IP/N/1/EU/C/6  
 
12 April 2013  
(13-1934)  Page: 1/7  
Council for Trade-Related Aspects 
of Intellectual Property Rights  Original: English/anglais/inglés  
 
 MAIN DEDICATED INTELLECTUAL PROPERTY LAWS AND 
REGULATIONS NOTIFIED UNDER ARTICLE 63.2 
OF THE AGREEMENT 
EUROPEAN UNION 
This document reproduces the text1 of Directive 2001/84/EC of the European Parliament and of the 
Council of 27 September2001 on the resale right for th e benefit of the author of an original work of 
art, as notified by the European Union on 20 March 2013 under Article 63.2 of the Agreement (see document IP/N/1/EU/1). 
 
Conseil des aspects des droits de propriété 
intellectuelle qui touchent au commerce 
 
PRINCIPALES LOIS ET RÉGLEMENTATIONS CONSACRÉES À 
LA PROPRIÉTÉ INTELLECTUELLE NOTIFIÉES AU TITRE 
DE L'ARTICLE 63:2 DE L'ACCORD 
UNION EUROPÉENNE  
Le présent document contient le texte1 de la Directive 2001/84/CE du Parlement européen et du 
Conseil du 27 septembre 2001 relative au droit de suite au profit de l'auteur d'une œuvre d'art 
originale, notifiée par l'Union européenne le 20 mars 2013 au titre de l'article 63:2 de l'Accord (voir le document IP/N/1/EU/1). 
 
Consejo de los Aspectos de los Derechos de Propiedad 
Intelectual relacionados con el Comercio 
 
PRINCIPALES LEYES Y REGLAMENTOS DEDICADOS A LA 
PROPIEDAD INTELECTUAL NOTIFICADOS EN VIRTUD 
DEL PÁRRAFO 2 DEL ARTÍCULO 63 DEL ACUERDO 
UNIÓN EUROPEA  
En el presente documento se reproduce el texto1 de la Directiva 2001/84/CE del Parlamento 
Europeo y del Consejo, de 27 de septiembre de 2001, relativa al derecho de participación en 
beneficio del autor de una obra de arte original, notificado por la Unión Europea el 20 de marzo 
de 2013 en virtud de lo dispuesto en el párrafo 2 del artículo 63 del Acuerdo (véase el documento IP/N/1/EU/1). 
                                               
