Proposal for a Directive of the European Parliament and of the Council on the protection of consumers in respect of certain aspects of timeshare, long-term holiday products, resale and exchange - Hoofdinhoud

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COUNCIL OF THE EUROPEAN UNION

Interinstitutional File: 2007/0113 (COD)

Brussels, 29 May 2008

9286/ REV 1

DOCUMENT PARTIALLY

ACCESSIBLE TO THE PUBLIC

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CONSOM 50 JUSTCIV 97 CODEC 573

NOTE

General Secretariat of the Council Working Party on Consumer Protection and Information 8195/08 CONSOM 38 JUSTCIV 65 CODEC 440 10686/07 CONSOM 82 JUSTCIV 168 CODEC 657

from:

to:

No. prev. doc. :

No. Cion prop. :

Subject :             Proposal for a Directive of the European Parliament and of the Council on the

protection of consumers in respect of certain aspects of timeshare, long-term holiday products, resale and exchange

Delegations will find attached the revised Presidency text on the above mentioned proposal.

The additions with respect to the Commission's proposal are marked in bold, whilst deletions are marked with strikethrough. Additions made by the Presidency with respect to previous document 9286/08 are marked in bold and deletions with bold.

Positions of delegations are noted in footnotes.

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ANNEX

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on the protection of consumers in respect of certain aspects of timeshare, long-term holiday

products, resale and exchange

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 95 thereof,

Having regard to the proposal from the Commission¹,

Having regard to the opinion of the European Economic and Social Committee²,

Acting in accordance with the procedure laid down in Article 251of the Treaty³,

Whereas:

(1) Since the adoption of Directive 94/47/EC of the European Parliament and the Council of 26 October 1994 on the protection of purchasers in respect of certain aspects of contracts relating to the purchase of the right to use immovable properties on a timeshare basis⁴, timeshare has evolved and new holiday products similar to it have appeared on the market. These new holiday products and certain transactions related to timeshare, such as resale contracts and exchange contracts, are not covered by Directive 94/47/EC. In addition, experience with the application of Directive 94/47/EC has shown that some points already covered need to be updated or clarified.

OJ C […], […], p. […] OJ C […], […], p. […] OJ C […], […], p. […] OJ L 280, 29.10.1994, p. 83.

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(2)    The existing regulatory gaps create appreciable distortions of competition and cause serious problems for consumers, thus hindering the smooth functioning of the internal market. Directive 94/47/EC should therefore be replaced by a new up to date directive.

(3)    In order to enhance legal certainty and fully achieve the benefits of the internal market for consumers and businesses, the relevant laws of the Member States need to be approximated further. However, for certain aspects Member States should be able to continue to apply stricter rules. Therefore, certain aspects of the marketing, sale and resale of timeshare and long-term holiday products as well as exchange of timeshare should be fully harmonised. Member States should not be allowed to maintain or introduce in their national legislation provisions diverging from those laid down in this Directive. Where no such harmonised provisions exist, Member States should remain free to maintain or introduce national legislation in conformity with Community law.⁵

(4)    This Directive should be without prejudice to national rules relating to registration of immovable or movable property, conditions of establishment or authorisation regimes or licensing requirements, determination of the legal nature of the rights which are the subject of the contracts covered by this Directive.

(5)    The different products contracts covered by this Directive should be clearly defined and the

provisions concerning pre-contractual information and the contract should be clarified and updated.⁶

DELETED: scrutiny reservation on this recital.

DELETED: reservation on "diverging from those laid down in this Directive "; COM specifies that such

provision already exists in Article 22 of the Consumer credit Directive.

DELETED: reservation (need for clarification from the COM on the concepts of maximum and minimum harmonisation).

DELETED suggests adding the following new recital:

"(3a) This Directive is without prejudice to the application by Member States, in accordance with Community law, of the provisions of this Directive to areas not covered by its scope. A Member State could thereby maintain or introduce national legislation corresponding to the provisions of this Directive or certain its provisions on, for instance, transactions that fall outside the scope of this Directive." ⁶         Deletion as this is already covered by recital 5c.

