Consumer protection in the ligt of Directive 2008/122

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Jarosław Szczechowicz

Consumer protection in the ligt of

Directive 2008/122

Studia Prawnoustrojowe nr 16, 247-263

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2012

Jaro sław Szczechowicz

K ated ra Postępow ania Cywilnego Wydział P raw a i A dm inistracji UWM

Consumer protection in the light of Directive

2008/122/EC of 14 th Ja n u a ry 2009

on the protection of consumers in respect

of certain aspects of timeshare, long-term

holiday product, resale and exchange contracts

In tr o d u c to r y is s u e s

E uropean U nion consum er policy, in itia ted in th e Mid 70’s, led to the estab lish m en t of legislation, w hich aim s a t th e broadly understood consum er protection. It has been form ed an d determ ined by m eans of legal in s tru m ents, know n as directives. D irectives create and determ ine th e basis of consum er policy legal stan d ard s. C om m unity law is superior to M ember S tates regulations, since M em ber S tates are obliged to im plem ent this legi slation, therefore M em ber S tates ad ju st th e ir own regulations to th e E urope an U nion legislation. The h arm onization of M em ber S tates law ensues b a sing on policies em bedded in directives. The evaluation of th e E uropean U nion consum er protection law s in force m u st be conducted both in the light of regulations of certain directives as well as by the prism of n atio n al im ple m en tatio n m eans.

One of th e fields reg u lated by th e M em ber S tates law in term s of consu m er protection are to u rist services. P a rtic u la r group of services, nam ely tim esh are, is functionally associated w ith th e b ran ch of tourism . Tim eshare relates to th e rig h t of acquiring th e rig h t to use things, m ost frequently an immovable property (for instance, holiday resort, hotel, guesthouse, suite, bungalow) for consideration for to u rist purposes over a defined period during a y e a r or over a defined nu m ber of years.

Consum er rig ht to spending particu lar tim e (one or a few weeks) of a year in a holiday facility is also referred to as holiday property right.

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248 J a ro sła w Szczech o w icz

The concept of tim esh are w as alread y covered by th e Directive 94/47 of th e E uropean P a rlia m e n t and th e Council of 26th October 1994 on th e pro tection of p u rch asers in respect of certain aspects of contracts relatin g to the p urchase of th e rig h t to use im m ovable properties on a tim esh are b a sis1. However, th e norm ative definition tim esh are was first introduced by D irecti ve 2008/122 of th e E uro pean P a rlia m e n t and th e Council of 14th F ebruary 2009 on th e protection of consum ers in respect of certain aspects of tim esh a re, long-term holiday product, resale and exchange contracts2. U ntil the D irective 2008/122 came into effect, th e term tim esh are was doctrinal in n a tu re . Since th e Directive 94/47 of 1994 came into effect, tim esh are has evolved. New holiday products, which were not covered by the provisions concerning th e use of immovable properties on a tim esh are basis, appeared on th e m arket. The m ost common forms of such an activity on th e m arket are long-term holiday product, resale and exchange contracts as well as o th er ancillary to tim esh are contracts. These products are sold sim ilarly to tim esh are services. Since th ey were not covered by the Directive 94/47, it enabled the u n fair tra d e rs to circum vent th e laws. As the consequence, the phenom enon was th e source of considerable problem for both th e consum ers an d th e tra d e rs offering tim esh are services basing on th e provision of D irec tive 94/47. Taking into account th e growing in te re st of consum ers in a new type of services reg ard in g en terin g into tim esh are contracts, th e E uropean P a rlia m e n t decided to create regulations which would protect the consum ers, who purchase such services. The E urop ean P a rlia m e n t and th e Council by enacting th e Directive 2008/122 aim ed a t up d atin g th e provisions of D irecti ve 94/47 an d introducing new regulations concerning new sim ilar holiday products and tran sactio n s involving tim esh are contracts, such as resale and exchange contacts, whose lack of restric te d proper consum er protection. M em ber S tates shall adopt and publish th e laws, regulations and adm ini stra tiv e provisions necessary to comply w ith the D irective 2008/122 by 23rd F ebruary 20011.

T h e p u r p o se a n d sc o p e o f D ir e c tiv e

The purpose of the Directive, besides increasing th e protection of consu m ers was to create fun dam ents of th e proper functioning of th e in te rn al m ark e t and to achieve a high level of consum er protection, by approxim ating

1 T he O fficial J o u r n a l o f th e E u ro p e a n C o m m u n itie s L 280 o f 29.10.1994, p. 83; h e r e in a fte r re fe rre d to a s D irectiv e 94/47.

2 T he O fficial J o u r n a l o f th e E u ro p e a n C o m m u n itie s L 33 o f 3.02.2009, p. 10, h e re in a fte r re fe rre d to a s D irectiv e 2008/122.

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th e laws, regulations and ad m in istrativ e provisions of the M em ber S tates in respect of c e rtain aspects of th e m arketing, sale and resale of tim eshares and long-term holiday products as well as exchange contracts.

