of information between the
Commission and the Member States on relevant developments
in the art market in the Community.
Article 12
Implementation
1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive before 1 January 2006. They shall forthwith inform
the Commission thereof.
When Member States adopt these measures, they shall contain
a reference to this Directive or shall be accompanied by such
reference on the occasion of their official publication. The
methods of making such a reference shall be laid down by the
Member States.
2. Member States shall communicate to the Commission the
provisions of national law which they adopt in the field
covered by this Directive.
Article 13
Entry into force
This Directive shall enter into force on the day of its publication
in the Official Journal of the European Communities.
Article 14
Addressees
This Directive is addressed to the Member States.
Done at Brussels, 27 September 2001.
For the European Parliament
The President
N. FONTAINE
For the Council
The President
C. PICQUÉ