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(5a) The definition of timeshare does not include in its scope multiple reservations of hotel room accommodation, which are not binding on the consumer or the contract is of a duration of less than one year. Ordinary lease contracts would also not be included in the scope since they refer to one single continuous period of occupation and not to multiple periods.⁷

(5b) Ordinary loyalty schemes, providing discounts on future stays in the hotels of a hotel chain would not be covered by the definition of long-term holiday products since membership in the scheme is not obtained for consideration or the consideration paid by the consumer is not primarily for the purpose of obtaining discounts.⁸

(5c) Directive 2005/29/EC of the European Parliament and the Council concerning unfair business-to-consumer commercial practices in the internal market prohibits misleading, aggressive and other unfair commercial business-to-consumer practices. Given the nature of the products and the commercial practices related to timeshare, long-term holiday products, exchange and resale, it is appropriate to adopt more detailed and specific provisions regarding information requirements and sales events. The commercial purpose of invitations to sales events should be made clear to the consumer. The provision concerning pre-contractual information and the contract should be clarified and updated. In order to give the consumer the possibility to get acquainted with the information before the conclusion of the contract, it should be provided by means which are easily accessible to him at that time.

DELETED: scrutiny reservation on recitals 5a, 5b and 5c; DELETED: scrutiny reservation on recitals 5a and 5b.

DELETED: reservation.

DELETED: reservation.

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(6)    The consumer should have the right to choose the a language he is familiar with to be used for the pre-contractual information and in the contract.⁹ In addition, in order to facilitate the execution of the contract and the enforcement, Member States should be allowed to determine that further language versions of the contract should be provided to the consumer.

(7)     In order to give the consumer the possibility to fully understand what his obligations and rights are under the contract he should be allowed a period during which he may withdraw from the contract without having to justify it and without bearing any cost. Currently the length of this period varies between Member States, and experience shows that the length prescribed in Directive 94/47/EC is not sufficiently long. The period should therefore be extended, in order to achieve a high level of consumer protection and more clarity for consumers and traders, and the length of the period, the modalities for and the effects of exercising the right of withdrawal should be harmonised.

(7a) Council Regulation (EEC, Euratom) N° 1182/71 of 3 June 1971 determining the rules applicable to periods, dates and time limits should apply to the calculation of the periods contained in this Directive.

(8)    The prohibition on advance payments to the trader or any third party before the end of the withdrawal period should be clarified in order to improve consumer's protection. For resale contracts, the prohibition of advance payment should apply until the actual sale has taken place or the resale contract has been terminated.

(9)    In the event of withdrawal from a contract where the price is entirely or partly covered by credit granted to the consumer by the trader or by a third party on the basis of an agreement between that third party and the trader, the credit agreement should be terminated without any penalty. The same should apply to ancillary contracts, such as contracts for membership in exchange systems for other related services provided by the trader or by a third party on the basis of an agreement between that third party and the trader.

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DELETED suggests adding, at the end of the text: "However, the choice of language made according to this

Directive shall not lead to [exclusion and] refusal to conclude the contract."

COM/ DELETED are opposed to this addition.

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(10)   The consumer should not be deprived of the protection granted by this Directive. This should also be the case where the law of a non-Member State is the law applicable to the contract. The consumer should not be deprived of the protection granted by this Directive where the law applicable to the contract is the law of a Member State. The law applicable to a contract should be determined in accordance with the Community rules on private international law, in particular Regulation (EC) No…/2008 of the European Parliament and of the Council of … on the law applicable to contractual obligations (Rome I). Under this Regulation, the law of a third country may be applicable in particular where consumers are targeted by traders whilst on holiday in a country other than their country of residence. Given that such commercial practices are common in the area covered by this Directive and that the contracts concern considerable amounts, an additional safeguard should be provided to ensure that the consumer, in certain specific situations, is not deprived of the protection granted by this Directive.¹⁰

(11)   It is necessary that Member States lay down effective, proportionate and dissuasive sanctions penalties¹¹ for infringements of this Directive.

