The Artists’ Resale Right (“ARR”) consists in the entitlement of visual artists to receive a royalty (i.e. a share
of the proceeds) on the re-sale of their original works, provided that an art-market professional is involved in
that sale and the sale price is above a specified minimum threshold.
The ARR is intended primarily to make sure that visual artists share in the value of the works they created, to
redress the unfairness between visual artists and creators who benefit from the sale of copies of their works
and to promote artistic creation. ARR forms an integral part of copyright and is an essential prerogative for
visual artists. The major criticism moved against the ARR is that it benefits only a handful of artists who are
already successful by themselves; however, ARR is not meant to be a welfare scheme to help artists in need.
II. ARR in the EU
The ARR has been harmonized in the European Union with the adoption of the Directive 2001/84/EC of 27
September 2001, which entered into force in its entirety on 1st January 2012. The ARR under the Resale Right
Directive is due when:
- an original work of art, meaning a work “of graphic or plastic art such as pictures, collages, paintings,
drawings, engravings, prints, lithographs, sculptures, tapestries, ceramics, glassware and photographs made
by the artist himself” or a copy considered as an original work of art because it has “been made in limited
numbers by the artist himself or under his authority”; such copies will normally have been numbered, signed
or otherwise duly authorised by the artist (art. 2 of the Resale Right Directive);
- by an artist who is a national of a Member State (or is a national of a third country and has a habitual
residence in a Member State, if the national legislation of said Member State so foresees) or of another
country under the condition of reciprocity (art. 7 of the Resale Right Directive);
- is resold through, as sellers, buyers or intermediaries, art market professionals, such as salesrooms, art
galleries and, in general, any dealers in works of art (art. 1 of the Resale Right Directive);
- for a minimum sale price Member States are allowed to set, which may not under any circumstances exceed
EUR 3’000 (art. 1 of the Resale Right Directive). This threshold amounts to EUR 400 in Germany (§26 of the
UrhG), to EUR 3’000 in Italy (art. 150 Legge sulla protezione del diritto d’autore), to EUR 750 in France (art.
R122-5 Code de la Propriété Intellectuelle) and to the equivalent in GBP of EUR 1’000 in UK (par. 12.3 (b) of
the Artist’s Resale Right Regulations 2006);
- during the term of protection, which runs for the life of the author and for 70 years after his death (art. 8
of the Resale Right Directive in relation with art. 1 of the Council Directive 93/98/EEC of 29 October 1993
harmonizing the term of protection of copyright and certain related rights).
The ARR is pa
buyer or the intermediary are liable alone or shall share liability with the seller for the payment of the royalty
(art. 1.4 of the Resale Right Directive).
The Resale Right Directive foresees a sliding-rates grid set forth in its art. 4: (a) 4 % for the portion of the sale
price up to EUR 50’000; (b) 3 % from EUR 50’000,01 to EUR 200’000; (c) 1 % from EUR 200’000,01 to EUR
350’000; (d) 0,5 % from EUR 350’000,01 to EUR 500’000; (e) 0,25 % for the portion of the sale price exceeding
EUR 500’000. The maximum resale royalty is capped at EUR 12’500, which would be due on a re-sale price of
The ARR does not apply to private sales, i.e. sales made between persons acting in their private capacity
without the participation of an art market professional.
III. ARR in Switzerland?
Switzerland does not provide for an ARR in its legal system, even though there have been at least four
attempts by Swiss members of the parliament, to introduce the ARR in Switzerland in the last 20 years.
As a consequence, artists who are Swiss nationals, as a general rule, do not benefit from the EU resale right
provisions. There being no ARR in Switzerland, Swiss artists cannot invoke the application of the principle of
reciprocity laid down in art. 7 of the Resale Right Directive. There are, however, a few exceptions for Swiss
artists residing in the EU. In France, under art. r122-4 of the Code de la propriété intellectuelle, artists from
third countries, like Switzerland, may be entitled to a royalty payment if they have been resident in France for
at least 5 years and, during their artistic career, have participated in French artistic life..
Italian law (art. 146 c.
2 of the Legge sulla protezione del diritto d’autore) provides for the equal treatment of Italian artists and
artists who are nationals of third countries residing in Italy. Artists who are permanent residents of the
Netherlands qualifies, as well. UK and Germany, on the contrary, do not have similarly favorable provisions.
