Key Benefits:
Paris, 16 August 2006.
Minister of Culture and Communication to Madam and Gentlemen the Prefects of Region (Regional Departments of Cultural Affairs)
Mandate:
- code of intellectual property, including article L. 112-2;
- general code of territorial authorities, including article L. 1616-1;
- Decree No. 2005-90 of 4 February 2005 amending Decree No. 2002-677 of 29 April 2002 on the obligation to decorate public buildings and specifying the conditions for the procurement of contracts intended to meet this obligation;
- Public procurement code annexed to Decree No. 2006-975 of 1 August 2006, including Article 71.
The procedure for the decoration of the so-called "1%" public buildings, governed by the amended Decree of 29 April 2002, is to dedicate 1% of the cost of public construction to the realization of one or more original works of art of living artists, intended to fit into public space. The decree of 4 February 2005 amended this regime by pursuing a double object:
- simplifying administrative procedures, within the framework of the Government's strategy to simplify and streamline administrative procedures;
- insert specific provisions under the public procurement code resulting from Decree No. 2004-15 of 7 January 2004, including section 31 (1).
Chapter II of the amended Decree of 29 April 2002 defines a specific procedure for the procurement of contracts that are equally respected as those of general principles governing public order. One of the objectives was to reduce the number of commissions and the number of thresholds, as well as to empower operators, with the ambition to associate artists upstream of the project, in cooperation with the architect and the master's teams. The scope of the artistic intervention, as set out in the April 2002 decree, is reaffirmed.
The new applicable regime calls the following comments.
The present circular will be issued in the Official Journal of the French Republic.
I. - Real estate transactions under the obligation of "1%"
1. The application field
The real estate transactions to which this obligation applies are those to:
- the construction and extension of public buildings;
- the construction of public buildings rehabilitation works when this work results in a change in the assignment, use or destination of the buildings.
By rehabilitation, a profound restoration of an existing building should be heard. The current maintenance and maintenance of public heritage is therefore not to be considered. In the field of application of the decree, the works of rehabilitation of public buildings whose purpose is the deployment within the considered building of an activity completely different from that previously carried out there (change of use or destination).
Finally, a change in the administrative allocation of the building on which rehabilitation works are undertaken also requires compliance with the "1%" procedure.
2. Opening arrangements
The provisions of amended Decree No. 2002-677 of 29 April 2002 are to be applied under Article 12 of Decree No. 2005-90 of 4 February 2005.
Article 12 of the Decree of February 4, 2005 is a transitional provision for "1%" transactions for which, on the date of its entry into force (February 7, 2005), is:
- the master of the work had not yet placed an order or purchased a work pursuant to the first paragraph of Article 6 of the Decree of 29 April 2002;
- the master of the work had not yet seized the artistic committee under the first paragraph of Article 8 of the same decree.
3. Public legal entities subject to "1%"
This is the state and public institutions under its control, other than those of an industrial and commercial nature, when they manage the work of a public construction. The same obligation is imposed on real estate operations whose mastery of work is ensured by an agent (2) of these public persons or by a person acting on their behalf, in particular in the case provided for in Article L. 211-7 of the Code of Education, which opens to the State the possibility to entrust, by agreement, to the territorial authorities or their groups, the mastery of construction works or extensions of higher education institutions
With respect to the territorial authorities and their groupings, the obligation of "1%" is limited to the only new constructions of municipalities, departments and regions that were the subject of the same obligation to the State on 23 July 1983 under Article L. 1616-1 of the CGCT. This obligation therefore finds to apply only in the context of the "transferred" skills by decentralization laws.
In addition to the competences transferred by law, however, local authorities may spontaneously take the initiative of a "1%" procedure, if they wish, as many have done since the existence of this text. The same applies to industrial or commercial public establishments and public-sector companies. In these cases, it is recommended Implement the procedure set out in the amended Decree of 29 April 2002.
4. Real estate transactions not submitted
the obligation of "1%"
Article 1 of the amended Decree of 29 April 2002 states, in its last paragraph, that some of the State's real estate operations and public institutions (other than those of an industrial or commercial nature) do not justify, because of their nature, the presence of an artistic realization. The definition of transactions free of this obligation is referred to a joint order of the Minister concerned and the Minister responsible for culture.
