Opinion of the Advocate General — ECLI:EU:C:1998:576
Date: 1998-11-26
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary of the Judgment 
1. Approximation of laws — Protection of consumers in respect of contracts negotiated away from 
business premises — Contracts relating to the purchase of the right to use immovable proper­
ties on a time-share basis — Directives 85/577 and 94/47 — Scope — Time-sharing — Covered 
(Directive 94/47 of the Parliament and the Council; Council Directive 85/577) 
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SUMMARY — CASE C-423/97 
2. Approximation of laws — Protection of consumers in respect of contracts negotiated away from 
business premises — Directive 85/577 — Scope — Contract relating to the purchase of the right 
to use immovable properties on a time-share basis and to the provision of services whose value 
is higher than that of the property right — Covered 
(Council Directive 85/577) 
3. Approximation of laws — Protection of consumers in respect of contracts negotiated away from 
business premises — Directive 85/577 — Contract concluded during an excursion organised 
by the trader away from his business premises — Meaning 
(Council Directive 85/577, Art. 1(1)) 
4. Approximation of laws — Protection of consumers in respect of contracts negotiated away from 
business premises — Directive 85/577 — Consumer's right of renunciation — Conditions — 
Based on objective circumstances 
(Council Directive 85/577, Art. 5(1)) 
5. Approximation of laws — Protection of consumers in respect of contracts negotiated away from 
business premises — Directive 85/577 — Consumer's right of renunciation — Notification — 
Conditions as to form — No such conditions 
(Council Directive 85/577, Art. 5(1)) 
6. Approximation of laws — Protection of consumers in respect of contracts negotiated away from 
business premises — Directive 85/577 — Consumer's right of renunciation — Legal effects — 
Contractual clause imposing payment by the consumer of a lump sum for damage caused to 
the trader solely as a result of the renunciation — Not permissible 
(Council Directive 85/577, Art. 5(1)) 
1. Whilst it is true that time-share contracts 
are covered by Directive 94/47 on the 
protection of purchasers in respect of cer­
tain aspects of contracts relating to the 
purchase of the right to use immovable 
properties on a time-share basis, this does 
not preclude a contract having a time-
share element from being covered by 
Directive 85/577 if the conditions for the 
application of that directive are otherwise 
fulfilled. 
Neither directive contains provisions ruling 
out the application of the other. Moreover, 
it would defeat the object of Directive 
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TRAVEL VAC ν ANTELM SANCHIS 
85/577 to interpret it as meaning that the 
protection it provides is excluded solely 
because a contract generally falls under 
Directive 94/47. Such an interpretation 
would deprive consumers of the protec­
tion of Directive 85/577 even when the 
contract was concluded away from busi­
ness premises. 
2. Directive 85/577 to protect the consumer 
in respect of contracts negotiated away 
from business premises applies to a con­
tract relating to the acquisition of a right 
to use immovable property on a time-
share basis and to the provision of services 
whose value is higher than that of the right 
to use the immovable property. 
Since a contract of that nature does not 
only concern the right to use time-share 
property, but also concerns the provision 
of separate services of a value higher than 
that of the right to use the property, it is 
not covered by Article 3(2)(a) of Directive 
85/577, under which that directive does 
not apply to contracts for the construc­
tion, sale and rental of immovable prop­
erty or contracts concerning other rights 
relating to immovable property. 
3. A contract concluded in a situation in 
which a trader has invited a consumer to 
go in person to a specified place at a cer­
tain distance from the place where the 
consumer lives, and which is different from 
the premises where the trader usually car­
ries on his business and is not clearly 
identified as premises for sales to the public, 
in order to present to him the products 
and services he is offering, must be con­
sidered to have been concluded during an 
excursion organised by the trader away 
from his business premises within the 
meaning of Directive 85/577. 
4. The consumer can exercise his right under 
Article 5(1) of Directive 85/577 of renun­
ciation of a contract negotiated away from 
business premises where the contract has 
been concluded in circumstances such as 
those described in Article 1 of that direc­
tive, without there being any need to prove 
that the consumer was influenced or 
manipulated by the trader. 
5. Directive 85/577 to protect the consumer 
in respect of contracts negotiated away 
from business premises does not preclude 
a Member State from adopting rules which 
provide that notice of renunciation of such 
a contract under Article 5(1) of that direc­
tive is not subject to any condition as to 
form. 
Given the objective of the directive, namely 
to protect the consumer, a Member State 
may adopt such provisions to make it 
easier for the consumer to exercise his 
right of renunciation. It cannot be inferred 
from Article 5(1) of the directive, which 
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SUMMARY — CASE C-423/97 
concerns the time-limits within which 
notice of renunciation must be given, that 
this must be done in writing. That provi­
sion merely concerns the calculation of 
the minimum period of seven days where 
the consumer gives notice of renunciation 
in writing. 
6. Directive 85/577 to protect the consumer 
in respect of contracts negotiated away 
from business premises precludes the inclu­
sion in a contract of a clause imposing 
payment by the consumer of a lump sum 
for damage caused to the trader for the 
sole reason that the consumer has exer­
cised his right of renunciation of such a 
contract. 
To enforce payment of such damages and 
interest would be tantamount to imposing 
a penalty on the consumer for exercising 
his right of renunciation, which would be 
contrary to the protective purpose of the 
directive which is precisely to prevent the 
consumer from undertaking financial 
obligations without being prepared for 
them. 
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