The Directive applies to trader-to-consum er transaction s. According to th e definition of Directive 2008/ 122, a “tra d e r” is a n a tu ra l or legal person who is acting pro purposes relatin g to th a t person’s trad e, business, craft or profession and anyone acting in the nam e of or on b ehalf of a trader, w here as a “consum er” m eans a n a tu ra l person who is acting for purposes which are outside th a t person’s trad e, business, craft or profession.

T he o b je c tiv e sc o p e o f D ir e c tiv e

Directive 2008/122 introduces a num ber of new definitions describing its objective scope. T im esh are co n tract m eans a co n tract, e n te re d into by a consum er and a trader, of a d u ratio n of more th a n one y ear u n d e r which a consumer, for consideration, acquires th e rig h t to use one or more overni g ht accom modation for m ore th a n one period of occupation. Thus, tim eshare contract should not be understood as covering m ultiple reservation s of ac commodation, including hotel rooms, in so far as m ultiple reservatio n s do not imply rig h ts and obligations beyond those arising from sep arate rese rv a tions. Nor should tim esh are contracts be understood as covering ordinary lease contracts since the la tte r refer to one single continuous period of occupation and not to m ultiple periods. The definition of a tim esh are con tra c t does not lim it to th e rig h t to use overnight accom modation only in immovable properties, therefore it also includes the accom modation on ple asure boats or in caravans. However, th is regulation does not cover contracts in w hich a consum er is not g u aran teed accommodation, for instance ren tin g a p arkin g sport for a caravan.

Long-term holiday product contract m eans a contract of a d u ratio n of more th a n one y ear un d er which a consumer, for consideration, acquires prim arily th e rig h t to obtain discounts or other benefits in respect of accom m odation, in isolation or to geth er w ith tra v e l or o th er services. By definition, long-term holiday product contract should not be understood as covering ordinary loyalty schem es w hich provide discounts on fu ture stays in the hotels of a hotel chain. Sim ilarly it should not be understood as contracts u n d er which a consumer, for a consideration, obtains cards g ran tin g disco u n ts in hotels, and contracts of a d u ratio n of less th a n one year. O ther contracts whose m ain aim is not to provide a consum er w ith discounts or oth er benefits in respect of accommodation should also not be understood as a long-term holiday product contract, as providing discounts is not th e m ain purpose of such agreem ents.

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Resale contract m eans a contract u n d er which a trad er, for considera tion, assists a consum er to sell or buy a tim esh are or a long-term holiday product. The introduction of th is contract into th e D irective aim s a t th e legal reg u latio n of contracts involving m ediation betw een a consumer, who w ants to sell or buy tim esh are or long-term holiday products, and a trader.

Exchange contract m eans a contract u n d er which a consumer, for consi deration, joins an exchange system which allows th a t consum er access to overnight accom modation or other services in exchange for g ran tin g to other persons tem porary access to th e benefits of th e rig h ts deriving from th a t consum er’s tim esh are contract.

A ncillary contract m eans a contract u n d er which th e consum er acquires services which are rela te d to a tim esh are contract or long-term holiday product contract and w hich are provided by th e tra d e r or a th ird p a rty on th e basis of an arran g em en t betw een th a t th ird p a rty an d the trader. The objective of ancillary contracts are services involving th e exploitation of the accommodation, for instance contracts w ith reg ard to providing electricity, w ater, refuse collection services, m aintenance, as well as contract involving adm in istering various types of common facilities.

It should also be noticed th a t th e Directive 2008/122 w ith reference to tim esh are and long-term holiday products contracts sta te s th a t in order to define th e actual d u ratio n of th e contracts, any provision in th e contract allowing for tac it renew al or prolongation shall be tak e n into account. The aim of such a n action is to preclude tra d e rs from circum venting provisions concerning th e d u ratio n of tim esh are and long-term holiday product con tracts. The actual d u ratio n of th e contract, tak in g into account th e extension or renew al of a contract, contributes to th e factor being considered as valid an d fulfilling th e provisions em bedded in th e Directive. This indicates th a t, for instance, e n terin g into a contract, which in its characteristics is sim ilar to a tim esh are contract, however, th e d u ratio n period is sh o rte r th a n the m inim um period (over a year) and th e extension of th e d u ratio n tim e is perform ed by th e application of an annex, according to th e D irective m eans e n terin g into a tim esh are contract.

A dvertising concerning tim eshare, long-term holiday products, resale an d ancillary contracts

The Directive 2008/122 imposes an obligation th a t w here a tim eshare, long-term holiday product, resale or exchange contract is to be offered to a consum er in person a t a prom otion or sales event, th e tra d e r shall clearly indicate in th e inv itatio n th e comm ercial purpose and the n a tu re of th e event. In addition, the tra d e r in an advertisem ent shall not offer a tim eshare or a long-term holiday as an investm ent.

