REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE Report on the Implementation and Effect of the Resale Right Directive (2001/84/EC)
Date: 2011-12-14
Institutions: European Commission
Subjects: artist's resale right, artistic creation, auction sale, bracket price, culture industry, fine arts, literary and artistic property

EUROPEAN COMMISSION 

Brussels, 14.12.2011 
COM(2011) 878 final 

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE 
COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE 

Report on the Implementation and Effect of the Resale Right Directive (2001/84/EC) 

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TABLE OF CONTENTS 

1. 

1.1. 

1.2. 

1.3. 

2. 

2.1. 

2.2. 

Introduction .................................................................................................................. 3 

The aims of the Directive............................................................................................. 3 

The objective of this Report......................................................................................... 3 

Procedural issues and consultation of interested parties .............................................. 4 

Effects of the Directive ................................................................................................ 4 

Background - the Global Art Market ........................................................................... 4 

Competitiveness of the market in modern and contemporary art in the EU in relation 
to relevant markets that do not apply the resale right .................................................. 4 

2.2.1.  Auction sales of the works of living artists.................................................................. 5 

2.2.2.  Auction sales of works of deceased artists................................................................... 5 

2.3. 

Impact on the Internal Market...................................................................................... 6 

2.3.1.  Auction sales of the works of living and deceased artists............................................ 6 

2.3.2.  Changes in overall market share .................................................................................. 7 

2.4. 

Factors affecting the development of art markets ........................................................ 7 

2.4.1.  Mobility in the higher price brackets ........................................................................... 7 

2.4.2.  Administrative burden in the lower price brackets ...................................................... 8 

3. 

3.1. 

3.2. 

Implementation Issues at national Level...................................................................... 8 

The royalty rates........................................................................................................... 8 

Management procedures .............................................................................................. 8 

3.2.1.  Administrative costs..................................................................................................... 8 

3.2.2.  Costs for collecting societies........................................................................................ 9 

3.2.3.  The "cascade effect"..................................................................................................... 9 

4. 

Impact on Artists .......................................................................................................... 9 

4.1. 

Benefits and costs for artists ........................................................................................ 9 

5. 

Conclusions ................................................................................................................ 10 

5.1. 

Competitiveness of European markets....................................................................... 10 

Annex 1 .................................................................................................................................... 12 

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1. 

INTRODUCTION 

1.1. 

The aims of the Directive 

The  Resale  Right  Directive  (2001/84/EC  of  27  September  2001)  ('the  Directive')  was 
conceived with two major objectives in mind: to "ensure that authors of graphic and plastic 
works  of  art  share  in  the  economic  success  of  their  original  works  of  art"1  on  the  one  hand 
and, on the other, to harmonise the application of the right across the EU. It was considered 
that  "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."2 

Consistent  with  these  aims,  the  Directive  promoted  harmonisation  of  the  substantive 
conditions for the application of the resale right: (i) eligibility and the duration of protection; 
(ii) the categories of works of art to which the resale right applies; (iii) the scope of the acts to 
be  covered  i.e.  all  acts  involving  dealers  in  works  of  art;  (iv)  the  royalty  rates  applicable 
across defined price bands; (v) the maximum threshold for a minimum resale price attracting 
the right (€3,000); and (vi) provis ions on third country nationals entitled to receive royalties. 
The Directive came into force on 1 January 2006. 

At the time the Directive was agreed 4 of the then 15 Member States did not apply the resale 
right  in  national  law:  Austria,  Ireland,  the  Netherlands  and  the  UK.  These  Member  States 
enjoyed a transitional period to 1 January 2010 during which they could choose not to apply 
the resale right to the works of eligible deceased artists. These Member States, together with 
Malta,  made  use  of  this  provision,  and  of  the  option  to  extend  the  derogation  period  for  a 
further  2  years.  This  derogation  comes  to  an  end  on  1  January  2012,  at  which  point  the 
Directive must be fully implemented in all Member States. 

1.2. 

