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 - Presidency proposals - Hoofdinhoud

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COUNCIL OF THE EUROPEAN UNION

Interinstitutional File: 2007/0113 (COD)

Brussels, 11 June 2008

NOTE

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CONSOM 70 JUSTCIV 122 CODEC 759

from:                  General Secretariat of the Council

to:                      Working Party on Consumer Protection and Information

No. Cion prop. : 10686/07 CONSOM 82 JUSTCIV 168 CODEC 657

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

• - 

  Presidency proposals

Delegations will find attached the Presidency proposals concerning the above mentioned document to be discussed at the Consumer Protection and Information Working Party meeting of 13 June 2008.

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 discussed at the working party meeting on 6 June 2008 (9286/2/08 REV 2) are marked in bold and deletions with bold.

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Draft 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

I. INTRODUCTION

Seven meeting of the Working Party on Consumer Protection and Information were organised during the Portuguese Presidency and an exchange of views on a progress report was held by the (Competitiveness) Council on 22 November 2007¹.

Under the Slovenian Presidency, the Working Party continued its work on the proposal during eight meetings, notably on the basis of compromise proposals by the Presidency.

The European Parliament IMCO Committee voted on 19 May 2008 its draft first reading opinion, adopting 114 amendments to the Commission's proposal².

On the basis of the result of the IMCO Committee vote four technical meetings between the Presidency, EP representatives and the Commission have taken place with a view to a possible first reading agreement. The first informal trialogue was organised on 28 May 2008 with the view to identify open issues.

The European Parliament clearly informed of its intention to vote on the first reading opinion at the plenary session of 7-10 July 2008.

Taking into account all discussions that were held until now, the present document represents an attempt by the Presidency to seek solutions on different issues, the resolution of which may advance the discussion in the Council as well as between the Council and the European Parliament in view of a first reading agreement on this file.

The Presidency proposes to focus the discussion at the Working Party meeting on 13 June 2008 on the issues outlined below. The result should then be submitted to Coreper on 18 June 2008 to evaluate the feasibility for further discussion with the European Parliament.

¹ Doc. 15277/07

² The final IMCO report A6-0195/2008 available on 10 June 2008.

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II. MAIN OUTSTANDING ISSUES

• 1. 

  Definition of the "ancillary contract"

The EP proposes a definition, which makes clear that ancillary contracts may be also those that are concluded with any third party (no specific need for agreement between trader and the third party) as long as the existence is dependent on timeshare or long-term holiday product. The Presidency submits this proposal for consideration by the Working Party.

• 2. 

  The timeshare or long-term holiday product contract subject to the confirmation of the credit - Article 4(5)

To meet the concern of several delegations and to reflect the discussion at previous Working Party meeting where a need for the clarity has been stressed, the Presidency proposes the alternative wording for Article 4(5).

• 3. 

  Right of withdrawal - Article 5

Several solutions on the drafting have already been proposed by the Presidency, but none was supported by majority of Member States. Following the discussion at the last WP meeting on 6 June 2008 and the technical meeting with the EP on 9 June 2008, the Presidency puts forward three options for discussion.

Option A (supported by the EP) does not set any expiry date for the provision of the information and related starting date for the right of withdrawal. This option builds on the solution agreed in the Consumer Credit Directive.

Option B would provide a 1 year period for the provision of the information about the right of withdrawal (in case this was not provided) and 3 months for the other information. The right of withdrawal would expire 14 days after the period of 1 year or 3 months respectively.

Option C would provide a 1 year period for the provision of the information about the right of withdrawal (in case this was not provided). The right of withdrawal would expire after 1 year. Concerning the other information, there would be more targeted approach whereby the consumer would not be bound by the contract if essential information was not given; essential information referring to information which is likely to affect the consumer's decision to

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conclude the contract (to be assessed by the courts). The information to be provided in the standard information form would be deemed essential per se.

• 4. 

  Pre-contractual and contractual information - content of the Annexes The content of the Annexes has been discussed during the Portuguese Presidency and the result of that discussion is reflected in document 8195/08. The EP in its amendments 60-114 accepted the restructuring of annexes and adding of additional sub-headings. At the technical level, the Presidency was informed that the EP was willing to accept the integration of Annex II concerning the accommodation under construction into Annex I.

The comparative table showing the differences between the text of the Working Party as mentioned above and EP amendments is attached to this note as an ANNEX III. In case of differences, possible compromises are proposed by the Presidency.

• 5. 

  Provision of pre-contractual information ("standard form") The question how to provide the pre-contractual information to the consumer is related to the previous point 4, where the question on what should be provided is dealt with. In previous discussions the Presidency argued for provision of "essential" information in the standard form, which would be given to the consumer in addition to all information as required in Article 3a and outlined in different Annexes. This approach was shared by the Commission. The alternative proposal, supported by a number of delegations, is to use the standard form as the only means for providing information and that this form includes all information as currently outlined in the annexes.