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P r e -c o n tr a c tu a l in fo r m a tio n

Directive 2008/122 sta te s th a t before the consum er is bound by any contract or offer, th e tra d e r shall provide th e consumer, in a clear and com prehensible m anner, w ith accurate and sufficient inform ation. This obli g atio n concerns both tim esh a re, long-term holiday product, resa le and exchange contract. A tra d e r shall provide th e consum er w ith inform ation on seperate forms, designed for p a rticu la r type of contract.

In case of tim esh are agreem ents a consum er will receive inform ation in th e form of a sta n d a rd inform ation form set out in Annex I as well as inform ation req u ired in th e th ird p a rt of th is form. The forms were in tro d u ced in th e form of Annexes to th e Directive. S ta n d ard inform ation form for tim esh are contracts in th e first p a rt includes:

• identity, place of residence and legal s ta tu s of th e trader(s) w hich will be p a rty to th e contract,

• short description of the product (e.g. description of the immovable property), • exact n a tu re an d content of th e right(s),

• exact period w ithin w hich th e rig h t which is th e subject of th e contract m ay be exercised and, if necessary, its duration,

• date on w hich th e consum er m ay s ta r t to exercise th e contractual right, if th e contract concerns a specific property u n d e r construction, d ate w hen th e accommodation and services/facilities will be com pleted/available, • price to be paid by the consum er for acquiring th e right(s),

• outline of additional obligatory costs imposed u n d e r th e contract; type of costs and indication of am ounts (e.g. a n n u a l fees, other re c u rre n t fees, special levies, local taxes),

• a sum m ary of key services available to th e consum er (e.g. electricity, w ater, m aintenance, refuse collection) and an indication of th e am ount to be paid by th e consum er for such services,

• a sum m ary of facilities available to the consum er (e.g. sw im m ing pool or sauna): are these facilities included in th e costs indicated above and, if not, specify w h at is included and w hat h as to be paid for,

• is it possible to join a n exchange scheme and, if yes, specify the nam e of th e exchange scheme,

• indication of costs for m em bership/exchange,

• has th e tra d e r signed a code/codes of conduct and, if yes, w here can it/they be found.

The second p a rt of th e sta n d a rd inform ation form for tim esh are con tra c ts includes general inform ation, namely:

• th e consum er has th e rig h t to w ithdraw from th is contract w ithout giving any reason w ith in 14 calen d ar days from th e conclusion of the contract or any binding prelim inary contract or receipt of those contracts if th a t takes place later,

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• during th is w ith d raw al period, any advance paym ent by the consum er is prohibited. The prohibition concerns any consideration, including pay m ent, provision of g u aran tees, reservation of money on accounts, explicit acknow ledgem ent of debt etc. It includes not only paym ent to th e trader, b u t also to th ird parties,

• th e consum er shall not b ear any costs or obligations other th a n those specified in the contract,

• in accordance w ith in te rn atio n a l private law, th e contract m ay be gover ned by a law o th er th a n th e law of th e M em ber S ta te in w hich the consum er is resid en t or is h ab itu ally domiciled and possible disputes m ay be referred to courts o th er th a n those of th e M em ber S ta te in w hich the consum er is resid en t or is h ab itu ally domiciled,

• sig n atu re of th e consumer.

The th ird p a rt of th e sta n d a rd inform ation form for tim esh are contract includes additional inform ation to w hich the consum er is en titled and w here it can be obtained specifically (for instance, u n d e r w hich ch ap ter of a general brochure):

1. Inform ation about th e rig h ts acquired:

• conditions governing th e exercise of the rig h t w hich is th e subject of the contract w ithin the territo ry of th e M em ber States(s) in w hich th e proper ty or properties concerned are situ ated and inform ation on w h ether those conditions have been fulfilled or, if they have not, w hat conditions rem ain to be fulfilled,

• w here th e contract provides rig h ts to occupy accom modation to be selected from a pool of accommodation, inform ation on restriction s on th e consu m er’s ability to use any accom modation in the pool a t any time.

2. Inform ation on th e properties:

• w here th e contract concerns a specific im m ovable property, an accurate an d detailed description of th a t property and its location; w here th e con tra c t concerns a num b er of properties (m ulti-resorts), an ap p rop riate de scription of th e properties and th e ir location; w here th e contract concerns accommodation other th a n im m ovable property, an ap prop riate description of th e accom modation and th e facilities,

• th e services (e.g. electricity, w ater, m ainten ance, refuse collection) to which th e consum er has or will have access to and u n d er w h at conditions, • w here applicable, the common facilities, such as swim m ing pool, sauna,

etc., to w hich th e consum er h as or m ay have access and u n d e r w hat conditions.

