Conditions of application of the resale right of authors of original handwritten, graphic or plastic works (Sovereign Order no. 10.300 of 22 December 2023)

Sovereign Order no. 10.300 of 22 December 2023 (JDM no. 8676 of 5 January 2024) sets out the terms and conditions for the application of the resale right ("droit de suite") provided for in Article 11-1 of Law no. 491 of 24 November 1948 on the protection of literary and artistic works, which was reformed by Law no. 1.526 of 1 July 2022. As a result, Ministerial Order no. 87-7 of 12 January 1987, which previously set out the terms and conditions of application, has been repealed.

As a reminder, the resale right is the remuneration that authors of original works in the field of handwritten, graphic and plastic arts (paintings, collages, paintings, drawings executed entirely by hand by the artist, engravings, prints, etc.) receive when their works are resold by an art market professional. This right enables them to benefit from the increase in value of their works, the price of which generally rises over time as successive resales are made and the artist becomes better known.

The system and the amount of the resale right have been overhauled in the light 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, and are equivalent to those in other European art markets, with a few adjustments to reflect the local art market.

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Terms and conditions of application of the resale right ("droit de suite") provided for in article 11-1 of Law no. 491 of 24 November 1948, as amended:

¤ Resale right payable in Monaco (article 1): on the sale in Monaco, in any form whatsoever, of an original, handwritten, graphic or plastic work other than the first transfer made by the author or his/her successors in title, provided that an art market professional acts as seller, buyer or intermediary in this transfer as part of their professional activity and that this sale is subject to value added tax (VAT). There are also conditions relating to the sale price (see below).

¤ Works executed in a limited number of copies and under the responsibility of the artist considered as original works of art (article 2): they must be numbered or signed or otherwise duly authorised by the artist.

¤ The works concerned by the resale right are in particular (article 2):

a) Original engravings, prints and lithographs printed in limited numbers of one or more plates;
b) Editions of sculpture, limited to twelve copies, including numbered copies and artist's proofs;
c) Tapestries and works of textile art made by hand, based on original models supplied by the artist, up to a limit of eight copies;
d) Enamels executed entirely by hand and bearing the artist's signature, up to a limit of eight numbered copies and four artist's proofs;
e) A maximum of thirty signed photographic works, whatever the format and medium;
f) Plastic creations on audiovisual or digital media, up to a limit of twelve copies.

¤ The sale price of each work taken into consideration for the collection of the resale right (articles 3, 4 and 5): exclusive of tax, the auction price in the case of a sale by public auction and, for other sales, the transfer price received by the seller. Where the seller acquired the work directly from the author less than 3 years before the sale in Monaco, the resale right does not apply if the sale price of the work is less than €10,000. Resale right is not payable if the sale price of the work is less than €750.

¤ Conditions and duration of the authorisation to collect the resale right (article 6): the authorisation is granted by the Minister of State to the collective rights management organisation ("organisme de gestion collective des droits"), to a legal entity set up to manage copyright on behalf of several rights holders, for the collective benefit of the latter, which pursues a non-profit-making aim and which can provide proof of:

1) the diversity of its members in terms of the categories and number of beneficiaries ;
2) the professional qualifications of the person or persons authorised to act on behalf of the legal entity concerned, assessed on the basis of their professional experience in the graphic or plastic arts sector or in the management of professional bodies;
3) its statutory and administrative organisation, its installation and equipment conditions and its capacity to inform the beneficiaries of the resale right, including abroad;
4) guarantees of the good character of the person or persons authorised to act on behalf of the legal entity concerned.