(12)   It is necessary to ensure that persons or organisations having, under national law, a legitimate interest in the matter have legal remedies for initiating proceedings against infringements of this Directive.

(13)   It is necessary to develop suitable and effective redress procedures in the Member States for settling disputes between consumers and traders. To this end, Member States should encourage that public or private bodies established for settling disputes out-of-court are established.

(14)   Member States should ensure that consumers are effectively informed of the national provisions transposing this Directive and encourage traders and code owners to inform about their codes of practice conduct that exist in the field.

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DELETED considers that the present proposal of Directive does not give additional safeguard; DELETED has doubts about the added value of second sentence of the recital. This change concerns only the EN version.

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(15)   Since the objectives of this Directive cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to eliminate the internal market barriers and achieve a high common level of consumer protection.

(16)   This Directive respects the fundamental rights and observes the principles recognised in particular by the European Convention on Human Rights and Fundamental Freedoms and the Charter of Fundamental Rights of the European Union.

(17)   In accordance with paragraph 34 of the Interinstitutional agreement on better law-making¹², Member States are encouraged to draw up, for themselves and in the interest of the Community, their own tables, which will, as far as possible, illustrate the

correlation between this Directive and the transposition measures and to make them public.¹³

HAVE ADOPTED THIS DIRECTIVE:

Article 1 Purpose and scope

• 1. 

  This Directive shall apply to the protection of consumers The purpose of this Directive is to contribute to the proper functioning of the internal market, taking as a base a high level of consumer protection, by approximating the laws, regulations and administrative provisions of the Member States in respect of certain aspects of the marketing, and sale and resale of timeshare and long-term holiday products as well as to exchange of timeshare. It shall also apply to the resale of timeshare and long-term holiday products, and the exchange of timeshare.

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OJ C 321, 31.12.2003, p. 1.

COM: reservation related to the deletion in Article 12.

DELETED: reservation on this recital.

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1a. This Directive applies to trader-to-consumer transactions.¹⁴ This Directive is without prejudice to national legislation:

• - 

  providing for general contract law remedies enabling the consumer to terminate the contract;
• - 

  relating to registration of immovable or movable property and conveyance of immovable property;
• - 

  relating to conditions of establishment or authorisation regimes or licensing requirements; and
• - 

  relating to the determination of the legal nature of the rights which are the subject of the contracts covered by this Directive.¹⁵

Member States may

to apply

in the field

by

are more

to ensure a higher level of consumer

tion and

relate to:

(a) the

for the

of withdrawal;

(b) the

of

the right of withdrawal;

(c) the effects of e

the right of withdrawal.¹⁶

DELETED: reservation as consumer-to-consumer transactions should also be covered by the Directive; COM is opposed to this.

DELETED: reservation on these additions as it should be specified that this list only gives examples and that the present Directive has not consequences on the national legislation in these fields.

DELETED: reservation on the deletion of Article 1(2)(b) and (c).

DELETED: reservation on the deletion of Article 1(2)(c).

9286/1/08 REV 1 ANNEX

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1.

Article 2 Definitions

For the purposes of this Directive the following definitions shall apply:

(a) ’timeshare contract’ means a contract of a duration of more than one year by which a consumer acquires against for consideration the right to use one or more overnight accommodation for more than one period of occupation;¹⁷

(b) ’long-term holiday product contract’ means a contract of a duration of more than one year by which a consumer acquires against for consideration primarily the right to obtain discounts or other benefits on accommodation, in isolation or together with

travel or other services;

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(c) ’resale contract’ means a contract by which a trader, against for consideration, helps

assists a consumer to sell or buy, a timeshare or a long-term holiday product;

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(d)     ’exchange contract’ means a contract by which a consumer against for consideration joins an exchange system which allows him to modify the location and/or time of his timeshare interest through an exchange access to overnight accomodation or other services in exchange for granting temporary access to others to the benefits of his timeshare contract;²⁰

