ABSTRACT
This chapter deals with the application of the EU Resale Right Directive to auctions. The first section explores the origins of the resale right. The second section gives the civil- and common-law perspectives on the resale right. The third section covers the EU Resale Right Directive. Following a brief history of the directive, it analyses the scope of application of the directive in the fourth section. This section aims to fill gaps in the EU resale right regime that can affect its application at auctions. Firstly, it considers under what conditions this regime applies to online auctions. It is argued that the EU resale right applies to online sales if at least the seller or buyer is an art market professional. Secondly, it problematises ‘shared liability’ of the auctioneer and the seller for the royalty payment. It is argued that the ‘shared’ liability can cover joint and several liability, joint but not several liability and supplementary liability of the auctioneer. Thirdly, it considers who can be the final bearer of the royalty. It is argued that ‘passing-on’ clauses are valid unless they affect the statutory legal relationship between the artist and the debtor and are used to secretly pass on the buyer costs other than royalty. Lastly, it discusses the deductibility of auctioneer’s fees from the basis of royalty calculation. It is argued that the directive allows the seller to deduct taxes whereas auctioneer’s fees remain part of the calculation basis. The conclusion summarises the main findings of the chapter.