The objective of this Report 

Article  11  of  the  Directive  foresees  that  the  Commission  should  submit  to  the  European 
Parliament,  the  Council  and  the  Economic  and  Social  Committee  a  report  on  the 
implementation  and  the  effect  of  the  Directive.  This  report  answers  to  that  requirement.  In 
line  with  the  provisions  of  Article  11  this  Report  examines  in  particular  the  impact  of  the 
Directive 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. It pays particular attention to the position of the Community in relation to relevant 
markets that do not apply the resale right, assesses the role of the Directive in the fostering of 
artistic creativity and reviews the situation with regard to the management procedures in the 
Member States.  

1 
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Recital (3) of the Directive 
Recital (9) of the Directive 

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1.3. 

Procedural issues and consultation of interested parties 

In preparing this Report, the Commission conducted a broad-based public consultation on all 
key questions identified in Article 11, including seeking information from Member States.  

503  responses  were  received  for  publication.  Of  these  the  vast  majority  (422)  were  from 
citizens  -  artists'  successors  in  title  (248,  primarily  in  France  and  Italy)  and  artists  (174, 
primarily  from  France  and  the  UK).  Responses  were  also  received  from  art  market 
professionals (48), collecting societies, artists' trade associations and some public authorities.  

2. 

EFFECTS OF THE DIRECTIVE 

2.1. 

Background - the Global Art Market 

The  global  art  and  antiques  market,  including  both  fine  and  decorative  art,  was  worth  €43 
billion in 2010, a year when it returned to its 2008 level after a year of "crisis" in 2009 (when 
sales contracted to €28 billion). 3  

The EU had a global market share of 37% by value in 2010, followed by the US (34%), and 
China (23%).4 The most marked trend in the global art and antiques market over the last six 
years is the dramatic rise in the Chinese market share from 5% in 2006 , and the concomitant 
drop in market shares of the US and the EU (see Figure 1 in Annex 1).  

Art and antiques market sales rose by 13% to 35 million transactions in 2010. Global sales are 
split between auction houses (49% in 2010) and dealers (51%). In 2010, auction sales overall 
reached a value of some €21 billion and  fine art auction sales5 reached a value of some €7 
billion. See Table 1 in Annex. 

The  art  and  antiques  market  as  a  whole  makes  a  significant  contribution  to  the  global 
economy not only in terms of turnover, but also in terms of the businesses it supports and the 
employment and skills it generates both directly and indirectly. Arts Economics has estimated 
that in 2010 there were around 400,000 listed businesses (auction houses, dealers) worldwide; 
and  in  the  EU  over  59,000  businesses  including  4,000  auction  houses  and  55,000  dealer 
businesses  employing  close  to  270,000  and  supporting  a  conservatively  estimated  figure  of 
over 110,000 jobs in ancillary and support services used directly by the art trade. 

2.2. 

Competitiveness  of  the  market  in  modern  and  contemporary  art  in  the  EU  in 
relation to relevant markets that do not apply the resale right 

The resale right affects directly only trade in Contemporary and Modern fine art i.e. works by 
EU  living  artists,  or  by  EU  artists  deceased  within  70  years  of  sale.  Works  subject  to  the 
resale  right  accounted  for  around  €2.1  billion  in   auction  sales  in  2010  globally.  In  the  EU 
these works accounted for 50% of the value of fine art auction sales in 2010,6 compared with 

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All figures are based on data provided by Arts Economics with data from Artnet.  
The data provided by Arts Economics on the Chinese art and antiques market share includes Mainland 
China, Hong Kong, Macao and Taiwan. 
i.e. excluding decorative art 
Data on fine art auction sales is used as the primary basis for discussion of movements in the global art 
markets  here  as  sales  are  a  mater  of  public  record,  and  the  period  2005-2010  has  been  taken  into 

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35%  of  sales  in  the  US,  25%  in  Switzerland  and  3%  of  sales  in  the  rest  of  the  world.  See 
Table 1 in Annex. 

2.2.1.  Auction sales of the works of living artists 

Global fine art auction sales of the works of all living artists in 2010 amounted to around €1 
billion, with the EU accounting for almost a third of these sales. Global auction sales of the 
works  of  living  EU  artists  accounted  for  one  third  of  the  value  of  sales  of  works  of  living 
artists in 2010 (€340 million). 7  

Fine art auction sales of the works of all living artists grew by 136% in value over 2005-2010. 
US and EU growth was below the average (60% and 92% respectively) while Switzerland and 
China both recorded high growth rates of 334% and 646% respectively.8  

The EU lost global market share for auction sales of the works of living artists over the period 
2005-2010, from 37% down to 30%, mainly as a result of the UK's loss of market share from 
27% to 20%. At the same time, the US lost market share from 54% down to 37% while China 
gained  share  from  8%  to  24%.  Switzerland's  market  share  increased  slightly  from  0.3%  to 
0.5%.  