(e)      ’trader’ means a natural or legal person who is acting for purposes relating to his trade, business, craft or profession and anyone acting in the name of or on behalf of a trader;

(f)      ’consumer’ means a natural person who is acting for purposes which are outside his trade, business, craft or profession;

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DELETED supported by DELETED: the definition needs clarification; DELETED suggests the

following wording:

"(a) ‘timeshare contract’ means a contract of a duration of more than one year by which a consumer acquires against for consideration the right to use one or more overnight accommodation for more than one period of occupation; this shall not apply to accommodation held out in the ordinary course of business as hotel rooms and in which the consumer receives no right to use or occupy the accommodation other than through a typical hotel reservation;"

COM opposes this suggestion; DELETED has a scrutiny reservation on this suggestion.

ELETED: reservation on this definition.

ELETED: scrutiny reservation.

ELETED: reservation on this definition.

ELETED: reservation on this definition; DELETED: scrutiny reservation.

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(g) ’ancillary contract’ means any contract which is subordinated to another contract. by which the consumer acquires services related to a timeshare contract or long-term holiday product contract and these services are provided by the trader or a third party on the basis on an agreement between that third party and the trader;²¹

(ga) ’durable medium’ means any instrument which enables the consumer or the trader to store information addressed personally to him in a way accessible for future reference for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored.

• 2. 

  In order to calculate the duration of the contract, as defined in points (a) and (b) of paragraph 1, any time extension resulting from tacit renewal or prolongation shall be included.

Article 3 Precontractual information and Advertising

• 1. 

  Member States shall ensure that any advertising indicates the possibility of obtaining the written information referred according to paragraph 2 Article 3a and where it can be obtained.
• 2. 

  If any contract is to be offered to a consumer in person at a promotion or sales event, the trader shall in the invitation clearly indicate the commercial purpose and the nature of the event.
• 3. 

  The information referred to in Article 3a(1) shall be available to the consumer at any time during the event.
• 4. 

  A timeshare or long term holiday product shall not be marketed or sold as an investment.

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DELETED: such definition is not useful and should be moved to Article 7: DELETED: suggests replacing "related to" with "dependent on".

²² DELETED suggests an addition of a new paragraph in Article 3 as follows:

"However, advertising spread through Internet, press or leaflets shall hold anyway, among other things, indications about the real nature of the contract’s right’s subject, financial conditions applied as to the product’s offer and its payment’s ways, and the other expenses arising from the right’s ownership.".

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Article 3a

Pre-contractual information

21. In reasonable²³ time before the consumer is bound by any contract or offer, Tthe trader shall provide the consumer, in a clear and comprehensible manner, a consumer requesting information with written information which,:

(a) in addition to a general description of the product, shall

at least brief and

standard contract; and

form as set out in Annex

ing to the type of the

(b) information that is with accurate and sufficient information on the following items, where applicable as follows:

(i) in the case of a timeshare contract, the information set out in Annex I and, if the

contract concerns Annex II;²⁴

under

tion, the

set out

(ii) in the case of a long-term holiday product contract, the information set out in Annex III;

(iii) in the case of a resale contract, the information set out in Annex IV;

(iv) in the case of an exchange contract, the information set out in Annex V.

This information shall include a copy of the relevant Annex from within Annexes I to V.

DELETED: prefer "good"; DELETED suggests replacing "In reasonable time before" with "Within 24 hours".

²⁴ Deletion linked to the coverage of accommodation under construction in Annex I, paragraph IV; DELETED: prefers keeping this reference in Annex II.

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In addition, the trader shall also provide the consumer with a summary of the essential characteristics of the contract as set out in the relevant standard information form in Annex VII.²⁵

• 2. 

  The information in paragraph 1 shall be provided by the trader on paper or another durable medium easily accessible to the consumer and it shall be free of charge.

