Draft "Timeshare" Directive:Article 8

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  1. Tekst
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Tekst

Introduction

  • 1. 
    At its meeting on 8 May 2008, the Working Party on Consumer Protection and Information

asked the Council Legal Service to comment on draft Article 8, as suggested by the Presidency,

of the 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

This document contains legal advice protected under Article 4(2) of Regulation (EC) No

1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, and not released by the Council of the European Union to the public. The Council reserves all its rights in law as regards any unauthorised publication.

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exchange . The proposal aims to review Directive 94/47/EC of the European Parliament and 2

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

basis. This document sets out the contribution of the Legal Service on this issue.

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  • 2. 
    Draft Article 8, as suggested by the Presidency, states at present as follows: " Imperative nature of the Directive and application in international cases
  • 1. 
    Member States shall ensure that, if the law applicable to the contract is the law of a Member State, the consumer may not waive his rights, conferred on him by this Directive.
  • 2. 
    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:
  • - 
    if any of the immovable properties concerned is situated within the territory of a Member State; or
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    whenever the trader pursues his commercial or professional activities in a Member State, or by any means directs such activities to a Member State and the contract falls

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within the scope of such activities" .

1 Doc 10686/07, CONSOM 82, JUSTCIV 168, CODEC 657 2 OJ L 280, of 29.10.1994, p. 83.

3 Doc 9286/08 CONSOM 50, JUSTCIV 97, CODEC 573.

4 Moreover, draft recital 10 states as follows: "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) o.../2008 of the European Parliament and the Council on the law applicable to contractual obligations (Rome I). Under this Regulation, the law of a third country may be applicable in particular were consumers are targeted by traders whilst on holidays in a country other that 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".

  • 3. 
    It has to be recalled that draft Article 8, as suggested by the Presidency, follows basically the

opinion of the Committee on Civil Law matters (General Questions) on the draft Timeshare

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Directive . This Committee has felt that it was necessary to clarify the relationship between the draft Timeshare Directive and the draft Rome I Regulation, and has offered to the Working

Party on Consumer Protection and Information several possible solutions for drafting Article

8(2) in case the parties choose to have the law of a third country applicable to their contract.

  • 4. 
    In the Working Party on Consumer Protection and Information, there are diverging views on

the effectiveness of Article 8(2), as currently drafted, for the protection of consumers. The

example which was discussed in the Working Party is the case of a German consumer who is

approached while at holidays in Spain by a trader based in Morocco to buy a timeshare in an

immovable property situated in Morocco. Some delegations take the view that, despite the

wording of draft Article 8(2), the protection granted to the German consumer in such a case

would be very little because in case of dispute, the Moroccan judge would consider himself

competent and would apply morocean law, given the fact that the immovable property is

situated in Morocco. By contrast, some other delegations take the view that draft Article 8(2)

offers the maximum protection possible available for consumers who decide to buy a timeshare

in an immovable property situated outside the Member States of the European Community

(EC) with a trader established also outside the Member States of the EC. It is on those

diverging views that the Working Party has requested the Council Legal Service to comment.

  • 5. 
    DELETED

5 See doc 7438/08, JUSTCIV 48, CODEC 343, CONSOM 32.

DELETED

  • 6. 
    Precisely in order to grant the maximum protection possible to consumers, the Committee on

Civil Law matters (General Questions), has suggested to add two additional connecting factors

in the draft timeshare Directive which would ensure the application of the Directive in certain

situations where there is a sufficient link to an EU Member State:

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    the first criterion, if the immovable property is situated within the territory of a Member State, which appears in the first indent of draft Article 8(2), is not disputed;
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    the second criterion, whenever the trader pursues his commercial or professional activities 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, which appears in the second indent of draft Article

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8(2), follows the lines of Article 15 of the Brussels I Regulation and Article 6 of the draft Rome I Regulation (the concept of pursued or directed commercial activities). That second

criterion was suggested by the Committee on Civil Law matters (General Questions), instead

of the criterion initially proposed of the place where the contract is concluded, because in

today's information society many contracts are concluded on line and it was therefore felt

that consumers would be better protected with the draft Directive as it stands.

  • 7. 
    DELETED

6 Council Regulation (EC) No 44/201 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgment in civil and commercial matters, OJ L 12, of 16.1.2001, p.1.

  • 8. 
    It has been argued in the Working Party on Consumer Protection and Information, that the

above solution inspired by Article 15 of the Brussels I Regulation is inefficient and highly

theoretical in practice. DELETED

Conclusion

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    DELETED

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Originele weergave

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