The EU further lost market share in the sale of works of living EU artists over the period 2008 
to 2010.9 This followed a high UK market share of 62% in 2008, 3 years after the coming into 
force  of  the  resale  right  Directive.  At  the  same  time,  US  market  share  has  increased  by  5 
percentage points to 28%; and some Member States that implemented the resale right in 2006 
for living EU artists also saw their market shares climb over this period (Austria, Netherlands, 
Italy10). See Table 1. Looking at the available data over a longer time frame, EU market share 
in  the  works  of  living  EU  artists  has  risen  from  60%  in  2002  to  66%  in  2010,  and  the  UK 
market share from 40% to 42%. 

In  light  of  the  broader  movements  in  the  Contemporary  (and  overall)  art  markets,  there  is 
currently insufficient evidence to indicate that the loss of EU market share for works of living 
artists over the period in question is directly attributed to the harmonisation of the resale right 
in 2006 (see further under Section 2.4 below).  

2.2.2.  Auction sales of works of artists deceased within 70 years of the date of sale 

Global  fine  art  auction  sales  of  "Modern"  art  works  (artists  born  between  1875  and  1945) 
amounted to around €3.5 billion in 2010. The EU "h eirs" market  (works of artists deceased 
within 70 years of the date of sale) accounted for €1 billion of this.  

Overall, the market grew by 126% over the period 2005-2010. Switzerland,  the  US and  the 
EU sales grew by 25%, 69% and 85% respectively against the very high growth rate in China 

account, bearing in mind that the Directive came into force on 1 January 2006. Detailed data on works 
subject to the resale right are only available for the period 2008-2010. 
Unlike  other  markets  where  auction  sales  may  be  evenly  split,  many  living  artists  sell  their  works 
primarily  through  dealers  and  less  so  through  auction.  Dealer  sales  may  be  relatively  higher  in  this 
sector , and are estimated at double the value of auction sales.  
Comparisons must be treated with caution, given the strong interest in China, for example, in traditional 
Chinese art  
These data must be treated with caution: they do not cover the period before and after the harmonisation 
of the resale right. The period 2008-2010 has also been an unprecedented period of boom and bust. 
Italy implemented the resale right in practice in 2006. 

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of over 1300%. The EU lost global market share, again largely as a result of the UK losing 
market share (from 27% to 20%), as did the US and Switzerland. China's market share gained 
dramatically from 4% to 23%.  

As  regards  the  EU  "heirs"  market,  it  is  noted  that  the  UK  has  lost  market  share,  by  5 
percentage points to 37%, over the period 2008-2010 in the absence of the application of the 
resale  right  to  the  "heirs"  market  (and  indeed,  the  UK  lost  significant  market  share  on  the 
broader  market  for  deceased  artists  over  the  same  period,  from  34%  to  20%).  US'  market 
share has risen by 5 percentage points in the same period and the market shares of other EU 
Member States (whether or not they apply the right for heirs) have remained stable. There is 
currently no discernible pattern to suggest that Member States which do not levy the royalty 
on the works of deceased artists have performed better over the period than those that do. See 
Table 1 in Annex. 

2.3. 

Impact on the Internal Market 

Bearing in mind the expectation that unharmonised application of the resale right contributed 
to  "displacement  of  sales"  within  the  EU,  the  Commission  sought  to  identify  whether  any 
trade diversion away from those Member States that introduced the resale right for the works 
of  living  artists  the  first  time  in  2006  and  towards  other  Member  States  had  arisen;  and 
whether those Member States which have derogation until 1 January 2012 appeared to have a 
comparative advantage in the sales of works of deceased artists. The Commission looked at 
available data sets for the period 2005 – 2010. 

