Article 11 of the original Directive clearly stated that "the Commission shall submit a report not later than January 1, 2009 on the implementation and the effect of this directive, paying particular attention to the competitiveness of the European market in relation to other markets that do not apply the resale right", but this summer the Commission announced that it would make no investigations until the full provisions of the Directive came into force in all EU member states.
Under a derogation negotiated before the implementation of the Directive, in four countries – the UK, Ireland, Austria and the Netherlands – the levy is currently applied only to the work of living artists. That derogation is due to end on January 1, 2012, when the Right will be extended to benefit the estates of artists who have been dead for less than 70 years.
The British Art Market Federation has long argued that the full implementation of the Directive will have a profound effect on the London art market, in particular, and that Europe as a whole is trading at a disadvantage compared to the rest of the world because of the levy.
BAMF chairman Anthony Browne draws some comfort from commissioner Michel Barnier's U-turn on the report, but points out that the long delay means that there is likely to be very little time for negotiation on what he sees as by far the biggest threat facing the UK art market.
Last week he was also encouraged by a series of written questions submitted to the Commission by Klaus-Heiner Lehne, chairman of the European Parliament Legal Affairs Committee, which at least showed that a very senior member of the European Parliament was not only putting some pressure on the Commission, but that he had a very profound understanding of the wider effect of the Resale Right.
Having drawn attention to the Commission's failure to instigate a report and their further failure to negotiatiate any international agreement on resale rights, Herr Lehne went on to pose two searching questions:
"Might it be possible to counteract any competitive disadvantage by abolishing the resale right?"
"Might it be possible to minimise any competitive disadvantage by confining the resale right to living authors and not extending it to their successors?"
The Commission is bound to respond by early November, but while the questions could not be clearer or more pertinent to the future of the European art market, no one is really expecting answers to match.