3.      In case of resale the trader's obligation to provide the information under paragraph 2 applies towards the consumer who may enter into the resale contract.²⁶

43. Member States shall ensure that the information referred to in paragraph 21 shall be drawn up in one of the official languages of the Community, as chosen by the consumer the language or one of the languages of the Member State in which the consumer is resident or in the language or one of the languages of the Member State of which he is national which shall be provided it is an official language or official languages of the Community, at the consumer's option.²⁷

DELETED, supported by DELETED, suggests the following wording:

"1. In reasonable time before the celebration of the contract, the trader shall provide the consumer, in

a clear and comprehensible manner standard information according to the type of the contract as

follows:

(a)      in the case of a timeshare contract, the standard information form set out in Annex I and, if the contract concerns accommodation under construction, the information set out in Annex II;

(b)      in the case of a long-term holiday product contract, the standard information form set out in Annex III;

(c)      in the case of a resale contract, the standard information form set out in Annex IV;

(d)      in the case of an exchange contract, the standard information form set out in Annex V.

At the beginning of information provided according to subparagraph (b), the relevant Annex shall be copied. "

DELETED also suggests that only one document should be provided to the consumer before he/she is bound by a contract. Five standard forms shall be therefore foreseen and each of them shall contain all necessary information and shall respect the same model. The complete standard form shall be delivered beforehand to the consumer and shall become an integral part of the contract when the consumer is bound by a contract. DELETED: support; DELETED: scrutiny reservation; DELETED: does not support.

DELETED: reservation on the deletion.

DELETED: reservation on the proposed language regime as a limited/flexible linguistic regime is preferable;

these positions also apply to Article 4(1).

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Article 4 The contract

• 1. 

  Member States shall ensure that the contract is shall be in writing and drawn up in one of the official languages of the Community, as chosen by the consumer the language or one of the languages of the Member State in which the consumer is resident or in the language or one of the languages of the Member State of which he is national which shall be an official language or official languages of the Community, at the consumer's option.

The Member State in which the consumer is resident may, however, require that:

(a) the contract be drawn up in all cases in at least its language or one of its languages which must be, provided it is an official language or official languages of the Community; and

(b) in case of a timeshare contract concerning one specific immovable property, the trader provides the consumer with a certified translation of the contract in the language or one of the languages of the Member State in which the property is situated, which shall be provided it is an official language or official languages of the Community.²⁸

The Member State on whose territory the trader carries out his sale activities may require that the contract be drawn up in all cases in its language or one of its languages, provided it is an official language of the Community.

• 2. 

  The written information referred to in Article 3a(21) shall form an integral part of the contract and shall not be altered unless the parties expressly agree otherwise or the changes result from circumstances beyond the trader’s control unusual or unforeseeable circumstances beyond the trader’s control, the consequences of which could not have been avoided even if all due care had been exercised.²⁹

ELETED: reservation on this sentence of this paragraph which should be identical to Article 3a(3).

ELETED: propose inserting "or are" after "circumstances".

ELETED: does not agree with this description and would prefer generic word of "force majeure", i.e.

flexibility for Member States to define "force majeure".

COM/ DELETED: reservation; prefer the original wording of this paragraph in the COM proposal.

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Changes resulting from circumstances beyond the trader’s control These changes shall be communicated to the consumer on paper or another durable medium easily accessible to him the consumer before the contract is concluded.³⁰

The contract shall expressly mention any such changes.

2a. In addition to the information referred to in Article 3a(1), the contract shall contain:

(a)     the identity, the residence and signatures of the parties; and

(b)     the date and the place of the conclusion of the contract.

• 3. 

  Before the signing conclusion of the contract, the trader shall explicitly draw the consumer’s attention to the existence of the right of withdrawal and the length of the withdrawal period referred to in Article 5 and the ban on advance payment during the withdrawal period referred to in Article 6.

The corresponding contractual clauses shall be signed separately by the consumer.

The contract shall include a detachable separate standard withdrawal form, as set out in the Annex VI, intended to facilitate the exercising of the right of withdrawal in accordance with Article 5.

• 4. 

  The consumer shall receive a copy of the contract at the moment of its conclusion.