2.3.1.  Auction sales of the works of living and deceased artists 

Art markets across the EU differ in their nature and make-up. For example, while the UK has 
the  highest  EU  market  share  by  value  of  auction  sales  in  works  eligible  for  the  resale  right 
(64%  in  2010),  followed  by  France  (12%)  and  Germany  (5%),  the  greatest  volume  of 
transactions was in France (26%).11  

In all, some 65,000 auction  transactions were eligible  for  the  resale  right  in  2010,  of  which 
roughly two thirds sales of works of deceased artists, and one third sales of living artists. See 
Table 1 in Annex.  

Looking at both the value and the volume of auction sales of works by living artists over the 
period 2005-2010 no clear patterns can be established that would indicate that trade diversion 
has systematically occurred within the EU away from those Member States which introduced 
the right for living artists in 2006.  

The UK lost market share relative to 2005 for sales of both living and deceased artists. The 
UK also lost EU market share between 2008 and 2010 for works of living artists eligible for 
resale, though the UK market share peaked at a high of 61% in 2008 i.e. three years after the 
coming  into  force  of  the  Directive.  However,  other  Member  States  that  implemented  the 
resale right for the first time (Austria, Netherlands, and Italy) also gained market share at the 
expense of the UK during this period. It is also noted that the UK lost EU market share for the 
works  of  deceased  artists  both  over  the  period  2005-2010  and  2008-2010.  Of  the  Member 

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The high value of UK sales is accounted for by a small number of very high-priced sales. In 2010, for 
example, 54% of the value of the art market occurred in the price band of €2 million, (representing only 
0.5% of transactions).  

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States  that  already  implemented  the  resale  right,  France  and  Germany  both  slightly  gained 
market share over 2008-2010 for sales of living EU artists (from 5% to 7% and from 3% to 
4% respectively), while the share of the "rest of the EU" remained stable at 2%. As regards 
works of deceased artists, market shares remained stable. See Table 1 in Annex.  

2.3.2.  Changes in overall market share  

Similarly,  with  regard  to  market  share  as  a  whole  (beyond  auctions)  over  the  period  2005-
2010  no  clear  patterns  can  be  established.  Austria,  the  Netherlands  and  Italy  saw  a  slightly 
increased  share  of  the  EU  market  for  the  works  of  living  artists,  while  the  UK's  share 
decreased significantly, in line with the broader UK market contraction.  

The  changes  in  market  shares  for  trade  in  the  works  of  deceased  artists  show  a  similarly 
mixed  picture.  The  UK  market  share  decreased  by  the  same  degree  as  the  broader  market 
contraction; the market shares of Germany and the Netherlands declined slightly; while those 
of France, Austria and Italy rose.  

2.4. 

Factors affecting the development of art markets 

Many  stakeholders  have  pointed  to  the  fact  that  the  characteristics  of  different  art  markets, 
their  development,  and  the  relative  competitiveness  of  markets  depends  on  a  wide  range  of 
factors.  The  wider  taxation  system,  including  the  application  of  VAT  can  play  a  significant 
role.  Within  the  EU  it  is  noted  that  VAT  rates  vary  widely  from  15%  to  25%.  Rates  of 
commission  and  administrative  costs,  including  those  relating  to  the  administration  of  the 
resale right, have been cited.  

Other issues are relevant. Art markets are susceptible to changes in taste, and to changes in 
perception  of  the  investment  value  of  art.  In  this  context,  the  availability  of  expertise,  the 
specialisation of any given market, trust and contacts remain important. Developments in the 
global distribution of wealth may be relevant, as evidenced notably by the rise of the Chinese 
art markets. At the same time, the mobility of the art market, including the growing attraction 
of national and international art fairs in the dealer sector, has also been cited.  

2.4.1.  Mobility in the higher price brackets 

The  global  art  market  is,  further,  characterised  by  a  few  "global  market  hubs"  where  the 
highest value art – above €50,000 - is bought and sold. These hubs, which have the greatest 
share of sales in the higher price bands, include the US, China and the UK. This is borne out 
by the higher than average sales prices in these countries (See Figure 2 in Annex), and the fact 
that a small number of sales account for a high percentage of the value of transactions.  