3. A dditional requirem en ts for accom m odation u n d e r construction (whe re applicable):

• th e sta te of com pletion of th e accom modation and of the services ren d e rin g th e accom modation fully operational (gas, electricity, w ater and tele

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phone connections) an d any facilities to which th e consum er will have access,

• th e deadline for com pletion of th e accom m odation and of th e services ren d ering it fully operational (gas, electricity, w a te r and telephone connec tions) and a reasonable estim ate of th e deadline for th e com pletion of any facilities to w hich th e consum er will have access,

• th e num b er of the building p erm it and th e nam e(s) and full address(es) of th e com petent au th o rity or auth orities,

• a g u a ra n tee regarding com pletion of the accom modation or a g u aran tee regard ing reim bursem en t of any paym ent m ade if the accom modation is not completed and, w here appropriate, the conditions governing the opera tion of such g uarantees.

4. Inform ation on th e costs:

• an accurate and appro p riate description of all costs associated w ith the tim esh are contract; how th ese costs will be allocated to th e consum er and how and w hen such costs m ay be increased; th e m ethod for the calculation of th e am ount of charges rela tin g to occupation of the property, th e m an datory s ta tu to ry charges (for exam ple, taxes and fees) and th e a d m in istra tive overheads (for exam ple, m anagem ent, m aintenance and repairs), • w here applicable, inform ation on w h eth er th ere are any charges, m o rtg a

ges, encum brances or any o th er liens recorded ag ain st title to the accom m odation.

5. Inform ation on term in a tio n of th e contract:

• w here appropriate, inform ation on th e arran g em en ts for th e term in atio n of ancillary contracts an d th e consequences of such term ination,

• conditions for term in a tin g th e contract, the consequences of term ination, an d inform ation on any liability of the consum er for any costs which m ight resu lt from such term ination.

6. A dditional inform ation:

• inform ation on how m aintenance and rep airs of th e property and its adm i n istra tio n and m anagem ent are arran ged , including w h eth er an d how consum ers m ay influence an d p articip ate in th e decisions reg ardin g these issues,

• inform ation on w h eth er or not it is possible to join a system for th e resale of the contractu al rig h ts, inform ation about the relevant system and an indication of costs related to resale th ro u g h this system ,

• indication of th e language(s) available for com m unication w ith th e tra d e r in relatio n to the contract, for instance in relatio n to m anagem ent deci sions, increase of costs an d th e h andling of queries and com plaints,

• w here applicable, the possibility for out-of-court dispute resolution, • sig n atu re of th e consumer.

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In case of long-term holiday product contracts th e consum er will obtain th e inform ation concerning th e en tran ce into th e contract In th e form of a sta n d a rd inform ation form set out in Annex II as well as inform ation req u ired in th e th ird p a rt if th is form. The first p a rt of th e sta n d a rd inform a tion form for long-term holiday product contract includes:

• identity, place of residence an d legal s ta tu s of the trader(s) w hich will be p a rty to th e contract,

• sh o rt description of th e product,

• exact n a tu re an d content of th e right(s),

• exact period w ithin which th e rig h t w hich is th e subject of th e contract m ay be exercised and, if necessary, its duration,

• date on w hich th e consum er m ay s ta r t to exercise th e contractual right, • price to be p aid by th e consum er for acquiring th e right(s), including any

recu rrin g costs th e consum er can expect to incur resu ltin g from th e rig h t to obtain access to th e accommodation, trav el and any rela te d products or services as specified,

• th e staggered paym ent schedule se ttin g out equal am ounts of in stallm ents of th is price for each y e a r of the len g th of th e contract and th e dates on which they are due to be paid. A fter y ear 1, subsequent am ounts m ay be ad justed to ensure th a t th e real value of those installm en ts is m aintained, for instance to tak e account of inflation,

• outline of additional obligatory costs imposed u n d e r the contract; type of costs an d indication of am ounts (e.g. an n u a l m em bership fees),

• a sum m ary of key services available to th e consum er (e.g. discounted hotel stays an d flights): Are they included in th e costs indicated above? If not, specify w hat is included and w h at h as to be paid for (e.g. th ree-n ig h t stay included in a n n u a l m em bership fee, all other accom modation m u st be paid for separately),

• h as th e tra d e r signed a code/codes of conduct and, if yes, w here can it/they be found?

The second p a rt of th e sta n d a rd inform ation form for long-term holiday product contract includes general inform ation, namely:

• th e consum er has the rig h t to w ith d raw from th is contract w ithout giving any reason w ith in 14 calen dar days from th e conclusion of the contract or any binding prelim inary contract or receipt of those contracts if th a t tak es place later,

• during th is w ith d raw al period, any advance paym ent by the consum er is prohibited. The prohibition concerns any consideration, including pay m ent, provision of gu aran tees, reservatio n of money on accounts, explicit acknow ledgem ent of debt etc. It includes not only paym ent to th e trader, b u t also to th ird parties,

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• th e consum er has th e rig h t to term in a te th e contract w ithout incurring any penalty by giving notice to th e tra d e r w ithin 14 calend ar days of receiving the req u est for paym ent for each a n n u a l installm en t,

• th e consum er shall not b e a r any costs or obligations other th a n those specified in the contract,

