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French Experts Find Art Resale Tax Raises Thorny Issues

French journalists, collectors, galleries and auction houses continue to debate the future of the droit de suite—a royalty payable to an artist or his or her heirs when a work is resold, either during the artist’s lifetime or for a 70-year period following his or her death.

PARIS—French journalists, collectors, galleries and auction houses continue to debate the future of the droit de suite—a royalty payable to an artist or his or her heirs when a work is resold, either during the artist’s lifetime or for a 70-year period following his or her death. The portion of a final hammer price that must go to a royalty ranges from 0.25 percent to 4 percent, depending on the price (the higher the hammer price, the higher the royalty rate). Works that are resold for less than E1,000 are not subject to the royalty, which is also capped at E12,500. In France, the royalty is customarily paid by the seller.

The droit de suite (in French, literally the “right to follow” or “right to continuation”) was established in France in 1920, after the famous sale of a painting, The Angelus, by Jean-François Millet, which made a huge profit for the seller while the artist’s family lived in poverty.

The royalty became the subject of particular debate last February, when Christie’s in Paris auctioned the collection of Yves Saint Laurent and Pierre Bergé. The auction house required buyers to pay the royalty, drawing considerable criticism. That same month, the Conseil des Ventes Volon­taires, the regulatory council for public auctions, received an official complaint from the Syndicat National des Antiquaires, the French antique dealers association, and the Comité Professionnel des Galeries d’Art (CPGA), the French art dealers’ association, challenging Christie’s action. The complaint stated in no uncertain terms that charging the royalty to the buyer disrupted the art market and was clearly against the spirit of the law concerning the droit de suite. The antiques syndicate subsequently filed a legal complaint in the French courts. Marie Claire Marsan, executive director of the CPGA and author of La galerie d’art, a book on the contemporary role of the art gallery, told ARTnewsletter that the organization is planning to file its own lawsuit. She described the suit as “a legal complaint because their practice goes against the spirit intended by the droit de suite laws, and therefore disrupts the art market.”

Officials of the auction house defended its position. François Curiel, chairman of Christie’s Europe, said, “We have the legal right to bill the droit de suite to the buyer rather than to the seller … in the terms according to the European Commission.” Christie’s also issued a statement last September, saying in part that requiring the seller to pay the droit de suite “dissuades him from putting a work up for auction in the European Union, and incites him to turn to a country where the droit de suite is not paid, as in the United States. It’s this fact that drove Christie’s to ask the buyer to pay the droit de suite; and thus, to encourage collectors to sell in Europe, thus attempting to protect the European art market.” Christie’s statement also points out that this practice is “perfectly accepted in England, the Netherlands, and Italy, countries where Christie’s has frequently organized auctions in modern and contemporary art.”

The statement also addresses the law regarding the droit de suite, pointing out that regulators in the civil law division of the French ministry of justice had written a letter on Jan. 19 outlining the possibilities for amending the law on droit de suite. Christie’s added that it “serenely awaits the judges’ decision” on the complaint stemming from the Saint Laurent–Bergé sale.

In addition, there are larger questions still pending regarding the practice, Marsan said. Various aspects of the law continue to evolve, in part in order to standardize its use and reduce competition within the EU—even more so since a European directive in 2001 imposed the droit de suite on sales through commercial galleries. Over the past decade, imposition of the droit de suite has been slightly different in such countries as the U.K., Ireland, and the Netherlands, where it has not been applied to sales of works by deceased artists, an exception that is likely to be abolished within the next few years.

Some Europeans hope to abolish the droit de suite altogether, but Marsan said this would be difficult to imagine, as artists and their families would “accept this with great difficulty.” She said that one proposal under discussion is calculating the amount of royalty on the basis of the profit derived from a sale rather than an artwork’s overall value.

Marsan concluded that Frédéric Mitterand, the recently appointed French culture minister, “would not, in fact, make the final decision, since any revision on the droit de suite laws will be decided by all the countries of the European Union together. But he would be there in Brussels to give his opinion, and contribute to the decision making.”

—L.H.

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