Many  respondents  have  noted  that  sales  of  higher  priced  works  are  more  susceptible  to 
international  competitive  pressures,  and  that  charges  linked  to  such  sales  are  more  likely  to 
lead sellers to divert sales to markets where transaction costs overall are lower, even taking 
account of transport costs.12 In this vein, auction houses have noted cases of clients choosing 
to  re-locate  sales  to  New  York,  citing  the  resale  right  as  a  cost  factor  in  that  decision.  The 
dealer sector has noted a tendency to shift transactions to one of the burgeoning international 
art  fairs,  with  Art  Basel  being  cited  as  a  case  in  point.  In  summary,  sellers  will  rationally 

12 

See,  for  example,  "The  impact  of  artist  resale  rights  on  the  art  market  in  the  UK",  Toby  Froschauer, 
January 2008. 

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move to do business in those markets where the transaction will be most beneficial, and the 
resale right is one in a number of factors that play a role in the choice of sales location.  

2.4.2.  Administrative burden in the lower price brackets 

The greatest volume of trade by far takes place at the lower end of the market i.e. primarily 
"domestic" markets which tend to see a high volume of low value sales. Such markets may be 
national or may function alongside international markets (London being an example of this) 
and are commonly based on a high volume of lower value sales, mostly sourced locally and 
for  the  most  part  sold  to  local  buyers  (see  Figure  3  in  Annex).  It  has  been  noted  that  these 
markets  tend  to  be  dominated  by  smaller  businesses  which  are  vulnerable  to  regulatory 
burdens that increase their costs. This issue is explored in Section 3 below. 

3. 

IMPLEMENTATION ISSUES AT NATIONAL LEVEL 

3.1. 

The royalty rates 

The  centre  piece  of  the  Directive  was  the  harmonisation  of  applicable  royalty  rates  in  five 
identified bands aimed to harmonise the application of the resale right in so far as disparities 
distorted terms of competition within the internal market. No stakeholders have indicated that 
the bands and royalty rates should be amended, or that the discretionary 5% rate for sales of a 
value lower than €5,000 should be abolished. 

With  regard  to  the  minimum  threshold  for  the  application  of  the  resale  right  the  rates  vary 
between  €15  and  €3,000.  No  evidence  has  been  put
  forward  to  suggest  that  variations  at 
national level have had a negative effect on intra-EU trade.  

3.2.  Management procedures 

The  Directive  allows  Member  States  to  provide  for  compulsory  or  optional  collective 
management  of  the  resale  right  royalty.  While  the  majority  of  Member  States  provides  for 
obligatory collective management of the resale right, a significant number opted for optional 
collective  management.  Stakeholders  did  not  question  the  scope  for  different  approaches  to 
collective rights management.  

Beyond  this,  the  Directive  is  silent  on  the  implementation  and  administration  of  the  right. 
There are significant divergences in national systems resulting in differences in terms of ease 
and  cost  of  administration,  both  for  art  market  professionals  and  collecting  societies 
administering the resale right.  

3.2.1.  Administrative costs 

Most art market professionals raised the issue of administration costs. It was pointed out that 
particularly SMEs, which usually have a higher market share by volume than by value, would 
suffer from high administrative costs that are triggered by every transaction. It is noted in this 
regard  that  there  were  over  65,000  eligible  auction  sales  alone  in  2010).  The  costs  of 
administering the right have been estimated at up to €50 per transaction. These are primarily 
staff costs associated with (i) the determination of qualifying artists; (ii) the determination and 
location of heirs and other right holders (iii) processing omissions and refunds; together with 
IT system costs.  

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The  biggest  single  factor  appears  to  be  the  determination  of  qualifying  artists.  While 
collecting societies in some Member States maintain excellent records others do not maintain 
such data or make it available in an efficient manner. Some collecting societies publish lists of 
rights holders that have concluded a contract with them and are entitled to receive resale right 
royalties.  In  Member  States  where  registration  of  the  artist  with  a  collecting  society  is  a 
precondition for the payment of resale right royalties, collecting societies are able to provide a 
complete list of potential beneficiaries.  

Where  collecting  societies  do  not  make  the  information  available  in  a  systematic  and 
comprehensive  manner,  the  task  appears  to  fall to  art  market  professionals  to  undertake  the 
search themselves. The situation with regard to the cross-border availability and accessibility 
of eligibility records is patchy.  

The maintenance of comprehensive and searchable records of eligible artists has been cited as 
a major requirement for the reduction of administrative costs associated with the resale right. 
Another  approach  appears  to  be  the  use  of  an  optional  and  simplified  lump  sum  payment 
system.  In  one  Member  State  cross-industry  (rights  holders,  industry)  agreement  on  the 
implementation  of  the  right,  and  cooperation  in  the  development  of  compatible  IT  systems, 
have been cited as major elements in assuring efficient management of the right. 