It is a matter of limiting this exclusion to military or civilian buildings resolutely outside the public domain or kept secret, nevertheless allowing for the decoration of more common buildings, even if they receive only public agents (facades, etc.).
Thus, bilateral decrees, concluded with the ministries of defence (sented on 22 March 2005) and the interior (sented on 30 September 2003), specify these exclusions (see annexes I and II). As for penitentiary institutions, which depend on the Ministry of Justice, they enter the scope of the "1%".
In terms of health, real estate operations within the scope of the "1%" are those carried out by the Ministry of Health and its services decicently for their own needs. With regard to the operations carried out by public health institutions, only the three national public institutions enter the scope of the amended Decree of 29 April 2002, namely: the national hospital centre for ophthalmology of the Quinze-Vingts, the national public institution of Fresnes and the national hospital of Saint-Maurice in Val-de-Marne.
Other public health institutions are not national public institutions and are not expressly mentioned by the decree, so they are not subject to the obligation of "1%".
However, it is possible for a hospital to voluntarily submit to "1%". Indeed, the two ministries responsible for health and culture agreed on the importance of a public order policy for art works for hospitals and their surroundings, to the extent available, even if the amount released for artistic interventions did not reach 1% of the amount of work. In the event of an artistic order, it is recommended to the owner to rely on the existing procedure.
5. Plate and method of calculating the envelope of "1%"
The cost of the work used as a basis for the calculation of the envelope devoted to "1%" is that expressed, excluding taxes, at the handover of the final draft (ODA).
The anticipated cost of the work, excluding taxes, as set out in the ODA, excludes the costs of various roads and networks, such as those of furniture equipment (see, in this regard, section 2 of the amended Decree of 29 April 2002.
These are excluded from the base plate for calculating the envelope of the "1%" the expenditures for geometer and survey studies. On the other hand, special foundation expenses are to be taken into account.
The amount of all taxes included in the amounts to meet the "1%" obligation is equal to 1% of the tax-free amount of the anticipated cost of the work established at the ODA. This amount cannot exceed two million euros.
II. - Nature of artistic performances that may be realized
and modalities for the implementation of the 1% procedure
6. Very varied artistic interventions
All artists engaged in a professional approach are eligible, whether French or foreign, provided they comply with the social and tax obligations in force.
The works that may be ordered under the "1%" are original works of art mentioned in Article L. 112-2 of the Intellectual Property Code. It is necessary to allow artists to intervene in the diversity of contemporary plastic creation.
It can be works of drawing, painting, sculpture, engraving, lithography, as well as graphic and typographical works, photographic works, works using light and works belonging to the category of applied arts. The "1%" may also relate to works using new technologies or using other artistic disciplines, including for the treatment of the surroundings and the development of landscaped spaces, the design of original furniture or the development of a particular label. The combination of several of these interventions is possible in the same construction.
With regard to furniture, it is specified that only the original artistic creations enter the scope of the decree, whether they are made after an order via the "1%" or sold by an intermediary, such as a furniture manufacturer.
The spirit of the amended Decree of April 29, 2002, which wishes to "have to see on the occasion of the realization of a public construction", must encourage those responsible for the "1%" to have the duration of the chosen work coincided with that of the construction. Ephemeral works therefore appear to be discouraged in such a device.
7. The artistic committee is the competent body
for Project Review
7.1. Composition and role
The simplification of the "1%" system is reflected in the abolition of the regional artistic commission. The common law proceeding for the examination of decoration files becomes the artistic committee established by the owner. It intervenes for all orders regardless of the amount. Only purchases below 30,000 euros excluding taxes are exempted.
The artistic committee is the instance within which the dialogue allows the master of work to choose one or more works of living artists under the "1%". It differs from the "pilot committee", as provided by the decree of April 29, 2002, in that it is the only instance, apart from the national commission, which expresses an opinion on artistic projects. The artistic committee has an advisory role with the owner.