• in accordance w ith in te rn atio n a l p riv ate law, the contract m ay be gover ned by a law oth er th a n th e law of th e M em ber S ta te in w hich the consum er is resid en t or is h abitu ally domiciled and possible disputes m ay be referred to courts oth er th a n those of the M em ber S ta te in which the consum er is resid en t or is habitu ally domiciled,

The th ird p a rt of the sta n d a rd inform ation form for long-term holiday product contract includes additional inform ation to w hich th e consum er is en titled and w here it can be obtained specifically (for instance, u n d er which ch ap ter of a general brochure):

1. Inform ation about th e righ ts acquired:

• an app ro p riate and correct description of discounts available for futu re bookings, illu strate d by a set of exam ples of recent offers,

• inform ation on th e restrictions on th e consum er’s ability to use th e rights, such as lim ited availability or offers provided on a first-com e-first-served basis, tim e lim its on p a rticu la r prom otions and special discounts.

2. Inform ation on th e term in atio n of th e contract:

• w here appropriate, inform ation on th e arran g em en ts for th e term in atio n of ancillary contracts and th e consequences of such term ination,

• conditions for term in a tin g th e contract, the consequences of term in ation , and inform ation on any liability of th e consum er for any costs which m ight resu lt from such term ination.

• indication of th e language(s) available for com m unication w ith th e tra d e r in relation to th e contract, for instance in relatio n to the h and ling of queries and com plaints,

• w here applicable, the possibility for out-of-court dispute resolution, • sig n atu re of th e consumer.

In case of resale contracts, th e consum er shall obtain the inform ation concerning th e en tran ce into th e contract in th e form of a sta n d a rd inform a tion form set out in Annex 3 of th is form. The first p a rt of the sta n d a rd inform ation form for resale contract includes:

• sh o rt description of th e services (e.g. m arketing),

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• outline of additional obligatory costs imposed u n d e r the contract; type of costs an d indication of am ounts (e.g. local taxes, n otary fees, cost of adver tising),

• h as th e tra d e r signed a code/codes of conduct and, if yes, w here can it/they be found?

The second p a rt of th e sta n d a rd inform ation form for resale contract includes general inform ation, namely:

• th e consum er has the rig h t to w ith d raw from th is contract w ithout giving any reason w ith in 14 calen dar days from th e conclusion of the contract or any binding prelim inary contract or receipt of those contracts if th a t takes place later,

• any advance paym ent by the consum er is prohibited u n til the actual sale h as ta k e n place or th e resale contract otherw ise is term inated . The prohi bition concerns any consideration, including paym ent, provision of g u a ra n tees, reservation of money on accounts, explicit acknow ledgem ent of debt etc. It includes not only paym ent to the trader, b u t also to th ird parties, • th e consum er shall not b ear any costs or obligations other th a n those

specified in th e contract.,

• in accordance w ith in te rn atio n a l private law, th e contract m ay be gover ned by a law oth er th a n th e law of th e M em ber S ta te in w hich the consum er is resid en t or is h ab itu ally domiciled and possible disputes m ay be referred to courts o th er th a n those of th e M em ber S ta te in w hich the consum er is resid en t or is h ab itu ally domiciled,

The th ird p a rt of th e sta n d a rd inform ation form for resale contract includes additional inform ation to w hich the consum er is en titled and w here it can be obtained specifically (for instance, u n d e r w hich ch ap ter of a general brochure):

• conditions for term in a tin g th e contract, th e consequences of term ination, an d inform ation on any liability of th e consum er for any costs w hich m ight resu lt from such term ination,

• indication of th e language(s) available for com m unication w ith th e tra d e r in relatio n to the contract, for instance in relatio n to th e h andling of queries and com plaints,

• w here applicable, th e possibility for out-of-court dispute resolution, • sig n atu re of th e consumer.

In case of exchange contracts, in good tim e before th e consum er is bound by any contract or offer, th e tra d e r shall provide th e consumer, in a clear and com prehensible m anner, w ith accurate and sufficient inform ation in th e form of sta n d a rd inform ation form set out in Annex 3 an d inform ation set out in th e th ird p a rt of th is form. The first p a rt of th e sta n d a rd inform ation form for exchange contracts includes:

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• sh o rt description of th e product,

• exact n a tu re an d content of th e right(s),

• exact period w ithin w hich th e rig h t which is th e subject of th e contract m ay be exercised and, if necessary, its duration,

• date on which th e consum er m ay s ta r t to exercise th e contractual right, • price to be p aid by th e consum er for the exchange m em bership fees,

• outline of additional obligatory costs imposed u n d e r th e contract; type of costs and indication of am ounts (e.g. renew al fees, other rec u rre n t fees, special levies, local taxes),

• a sum m ary of key services available to the consumer. Are they included in the costs indicated above? If not, specify w hat is included and w hat has to be paid for (type of costs and indication of amounts; e.g. an estim ate of the price to be paid for individual exchange transactions, including any additional charges), • has th e tra d e r signed a code/codes of conduct and, if yes, w here can it/they

be found?