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DELETED: reservation in Article 4(2), (3) and (4) as the "signed" and "signing" are preferable to the term

"concluded" or "conclusion".

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• 5. 

  Where financed by a loan credit of which a trader has been informed, the timeshare contract or long-term holiday product contract shall include a clause stating that the contract is concluded only when this loan credit is granted. ³¹

Article 5 Right of withdrawal

• 1. 

  Member States shall ensure that, after entering into a contract, the consumer has the right a period of fourteen calendar days to withdraw from the contract, without giving any reason:³² within fourteen calendar days of both parties' signing the contract or of both parties' signing a binding preliminary contract. If the fourteenth day is a public holiday, the period shall be extended to the first working day thereafter.

(a)    on the day of the conclusion of the contract or binding preliminary contract; or

(b)    on the day when the consumer receives the contract or any binding preliminary contract if the day is later than the date referred to in point (a).

1a In the case where the exchange contract is offered to the consumer together with and at the same time of the timeshare contract, the starting point of the period and the period itself as referred to in paragraph 1 of both contracts will be the same.³³

Wording as in line with recital 9. COM/ DELETED: reservation on this paragraph; DELETED: support;

DELETED: the wording should be improved and clarified.

DELETED suggests adding the following wording to Article 4(2)(a) which would replace the current Article

4(5):

"(c) in the case of a timeshare contract or long-term holiday product contract:

(i) a statement of whether or not the trader is aware that the whole of, or any part of, the consideration due from the consumer under the contract is to be obtained by the consumer by way of credit; and

(ii) where the consumer is to obtain credit, a statement of:

• - 

  whether or not the trader and consumer agree to a period during which the consumer may withdraw from the contract commencing after the expiry of the withdrawal period in article 5; and
• - 

  if such a period is agreed, the length of that period and the terms under which the consumer may withdraw (provided such terms are not inconsistent with Article 5(4) or 5(6))."

DELETED: proposes that the right of withdrawal does not apply to resale and exchange contracts;

DELETED: suggests that the right of withdrawal does not apply to exchange contracts.

COM opposes this proposal.

DELETED: support this suggestion by DELETED.

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• 2. 

  If the contract does not include all the information referred to in points (a) to (z) of Annex I, and (a) and (b) of Annex II, points (a) to (k) of Annex III, points (a) to (j) of Annex IV or points (a) to (m) of Annex V³⁴, but the information is provided in writing within three months after the signing of the contract the day referred to in paragraph 1, the withdrawal period shall start from the day the consumer receives that information.
• 3. 

  If the information referred to in points (a) to (z) of Annex I, (a), (b) of Annex II, points (a) to (k) of Annex III, points (a) to (j) of Annex IV or points (a) to (m) of Annex V has not been provided in writing within three months after the signing of the contract the day of the conclusion of the contract referred to in paragraph 1, the right of withdrawal shall expire after three months and fourteen calendar days one year³⁵ from the signing of the contract the day referred to in paragraph 1.
• 4. 

  If the consumer intends to exercise the right of withdrawal he shall, before the expiry of the deadline withdrawal period, notify on paper or another durable medium to the person whose name and address appear in the contract and for that purpose pursuant to point (p) of Annex I trader his decision to withdraw. The consumer may use the standard withdrawal form as set out in Annex VI of this Directive and provided by the trader in accordance with Article 4(3). The deadline shall be deemed to have been observed is met if the notification, if it is in writing, is dispatched sent before the deadline withdrawal period has expiresd.³⁶
• 5. 

  Where the consumer exercises the right of withdrawal, he is required to reimburse only those expenses which, in accordance with national law, are incurred as a result of the conclusion of and withdrawal from the contract for legal formalities which have to be completed before the deadline referred to in paragraph 1. Such expenses shall be expressly mentioned in the contract. The exercise of the withdrawal right by the consumer terminates the obligation of the parties to perform the contract.

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DELETED proposes the deletion of reference to Annexes IV and V; COM opposes the DELETED

proposal.