The abolition of the regional artistic commission is accompanied by the strengthening of the artistic committee, which will now include an additional qualified personality.
The artistic committee, chaired by the owner, is composed of seven people:
- four persons representing the master of work (the master of work, president; the master of work; a user of the building and a qualified personality appointed by the master of work);
- three other members: the Regional Director of Cultural Affairs and two qualified personalities (one selected from a list established by the professional organizations of artists), appointed by the Director.
In order to allow the Regional Director of Cultural Affairs to designate, for each artistic committee, the qualified personality representing professional organizations, the latter will propose, each or all, the name of their representative(s). These proposals will be made, for each region, in writing with the regional prefect, to the attention of the Regional Director of Cultural Affairs. In order to allow for the renewal of artists in the artistic committees, professional organizations will be able to propose representatives per two-year period. "Professional organizations of artists" means structures whose only purpose is to defend the material and moral interests of artists within the field of graphic and plastic arts.
The other two qualified personalities are named intuitu personae, one by the owner and the other by the regional director of cultural affairs among professionals working in the field of creation (critical, historian, curator of exhibition, artistic director, artist, urbanist, architect...) (4). With regard to the qualified personality designated by the master of the work, he may apply to the Regional Director of Cultural Affairs to offer him professionals in the field of plastic arts. When the real estate operation is carried out for the benefit of the Ministry of Defence, the master of the work may designate a representative of the associations of the painters of the armies.
The deferral of qualified personalities, members of the artistic committee (transports, meals) will be taken over by the owner under the conditions prescribed by the regulations applicable to government officials and territorial authorities.
The possibility of inviting to sit on the committee, in an advisory capacity, a councillor of the municipality in whose territory the construction is based should be widely used.
The artistic committee should be constituted by the master of the work upon approval of the preliminary draft summary (APS).
At first, the artistic committee is responsible for the development of the program of the artistic order, in which the nature and location of the planned realization are specified. It is desirable that the program also specify the issues and expectations of the order.
This program, subject to the approval of the master of work, is communicated to the artists (see infra 11, prior advertising).
It is desirable for the artistic committee to meet and decide on its choice as soon as possible of the construction in order, if necessary, that the preparatory work for the installation of the work be included within the framework of the construction programme. It is also important that a dialogue between the masterpiece and the selected artist develop throughout the project. For this purpose, the master of work may in the regulations for consulting the master of work specify that the construction will be subject to a procedure of "1%".
It is also desirable that a rules of procedure of the artistic committee be developed to clarify the working methods and, on a case-by-case basis, the selection criteria of artists or projects, even summarily. Elements for the drafting of this document are annexed to the present circular. Additional information may be provided upon request to the Ministry of Culture and Communication (Delegation to the Plastic Arts - Office of the Economy and Professions) or to the Regional Directorates of Cultural Affairs.
7.2. The role of the rapporteur
The Regional Directorate for Cultural Affairs is a project rapporteur. Its role is to first present the candidate artists and their references and, secondly, the artistic projects proposed by the artists consulted. The organization of meetings and their follow-up are the responsibility of the master.
The amended Decree of 29 April 2002 also provides for the possibility for the prefect of the region to appoint, as appropriate, a deputy rapporteur. In consultation with the owner, he may designate a service of the territorially competent State on the draft "1%" considered to ensure this role alongside the regional directorate of cultural affairs.
8. Provisions applicable to artistic projects
less than 30,000 euros excluding taxes
In the case of artistic projects of a cost less than 30,000 euros excluding taxes, it is expected that the master of work can either buy a work or order a work to an artist.
8.1. The purchase procedure
If the owner opts for the purchase procedure, he chooses one or more works after consulting three people: the masterpiece, the building user and the Regional Director of Cultural Affairs.
This limited consultation procedure for procurement is recommended for simplification. However, the operator retains the ability to form an artistic committee and to follow the recommendations, even for an amount less than 30,000 euros excluding taxes.
