Case C-41/14, Christie’s France – the single market in reselling art works ‘Going! Going! Gone!’

When original works of art are resold, the EU’s artists’ resale right Directive 2001/84/EC requires that a royalty is paid to the author of the work by the seller. The Directive goes on to allow either the seller or professional sellers, such as art galleries, to share the liability for paying the royalty in accordance with national law. In this case, a French auction house decided to change its terms and conditions so that the buyer, and not the seller, became liable to pay the royalty. Can contract derogate from the seller’s obligation to pay the royalty that is enshrined in the Directive?

Facts
Christie’s France is an auction house. Sales are subject to its terms and conditions. One clause stipulated that it would be the purchaser who would become liable for the royalty payable to the author of an original work of art.

The auction house was brought before the French courts by the French National Union of Antique Dealers (le Syndicat national des antiquaires (SNA)), which claimed that Christie’s France was reselling original works of art on terms and conditions that were contrary to the laws of unfair competition and in breach of Article L. 122-8 of the French Code of Intellectual Property Law. On that basis, the SNA claimed that the relevant clause in Christie’s terms and conditions should be declared null and void.

The French Court of Cassation noted that the seller’s obligation to pay the royalty flowed from Article L.122-8 of the French Code of Intellectual Property Law, which implements the EU’s Directive 2001/84/EC on the Resale Right for the Benefit of the Author of an Original Work of Art.

Article 1 of the Directive provides:

(1) Member States shall provide, for the benefit of the author of an original work of art, a resale right, to be defined as an inalienable right, which cannot be waived, even in advance, to receive a royalty based on the sale price obtained for any resale of the work, subsequent to the first transfer of the work by the author.
(2) The right referred to in paragraph 1 shall apply to all acts of resale involving as sellers, buyers or intermediaries art market professionals, such as salesrooms, art galleries and, in general, any dealers in works of art.

(4) The royalty shall be payable by the seller. Member States may provide that one of the natural or legal persons referred to in paragraph 2 other than the seller shall alone be liable or shall share liability with the seller for payment of the royalty.

The French Court of Cassation did not know how to interpret Article 1(4) of the Directive and decided to refer one question to the CJEU.

Question Referred
My unofficial translation of the French Court of Cassation’s question reads:

Is the rule in Article 1(4) of Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 which provides a resale right for the benefit of the author of an original work of art and places the obligation to pay the royalty on the seller, to be interpreted as meaning that this charge definitively cannot be derogated by contract?

Update – 20 February 2015
The Fourth Chamber is due to give its judgment on 25 February 2015. From the information on the Curia website, there is no indication that Advocate General Wathelet has provided an Opinion, and no sign of a hearing having taken place.

This is not the first time that the CJEU has dispensed with an IP law case without the benefit of either a hearing or an Opinion. At the end of 2013, the CJEU handed down its judgment in Innoweb. The legitimacy of that judgment is open to question. See further, “Innoweb, Search-Engines and Engineering Legitimacy in EU Law” (2014) Intellectual Property Quarterly pp. 280-306.

 

Update – 26 February 2015
Judgment
A version of the CJEU’s judgment in Case C-41/14, Christie’s France ECLI:EU:C:2015:119 is reproduced below. The reproduction is not authentic. Only the versions of the document published in the ‘Reports of Cases’ or the ‘Official Journal of the European Union’ are authentic. The source of the reproduction is the Eur-Lex Europa web site. The information on that site is subject to a disclaimer and a copyright notice.

JUDGMENT OF THE COURT (Fourth Chamber)

26 February 2015 ( )

(Reference for a preliminary ruling — Directive 2001/84/EC — Article 1 — Intellectual property — Sale at auction of original works of art — Resale right for the benefit of the author of an original work of art — Person liable for the resale royalty — Buyer or seller — Derogation by agreement)

In Case C‑41/14,

REQUEST for a preliminary ruling under Article 267 TFEU from the Cour de cassation (France), made by decision of 22 January 2014, received at the Court on 27 January 2014, in the proceedings

Christie’s France SNC

v

Syndicat national des antiquaires,

THE COURT (Fourth Chamber),

composed of L. Bay Larsen, President of the Chamber, K. Jürimäe, J. Malenovský (Rapporteur), M. Safjan and A. Prechal, Judges,

Advocate General: M. Wathelet,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        Christie’s France SNC, by D. Théophile and A. Rios, avocats,

–        the Syndicat national des antiquaires, by G. Lesourd and B. Edelman, acting as Agents,

–        the French Government, by D. Colas and F.-X. Bréchot, acting as Agents,

–        the European Commission, by J. Hottiaux and J. Samnadda, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1        This reference for a preliminary ruling concerns the interpretation of Article 1 of Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art (OJ 2001 L 272, p. 32).