The second p a rt of th e sta n d a rd inform ation form for exchange contract includes general inform ation, namely:

• th e consum er has th e rig h t to w ithdraw from th is contract w ithout giving any reason w ith in 14 calen d ar days from th e conclusion of the contract or any binding prelim inary contract or receipt of those contracts if th a t takes place later. In cases w here th e exchange contract is offered to g ether w ith an d a t the sam e tim e as th e tim eshare contract, only a single w ithdraw al period shall apply to both contracts,

• during th is w ithdraw al period, any advance paym ent by th e consum er is prohibited. The prohibition concerns any consideration, including pay m ent, provision of gu aran tees, reserv ation of m oney on accounts, explicit acknow ledgem ent of debt etc. It includes not only paym ent to th e trader, b u t also to th ird parties,

• th e consum er shall not b e a r any costs or obligations other th a n those specified in the contract,

• in accordance w ith in te rn atio n a l p riv ate law, the contract m ay be gover ned by a law other th a n th e law of th e M em ber S ta te in w hich the consum er is resid en t or is hab itu ally domiciled and possible disputes m ay be referred to courts other th a n those of the M em ber S tate in which the consum er is resid en t or is h ab itu ally domiciled,

The th ird p a rt of th e sta n d a rd inform ation form for exchange contract includes additional inform ation to w hich the consum er is en titled an d w here it can be obtained specifically (for instance, u n d e r w hich ch ap ter of a general brochure):

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1. Inform ation about th e rig h ts acquired:

• explanation of how th e exchange system works; the possibilities an d mo dalities for exchange; an indication of th e value allotted to the consum er’s tim esh are in th e exchange system and a set of exam ples of concrete exchange possibilities,

• an indication of th e nu m b er of reso rts available and th e num b er of m em bers in th e exchange system , including any lim itations on th e availability of p a rtic u la r accom modation selected by the consumer, for exam ple, as the resu lt of peak periods of dem and, th e potential need to book a long tim e in advance, and indications of any restrictions on th e choice resu ltin g from th e tim eshare rig h ts deposited into th e exchange system by th e consumer.

2. Inform ation on th e properties:

• a b rie f and appro p riate description of the properties and th e ir location; w here the contract concerns accom modation oth er th a n im m ovable proper ty, an app ropriate description of th e accom modation and th e facilities; description of w here th e consum er can obtain fu rth e r inform ation.

3. Inform ation on th e costs:

• inform ation on th e obligation on th e tra d e r to provide details before an exchange is arranged , in respect of each proposed exchange, of any addi tional charges for which the consum er is liable in respect of the exchange.

4. Inform ation on th e term in atio n of th e contract:

• w here appropriate, inform ation on th e arran g em en ts for th e term in atio n of ancillary contracts and the consequences of such term ination,

• conditions for term in a tin g th e contract, th e consequences of term ination, an d inform ation on any liability of th e consum er for any costs w hich m ight resu lt from such term ination.

• indication of th e language(s) available for com m unication w ith th e tra d e r in relatio n to the contract, for instance in relatio n to th e h andling of queries and com plaints,

• w here applicable, th e possibility for out-of-court dispute resolution, • sig n atu re of th e consumer.

The tra d e r shall provide th e consumer, in a clear and com prehensible m anner, w ith all th e p re-contractual inform ation which is free of charge, on p ap er or on an o th er durable m edium which is easily accessible to th e consu mer. According to th e Directive 2008/122 a durable m edium is a m ate ria l or device enabling storing inform ation in a way th a t precludes any changes or enables to reproduce th e it in th e version and form in which it was first p rep ared or tra n sfe rre d for a necessary tim e, resu ltin g from th e ch a ra c te r of th e inform ation and th e aim of its p rep aratio n or transfer. Additionally, the consum er shall be provided w ith th e p re-contractual inform ation in good tim e before th e consum er is bound by any contract or offer, so th a t he or she

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has th e opportunity of g etting acquainted w ith its content. The inform ation shall be draw n up in th e language or one of th e languages of th e M ember S ta te in w hich th e consum er is resid en t or a national. If th ere is more th a n one n atio nal language, th e inform ation should be draw n up in one of these languages, chosen by th e consumer. Pre-contractual inform ation shall form an in teg ral p a rt of th e contract an d shall not be altered unless th e p arties expressly agree otherw ise or th e changes resu lt from u n u su al and unforese eable circum stances beyond th e tra d e r’s control, th e consequences of which could not have been avoided even if all due care h a d been exercised. These changes shall be com m unicated to th e consum er on pap er or on an other durable m edium easily accessible to him, before th e contract is concluded.

T he c o n te n t o f tim e sh a r e , lo n g -te rm h o lid a y p ro d u ct, r e s a le a n d e x c h a n g e c o n tr a c ts.

