The differences in the resale right in the individual states of the European Union along with the fact that some countries had no resale right at all was regarded as an obstacle to the free development of the EU Internal Market. For that reason, the EU adopted a Directive on the Resale Right (2001/84/EC) on 27 September 2001.
The individual states were granted a generous transitional period up until the end of 2005 for its implementation. On the strength of this Directive, the resale right was introduced in Austria, the Netherlands, Ireland, Malta and the United Kingdom. At the same time, these countries were granted an additional transitional arrangement until the end of 2011 allowing them to introduce the resale right for living artists only. It is only since 2012 that the resale right has been fully harmonised across the European Union, i.e. indiscriminately vesting artists and their heirs with such rights.
The Directive not only requires Member States of the European Union to introduce the resale right, but also provides a narrow corridor for shaping it. For instance, the Directive harmonises the categories of works to which the resale right applies, the sales processes involved and the royalty rates. The capping of the royalty at Euro 12,500 per transaction and the term of protection of up to 70 years after the death of the artist are also regulated in a uniform manner. The only significant point where Member States have flexibility is in fixing the minimum selling price, from which the resale right royalty will apply. The lower this threshold, the more artists will benefit from the resale right. While Germany has opted for Euro 400, in France the resale right takes effect from a selling price of Euro 750 and in Austria the threshold is even as high as Euro 3,000, which is also the maximum level stipulated by the Directive.
Dialogue with the Industry
In 2013, the European Commission organised a dialogue between art dealers and collecting societies to find solutions to problems encountered in administration of the resale right in practice. As a result, a recommendation has been presented that both sides have undertaken to implement.
For example, collecting societies will provide art dealers with electronic information about the artists entitled to the resale right. (VG Bild-Kunst has for a long time been offering such an online database.) The art trade, in turn, will give collecting societies information in an agreed format about the sale of works subject to the resale right: a system that already works fairly well in Germany.
In 2015, the European Commission will once again review the implementation of the resale right in Europe.