3.2.2.  Costs for collecting societies 

Collecting  societies  cite  administration  costs  in  a  range  of  10%  to  20%  of  the  collected 
royalties.  The  administration  costs  of  collecting  societies  are  usually  deducted  before  the 
distribution of the royalties and therefore borne by the beneficiaries.  

In  Member  States  where  collecting  societies  can  only  collect  resale  rights  royalties  on  the 
basis  of  individual  mandates,  usually  all  collected  royalties  can  be  distributed.  In  Member 
States with other systems beneficiaries sometimes cannot be found. In these cases up to 5% of 
the collected royalties are not distributed. 

3.2.3.  The "cascade effect" 

Art dealers have also criticised the so called "cascade effect" of the resale right, meaning that 
royalties have to be paid for every transaction and cannot – contrary to the VAT – be refunded 
for transactions between traders. The resale right has a cumulative effect on works of art that 
are sold several times. In Member States where not only the seller but also the buyer can be 
obliged to pay the royalty, an art dealer involved in two consecutive transactions may pay the 
royalty two times in a row for the same work of art (first as a buyer and then as a seller).  

4. 

IMPACT ON ARTISTS 

4.1. 

Benefits and costs for artists 

The  Commission  sought  information  from  the  collecting  societies  responsible  for  the 
collection  and  distribution  of  the  resale  right  royalty  on  (a)  the  number  of  artists  benefiting 
from  the  right  annually  between  2005  and  2010;  and  (b)  the  amount  distributed.  Ten 
collecting societies were able to provide this information i.e. covering 10 out of 27 Member 

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States.13  See  summary  in  Table  3  in  Annex.  In  these  10  Member  States,  some  €14  million 
royalties were distributed in 2010, among 6,631 artists and their heirs, a rather stable figure 
compared to €14,4 million royalties distributed  to 7,107 artists and their heirs in 2007. Around 
half  of  the  royalties  were  collected  in  France  alone.  Collecting  societies  in  four  Member 
States  (Belgium,  Denmark,  France,  and  Slovakia)  were  able  to  provide  a  breakdown  of 
distributions between living and deceased artists for 2006-2010. In these four Member States 
22% of royalties  by value and 41% of royalties by  volume  were  distributed  to  living  artists 
over the period.  

These figures are largely supported by the research undertaken by Arts Economics. In 2010, 
eligible  auction  sales  comprised  works  by  over  5,000  living  artists,  and  reached  19,000 
transactions  and  a  value  of  €225  million.  Heirs  ac count  for  a  much  larger  portion  of  sales 
eligible for the resale right, making up 82% of eligible sales by value, 71% by volume, and 
63% of beneficiaries (see Table 4 in Annex).  

45% of the living artists making eligible sales in 2010 (2,271) fell in the price bracket below 
€3,000, attracting a royalty rate of  up to €150. A further 39% fell  into the price bracket up to 
€50,000,  attracting  a  royalty  of  up  to  €2,030.  The 
overwhelming  majority  of  artists  and 
successors  in  title  that  contributed  to  the  consultation  welcomed  the  resale  right  system  as 
making  a  difference,  both  financially  and  in  terms  of  recognition.  Some  collecting  societies 
also  maintain  schemes  whereby  a  deduction  for  cultural  purposes  (10%  of  resale  right 
revenue)  is  used  specifically  to  support  young  artists.  Collecting  societies  in  some  Member 
States  have  expressed  regret  that  the  harmonisation  of  the  applicable  rates  under  the  resale 
right  directive  has  resulted  in  a  lower  royalty  rate  than  had  been  the  case  in  national 
legislation  before  the  introduction  of  the  €12  500  cap,  and  the  tapering  royalty  value  e.g. 
Germany, where a 5% flat rate for all sales had previously applied.  

5. 

CONCLUSIONS 

5.1. 