At the technical meeting with the EP, it was confirmed that the EP would not support the second alternative in view of its amendment 41, in which it proposes the introduction of the standard form containing information listed in that amendment, which should facilitate the understanding for the consumer. Taking into account the positions of Member States, the Commission and the EP, the Presidency considers the first alternative as the better option. Therefore, and in the view of a possible agreement with the EP on this issue, the Presidency proposes the following:

• - 

  accept in principle EP amendment 41 and introduce the list of information proposed in that amendment as a new paragraph 1a in Article 3a of the latest working party text,
• - 

  include the standard information form in the Annex of the draft directive.

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The proposed wording is outlined in the ANNEX I and ANNEX II (standard form).

• 6. 

  Consumer information and out-of-court redress - Articles 9 and 10

The EP adopted five amendments (Am 53 - 57) on these articles. Taking into account the EP position and the previous discussion in the working party, the Presidency puts forward a proposal, which may meet the EP concern. This would consist of the following elements:

• - 

  partly accepting amendment 53 on Article 9 (1) and 9(2);
• - 

  accepting amendment 54 on Article 9(2) (a), which was already discussed and agreed;
• - 

  partly accepting amendment 55 on Article 10 (1). The proposed wording is close to the wording used in Article 37 of the Services Directive.
• - 

  accepting the first part of amendment 57 on the availability of information concerning the Brussels I Regulation.

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ANNEX I

Article 2 Definitions

• 1. 

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

(g) ’ancillary contract’ means any contract which is subordinated to another contract. dependent on a timeshare contract or long-term holiday product contract by which the a consumer acquires services related to a timeshare contract or long-term holiday product those contracts 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;

Article 3a Pre-contractual information

21. In good time before the consumer is bound by any contract or offer, Tthe trader shall provide a the consumer, in a clear and comprehensible manner, requesting information with written information which, in addition to a general description of the product, shall provide at least brief and 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 accommodation under construction, the information set out in Annex II;

(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.

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1a. In addition to the information provided according to paragraph 1, 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 completed standard information form as set out in the Annex … containing in a brief and clear manner the following:

the identity and residence of all parties;

the nature of the right which is subject to the main contract;

the exact period within which the right which is the subject of the main contract

may be exercised and, if necessary, its duration;

the date on which the consumer may start to exercise the contractual rights;

the price to be paid by the consumer for the timeshare, long term holiday product

or for the services provided by the resale trader;

the associated costs with the timeshare or long term holiday product;

where appropriate the services or facilities to which the consumer will have access;

whether it is possible to join exchange system;

information about the length of the right of withdrawal;

information about the ban on advance payments;

whether the trader is a signatory of codes of conduct;

• 2. 

  The information referred to 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.

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 provided it is an official language of the Community, at the consumer's option.

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Article 4 The contract

• 5. 

  Before the conclusion of the timeshare contract or long-term holiday product contract, the trader shall inquire whether the consumer intends to finance the timeshare contract or long-term holiday product contract through a credit. Where financed by through a 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 if this credit is granted before the end of a period of time agreed upon by the parties to the contract, which shall start on the day when the consumer has signed the contract and shall not be longer than three months.

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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. 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.

The period of withdrawal shall begin:

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

(b)    on from 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).

Option A:

2.      In the case where the exchange contract is offered to the consumer together with and at the same time of the timeshare contract, the period of withdrawal for both contracts shall begin when the consumer has signed both contracts.

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, but the information is provided in writing within three months after the signing of the contract, the withdrawal period shall start from the day the consumer receives that information.

• 3. 

  If the information referred to in points (a) to (p) of Annex I, and (a), (b) of Annex II, has not been provided in writing within three months after the signing of the contract, the right of withdrawal shall expire after three months and fourteen days from the signing of the contract.
• 4. 

  If the consumer intends to exercises the right of withdrawal he shall, before the expiry of the deadline period of withdrawal, notify to the 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 by means which can be proven in

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accordance with national law. 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 met if the notification, if it is in writing, on paper or on another durable medium, is dispatched sent before the deadline withdrawal period has expired.

• 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.
• 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.

7.      This Article shall be without prejudice to any rule of national law establishning a period of time during which the performance of the contract may not begin.

Option B:

2. If the contract does not include all the information referred to in points (a) to (p) of Annex I, and (a) and (b) of Annex II, but the information is provided in writing within three months after the signing of the contract, the withdrawal period shall start from the day the consumer receives that information.

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• 2. 

  If a completed standard the information form on the right of withdrawal as required by Article 4 or a completed standard withdrawal form as required by Article 4(3) have not been provided to the consumer, the period of withdrawal shall expire after one year and fourteen calendar days.
• 3. 

  If the information, other then the information on the right of withdrawal referred to in Annex I, Annex III, IV or Annex V has not been provided in writing within three months after the signing of the contract the day referred to in paragraph 1, the right of withdrawal shall expire after three months and fourteen days from the signing of the contract the day referred to in paragraph 1.

3a. If the information forms referred to in paragraphs 2 and 3 are is provided within the one-year period or three months respectively, the period of withdrawal shall begin from the day the consumer receives the such information forms.