1 In English only./En anglais seulement./En inglés solamente. IP/N/1/EU/C/6 
 
- 2 - 
 
  PP 3-7 - Offset (Pdf file attached) 
PP 3 à 7 - Offset (fichier Pdf joint) PP 3-7 - Offset (fichero Pdf adjunto) EN OfficialJournaloftheEuropeanCommunities 13.10.2001 L272/32
DIRECTIVE 2001/84/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 27 September2001
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 Article251 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 unassig-
nable and inalienable right, enjoyed by the author of anoriginal work of graphic or plastic art, to an economicinterest in successive sales of the work concerned.
(2)The resale right is a right of a productive characterwhich enables the author/artist to receive considerationfor successive transfers of the work. The subject-matterof the resale right is the physical work, namely themedium in which the protected work is incorporated.
(3)The resale right is intended to ensure that authors ofgraphic and plastic works of art share in the economicsuccess of their original works of art. It helps to redressthe balance between the economic situation of authorsof graphic and plastic works of art and that of othercreators who benefit from successive exploitations oftheir works.
(4)The resale right forms an integral part of copyright andis an essential prerogative for authors. The imposition ofsuch a right in all Member States meets the need forproviding creators with an adequate and standard levelof protection.
(5)Under Article 151(4) of the Treaty the Community is totake cultural aspects into account in its action underother provisions of the Treaty.
(6)The Berne Convention for the Protection of Literary andArtistic Works provides that the resale right is availableonly if legislation in the country to which the authorbelongs so permits. The right is therefore optional andsubject to the rule of reciprocity. It follows from thecase-law of the Court of Justice of the EuropeanCommunities on the application of the principle of non-discrimination laid down in Article 12 of the Treaty, asshown in the judgment of 20 October 1993 in JoinedCases C-92/92 and C-326/92 Phil Collins and Others(
4),
that domestic provisions containing reciprocity clausescannot be relied upon in order to deny nationals ofother Member States rights conferred on nationalauthors. The application of such clauses in theCommunity context runs counter to the principle ofequal treatment resulting from the prohibition of anydiscrimination on grounds of nationality.
(7)The process of internationalisation of the Communitymarket in modern and contemporary art, which is nowbeing speeded up by the effects of the new economy, ina regulatory context in which few States outside the EUrecognise the resale right, makes it essential for theEuropean Community, in the external sphere, to opennegotiations with a view to making Article 14b of theBerne Convention compulsory.
(8)The fact that this international market exists, combinedwith the lack of a resale right in several Member Statesand the current disparity as regards national systemswhich recognise that right, make it essential to lay downtransitional provisions as regards both entry into forceand the substantive regulation of the right, which willpreserve the competitiveness of the European market.
(9)The resale right is currently provided for by thedomestic legislation of a majority of Member States.Such laws, where they exist, display certain differences,notably as regards the works covered, those entitled toreceive royalties, the rate applied, the transactionssubject to payment of a royalty, and the basis on whichthese are calculated. The application or non-applicationof such a right has a significant impact on the competi-tive environment within the internal market, since theexistence or absence of an obligation to pay on the basisof the resale right is an element which must be takenintoaccountbyeachindividualwishingtosellaworkofart. This right is therefore a factor which contributes tothe creation of distortions of competition as well asdisplacement of sales within the Community.
(10)Suchdisparitieswithregardtotheexistenceoftheresaleright and its application by the Member States have adirect negative impact on the proper functioning of theinternal market in works of art as provided for byArticle14oftheTreaty.InsuchasituationArticle95ofthe 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 (OJC 232, 17.8.2001, p. 173). Decision of the European Parliament of3 July 2001 and Decision of the Council of 19 July 2001. (
4) [1993] ECRI-5145.
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(11)TheobjectivesoftheCommunityassetoutintheTreaty
include laying the foundations of an ever closer unionamong the peoples of Europe, promoting closer rela-tions between the Member States belonging to theCommunity, and ensuring their economic and socialprogress by common action to eliminate the barrierswhichdivideEurope.TothatendtheTreatyprovidesforthe establishment of an internal market which presup-poses the abolition of obstacles to the free movement ofgoods, freedom to provide services and freedom ofestablishment, and for the introduction of a systemensuring that competition in the common market is notdistorted. Harmonisation of Member States' laws on theresale right contributes to the attainment of these objec-tives.
(12)The Sixth Council Directive (77/388/EEC) of 17 May1977 on the harmonisation of the laws of the MemberStates relating to turnover taxes — common system ofvalueaddedtax:uniformbasisofassessment(
