- Griet Verfaillie - Leo Peeters
- unique platform , Resale right , work of art , artwork , royalty , author , art , art market professional
The Royal Decree providing for the rules and conditions of the resale right, was published in the Belgian Official Gazette of 16 June 2015.
1. The purpose of the unique platform
As we wrote in a previous
article, the resale right is a royalty, enjoyed by the author of an original work of graphic or
plastic art whenever his work has been resold, subsequent to the first transfer, provided that the
seller, the buyer or the intermediary is an art market professional.
This unique platform is used for optimizing the administrative management of the resale right on the resale of a work of art. The new Royal Decree sets out how this management should be at the organizational, accounting and administrative level.
The management and organization of the unique platform for the resale right should ensure that it will be always able to receive:
- the Resale rights;
- the payments of the resale rights.
The management companies of the unique platform must open and make available a common account
with a financial institution into which the resale rights are to be paid.
The unique platform is representative of all holders of the resale right, both the resale right holders who have entrusted the management of their contractual right away to one of the management companies managing the unique platform as those who do not have entrusted their management.
The beneficiaries can count on it that they will be informed diligently on the resale rights managed on their behalf and that the rights will be distributed on an equitable and non-discriminatory manner between the beneficiaries of the resale right.
2. Notification and payment by the actors of the professional art market
The professionals of the art market, which are involved in a sale of a piece of art as a buyer,
seller or intermediary, have the obligation to notify resales every 3 months, at the latest the
20-th day following each calendar quarter, with a form that is available to them by the unique
platform or through an electronic statement via a system set up by the unique platform ensuring the
integrity of the data in respect for the protection of privacy of both users of beneficiaries.
Within 3 months after each notification, the single platform is obliged to publish on its website the list of art works that have been notified after their resale, and the date of resale and the date of the resale notification to the unique platform.
For sales by auction houses, respectively the deadline of 1 month (for notifications) and two months (for payments) has to be respected.
3. Statute of limitation of the resale right and consequences
The statute of notofication for the resale right is 5 years after the resale. This means that
every author has a period of 5 years to exercice his resale right after each resale of an art piece
after his first resale.
At the expiration of the limitation period, the management companies managing the unique platform have to divide between them the amounts paid on the common account. This division must be done proportionally to the amount of resale rights that each of them has received at the unique platform, in the fifth year before the year in which the limitation period has expired.
After this allocation, the funds should be redistributed to the beneficiaries.
4. The right to information by the single platform but also by authors
The single platform may exercise the right to information, for a period of 3 years following the
resale vis-à-vis the professional art market, through an information request necessary to ensure
the collection and redistribution of the resale right. The same rights and obligations relating to
the right to information shall apply both to holders of the resale right who have contractually
entrusted the management of their resale rights to the management companies that manage the unique
platform as to those who have not entrusted contractually such management of their resale rights.
The request for information must meet certain formal requirements.
Resale rights holders also have the right to request information from the unique platform to ensure the collection and redistribution of their resale rights, and also in this context the same formal requirements must be met.
It is explicitly stated that data obtained in response to a request can not be used for purposes or for reasons other than the collection and distribution of the resale right.
The perception of resale rights will be better organized by this regulation and becomes very
concrete at the same time. This is good news for authors who can share in the success of their
creations after the first resale.
Furthermore it is hoped that the art market in our country will not be too adversely affected by this regulation. The fear is that the art pieces owners will address to the professionals of the art market and the auction houses abroad for their resale.