4.      In the case where the exchange contract is offered to the consumer together with and at the same time of the timeshare contract, the period of withdrawal for both contracts shall begin when the consumer has signed both contracts. The provisions in paragraphs 2 and 3 shall apply accordingly.

• 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 right of withdrawal by the consumer terminates the obligation of the parties to perform the contract.
• 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 period of withdrawal.

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Option C:

• 2. 

  If a completed standard information form as required by Article 3a(1) or a completed standard withdrawal form as required by Article 4(3) have has not been provided to the consumer, the withdrawal period shall expire after one year.
• 3. 

  If the information forms referred to in paragraph 2 are is provided within the one-year period, the withdrawal period shall begin from the day the consumer receives the information forms.

4 In the case where the exchange contract is offered to the consumer together with and at the same time of the timeshare contract, the period of withdrawal for both contracts shall begin when the consumer has signed both contracts. The provisions in paragraphs 2 and 3 apply accordingly.

Articles 5a and 5b of document 9286/2/08 REV 2 remain unchanged.

A new paragraph 6 is inserted in Article 4 as follows:

6. In cases where the information referred to in Article 3a.1 has not been provided in

writing or on another durable medium, the consumer is deemed not to be bound by the contract if the missing information is essential. Information is considered to be essential if it is likely to affect the consumer's decision to conclude the contract. The information referred to in Article 3a.1 second paragraph, the standard information form including the essential characteristics of the contract, shall in all cases be considered essential.

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Article 9 Judicial and administrative redress

• 1. 

  Member States shall ensure that adequate and effective means exist to ensure compliance by the traders 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 shall be entitled to 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.

Member States may encourage the development of codes of conduct and ensure that they are accessible at a distance, by electronic means.

Member States shall, in cooperation with the Commission, encourage the drawing up at Community level, particularly by professional bodies, organisations and associations, of codes of conduct aimed at facilitating the implementation of this Directive, in conformity with Community law.

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• 2. 

  Member States shall encourage the setting up or development, by national or European branch organisations, of adequate and effective out-of-court complaints and redress procedures for the settlement of consumer disputes under this Directive and shall encourage, where appropriate, traders and their branch organisations to inform consumers of any such out-of-court complaints and redress procedures.

2a. Member States shall ensure the availability of full information on the legal mechanisms which may be used by the consumer and the trader under Council Regulation (EC) N° 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of

judgments in civil and commercial matters.

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ANNEX II INFORMATION ON CONSUMER CONTRACTS FOR THE PURCHASE OF TIMESHARE/LONG-TERM HOLIDAY PRODUCT/RESALE/EXCHANGE CONTRACTS: Identity of the trader(s) which are part(ies) to the contract:

Residence of the trader(s) which are part(ies) to the contract:

Short description of the product (fulfil the appropriate line):

• - 

  Timeshare (e.g. description of the immovable property):
• - 

  Long-term Holiday Product (e.g. discounts on hotel stays and flights):
• - 

  Resale of Timeshare(e.g. preparation of marketing material, contact potential buyers, drafting of contract) :
• - 

  Exchange of Timeshare (e.g. description of the immovable property to be exchanged):

Nature of the right(s):

Period for which the right(s) may be exercised:

Duration of the contract:

Date on which the consumer may start to exercise the contractual right(s):

In the case of Timeshare contract, if the contract concerns a specific property under construction, date when the accommodation and services/facilities will be completed/available:

Price to be paid by the consumer for acquiring the right(s):

Outline of additional obligatory costs imposed under the contract; type of costs and indication of

amounts:

(e.g. for Timeshare contract: annual fees, other recurrent fees, special levies, local taxes)

(e.g. for Long-term holiday product contract: annual membership fees)

(e.g. for Resale contract: local taxes, notary fees, cost of advertising)

(e.g. for Exchange contract: annual membership fees, other recurrent fees, special levies, local

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taxes)

Key services available to the consumer:

Facilities available to the consumer:

Are they included in the costs indicated above?

If no, specify what is included and what has to be paid for :

(e.g. for long-term holiday contract: 3 night stay included in annual membership fee, all other

accommodation must be paid for separately)

(e.g. for exchange contract: transaction fees for concrete exchanges, 150 euro Europe, 200 euro

elsewhere)

In the case of Timeshare contract : is it possible to join an exchange scheme? If yes, name of exchange scheme: Indication of costs for membership/exchange:

Where further information can be obtained:

Code of conduct that the trader has signed:

The consumer has the right to withdraw from this contract within 14 calendar days without giving any reason.

During this withdrawal period, any advance payment by the consumer is prohibited. The prohibition concerns any consideration, including payment, provision of guarantees, reservation of money on accounts, explicit acknowledgement of debt etc. It includes not only payment to the trader, but also to third parties.

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ANNEX III

Annexe I - Timeshare

10584/08 ANNEX III

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10584/08 ANNEX III

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Annexe III - Long-term holiday products

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Annexe IV - Resale

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Annexe V - Exchange

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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