Brussels, 16/03/2000 (Agence Europe) - The EU15 Permanent Representatives noted on Wednesday evening their agreement on a new compromise concerning resale rights, levied to the advantage of artists on resale of their works, overcoming British opposition that has lasted for several years. Austria (one of the five countries of the EU which does not yet apply this right) and Belgium have announced they would abstain, making unanimity possible, which is needed to distance themselves from the Commission proposal. Agreement from the United Kingdom, the country of Christies and Sothebys, was obtained at the cost of many concessions, and Commissioner Bolkestein did not show solidarity with the project that he considers inadequate. Once it is formally approved by the Council, the text will be examined at second reading by the European Parliament. The Commission hopes this new stage in the decision-making process will make it conform to aspirations.
The project, which has been under discussion for almost four years, aims to make a generalised practice within the European Union of the payment of copyright to the advantage of artists or their heirs during the resale of their works by a gallery or auction house. It provides for the harmonisation of a "resale right" currently applied in ten Member States (in Austria, Ireland, Netherlands and the United Kingdom it does not exist; in Luxembourg, the legislation recognises it but it is not yet applied). In some cases, it will result in a lowering of the current duty (in France, for example, there is a levy of 3% whatever the value of the work).
The compromise on which the agreement was reached is far behind the initial European Commission proposal. The resale right, which represents a low percentage of the sales price, will only be charged if the price of the work in question exceeds EUR 4,000 (as opposed to 1,000 in the initial proposal). Its total amount will be a maximum of EUR 12,500 and will apply on a sliding scale, varying from 4% to 0.25% of the sales price (4% on a sale of 4 to 50,000 euros, 3% on 50 to 200,000 euros, 1% on 200 to 350,000 euros, 0.5% on 350 to 500,000 euros, 0.25% over and beyond 500,000 euros). The Member States will have five years to transpose the directive into their national legislation, after adoption of the project. At the request of the United Kingdom, the countries which do not yet have a resale right will benefit from an additional ten years during which this will only apply to artists still living, before concerning artists' heirs also, up to 70 years after the death of the artist.
In the beginning, the Commission proposal did not provide for a ceiling which will be a novelty for almost all countries practising the resale right. The "amount of EUR 12,500 corresponds to a sale of two million euros and we thought that, beyond this sum, the risk of relocation of sales (Ed.: an idea put forward by the United Kingdom), was greater", explained one national representative. The minimum of EUR 4,000 for the value of the work of art is, on the other hand, optional. "Transactions of a smaller amount usually occur on a national scale and each State will be free to decide whether or not there is a resale right", said the same source.
The European Commission will receive the mandate to promote the resale right at the international level, in the context of the World Intellectual Property Organisation.
For technical reasons (the text of the compromise is not yet available in all languages), the subject was not discussed on Thursday by the Council except during lunch. The compromise has unanimity (with abstention from Austria, which is opposed even to the principle of resale rights and Belgium which is closer to the Commission positions), but the Fifteen could nonetheless go against the Commission and adopt it in the near future, without debate. The text will then be submitted for second reading in Parliament and there is already talk of conciliation procedure being required between the two institutions.
Commissioner Bolkestein expresses his opposition to compromise
The exceptionally long duration of the transitional period is at the origin of the Mr Bolkestein's anger. "The Commission cannot accept what would amount to a transitional period of 15 years, because of the precedent this would set. Five years, we believe, is a maximum", explained his spokesperson.
"Twice (Ed.: at the Internal Market Councils in February and June 1999), there was a qualified majority on this issue and the presidencies could have insisted for a vote to be held. In December there was no transition period foreseen and today it has jumped to ten years. We cannot give such a gift to the British solely because they waved the banner of vital national interest", commented Mr Bolkestein after the Council. The Commissioner, however, rules out withdrawing his proposal, as he had threatened over a project to modernise the customs code. "For this, there would have to be inadequacy of the original Commission proposal, and one cannot say it is the case here", he said.