It is recommended that the purchase be made through a gallery if the artist is represented by an art gallery or directly with the artist, if not. A purchase of original designer furniture is also possible. Visits of artists' workshops, galleries, consultation of reference files may be organized to proceed with the choice of the work.
Although the purchases of existing works of art are not subject to the provisions of the public procurement code (see in this regard the 11th of Article 3 of Title I of this Code), the owner may implement advertising measures. This advertisement may be made by any appropriate means, including on the website of the Ministry of Culture and Communication.
8.2. Order amount
less than 30,000 euros excluding taxes
In the event that the contractor opts for an order and not for a purchase, he or she must decide after notice of the artistic committee and comply with the procedure described in section 7.1 of this circular.
9. The exceptional role of the national commission
The national commission is aware of projects that are addressed to it at the initiative of the owner, in his capacity as chairman of the artistic committee, when the importance or innovative nature of a project justifies it. The scope of the project, the financial criteria and aesthetic innovation are crucial here. Major territorial development projects, projects led by public urban development institutions, are likely to be affected by this possibility. The owner will appreciate, in consultation with the regional prefect, the relevance of such a reference.
10. 1% procedure for projects abroad
The amended Decree of 29 April 2002 supplemented the provisions applicable to projects carried out abroad. The formula also appeals to the artistic committee, but in a different composition than that for projects located in France.
This particular artistic committee is composed of six members: the master of the work, the ambassador of the country concerned, the master of work, the plastic arts delegate and two qualified personalities in the field of plastic arts, one of which is designated by the master of the work and the other by the ambassador. In the event of a division of voices, the master of work has a dominant voice.
The chair of this committee is provided by the master of work, namely the representative of the Ministry of Foreign Affairs, who associates with the artistic committee, if necessary, a representative of the relevant administrations (Agence pour l'enseignement français à l' étrangers, pour les institutions scolaires, direction des relations économiques extérieures, pour les missions économiques financières, for example). In the event that another department is a master of work, the ambassador to the country concerned has the power to represent it (5).
The terms and conditions of the committee and the terms and conditions for the implementation of the advertising measures are identical to those applicable to operations located in the national territory.
The master of work may, if he wishes, entrust the project rapporteur's mission to the artistic committee to the plastic arts delegate.
11. Obligation of prior advertising
The new regime, which enforces section 71 of the Public Procurement Code, introduces a pre-publication obligation for the owner of any of the "1%" amount. Thus, after bringing together the artistic committee that develops the program of the artistic order (including the nature and location of the planned realization), the master of the work makes public the program of the artistic order. The advertising costs are borne on the budget devolved to "1%".
Article 8 of the amended Decree of 29 April 2002 provides that the owner must choose a type of advertisement "suitable, allowing sufficient information from the artists, depending on the nature and amount of the order".
The information posted online on the owner's website or on other sites that are professionally identified (e.g., organizations, institutions, elected associations) is desirable but not always sufficient. Traditional information by way of display, various newsletters, newspapers is also possible or even advised as appropriate (magazines specializing in fine arts and culture in general, regional or national daily press and foreign press according to the importance, scope or reputation of the project).
The Ministry of Culture and Communication proposes to welcome, at the request of the owners, all information relating to the current "1%" procedures. Advertising notices, presented in a section specialized on the ministry's institutional website, will be widely accessible.
With respect to orders under the State, notices of advertising will also be available on the interdepartmental portal of public procurement (in order to facilitate the implementation of advertising measures, elements that will assist the owner in the drafting of the notices annexed to the present circular). Additional information may be provided upon request to the Ministry of Culture and Communication (Delegation to the Plastic Arts, Office of the Economy and Professions) or to the Regional Directorates of Cultural Affairs.
If the art order program is too large, the owner may, in order to limit the advertising costs, indicate in his public opinion the means to obtain it, including by e-mail.
Artistic orders placed under the "1%" correspond to a specific procedure but are also required to respect the principles set out in Article 1 of the Public Procurement Code. It is therefore recommended that the master of work specify in his public opinion the conditions applicable to the submission of applications: deadlines, documents to be submitted by the artists (references, artistic dossier).