DELETED has a reservation on Article 5(2) and (3).

³⁶ DELETED: suggests the following alternative text: “If the consumer intends to exercise the right of

withdrawal, he shall, before the expiry of the withdrawal period, notify on paper or another durable medium to the trader his decision to withdraw by means which can be proven in accordance with national law. The deadline is met if the notification is sent before the withdrawal period has expired.”

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• 6. 

  Where the consumer exercises the right of withdrawal provided for in paragraph 3, he shall not be required to make any reimbursement neither bear any cost nor be liable for any value corresponding to the service which may have been performed during the withdrawal period.

Article 6 Advance payment ³⁷

• 1. 

  Member States shall ensure that for timeshare, long-term holiday products and exchange contracts any advance payment, provision of guarantees, reservation of money on a credit card accounts, explicit acknowledgement of debt or any other consideration to the trader or to any third party by a consumer before the end of the period, during which he may exercise the right of withdrawal in accordance with Article 5(1) to (3), is prohibited.
• 2. 

  Any advance payment, provision of guarantees, reservation of money on a credit card accounts, explicit acknowledgement of debt or any other consideration to the trader or to any third party by the consumer for resale before the actual sale taken place or the resale contract otherwise is terminated³⁸, is prohibited.

DELETED: reservation (exchange shall not be covered).

DELETED: proposes that there should be a possibility to reserve money on special accounts/notary deposits

subject to termination of the right of withdrawal period.

DELETED: proposes deletion of "... or the resale contract otherwise is terminated,…"; COM opposes this

proposal.

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Article 7 Termination of ancillary other contracts and credit agreements

• 1. 

  Member States shall ensure that, if the consumer exercises his right to withdraw from the contract for timeshare or long-term holiday product, resale or exchange, any ancillary contracts, including exchange, for other related services provided by the trader or a third party on the basis of an agreement between the third party and the trader, are automatically terminated, without any penalty costs for the consumer.³⁹
• 2. 

  Without prejudice to Article 15 of Directive 2008/…/EC of the European Parliament and of the Council on credit agreements for consumers and repealing Council Directive 87/102/EEC, if the price is fully or partly covered by a credit granted to the consumer by the trader, or by a third party on the basis of an agreement between the third party and the trader, the credit agreement shall be terminated, without any penalty costs for the consumer, if the consumer exercises his right to withdraw from the main contract for timeshare, as provided for in Article 5, long-term holiday product, resale or exchange.
• 3. 

  The Member States shall lay down detailed rules on the termination of such contracts.

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DELETED: reservation. Prefer the term "penalty".

DELETED: requests the addition of a new Article 7a on the "Registration and guarantees for consumers in

respect of long-term holiday products".

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Article 8 Imperative nature of the Directive and application in international cases ⁴¹

• 1. 

  Member States shall ensure that, if the law applicable to the contract is the law of a Member State, any contractual clauses whereby the consumer may not waives his rights, as provided for in conferred on him by this Directive. shall not be binding.

Article 8a Community overriding mandatory nature of the Directive

• 2. 

  Whatever If the applicable law is that of a third country, the consumer shall not be

deprived of the protection granted by this Directive, as implemented in the Member State of the forum:⁴²

• - 

  if any of the immovable propertyies concerned is situated within the territory of a Member State or
• - 

  whenever the trader pursues his commercial or professional activities the contract has been entered into in a Member State, or by any means, directs such activities to a Member State and the contract falls within the scope of such activities.⁴³

ELETED: reservation on the whole article.

ELETED: proposes "as implemented in the relevant Member State".

ELETED: reservation on this addition.

ELETED: opposed to this addition; DELETED: prefers the concept of "close link", as mentioned in

Article 22(4) of the consumer credit Directive.

DELETED suggest the following wording:

"- whenever in the case of a contract not related to immovable property, if the trader pursues his

commercial or professional activities the contract has been entered into in a Member State, or by any means, directs such activities to a Member State and the contract falls within the scope of such activities."