G en era l c o m m en ts

It should be em phasized th a t D irective 2008/122 introduces alm ost u n i form legal policies concerning th e content of four types of contract em bedded in th e directive, nam ely tim esh are, long-term holiday product, resale and exchange contracts. The only exception is th e long-term holiday product contract. H ere, the M em ber S ta te legislator applied specific solutions.

F orm a n d la n g u a g e r e q u ir e m e n t o f th e c o n tr a c t

The contract shall be draw n up in w riting, on p ap er or oth er durable m edium , an d draw n up in th e language or one of the languages of the M em ber S ta te in w hich th e consum er is resid en t or a national, a t th e choice of th e consumer, provided it is an official language of th e Community. Addi tionally, th e Directive 2008/122 allows for th e possibility of im posing by a M em ber S tate in w hich a consum er is resided, a language requirem ent, w ith which th e contract shall comply with. In such a case a consum er shall be provided w ith a contract th a t is draw n up in a language or one of the languages of th e M em ber S tate, provided it is an official language of the Community. In th e case of a tim esh are contract concerning one specific immovable property, th e tra d e r provide th e consum er w ith a certified tra n s lation of th e contract in th e language or one of th e languages of the M ember S ta te in w hich th e property is situ ated , provided it is an official language of th e Community. Additionally, a M em ber S tate on whose territo ry a sale is conducted m ay req u ire th a t th e consum er shall be provided w ith a contract

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th a t is w ritte n in a language or one of th e languages of th is M ember State, provided it is an official language of the Community.

T h e c o n te n t o f a c o n tr a c t

A p art from th e req uired p re-contractual inform ation and all th e changes in the pre-contractual inform ation, in accordance w ith th e Directive 2008/ 122 a contract shall include:

a) th e identity, place of residence and sig n atu re of each of th e parties; and

b) th e d ate and place of th e conclusion of th e contract.

Before th e conclusion of th e contract a tra d e r shall explicitly draw the consum er’s atte n tio n to th e existence of th e rig h t of w ithdraw al, th e length of th e w ithdraw al period an d th e b an on advance paym ents durin g the w ith d raw al period. The corresponding contractual clauses shall be signed sep arately by th e consumer.

The contract includes a se p ara te sta n d a rd w ithdraw al form, set out in Annex V, inten d ed to facilitate th e exercise of the rig h t of w ithdraw al in accordance w ith Article 6. The consum er shall receive a copy or copies of the contract a t the tim e of its conclusion.

The form w hich facilitates th e exercise of th e rig h t of w ithdraw al inclu des th e following content:

R ight of w ithdraw al

The consum er h as th e rig h t to w ith draw from th is contract w ithin 14 calen dar days w ithout giving any reason. K onsum ent m a praw o odstąpić od niniejszej umowy bez podania przyczyny w term inie cztern astu

The rig h t of w ithdraw al s ta rts from ... (to be filled in by th e tra d e r before providing th e form to the consumer).

W here th e consum er h as not received th is form, th e w ithdraw al period s ta rts w hen th e consum er h as received th is form, b u t expires in any case after one y ear and 14 calendar days.

W here th e consum er h as not received all th e requ ired inform ation, the w ith d raw al period s ta rts w hen th e consum er has received th a t inform ation, b u t expires in any case after th re e m onths and 14 calendar days.

To exercise th e rig h t of w ithdraw al, the consum er shall notify th e tra d e r u sing th e nam e and address indicated below by using a durable m edium (e.g. w ritte n le tte r sen t by post, e-mail). The consum er m ay use th is form, b u t it is not obligatory.

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W here th e consum er exercises th e rig h t of w ithdraw al, the consum er shall not be liable for any costs.

In addition to th e rig h t of w ithdraw al, n ational contract law rules m ay provide for consum er rig h ts, e.g. to term in a te th e contract in case of om is sion of inform ation.

B an on advance paym ent

D uring th e w ithdraw al period any advance paym ent by th e consum er is prohibited. The prohibition concerns any consideration, including paym ent, provision of gu aran tees, reserv atio n of money on accounts, explicit acknow ledgem ent of debt, etc. It includes not only paym ent to th e trader, b u t also to th ird parties.

Notice of w ithdraw al

- To (Name and address of th e tra d e r) (*)

- I/We (**) hereby give notice th a t I/We (**) w ith draw from the contract, - D ate of conclusion of contract (*):

- Nam e(s) of consum er(s) (***): - Address(es) of consum er(s) (***)

- Signature(s) of consum er(s) (only if th is form is notified on paper) (***); - D ate (***):

(*) To be filled in by th e tra d e r before providing th e form to the consumer. (**) Delete as appropriate. (***) To be filled in by th e consum er(s) where th is form is used to w ithdraw from th e contract.

Acknowledgement of receipt of inform ation. S ign ature of th e consumer.

T he r ig h t o f w ith d r a w a l

In accordance w ith th e Directive 2008/122 a consum er is given a period of 14 calendar days to w ithd raw from the tim eshare, long-term holiday product, resale or exchange contract, w ithout giving any reason. G ranting th e rig h t of w ithdraw al w ithout providing any specific reaso n constitutes an indication of protecting th e consum er from pledging his credit precipitously. The w ithdraw al period shall be calculated.