In addition, it is appropriate that the master of work also specify the number of artists he will consult after receiving the notices of applications. These selected artists will produce a preliminary draft for which compensation will be paid to them (see article 13 of the amended Decree of 29 April 2002). The amount of this allowance is based on the design and pre-project requested. It is proposed by the artistic committee. Note that a clearly insufficient project may not result in compensation. It is up to the master of work to appreciate, after the advice of the committee, this obvious weakness.
The penultimate paragraph of Article 8 of the amended Decree of 29 April 2002 provides that markets that can be passed without advertising or prior competition that can only be entrusted to a specified provider for technical, artistic or protection of exclusive rights. It should be emphasized that the use of this negotiated procedure is strictly limited to markets that meet the requirements of the Public Procurement Code and the jurisprudence, which are based on the artistic characteristics of the order and the limitation of the providers possible to a single person.
It is recalled that these conditions are exceptional and difficult to bring together, with jurisprudence in this area extremely restrictive. The national and European provisions, which guarantee equal access to public orders, most often lead to the implementation of prior advertising.
12. The obligation of information and motivation of choice
Article 12 of the amended Decree of April 29, 2002 provides that the person responsible for the market shall determine his or her choice after notice of the artistic committee by a reasoned decision and that he or she shall inform all candidates. With regard to the candidates who had been ousted, it should be noted that the letter informing of the decision should not necessarily include motivation, since it was only mandatory if the candidates specifically requested it. This motivation indicates that the project presented by the artist corresponds, or not, to the specifications of the "1%" and fulfills, or does not, the expectations of the workmaster, as specified in the program defined by the artistic committee.
The award notice(s) must then be communicated to the European Union publication office for all orders exceeding the threshold of 230 000 euros excluding taxes pursuant to the amended Decree of 20 April 2002. However, it is recommended that a notice of award be provided as soon as the threshold of €20,000 excluding taxes is reached (6).
With respect to a specific procedure, it is anticipated that the award notice may include a clause stating that this information does not have to be made public (non-disclosure clause). This clause is intended to protect information related to the artistic order (the amount of the artist's fees or the overall amount of the order if in addition to the fees, is included the cost of the realization, in the case that the contract with the artist would provide that he delivers a work "ready to be laid").
13. The order contract
After the approval decision, a contract was passed between the owner, represented by the person responsible for the market, and the artist. This contract determines the modalities for the realization and installation of the work, as well as the remuneration of the artist. With respect to the assignment of rights, it may be provided in the order contract or subject to a specific contract.
On the legal level, it is recalled that, when the contract of order of the chosen work is passed, it is strongly advised the owner of the work to negotiate with the artist the assignment of his rights (rights of reproduction and representation), in accordance with the provisions of the intellectual property code. However, it is necessary to negotiate only the assignment of the strictly necessary rights to the reasonably feasible uses of the commissioned works, for example in an institutional communication. These uses must be explicitly covered by the contract for the assignment of rights. In the event that the master would consider the use of the work in a commercial way (e.g. derivatives), the contract with the artist should explicitly provide for the conditions.
Similarly, in an effort to prevent any problems during the evocation of the artist's moral right, the master's work may, if any, be able, upon the writing of the order contract, to have all technical stipulations in place to solve the questions of maintenance, maintenance and restoration or movement of the work for the future.
In accordance with the intellectual property code, the master of work and the artist may agree on a minimum period of presence of the work in the public space. Its subsequent destination may also be scheduled for this occasion.
Make a particular point of the social obligations of the broadcaster who, in fact, do not fall within the control contract (see point 14 below).
14. The obligations of the master of work with regard to the regime
Social protection of authors
Under the "1%" masters are subject to the so-called contribution of the "1% diffuser" (7). As a broadcaster of the work, the master of the work must pay to the approved bodies for the collection of social contributions from the author artists (Maison des artistes ou Association pour la gestion de la sécurité sociale des auteurs) a contribution corresponding to 1% of any gross non-tax remuneration paid to the artist, i.e. fees or copyrights according to the order. This contribution is on the 1% envelope.