Competitiveness of European markets 

No clear patterns can be established to link the loss of the EU's share in the global market for 
modern and contemporary art with the harmonisation of provisions relating to the application 
of the resale right in the EU on 1 January 2006. Neither can any clear patterns currently be 
established  that  would  indicate  systematic  trade  diversion  within  the  EU  away  from  those 
Member  States  which  introduced  the  right  for  living  artists  in  2006.  Nevertheless,  there  are 
clearly  pressures  on  European  art  markets,  in  all  price  ranges,  and  for  both  the  auction  and 
dealer  sectors,  and  it  is  recalled  that  the  scope  of  the  application  of  the  resale  right  will  be 
significantly  expanded  following  the  ending  of  the  derogation  for  the  works  of  deceased 
artists on 1 January 2012.  

At  the  same  time,  the  quality  of  the  administration  of  the  resale  right  appears  to  vary 
considerably across the EU, bringing costs to art market professionals and artists alike. The 
burden  can  be  particularly  high  for  those  at  the  lower  end  of  the  market  who  are 
proportionately more deeply affected by the costs of administering the right. The Commission 

13 

Some collecting societies were able to provide the amount of royalties distributed, but not the number 
of artists benefiting; others gave a total amount, but no annualised data; one gave the number of artists 
benefiting, but no value. Societies in eight Member States were not able to provide any information at 
all. 

EN 

10 

   EN 

                                                 
recognises, furthermore, that in some Member States  inefficient administration of the resale 
right  presents  a  not  insignificant  burden  on  art  market  professionals  and  may  also  lead  to 
unnecessarily high deductions from the royalties due to artists and their successors.  

• 

• 

• 

In light of the economic significance of the sector, the Commission considers 
that market developments should be kept under review. The Commission will 
undertake a further reporting exercise and deliver its results in 2014.  

The Commission will also pursue its commitment to persuading third countries 
to implement the resale right.  

In light of the volume of transactions subject to the resale right, the European 
Commission also considers that there would be benefit in the exchange of best 
practice  at  European  level  with  a  view  to  managing  and  minimising  the 
administrative costs in all Member states. To this end it intends to establish a 
Stakeholder  Dialogue, 
the 
improvement of the system of resale right collection and distribution in the EU.  

tasked  with  making  recommendations  for 

•  More broadly, the European Commission is concerned that collecting societies 
should operate to a high standard of governance and transparency with regard 
to their members and to commercial users, and will bring forward a proposal in 
this regard during 2012 to apply in equal measure to collecting societies 
administering the resale right.  

EN 

11 

   EN 

Figure 1 – Change in global art market shares 2006-2010 

Annex 1 

Global art market shares 2006-2010

0,6

0,5

0,4

0,3

0,2

0,1

0

US
China
UK
EU

2006

2007

2008

2009

2010

Table 1 – Auction sales 2008 and 2010 

Auction sales 2008 (€m) 

Auction sales 2010 (€m) 

Works 
of  artists 
deceased 
within 
70  years 
of sale 

Works 
of  EU 
artists 
deceased 
within 
70  years 
of sale  

Total 
auction 
sales  (fine 
and 
decorative 
art) 

15,1 
162,4 
61,4 
72,6 
11,4 
20,2 
900,6 

14,3 
136,1 
57,2 
60,7 
10,8 
16,0 
752,8 

131,6 
1105,3 
454,5 
514,1 
126,7 
138,9 
6391,1 

Works 
of  artists 
deceased 
within 
70  years 
of sale 

Works 
of  EU 
artists 
deceased 
within 
70  years 
of sale  

Total 
auction 
sales  (fine 
and 
decorative 
art) 