2        The request has been made in proceedings between Christie’s France SNC (‘Christie’s France’) and the Syndicat national des antiquaires (national association of antique dealers; ‘the SNA’) concerning the validity of a term, included in the general conditions of sale of Christie’s France, pursuant to which the latter collects from the buyer an amount equal to the royalty due to the author in respect of the resale right (‘the term at issue’).

 Legal context

 EU law

3        Recitals 3, 4, 9, 10, 13 to 15, 18 and 25 in the preamble to Directive 2001/84 are worded as follows :

‘(3)      The resale right is intended to ensure that authors of graphic and plastic works of art share in the economic success of their original works of art. …

(4)      The resale right forms an integral part of copyright and is an essential prerogative for authors. The imposition of such a right in all Member States meets the need for providing creators with an adequate and standard level of protection.

(9)      The resale right is currently provided for by the domestic legislation of a majority of Member States. Such laws, where they exist, display certain differences, notably as regards the works covered, those entitled to receive royalties, the rate applied, the transactions subject to payment of a royalty, and the basis on which these are calculated. …This right is therefore a factor which contributes to the creation of distortions of competition as well as displacement of sales within the Community.

(10)      Such disparities with regard to the existence of the resale right and its application by the Member States have a direct negative impact on the proper functioning of the internal market in works of art as provided for by Article 14 of the Treaty. In such a situation Article 95 of the Treaty constitutes the appropriate legal basis.

(13)      Existing differences between laws should be eliminated where they have a distorting effect on the functioning of the internal market, and the emergence of any new differences of that kind should be prevented. There is no need to eliminate, or prevent the emergence of, differences which cannot be expected to affect the functioning of the internal market.

(14)      … The existence of differences between national provisions on the resale right creates distortions of competition and displacement of sales within the Community and leads to unequal treatment between artists depending on where their works are sold. …

(15)      In view of the scale of divergences between national provisions it is therefore necessary to adopt harmonising measures to deal with disparities between the laws of the Member States in areas where such disparities are liable to create or maintain distorted conditions of competition. It is not however necessary to harmonise every provision of the Member States’ laws on the resale right and, in order to leave as much scope for national decision as possible, it is sufficient to limit the harmonisation exercise to those domestic provisions that have the most direct impact on the functioning of the internal market.

(18)      The scope of the resale right should be extended to all acts of resale, with the exception of those effected directly between persons acting in their private capacity without the participation of an art market professional. …

(25)      The person by whom the royalty is payable should, in principle, be the seller. Member States should be given the option to provide for derogations from this principle in respect of liability for payment. The seller is the person or undertaking on whose behalf the sale is concluded.’

4        Article 1 of Directive 2001/84 (entitled ‘Subject matter of the resale right’) provides:

‘1.      Member States shall provide, for the benefit of the author of an original work of art, a resale right, to be defined as an inalienable right, which cannot be waived, even in advance, to receive a royalty based on the sale price obtained for any resale of the work, subsequent to the first transfer of the work by the author.

2.      The right referred to in paragraph 1 shall apply to all acts of resale involving as sellers, buyers or intermediaries art market professionals, such as salesrooms, art galleries and, in general, any dealers in works of art.

4.      The royalty shall be payable by the seller. Member States may provide that one of the natural or legal persons referred to in paragraph 2 other than the seller shall alone be liable or shall share liability with the seller for payment of the royalty.’

 French law

5        Article 1 of Directive 2001/84 was transposed into French law by Law No 2006-961 of 1 August 2006 on copyright and certain related rights in the information society (loi n° 2006-961, du 1er août 2006, relative aux droits d’auteur et aux droits voisins dans la société de l’information (JORF, 3 August 2006, p. 11529)).

6        According to Article L. 122-8 of the Intellectual Property Code (code de la propriété intellectuelle), as amended by Law No 2006-961:

‘Authors of original works … shall enjoy a resale right, which is an inalienable right to participate in the proceeds of any sale of a work subsequent to its first transfer by the author or by those entitled under him or her, where a professional in the art market participates as seller, buyer or intermediary. …

The royalty shall be payable by the seller. The person liable for payment of the royalty shall be the professional person involved in the sale and, if the transfer is made between two professional persons, the seller. …’

 The dispute in the main proceedings and the question referred for a preliminary ruling

7        Christie’s France, the French subsidiary of the multinational firm Christie’s, is a company which arranges voluntary sales by public auction. On that account it regularly organises sales of works of art in which it acts on behalf of the sellers. As a result of some of those sales a royalty is payable in respect of the resale right. Christie’s France has included the term at issue in its general conditions of sale, which allows it to collect a sum, for and on behalf of the seller, in respect of any lot subject to the resale right which is marked in its catalogue with the symbol λ: Christie’s France is then responsible for passing that sum to the collecting agency or to the artist himself.