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Article 9 Judicial and administrative redress ⁴⁴

• 1. 

  Member States shall ensure that adequate and effective means exist to ensure compliance with this Directive in the interests of consumers.
• 2. 

  The means referred to in paragraph 1 shall include provisions whereby one or more of the following bodies, as determined by national law, may take action in accordance with national law before the courts or competent administrative bodies to ensure that the national provisions for the implementation of this Directive are applied:

(a)      public bodies and authorities or their representatives;

(b)     consumer organisations having a legitimate interest in protecting consumers;

(c)      professional organisations having a legitimate interest in acting.

Article 10 Consumer information and out-of-court redress

• 1. 

  Member States shall take the appropriate measures to inform the consumer of the national law transposing this Directive and shall encourage, where appropriate, traders and code owners to inform consumers of their codes of conduct.⁴⁵
• 2. 

  Member States shall encourage the setting up or development of adequate and effective out-of-court complaints and redress procedures for the settlement of consumer disputes under this Directive.

DELETED: wording should be clearer and linked to Directive 98/27/EC on Injunctions.

DELETED proposes a wording on the code of conduct as in Article 10 of the UCP Directive ("This Directive does not exclude the control, which Member States may encourage, of unfair commercial practices by code owners and recourse to such bodies by the persons or organisations referred to in Article 11 if proceedings before such bodies are in addition to the court or administrative proceedings referred to in that Article. Recourse to such control bodies shall never be deemed the equivalent of foregoing a means of judicial or administrative recourse as provided for in Article 11.").

DELETED: reservation on Article 10(1); Member States should have no obligation in that respect. DELETED propose "may encourage" instead of "shall".

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Article 11 Sanctions Penalties ⁴⁶

• 1. 

  Member States shall provide for appropriate sanctions penalties in the event of the failure of the trader to comply with the national provisions adopted pursuant to this Directive.
• 2. 

  These sanctions penalties must be effective, proportionate and dissuasive.

Article 12 Transposition

• 1. 

  Member States shall adopt and publish, by […]^* at the latest, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive.⁴⁷

They shall apply those provisions from […]^*.

When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

• 2. 

  Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

46

This change concerns only the EN version.

Two years after the entry into force of the Directive [i.e. two years from the next day of its publication in

the OJ].

COM: reservation.

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Article 13 Review

The Commission shall review this Directive and report to the European Parliament and the Council

no later than five years⁴⁸ after the date of application of the national provisions transposing this

Directive.

If necessary, it shall make further proposals to adapt it to developments in the area.

The Commission may request information from the Member States and the national regulatory

authorities.

Article 14 Repeal

Directive 94/47/EEC is repealed.

References to the repealed Directive shall be construed as references to this Directive and shall be

read in accordance with the correlation table in Annex III VII.

Article 15 Entry into force

The Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Article 16 Addressees

This Directive is addressed to the Member States.

Done at Brussels,

For the European Parliament                     For the Council

The President                                            The President

DELETED proposes shortening of the time for review (to three years) and that the review should cover the

level of harmonisation and the link with the horizontal instrument.

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Annexes to be examined at a later stage

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• 7 jun '07
  Consumentenbescherming bij bepaalde aspecten van timeshare
  
  
  
• 7 jun '07
  COM(2007)303 - Bescherming van de consumenten met betrekking tot bepaalde aspecten van timeshare, langetermijnvakantieproducten, wederverkoop en ruil
  
  
  
• 18 jun '03
  COM(2003)356 - Sluiting van de Samenwerkingsovereenkomst met Pakistan
  
  
  
• 24 jan '96
  COM(1995)712 - Doen staken van inbreuken in het kader van de bescherming van de consumentenbelangen
  
  
  
• 20 mei '92
  COM(1992)220 - Bescherming van de koper bij overeenkomsten inzake gebruik van onroerende goederen in timesharing
  
  
  
• 21 feb '79
  COM(1979)69 - Harmonisatie van nationale wetgeving inzake het consumentenkrediet