1),progres-
sively introduces a Community system of taxationapplicable inter aliato works of art. Measures confined
to the tax field are not sufficient to guarantee theharmoniousfunctioningoftheartmarket.Thisobjectivecannot be attained without harmonisation in the field ofthe resale right.
(13)Existing differences between laws should be eliminatedwhere they have a distorting effect on the functioning ofthe internal market, and the emergence of any newdifferences of that kind should be prevented. There is noneed to eliminate, or prevent the emergence of, differ-enceswhichcannotbeexpectedtoaffectthefunctioningof the internal market.
(14)A precondition of the proper functioning of the internalmarket is the existence of conditions of competitionwhich are not distorted. The existence of differencesbetween national provisions on the resale right createsdistortions of competition and displacement of saleswithin the Community and leads to unequal treatmentbetween artists depending on where their works aresold. The issue under consideration has therefore trans-national aspects which cannot be satisfactorily regulatedby action by Member States. A lack of Communityaction would conflict with the requirement of the Treatyto correct distortions of competition and unequal treat-ment.
(15)In view of the scale of divergences between nationalprovisionsitisthereforenecessarytoadoptharmonisingmeasurestodealwithdisparitiesbetweenthelawsoftheMember States in areas where such disparities are liableto create or maintain distorted conditions ofcompetition. It is not however necessary to harmoniseevery provision of the Member States' laws on the resaleright and, in order to leave as much scope for nationaldecision as possible, it is sufficient to limit the harmoni-sation exercise to those domestic provisions that havethemostdirectimpactonthefunctioningoftheinternalmarket.
(16)ThisDirectivecompliestherefore,initsentirety,withtheprinciples of subsidiarity and proportionality as laiddown in Article 5 of the Treaty.
(17)Pursuant to Council Directive 93/98/EEC of 29 October1993 harmonising the term of protection of copyrightand certain related rights(
2), the term of copyright runs
for 70 years after the author's death. The same periodshould be laid down for the resale right. Consequently,only the originals of works of modern and contempo-rary art may fall within the scope of the resale right.However, in order to allow the legal systems of MemberStates which do not, at the time of the adoption of thisDirective, apply a resale right for the benefit of artists toincorporate this right into their respective legal systemsand, moreover, to enable the economic operators inthoseMemberStatestoadaptgraduallytotheaforemen-tioned right whilst maintaining their economic viability,the Member States concerned should be allowed alimited transitional period during which they maychoose not to apply the resale right for the benefit ofthose entitled under the artist after his death.
(18)The scope of the resale right should be extended to allacts of resale, with the exception of those effecteddirectly between persons acting in their private capacitywithout the participation of an art market professional.This right should not extend to acts of resale by personsacting in their private capacity to museums which arenot for profit and which are open to the public. Withregard to the particular situation of art galleries whichacquire works directly from the author, Member Statesshould be allowed the option of exempting from theresale right acts of resale of those works which takeplace within three years of that acquisition. The interestsof the artist should also be taken into account bylimiting this exemption to such acts of resale where theresale price does not exceed EUR10000.
(19)It should be made clear that the harmonisation broughtabout by this Directive does not apply to original manu-scripts of writers and composers.
(20)Effective rules should be laid down based on experiencealready gained at national level with the resale right. It isappropriate to calculate the royalty as a percentage ofthe sale price and not of the increase in value of workswhose original value has increased.
(21)The categories of works of art subject to the resale rightshould 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.
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(22)The non-application of royalties below the minimum
threshold may help to avoid disproportionately highcollection and administration costs compared with theprofit for the artist. However, in accordance with theprinciple of subsidiarity, the Member States should beallowed to establish national thresholds lower than theCommunity threshold, so as to promote the interests ofnew artists. Given the small amounts involved, thisderogationisnotlikelytohaveasignificanteffectontheproper functioning of the internal market.
(23)The rates set by the different Member States for theapplication of the resale right vary considerably atpresent. The effective functioning of the internal marketin works of modern and contemporary art requires thefixing of uniform rates to the widest possible extent.
(24)It is desirable to establish, with the intention of recon-ciling the various interests involved in the market fororiginal works of art, a system consisting of a taperingscale of rates for several price bands. It is important toreduce the risk of sales relocating and of the circumven-tion of the Community rules on the resale right.
