On 26 February 2015, the Court of Justice of the European Union ("ECJ") answered a preliminary question from the French Supreme Court in Christie's France SNC ("Christie's") v Syndicat national des antiquaires ("SNA"). The ECJ offered guidance on Directive 2001/84/EC of 27 September 2001 on the resale right for the benefit of the author of an original work of art (the "Directive"). The ECJ held that the Directive allows the person whom the law designates as having the obligation to pay the resale right to transfer this obligation to another person by contract.
The objective of the Directive is to ensure that authors of graphic and plastic works of art share the economic success of their original works of art. This is achieved by the resale right. Often, the value of the work increases significantly after the work has been sold by the author. The inalienable resale right allows authors (or their heirs) to receive a royalty on the price obtained for any later resale of their works.
In the facts underlying the case at hand, SNA, an association whose members are direct competitors of Christie's, took the view that one of the clauses in Christie's general conditions of sale is void. SNA considered that the clause according to which Christie's would collect a sum, for and on behalf of the seller, and then pass it to a collecting agency or the artist himself, was placing the onus of payment of the resale royalty upon the buyer. Such a term, according to SNA, amounted to unfair competition in breach of the French Intellectual Property Code.
In its question, the French Supreme Court asked the ECJ whether the Directive was to be interpreted as meaning that the seller is required to bear the cost of the royalty without any derogation by agreement being possible.
The ECJ first acknowledged that, while in principle the person responsible for payment of the royalty is the seller (with exceptions), the Directive remains silent with regard to the person who must ultimately bear the cost of the royalty.
The ECJ therefore analysed the objective of the Directive, considering that the goal was to eliminate differences between national laws. It held in that regard that a provision stating who is to bear the cost of the royalty is not necessary to attain such a goal. The ECJ accordingly concluded that the Directive does not preclude the person responsible for payment of the royalty from agreeing upon resale that another person, including the buyer, will bear the cost of the resale royalty.
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