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
Official Journal L 272 , 13/10/2001 P. 0032 – 0036
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,
(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
(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
non-discrimination 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
(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
(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.
(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 objectives.
(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(5), 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 treatment.
(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(6), 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 10000.
(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
(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
(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
(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
HAVE ADOPTED THIS DIRECTIVE:
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 10000.
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.
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
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 3000.
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 50000;
(b) 3 % for the portion of the sale price from EUR 50000,01 to EUR 200000;
(c) 1 % for the portion of the sale price from EUR 200000,01 to EUR 350000;
(d) 0,5 % for the portion of the sale price from EUR 350000,01 to EUR 500000;
(e) 0,25 % for the portion of the sale price exceeding EUR 500000.
However, the total amount of the royalty may not exceed EUR 12500.
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 3000, the Member State
shall also determine the rate applicable to the portion of the sale price up to
EUR 3000; this rate may not be lower than 4 %.
The sale prices referred to in Articles 3 and 4 are net of tax.
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
2. Member States may provide for compulsory or optional collective management of
the royalty provided for under Article 1.
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
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.
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
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.
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
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.
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.
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
3. The task of the Committee shall be as follows:
- to organise consultations on all questions deriving from application of this
- to facilitate the exchange of information between the Commission and the
Member States on relevant developments in the art market in the Community.
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.
Entry into force
This Directive shall enter into force on the day of its publication in the
Official Journal of the European Communities.
This Directive is addressed to the Member States.
Done at Brussels, 27 September 2001.
For the European Parliament
For the Council
(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)  ECR I-5145.
(5) 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).
(6) OJ L 290, 24.11.1993, p. 9.