(25)The person by whom the royalty is payable should, inprinciple, be the seller. Member States should be giventheoptiontoprovideforderogationsfromthisprinciplein respect of liability for payment. The seller is theperson or undertaking on whose behalf the sale isconcluded.
(26)Provision should be made for the possibility of periodicadjustment of the threshold and rates. To this end, it isappropriate to entrust to the Commission the task ofdrawing up periodic reports on the actual application ofthe resale right in the Member States and on the impacton the art market in the Community and, where appro-priate, of making proposals relating to the amendmentof this Directive.
(27)The persons entitled to receive royalties must be speci-fied, due regard being had to the principle of subsi-diarity. It is not appropriate to take action through thisDirective in relation to Member States' laws of succes-sion. However, those entitled under the author must beable to benefit fully from the resale right after his death,at least following the expiry of the transitional periodreferred to above.
(28)The Member States are responsible for regulating theexercise of the resale right, particularly with regard tothe way this is managed. In this respect management bya collecting society is one possibility. Member Statesshould ensure that collecting societies operate in a trans-parent and efficient manner. Member States must alsoensure that amounts intended for authors who arenationals of other Member States are in fact collectedand distributed. This Directive is without prejudice toarrangements in Member States for collection anddistribution.
(29)Enjoyment of the resale right should be restricted toCommunity nationals as well as to foreign authorswhose countries afford such protection to authors whoare nationals of Member States. A Member State shouldhave the option of extending enjoyment of this right toforeignauthorswhohavetheirhabitualresidenceinthatMember State.
(30)Appropriate procedures for monitoring transactionsshould be introduced so as to ensure by practical meansthat the resale right is effectively applied by MemberStates.Thisimpliesalsoarightonthepartoftheauthoror his authorised representative to obtain any necessaryinformation from the natural or legal person liable forpayment of royalties. Member States which provide forcollective management of the resale right may alsoprovide that the bodies responsible for that collectivemanagement should alone be entitled to obtain informa-tion,
HAVE ADOPTED THIS DIRECTIVE:
CHAPTERI
SCOPE
Article 1
Subject matter of the resale right
1. Member States shall provide, for the benefit of the authorof an original work of art, a resale right, to be defined as aninalienable right, which cannot be waived, even in advance, toreceive a royalty based on the sale price obtained for any resaleof the work, subsequent to the first transfer of the work by theauthor.
2. The right referred to in paragraph 1 shall apply to all acts
of resale involving as sellers, buyers or intermediaries artmarket professionals, such as salesrooms, art galleries and, ingeneral, 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 sellerhas acquired the work directly from the author less than threeyears before that resale and where the resale price does notexceed EUR10000.
4. The royalty shall be payable by the seller. Member States
mayprovidethatoneofthenaturalorlegalpersonsreferredtoin paragraph 2 other than the seller shall alone be liable orshall share liability with the seller for payment of the royalty.
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Article 2
Works of art to which the resale right relates
1. For the purposes of this Directive, ‘original work of art’
meansworksofgraphicorplasticartsuchaspictures,collages,paintings, drawings, engravings, prints, lithographs, sculptures,tapestries, ceramics, glassware and photographs, provided theyare made by the artist himself or are copies considered to beoriginal works of art.
2. Copies of works of art covered by this Directive, which
have been made in limited numbers by the artist himself orunder his authority, shall be considered to be original works ofartforthepurposesofthisDirective.Suchcopieswillnormallyhave been numbered, signed or otherwise duly authorised bythe artist.
CHAPTERII
PARTICULAR PROVISIONS
Article 3
Threshold
1. It shall be for the Member States to set a minimum saleprice from which the sales referred to in Article 1 shall besubject to resale right.
2. This minimum sale price may not under any circum-
stances exceed EUR3000.
Article 4
Rates
1. The royalty provided for in Article 1 shall be set at thefollowing rates:
(a) 4% for the portion of the sale price up to EUR50000;
(b) 3% for the portion of the sale price from EUR50000,01
to EUR200000;
(c) 1%fortheportionofthesalepricefromEUR200000,01
to EUR350000;
(d) 0,5% for the portion of the sale price from
EUR350000,01 to EUR500000;
(e) 0,25% for the portion of the sale price exceeding
EUR500000.
However, the total amount of the royalty may not exceedEUR12500.
2. By way of derogation from paragraph 1, Member States
may apply a rate of 5% for the portion of the sale pricereferred to in paragraph 1(a).
3. If the minimum sale price set should be lower than
EUR3000, the Member State shall also determine the rateapplicable to the portion of the sale price up to EUR3000;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 payableto the author of the work and, subject to Article 8(2), after hisdeath to those entitled under him/her.
2. Member States may provide for compulsory or optional