• from the day of the conclusion of the contract or of any binding p relim in a ry contract; or

• from th e day w hen th e consum er receives th e contract or any binding prelim inary contract if it is la te r th a n th e date of th e conclusion of th e contract or any binding prelim inary contract.

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W here th e consum er inten d s to exercise the rig h t of w ithdraw al the consum er shall, before th e expiry of th e w ithdraw al period, notify th e tra d e r on paper or on an o th er durable m edium of th e decision to w ithdraw. The consum er m ay use th e sta n d a rd w ith d raw al form set out in Annex V and provided by th e trader. The deadline is m et if th e notification is sent before th e w ithdraw al period has expired.

The exercise of th e rig h t of w ithdraw al by th e consum er term in a te s th e obligation of the p a rties to perform th e contract. th e consum er shall n e ith e r b e a r any cost nor be liable for any value corresponding to th e service which m ay have been perform ed before w ithdraw al.

The Directive 2008/122 prohibits any advance paym ent to th e tra d e r by th e consum er before th e end of th e w ithdraw al period in relatio n to tim esh a re, long-term holiday product and exchange contracts. The prohibition con cerns also all th e other considerations to th e tra d e r or to any th ird party by th e consumer, including provision of g u aran tees, reserv atio n of money on accounts, explicit acknow ledgem ent of debt. In relatio n to exchange contract th e b a n is in force un til th e actual sale tak es place or th e resale contract is otherw ise term inated . W here th e consum er exercises th e rig h t to w ithdraw from th e tim esh are or long-term holiday product contract, any exchange contract ancillary to it or any o th er ancillary contract is autom atically term i n ated , a t no cost to th e consumer. W here th e price is fully or p artly covered by a credit g ran te d to th e consum er by th e trad er, or by a th ird p a rty on the basis of a n arran g em en t betw een the th ird p arty and th e trad er, th e credit agreem ent shall be term in ated , a t no cost to th e consumer.

S p e c ific p r o v is io n s r e la t in g to lo n g - te r m h o lid a y p ro d u ct c o n tr a c ts

For long-term holiday product contracts, th e Directive 2008/122 states th a t th e paym ent shall be m ade according to a staggered paym ent schedule. Any paym ent of the price specified in th e contract otherw ise th a n in accor dance w ith th e staggered paym ent schedule shall be prohibited. The pay m ents, including any m em bership fee, shall be divided into yearly in sta ll m ents, each of w hich shall be of equal value. The tra d e r shall send a w ritten req u est for paym ent, on pap er or on an o th er durable m edium , a t least fourteen calend ar days in advance of each due date.

From th e second in sta llm e n t paym ent onw ards, th e consum er m ay te r m in ate th e contract w ithout in currin g any penalty by giving notice to the tra d e r w ithin fourteen calen d ar days of receiving th e req u est for paym ent of each installm ent.

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Im perative n a tu re of th e Directive and application in in te rn atio n a l cases Directive 2008/122 ensu res th a t, w here the law applicable to the con tra c t is th e law of a M em ber S tate, consum ers m ay not waive th e rights conferred on th em by th e Directive. W here th e applicable law is th a t of a th ird country, consum ers shall not be deprived of th e protection g ran ted by th is Directive, as im plem ented in th e M em ber S ta te of the forum if:

• any of th e im m ovable properties concerned is situ a te d w ithin th e territo ry of a M em ber S tate, or

• in th e case of a contract not directly related to imm ovable property, the tra d e r pursu es comm ercial or professional activities in a M em ber S ta te or, by any m eans, directs such activities to a M em ber S ta te an d th e contract falls w ithin the scope of such activities.

C o n c lu sio n s

I hope th a t this article will clarify th e concept of the Directive for tim esh are contracts and th a t it will also contribute to th e developm ent of ideas regard ing th e proper and effective consum er protection in th e subject m a tte r discussed.

S tr e s z c z e n ie

O chrona k o n su m en ta w św ietle D yrektyw y 2008/122/EC z 14 sty c zn ia 2009 r. w s p ra w ie ochrony kon sum en tów w o d n iesien iu

d o n iek tó rych a sp ek tó w um ów tim esh are, um ów o d łu g o term in o w y p r o d u k t w akacyjny, um ów o d sp rze d a ży o ra z w ym ian y

S łow a kluczow e: o ch ro n a k o n su m en tó w , tim esh erin g .

D yrektyw a 2008/122/EC m a n a celu zwiększenie zaufania konsum entów w b ranży nieruchom ości oraz w yelim inow anie działań nieuczciwych przed siębiorców. D yrektyw a ta w prow adza także nowe definicje w skazujące n a jej zakres przedmiotowy: umowy o długoterm inowy pro du kt wakacyjny, umowy odsprzedaży, umowy wym iany oraz umowy pomocnicze.