IV. ARR and the Art Market Professionals
Generally speaking, the art trade, especially in UK, expressed serious concerns when the ARR was harmonized
in the EU. The arguments voiced by art market professionals against the ARR encompass:
i. the danger of sales diversion due to unfair competition from galleries, art dealers and auction
houses based in jurisdictions where no such royalty exists, such as, to cite only the major art markets,
the USA, Switzerland, China and Hong Kong;
ii. the increased transaction costs; deriving from the royalty and/or the absorption of the royalties’
cost by the art market professionals, would negatively impact on the volume of deals concluded or
on the margins of the art trade;
iii. the purchase of artworks from young artists by dealers would dry up, favouring consignment
agreements with sale or return clauses instead;
iv. the unfairness of the fact that the resale right is payable irrespective of any profit made by the art
market professional, i.e. ARR is payable even though a work of art is sold at a loss;
v. the so-called cascade effect, or double-payment effect, affecting works bought and sold in quick
successive related transactions, before being sold to a final collector;
vi. the administrative burden and therefore the costs associated with the paperwork necessary to
comply with the ARR. These administrative tasks involve, on the one hand, the communication of
the sale’s details and the payment of the royalty to the collecting society in charge, dealt with by the
art market professional and, on the other hand, the processing of the notification, the finding of the
artists or their heirs and the payment of the royalty, which are the responsibility of the collecting
The ARR affects the primary and the secondary art market in different manners: the primary art market is
almost spared, provided that the “first” sales are structured in the appropriate way, i.e. a direct sale from the
artist to the collector, while the art market professional involved acts as a broker. The secondary market on
the other hand, especially for well-known international artists, may experience troubles.
V. ARR and the Risk of Sales Diversion
The Resale Right Directive apparently does not foresee the application of the royalty to sale contracts for art
works concluded outside the EU, even if persons residing in the EU are involved. According to Matthias
Weller, if all the relevant elements of the sale are agreed upon outside the EU, e.g. at an Art Fair in
Switzerland (the work of art, the price and any other subjectively essential element of the deal) and the
transfer of title occurs in Switzerland, no resale right royalty in the EU is due.
However, the ARR represents one – and not the highest – of the many transaction costs imposed on all market
participants and pales in comparison to others costs, such as the hammer’s fees charged by auction houses
or the indirect taxation (VAT). The cap at EUR 12’500 foreseen by the Resale Right Directive represents a good
compromise to fend off any tendency to divert sales in countries where the ARR does not apply.
Lugano, 10th April 2019
This is an excerpt of a more comprehensive analysis, for more details contact: Claudio Simonetti,
Since the election of President Macron in May 2017, numerous reforms have taken place in France
- reform of labour law with more flexible dismissal of employees. Compensation in case of unwarranted dismissal is now limited
- reform of the social system for professionals
- fiscal reform
- with the suppression of patrimony tax on shares and bonds
- creation of a flat tax of 30 % on the income of shares and bonds
- decrease of corporate tax from 33 % to 25 % until 2022
- reform of the railway status and railway employees status
More reforms in the following fields are planed
- reform of vocational training
- reform of apprenticeship
- reform of unemployment insurance
- a major reform of pensions is to come into force in 2019
I remain at your disposal for any questions arising from these reforms that you may have.
Avocat à la Cour
26 Avenue de la Grande Armée
Tel. 00 33 1 45 63 28 20 – Fax 00 33 1 45 63 28 12
In the preparation of the up-coming , a press conference was held on 3 October, in which Dan Mihai - Partner and Coordinator of the Sports & Anti-Doping Law practice, explained from a legal perspective the importance of governance in sport.
Sports competitions and sport in general mean organization and rigor. Transposing them into rules provides a degree of comfort to all those who are part of this phenomenon: organizers, sponsors, participants, spectators. In any competition organized under the aegis of an International Federation, all aspects are detailed and carefully checked to meet the standards required for these events. The requirements imposed by IAAF to obtain the "Bronze Label" are no exception. We have tried to adapt the Marathon Regulation to transpose both the IAAF requirements for organizing a "Bronze Label" certified event, as well as to trace certain aspects pointed-out by the participants in previous editions.
The fact that the organizers of the Bucharest Marathon understood that governance in sport, an area that is still poor in Romania, is just as important as the corporate governance we are used to denotes that this event is a leader in professionalizing and imposing a model of organizing a sports competition addressed to elite athletes as well as to amateur and sports fans in general.