In addition, it is up to the master of work to draw on the compensation paid to the artist under the "1% artistic" the contributions to sickness, widowhood, CSG, CRDS at the rate of common law. This premise, which is retained at the source of the contributions and social obligations due by the artist, is obligatory, except in case the artist is able to produce the attestation S.2062 (pre-counting costs).
Documents to fulfil these obligations are available from accredited bodies to collect social contributions from author artists (House of Artists or Association for the Management of Social Security of Authors).
15. The restoration of works from "1%"
The device is completed with respect to the restoration of works: this work is the responsibility of the owner or the person responsible for the maintenance of the work (8). It is specified that the latter has the opportunity to seek assistance from public or private partners, including through the patronage.
If a building has already been the subject of a procedure of "1%" in the past and is again able to meet the obligation of "1%" in the context of a new project (extension, renovation with alteration of assignment), it is recalled that, if restoration of ancient works is required, it does not substitute in any way for the order or purchase of a new work of art.
In addition, the setting up of a regular monitoring program and a routine maintenance of the work according to the requirements of the artist, indicated in a technical sheet, are recommended to the extent that they prevent a significant degradation of the work leading to expensive restoration. It is recommended that maintenance and maintenance requirements be included in the final procurement contract between the artist and the person responsible for the market.
16. Miscellaneous recommendations
In an effort to raise public awareness of contemporary creation, works from the "1%" will be usefully accompanied by a cartel or a presentation leaflet, indicating the name of the author, the title of the work, the year of realization.
It is recommended that the models and sketches developed by the selected artists be retained by the master of work (9). These documents are indeed the memory of the project and are useful in case of restoration of the work. The owner may eventually request the competent archival services.
The services of the delegation to the arts (3, rue de Valois, 75001 Paris) are available to answer questions that would arise from the application of this circular.
LIST OF ANNEXES
Appendix I: Order of September 30, 2003 pursuant to Article 1 of Decree No. 2002-677 of April 29, 2002 on the obligation to decorate public buildings and specifying the conditions for contracting to meet this obligation (see Official Gazette of October 3, 2003).
Appendix II: Order of March 22, 2005 pursuant to Article 1 of Decree No. 2002-677 of April 29, 2002 on the obligation to decorate public constructions and specifying the conditions for contracting to meet this obligation (see Official Gazette of April 5, 2005).
Annex III: Elements for drafting the rules of procedure of the artistic committee.
Appendix IV: Elements for Advertising Notice Editorial.
A N N E X E I I
ELEMENTS FOR REDACTION
OF THE RULES OF PROCEDURE OF THE ARTISTICAL COMMITTEE
Drafted by the owner, the rules of procedure are intended to determine the modalities for the selection of artistic projects presented in the 1% procedure. Wishable but not mandatory, it may include the following information:
Conditions for the installation and convening of the artistic committee;
Frequency of meetings;
Preparation of the specifications of the order;
Conditions of admissibility of applications;
Criteria and procedures for reviewing applications;
Selection of the candidate(s) requested to submit a project;
Selection of final project and compensation of unsuccessful candidates;
Information of candidates;
Confidentiality of proceedings;
Secretariat of the artistic committee.
Additional information may be provided upon request to the Ministry of Culture and Communication (Delegation to the Plastic Arts, Office of the Economy and Professions) or to the Regional Directorates of Cultural Affairs.
A N N E X E I V
ELEMENTS FOR REDACTION
DE L'AVIS DE PUBLICITÉ AU TITRE DU « 1 % »
Region:
Workmaster: name and contact information.
A 1% procedure is open for the construction or rehabilitation of...
Order program: nature of the work, location, objectives expected.
(Showing 1 % : ... EUR).
Application file:
To be admissible, the application must necessarily include:
Modalities (and criteria) for project selection:
Place of application:
Deadline for submission of files:
The deadline for sending applications is .... (the stamp of the position being held).
Additional information may be provided upon request to the Ministry of Culture and Communication (Delegation to the Plastic Arts, Office of the Economy and Professions) or to the Regional Directorates of Cultural Affairs.
Renaud Donnedieu de Vabres
