Can contracts derogate from obligations set at the EU level? A new CJEU reference

A work of art or just the cutest
cat ever? Gigi portrayed while
surely contemplating Christie's,
auctions and the CJEU

This Kat has just learned of a new reference for a preliminary ruling to the Court of Justice of the European Union (CJEU), which only at first sight seems concerned with a niche area of the law, this being the artist's resale right and Directive 2001/84/EC (the Resale Right Directive). 

Case C-41/14 Christie's France is an important case, whose implications will go far beyond the sole area of payment of the resale right royalty on the artist's resale right. 

What the French Court of Cassation is in fact asking is whether contracts can derogate from obligations set at the level of EU directives.

Article 1 of the Resale Right Directive sets in fact an obligation for Member States to provide for the benefit of the author of an original work of art an inalienable, unwaivable resale right. This consists of the right to receive a royalty based on the sale price obtained for any resale of the work, subsequent to the first transfer of the work by the author. 

Article 1(4) further states that:

"The royalty shall be payable by the seller. Member States may provide that one of the natural or legal persons referred to in paragraph 2 [sellers, buyers or intermediaries art market professionals, such as salesrooms, art galleries and, in general, any dealers in works of art] other than [that's the important bit] the seller shall alone be liable or shall share liability with the seller for payment of the royalty."

Cat and Christie
reference

As explained by EU Law Radar, Christie's France decided to change its terms and conditions so that the buyer, and not the seller, became liable to pay the royalty. 

The issue thus became: can a contract derogate from the seller’s obligation to pay the royalty that is enshrined in the Directive?

The following is the question that the French court referred to the CJEU:

"Must the rule laid down by Article 1(4) of Directive 2001/84/EC ... on the resale right for the benefit of the author of an original work of art, which makes the seller responsible for payment of the royalty, be interpreted as meaning that the seller is required definitively to bear the cost thereof without any derogation by agreement's being possible?"

If you would like to comment on this case you can do so on this blog and also by emailing policy@ipo.gov.uk by 12 March 2014 [that's next Wednesday, so: hurry up!].