22,1 
200,9 
69,2 
53,0 
1,5 
27,1 
695,4 

19,8 
120,6 
53,6 
53,5 
16,9 
22,6 
661,0 

222,8 
1153,4 
416,5 
250,2 
124,6 
153,3 
4224,9 

Fine 
art 
auction 
sales 

76,6 
396,8 
143,3 
86,1 
42,9 
52,7 
1453,4 

All 
living 
artists 
8,5 
51,6 
16,8 
16,9 
6,7 
9,7 
199,4 

Living 
EU 
artists 
7,6 
24,1 
12,3 
14,6 
4,7 
9,4 
145,1 

51,5 
1295,0 

47,5 
1099,9 

437,0 
9299,3 

15,1 
319,1 

6,9 
224,7 

107,7 
1176,8 

83,7 
1031,7 

693,8 
7239,5 

238,7 
2490,4 

All 
living 
artists 
6,5 
40,7 
17,4 
20,2 
2,8 
4,9 
506,3 

15,8 
614,5 

Living 
EU 
artists 

6,0 
27,4 
14,9 
11,7 
2,2 
4,3 
347,0 

14,4 
429,0 

421,4 
3,9 

127,9 
3,0 

1129,9 
26,9 

626,5 
25,9 

6607,8 
272,8 

389,5 
5,7 

97,6 
3,4 

1308,2 
35,2 

694,4 
29,3 

6499,6 
376,5 

2235,9 
129,5 

350,3 

5,7 

201,8 

37,0 

2791,1 

357,1 

17,5 

970,8 

43,8 

6661,2 

2226,8 

AT 
FR 
DE 
IT 
NL 
SE 
UK 
Rest  
of EU 
EU 

US 
CH 
Rest of 
World 

TOTAL  1390,2 

564,5 

2653,6 

1784,8 

18971,0  1071,6 

343,2 

3490,3 

1799,2 

20776,8 

7082,6 

EN 

12 

   EN 

 
  
  
  
  
  
  
  
  
  
  
  
  
  
  
 
Table 2 - Auction sales of works of living artists and European artists with eligible heirs, EU, 
2010 

Value 
€m 

No. of 
artists/heirs 
benefiting 

Volume of transactions 

Living artists 
European  artists  with 
eligible heirs 

Total 
Living  artists  as  %  of 
total 

225

1,032

1,257

18%

5,072

8,814

13,886

37%

18,670 

46,380 

65,050 

29% 

Figure 2 

Average Fine Art Auction Hammer Prices 2010

s
o
r
u
e

60000

50000

40000

30000

20000

10000

0

USA

UAE

United Kingdom

Figure 3 

China
Switzerland

The Netherlands
Singapore

France

Austria

Japan

Italy
Sweden

Germany

Auction sales of living artists, by price band, 2010

100%
90%
80%
70%
60%
50%
40%
30%
20%
10%
0%

K
U

A
S
U

a
n
i
h
C

L
A
T
O
T

n
a
iw
a
T

U
E

n
e
d
e
w
S

y
l
a
t
I

More than €500,000

€350-€500,000

€200-€350,000

€50-€200,000

€0-€50,000

m
iu
g
l
e
B

k
r
a
m
n
e
D

d
n
a
l
n
i
F

y
n
a
m
r
e
G

d
n
la
e
r
I

n
i
a
p
S

s
d
n
a
l
r
e
h
t
e
N

d
n
a
l
r
e
z
t
i
w
S

a
i
r
t
s
u
A

e
c
n
a
r
F

d
l
r
o
W
f
o
t
s
e
R

EN 

13 

   EN 

  
 
 
 
 
Table 3 – Number of artists benefiting, and value of royalties distributed 2005 -2010, selected 
EU Member States 

2005 

2006 

2007 

2008 

2009 

2010 

Value 
€m 

Value 
€m 

No 

10  0,018 

291  0,256 

0,007 
1991  2,934  2191 

No 
19  0,038 
413  0,505 

No
27
448
1604  0,225  2071
14
5,2  2233
878  2,351  1020  2,751  1191
39
46 
4
135
945

110  0,025 
414  0,987 

76  0,021 

0,06 

Value 
€m
0,07
0,51
1,346
0,021
6,51
3,47
0,053
0,001
0,037
2,99

No
43
545
1989
13
1985
1157
54
6
152
1123

Value 
€m
0,111
0,623
1,403
0,011
6,68
3,374
0,067
0,005
0,049
3,45

No 
39 
508 
1511 
9 
1959 
1112 
44 
19 
132 
913 

Value 
€m 
0,093 
0,46 

No
38
513
0,742  1894
11
0,01 
6,06  2054
4,319  1021
58
0,056 
26
0,027 
50
0,038 
966
2,594 

Value 
€m
0,11
0,554
0,857
0,004
6,848
3,427
0,105
0,026
0,022
2,696

AT 
BE 
DK 
EE 
FR 
DE 
NL 
PT 
SK 

UK 

Total 

5,569  5827  9,809  7107 15,008

7067 15,773

6246  14,399  6631 14,649

EN 

14 

   EN