8        The SNA is an association whose members are active on the same market as Christie’s France and are thus, according to the association, in competition with Christie’s France.

9        The SNA took the view, as regards sales made in the course of 2008 and 2009, that the term at issue was placing the onus for payment of the resale royalty upon the buyer and that that amounted to unfair competition in breach of Article L. 122-8 of the Intellectual Property Code. The SNA therefore brought an action against Christie’s France seeking to have the term declared void.

10      By a judgment of 20 May 2011, the tribunal de grande instance de Paris (Regional Court, Paris) dismissed that action, considering that the allocation of the burden of paying the resale royalty does not on its own amount to unfair competition.

11      The SNA appealed to the cour d’appel de Paris (Paris Court of Appeal). The latter held, in the first place, that the resale right was conceived as a recompense paid by the seller, who has made money from the sale of a work, to the author, since the original remuneration, at the time of first transfer of the work, may have been modest given the increases of value occurring thereafter. In the second place, according to the cour d’appel de Paris, any derogation by agreement from the provisions of Directive 2001/84 would run counter to the objective of the directive, which seeks to bring about standardisation in respect of the resale right. Consequently, the cour d’appel de Paris declared the term at issue to be void.

12      Christie’s France appealed on a point of law, maintaining, in particular, that Directive 2001/84 states without further clarification or restriction that the royalty is payable by the seller and thus does not preclude a contractual arrangement regarding the burden of paying the royalty.

13      In those circumstances, the Cour de cassation (Court of Cassation) decided to stay the proceedings and to refer the following question to the Court:

‘Must the rule laid down by Article 1(4) of Directive 2001/84, which makes the seller responsible for payment of the royalty, be interpreted as meaning that the seller is required definitively to bear the cost of the royalty without any derogation by agreement being possible?’

 The question referred for a preliminary ruling

14      By its question, the referring court asks, in essence, whether Article 1(4) of Directive 2001/84 must be interpreted as meaning that the seller is required definitively to bear, in every case, the cost of the resale royalty or whether any derogation by agreement is possible.

15      In the first place, the Court recalls that one of the objectives in adopting Directive 2001/84 was, as is clear from recitals 3 and 4 thereto, to ensure that authors of graphic and plastic works of art share in the economic success of their original works of art (see, to that effect, judgment in Fundación Gala-Salvador Dalí and VEGAP, C‑518/08, EU:C:2010:191, paragraph 27).

16      Directive 2001/84 is also intended, as is apparent from recitals 13 and 14 thereto, to eliminate differences between laws which lead, inter alia, to unequal treatment between artists depending on where their works are sold.

17      In order to ensure that those objectives are achieved, the Member States must, under Article 1(1) of Directive 2001/84, provide, for the benefit of an author, a resale right, defined as an inalienable right which cannot be waived in advance and which is intended to ensure that authors, by means of a royalty of an amount equal to a percentage of the sale price obtained for any resale of their works, receive a certain level of remuneration.

18      In that respect, the Court observes that, since Directive 2001/84 requires the Member States to provide for a resale royalty, those States must be considered responsible for ensuring that such a royalty is actually paid, if the relevant provisions of the directive are not to be deprived of all practical effect (see, by analogy, judgment in Stichting de Thuiskopie, C‑462/09, EU:C:2011:397, paragraph 34).

19      That responsibility on the part of the Member States also implies that it is they alone which may determine, within the framework laid down by Directive 2001/84, the person liable – who is responsible for payment of the royalty to the author.

20      According to recital 4 to Directive 2001/84, it is necessary to provide creators with an adequate and standard level of protection. If such a level of protection is to be ensured, that indeed presupposes that it is the Member States alone which should designate, in their law, the person by whom the royalty is payable.

21      In that regard, Article 1(4) of Directive 2001/84, read in the light of recital 25 thereto, states that the person by whom the royalty is payable is, in principle, to be the seller.

22      That approach can, moreover, be readily explained in view of the fact that on a resale, it is normally the seller who receives the purchase price on completion of the transaction.