collective management of the royalty provided for underArticle 1.
Article 7
Third-country nationals entitled to receive royalties
1. Member States shall provide that authors who arenationals of third countries and, subject to Article 8(2), theirsuccessors in title shall enjoy the resale right in accordancewith this Directive and the legislation of the Member Stateconcernedonlyiflegislationinthecountryofwhichtheauthoror his/her successor in title is a national permits resale rightprotection in that country for authors from the Member Statesand their successors in title.
2. On the basis of information provided by the Member
States, the Commission shall publish as soon as possible anindicativelistofthosethirdcountrieswhichfulfiltheconditionset 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 resi-dence in that Member State in the same way as its ownnationals 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 corre-spond 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 intoforce date referred to in Article 13), shall not be required, for aperiod expiring not later than 1 January 2010, to apply theresale right for the benefit of those entitled under the artistafter his/her death.
3. A Member State to which paragraph 2 applies may have
up to two more years, if necessary to enable the economicoperators in that Member State to adapt gradually to the resaleright system while maintaining their economic viability, beforeit is required to apply the resale right for the benefit of thoseentitled under the artist after his/her death. At least 12 monthsbefore the end of the period referred to in paragraph 2, theMember State concerned shall inform the Commission givingits reasons, so that the Commission can give an opinion, afterappropriate consultations, within three months following thereceipt of such information. If the Member State does notfollow the opinion of the Commission, it shall within onemonth inform the Commission and justify its decision. Thenotification and justification of the Member State and theopinion of the Commission shall be published in the Official
Journal of the European Communities and forwarded to the Euro-
pean Parliament.
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4. In the event of the successful conclusion, within the
periods referred to in Article 8(2) and (3), of internationalnegotiations aimed at extending the resale right at internationallevel, the Commission shall submit appropriate proposals.
Article 9
Right to obtain information
The Member States shall provide that for a period of threeyears after the resale, the persons entitled under Article 6 mayrequire from any art market professional mentioned in Article1(2) to furnish any information that may be necessary in orderto secure payment of royalties in respect of the resale.
CHAPTERIII
FINAL PROVISIONS
Article 10
Application in time
This Directive shall apply in respect of all original works of artas defined in Article 2 which, on 1 January 2006, are stillprotected by the legislation of the Member States in the field ofcopyright or meet the criteria for protection under the provi-sions of this Directive at that date.
Article 11
Revision clause
1. The Commission shall submit to the European Parlia-ment,theCouncilandtheEconomicandSocialCommitteenotlater than 1 January 2009 and every four years thereafter areport on the implementation and the effect of this Directive,paying particular attention to the competitiveness of themarket in modern and contemporary art in the Community,especially as regards the position of the Community in relationto relevant markets that do not apply the resale right and thefostering of artistic creativity and the management proceduresin the Member States. It shall examine in particular its impacton the internal market and the effect of the introduction of theresale right in those Member States that did not apply the rightin national law prior to the entry into force of this Directive.Where appropriate, the Commission shall submit proposals foradapting the minimum threshold and the rates of royalty totake account of changes in the sector, proposals relating to themaximum amount laid down in Article 4(1) and any otherproposal it may deem necessary in order to enhance the effec-tiveness of this Directive.2. A Contact Committee is hereby established. It shall becomposed of representatives of the competent authorities oftheMemberStates.ItshallbechairedbyarepresentativeoftheCommission and shall meet either on the initiative of theChairman or at the request of the delegation of a MemberState.
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 develop-
ments in the art market in the Community.
Article 12
Implementation
1. Member States shall bring into force the laws, regulationsand administrative provisions necessary to comply with thisDirective before 1 January 2006. They shall forthwith informthe Commission thereof.
When Member States adopt these measures, they shall contain
a reference to this Directive or shall be accompanied by suchreference on the occasion of their official publication. Themethods of making such a reference shall be laid down by theMember States.
2. Member States shall communicateto the Commission the
provisions of national law which they adopt in the fieldcovered by this Directive.
Article 13
Entry into force
This Directive shall enter into force on the day of its publica-tion 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. FONTAINEFor the Council
The President
C. PICQUÉ
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