The authorisation may be granted to a collective rights management organisation:

• having its registered office in Monaco and is managed by a person of Monegasque nationality;
• having its registered office outside Monaco and represented in Monaco by a natural person of Monegasque nationality whose domicile is in Monaco - The said natural person must also provide proof of: a) domicile in Monaco; b) professional qualifications assessed on the basis of professional experience in the graphic or plastic arts sector or in the management of professional bodies; c) character references;
• having its registered office outside Monaco and represented in Monaco by a legal entity having its registered office in Monaco and managed by a person of Monegasque nationality. The said legal entity must also provide proof of: a) the Monegasque nationality of its directors; b) the professional qualifications of the person or persons authorised to act on its behalf, assessed on the basis of their professional experience in the graphic or plastic arts sector or in the management of professional bodies; c) its statutory and administrative organisation; d) the character guarantees of the person or persons authorised to act on its behalf.

The application for authorisation to collect the resale right, together with the documents compiled by the applicant in a file designed to demonstrate compliance with the above conditions, must be sent by registered letter with acknowledgement of receipt (LRAR) to the Minister of State, who will issue a receipt.

If the file is incomplete, the Minister of State will request an additional file by registered letter, which must be submitted in the same form within 1 month of receipt of this letter.

The Minister of State's authorisation is issued to the organisation for a period of two years, renewable, provided that the above conditions are met.

The organisation must inform the Minister of State of any changes by registered letter. If the organisation's registered office is outside Monaco, an application for authorisation must be submitted to the Minister of State in order to change the person representing the organisation in Monaco.

Authorisation to collect the resale right and any decision to withdraw such authorisation are published in the Journal de Monaco.

¤ The professional responsible for payment of the resale right (article 7):

• In the event of the sale of an original handwritten, graphic or plastic work at public auction, the art market professional responsible for the payment of the resale right is, depending on the case, the voluntary sales company or the bailiff.
• In other cases, the art market professional involved in the sale is responsible for payment of the resale right. If the sale involves several professionals, the professional responsible for payment of the resale right is: 1) the seller, if he/she is acting in his/her professional capacity; 2) failing this, the art market professional who receives payment from the buyer as an intermediary; 3) failing this, the buyer, if he/she is acting in his/her professional capacity.

¤ Payment to the beneficiary of the resale right (which may not exceed €12,000) (article 8):

• When the professional responsible for payment receives a request from the beneficiary of the resale right, he/she shall pay him the amount within a period that may not exceed 4 months from the date of receipt of the request or, if this request is received prior to the sale, from the date of this sale. If the work is the result of the collaboration of several authors, the beneficiary must declare this and specify the distribution of the resale right agreed between the authors.
• If the professional responsible for payment does not receive a request, he/she must notify the authorised collective management organisation by registered letter, no later than 3 months after the end of the calendar quarter during which the sale took place, of the sale, indicating the date of the sale, the name of the author of the work and, where applicable, any information relating to the beneficiary of the resale right available to him/her. When the collective management organisation is notified of a sale giving entitlement to the collection of resale right for the benefit of a beneficiary whose identity it knows, it is obliged to inform the beneficiary. If the beneficiary is not identified, the collective management organisation will take all necessary steps to inform the persons likely to benefit from the resale right, if necessary by calling on other collective management organisations. If it has not been possible to inform the beneficiary, it will take the appropriate publicity measures in electronic form or by any other suitable means.

¤ The conditions of eligibility for the resale right provided for in article 11-1 of Law no. 491, for non-Monegasque authors and co-authors and their heirs ("ayants droits")(article 9):

• Non-Monegasque authors and co-authors and their heirs are entitled to benefit from the resale right provided for by Monegasque legislation on condition of reciprocity: if the legislation of the State of which they are nationals allows Monegasque authors and co-authors and their heirs to benefit from the resale right and for the period during which the latter are entitled to exercise this right in their countries.
• Non-Monegasque authors and co-authors who have been domiciled in the Principality for at least five years and who, in the course of their artistic career, have participated in the life of art in Monaco may, without condition of reciprocity, be entitled to the resale right provided for by Monegasque legislation. Their heirs within the meaning of article 14 of Law no. 491 enjoy the same right. At their request, they are admitted to the benefit of this right, by decision of the Minister of State, taken after the opinion of a commission, the composition and operating conditions of which are set by Ministerial Order.

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