Things change over time. This is also the case in the timesharing business. The European legislator, who is well aware of this and already dealt with this type of business by adopting a directive on 26 October 1994, has recently adopted a new legislative act dealing with timesharing, thus bringing European legislation up-to-date. It was deemed necessary to modify the former European legislation to the evolutions in the business. The outcome is a new timesharing directive that can be considered to be broader in scope than its predecessor whilst based on the same ideas of harmonisation and consumer protection.
On 14 January 2009, a new timesharing directive was issued, replacing directive 94/47/EG. This new directive, in full Directive 2008/122 on the protection of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and exchange contracts, aims at bringing the national legislations of the Member States closer together regarding aspects of marketing, sale and resale of timeshares and long-term holiday products and the exchange of rights deriving from timeshare contracts. The European legislator thereby envisages the enhancement of legal certainty for all persons and undertakings involved as well as the maximising of the profits consumers and undertakings can obtain from the internal market. However, consumer protection is clearly the main motive behind this directive. Indeed, to a large extent, this directive is concerned with consumer protection. The directive explicitly states that it strengthens the consumer protection already provided for in the Unfair Commercial Practices Directive.
Subsequently, we will briefly discuss the main points in this directive. In particular, we will discuss the following items: (i) the regulations regarding publicity and the way consumers must be approached in this respect, (ii) the contract requirements, (iii) the consumer’s right of withdrawal and (iv) the payment regulations.
Publicity and approach of consumers
In the first place, this directive contains provisions regarding publicity by traders, i.e. undertakings (or their agents) involved in the business. If traders wish to approach consumers, consumers should be clearly informed of such an approach. Furthermore, consumers must be provided with relevant and up-to-date product information. Such information must also be provided in the consumer’s chosen language.
Contract requirements
The directive also contains provisions relating to contractual issues. As stated above, it concerns timeshare, long-term holiday product, resale or exchange contracts. In the first place, the contract has to be in writing, i.e. on paper or on another durable medium. Secondly, the contract must be drafted in the language of one of the Member States where the consumer is resident or of which he is a citizen. In case of several options, it is up to the consumer to choose the language.
Right of withdrawal
The consumer must also dispose of a right of withdrawal. The trader should draw the consumer’s attention to this right. Regardless of the availability of more favourable consumer rights under national law, he has to have a minimum of 14 days as from the day of the contract’s signing or as from the day the consumer receives the contract, provided that the day of receipt follows the day of the contract’s signing. Such a withdrawal needs to be done in writing. In that case, the consumer no longer has to fulfil the obligations under the contract and no charges or liabilities shall be due by him for services provided by the trader before the withdrawal. If the consumer had already entered into any ancillary contracts to the contracts envisaged by the directive, these contracts are automatically terminated as well. In this respect, the consumer shall neither be due any costs or liability.
Payment method
Another issue dealt with in this directive, concerns the payment method. Essentially, the contracts envisaged by the directive are subject to a prohibition of any form of advance payments or guarantee provided by the consumer. As to the payment itself, the directive only contains a certain provision as to long-term holiday product contracts. Payments in the framework of such contracts shall be made in accordance with a staggered payment schedule.
Conclusion
To a large extent, this directive centred on consumer protection. The European legislator charges traders with a number of obligations in order to maintain consumer protection. This protection is even enhanced by the provision that consumers cannot waive the rights of this directive, as transposed in the national legal system. However, the enforcement of such rights remains an aspect of national law, under the condition that these rights can be effectively enforced.
In conclusion, we add an important note for the national legislators: this directive has to be transposed by the Member States by 23 February 2011.
For further information on this topic please contact William Timmermans or Tim Bruyninckx at ALTIUS (in cooperation with Tiberghien) by telephone (+32 2 426 1414) or by fax (+32 2 426 2030) or by email ([email protected] or [email protected]). |