This is one of the reasons why such an event should be supported, in the conditions in which Bucharest, due to infrastructure problems, lost in the last year the organization of two major sports events: the ATP tennis tournament in favour of Budapest and the European Gymnastics Championship in favour of Cluj.
Jinaru, Mihai & Noțingher
Law offices and Tax advisors
Based on European Union legislation an employee (worker) is entitled to paid annual leave. Nevertheless, the directive based on which the worker is entitled to such paid leave does not give a detailed explanation on the amount of remuneration that should be paid for those vacation days. There is case-law from the European Court of Justice, which clarifies the amount of remuneration that should be paid for the vacation days. Basically the European Court of Justice has ruled that annual leave remuneration must be maintained at the level the worker would have received if he would have been working.
Occasional of ancillary costs need not be taken into account in the calculation of payment of annual leave. All other remuneration which has an intrinsic link to the performance of work by the employee should be part of the remuneration during annual leave.
This means that compensation such as the allowances for irregular working times, structural commission payments, holiday allowance etc. should be taken into consideration when determining the financial value of vacation days. The same will apply to average bonus payments if there is an intrinsic link between this bonus payment and the performance of the task by the employee.
These rulings by the European Court of Justice have more recently received the interest of trade unions and individual employees in The Netherlands. This also led to several lower court rulings in which the value of a vacation day is clarified. Many employers in The Netherlands have apparently not adjusted the way of calculating the financial value of outstanding holidays, which is of course generally an issue when it comes to termination of the employment contract.
It is up to the national courts of the European member states to determine whether there is an intrinsic connection between certain part of the remuneration and the work performed. In general, however it is important for the entrepreneurs to reconsider if they comply with those European Court of Justice rulings.
In case you have any further questions with regard to this topic, feel free to contact our attorneys at law at the different member states of our Proteus network.
The European Commission's Communication on Ten Years of Council Regulation 1/2003 identified numerous potential scopes for action to make the national competition authorities even more effective enforcers. The proposal for new rules by the Commission dated on 22 March, 2017 follows the public consultation on empowering national competition authorities to be more effective, which the Commission launched in November 2015. (To allow national specificities to be respected the proposal for new rules takes the form of a Directive.)
The Commission in the Executive Summary of the Impact Assessment dated on 22 March, 2017 which accompanies the Proposal for the Directive detailed above highlighted the role of the Member States' competition authorities in the protection of the well-functioning Single Market and protection of the interests of the European consumers and businesses.
The Executive Summary stated that due to the malfunctions of the operation of law in each year losses of € 181- 320 billion accrue due to undiscovered cartels which typically increase prices by 17 to 30 %. The commission identified the following main problems causing the deficiency of the effective Member State law enforcement:
1. lack of effective tools;
2. lack of power to impose retentive fines;
3. divergences in leniency programmes between Member States;
4. lack of resources and independency.
The public consultation which closed on 12 February 2016 and in meetings with stakeholders confirmed that all categories of respondents (including companies and industry associations, law firms, consumer organisations and public authorities) agreed that actions should be taken to empower the Member States' competition authorities to be more effective enforcers.
According to the Press Release of the Commission on the proposed rules, the directive is intended to provide the national competition authorities with a ‘minimum common toolkit’ as follows:
1. total independency and impartiality;
2. proper financial and human resources;
3. powers to gather all relevant evidence (such as the right to search mobile phones, laptops and tablets);
4. adequate tools to impose proportionate and retentive sanctions;
5. develop coordinated leniency programmes which encourage companies to come forward with evidence of illegal cartels.
The above detailed ‘minimum common toolkit’ also enables the authorities to take united actions against escaping fines through corporate re-structuring.
In our opinion a coordinated practice of national enforcement actions may also increase the legal certainty and stability providing predictable judgments however we indubitably agree with the statement of the Executive Summary according to which it is indispensable to ensure the due respect for fundamental rights.
The Hungarian Competition Authority, with the active participation of the Hungarian and international legal experts, is organising a Forum in June, 2017, whereby, amongst others, the above topic will be discussed in more detail.
The summary of the legislative initiatives above is not by any means exhaustive and has a purely informative nature.
Riesz & Péteri - Attorneys at Laws
dr. Tamás Riesz / dr. Csaba Bíró
Budapest, 25 May, 2017