23      However, it also follows from the second sentence of Article 1(4) of Directive 2004/81, read in conjunction with recital 25 thereto, that the Member States may provide for derogations from the principle that the royalty is payable by the seller, although they are limited in the choice of persons other than the seller who, alone or with the seller, will assume liability for payment of the royalty.

24      In that regard, Article 1(4) of Directive 2001/84 makes clear that, if a Member State decides to provide that the royalty is to be payable by a person other than the seller, it must select that person from among the professional persons referred to in Article 1(2) who are involved, as sellers, buyers or intermediaries, in the acts of resale falling within the directive’s scope.

25      In the second place, although some language versions of Article 1(4) of Directive 2001/84, such as the Spanish, French, Italian or Portuguese versions, could be understood as drawing a distinction between, on the one hand, the person who is liable for payment to the author and, on the other, the person who must definitively bear the cost of the royalty, it should be noted that other language versions of the same provisions, such as the Danish, German, English, Romanian and Swedish versions, do not make such a distinction.

26      The need for a uniform interpretation of a provision of EU law means that, where there is divergence between the various language versions of the provision, the latter must be interpreted by reference to the context and purpose of the rules of which it forms part (see, to that effect, DR and TV2 Danmark, C‑510/10, EU:C:2012:244, paragraph 45, and Bark, C‑89/12, EU:C:2013:276, paragraph 40).

27      As regards the context in which Article 1(4) of Directive 2001/84 is to be placed, it follows from recitals 9, 10 and 25 that, although the directive makes provision about certain matters relating to the works covered, the persons entitled to receive royalties, the rates applied, the transactions subject to payment of a royalty, and the basis of calculation, as well as about certain matters relating to the person by whom the royalty is payable, it is silent about the identity of the person who must definitively bear the cost of the royalty due to the author in respect of the resale right.

28      In order to be able to provide an interpretation in the light of the silence of Directive 2001/84 in this regard, it is necessary to refer to the objectives pursued by the directive. On that point, although Directive 2001/84 seeks, inter alia, to bring to an end distortions of competition on the art market, that objective is circumscribed by the boundaries set out in recitals 13 and 15 thereto.

29      In particular, it is apparent from those recitals that there is no need to eliminate differences between national laws which cannot be expected to affect the functioning of the internal market and that, in order to leave as much scope for national decision as possible, it is sufficient to limit the harmonisation exercise to those domestic provisions that have the most direct impact on the functioning of the internal market (see, to that effect, Fundación Gala-Salvador Dalí and VEGAP, EU:C:2010:191, paragraphs 27 and 31).

30      For the purpose of achieving the aforementioned objective, thus circumscribed, it is necessary that provision be made as to the person liable for payment of the royalty vis-à-vis the author and as to the rules for establishing the amount of the royalty. However, such provision is not necessary with regard to the question as to who, definitively, will bear the cost of the royalty.

31      Admittedly, it cannot be excluded at the outset that the last-mentioned question may to some extent have a distorting effect on the functioning of the internal market. However, such an effect is, in any event, only indirect, since it arises as a result of contractual arrangements that are independent of the payment of the royalty to the author, for which the person by whom the royalty is payable remains liable.

32      Consequently, in a situation where a Member State adopts legislation which provides that the seller or an art market professional involved in the transaction is to be the person by whom the royalty is payable, Directive 2001/84 does not preclude those persons from agreeing, on the occasion of a resale, with any other person, including the buyer, that that other person will definitively bear the cost of the resale royalty due to the author, provided that a contractual arrangement of that kind does not affect the obligations and liability which the person by whom the royalty is payable has towards the author.

33      In view of all the foregoing considerations, the answer to the question referred is that Article 1(4) of Directive 2001/84 must be interpreted as not precluding the person by whom the resale royalty is payable, designated as such by national law, whether that is the seller or an art market professional involved in the transaction, from agreeing with any other person, including the buyer, that that other person will definitively bear, in whole or in part, the cost of the royalty, provided that a contractual arrangement of that kind does not affect the obligations and liability which the person by whom the royalty is payable has towards the author.

 Costs

34      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) hereby rules:

Article 1(4) of Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art must be interpreted as not precluding the person by whom the resale royalty is payable, designated as such by national law, whether that is the seller or an art market professional involved in the transaction, from agreeing with any other person, including the buyer, that that other person will definitively bear, in whole or in part, the cost of the royalty, provided that a contractual arrangement of that kind does not affect the obligations and liability which the person by whom the royalty is payable has towards the author.

[Signatures]


Language of the case: French.