Judgment;Summary — ECLI:EU:C:2023:671
Date: 2023-09-14
Language of the case: Spanish
Court formation: Seventh Chamber
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Spain

Summary C-632/21 – 1 
Case C-632/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
14 October 2021 
Referring court: 
Juzgado de Primera Instancia e Instrucción n.º 2 de Granadilla de 
Abona (Spain) 
Date of the decision to refer: 
13 October 2021 
Applicant: 
JF 
NS 
Defendant: 
Diamond Resorts Europe Limited (Sucursal en España) 
Diamond Resorts Spanish Sales, S. L. 
Sunterra Tenerife Sales, S. L. 
  
Subject matter of the main proceedings 
Club-points-based timeshare contracts – Action for annulment of contract – Law 
applicable 
Subject matter and legal basis of the request for a preliminary ruling 
Request for a preliminary ruling on interpretation – Article 267 TFEU – 
Timeshare contracts – Applicable law – Applicability of the Rome Convention 
and Regulation (EC) No 593/2008 to United Kingdom nationals – Applicability of 
Regulation No 593/2008 to contracts concluded before its entry into force – 
Applicability of Articles 4(3) and 5 of the Rome Convention – Nature of the 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-632/21 
 
2  
contractual relationship – Rights in rem or rights in personam – Articles 4(1)(b) 
and (c) and 6(1) of Regulation No 593/2008 – Compatibility of a national 
provision with the Rome Convention and Regulation No 593/2008 
Questions referred for a preliminary ruling 
FIRST: Are the 1980 Rome Convention on the law applicable to contractual 
obligations and Regulation No 593/2008 on the law applicable to contractual 
obligations to be construed as applying to contracts in which both parties are 
United Kingdom nationals? 
If the answer to the first question is in the affirmative 
SECOND: Is Regulation No 593/2008 to be construed as applying to contracts 
concluded before its entry into force, pursuant to Article 24 of that regulation? If 
the answer is no, must a club-points-based timeshare contract be treated as falling 
within the scope of Articles 4(3) or (5) of the 1980 Rome Convention, including 
where the consumer has chosen the law of a State other than his or her State of 
habitual residence as the applicable law? Further, if the answer is that such 
contracts can come under either provision, which set of rules takes priority? 
THIRD: Irrespective of the answers to the second question, is a club-points-based 
timeshare contract to be treated as a contract for the acquisition of rights in rem in 
immovable property or association-type rights in personam? 
– If it is considered that rights in rem are acquired, for the purposes of 
determining the law applicable, which of Article 4(c) and 6(1) of Regulation 
No 593/2008 is applicable by way priority, including in the event that the 
consumer chooses the law of a State other than that of his or her State of habitual 
residence as the applicable law?  
– If it is considered that rights in personam are acquired, are those rights to be 
treated as a tenancy of immovable property, for the purposes of Article 4(c), or as 
a provision of services, for the purposes of Article 4(b)? Further, and in any event, 
is Article 6(1) applicable by way of priority in so far as the contract is with a 
consumer and/or user, including where the consumer chooses the law of a State 
other than that of his or her State of habitual residence as the applicable law? 
FOURTH: In all of the above cases, is national legislation which states that ‘all 
contracts concerning rights relating to the use of one or more immovable 
properties situated in Spain during a specified or specifiable period of the year 
are subject to the provisions of this Law, regardless of the place or the date on 
which such contracts were concluded’ to be interpreted as being compatible with 
the provisions governing the applicable law laid down in the 1980 Rome 
Convention and in Regulation No 593/2008? 
DIAMOND RESORTS EUROPE AND OTHERS 
 
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Provisions of European Union law relied on 
Regulation (EC) No 593/2008 of the European Parliament and of the Council of 
17 June 2008 on the law applicable to contractual obligations (Rome I) (‘the 
Rome I Regulation’): Article 3(1) to (4) (Freedom of choice), Article 4 
(Applicable law in the absence of choice), Article 6 (Consumer contracts) and 
Article 24 (Relationship with the Rome Convention) 
Convention on the law applicable to contractual obligations opened for signature 
in Rome on 19 June 1980 (‘the Rome Convention’): Article 3(1) to (3) (Freedom 
of choice), Article 4(2) and (3) (Applicable law in the absence of choice), and 
Article 5(3) (Certain consumer contracts) 
Provisions of national law relied on 
Law 42/1998 on timeshare and the tax regulations in this area (Ley 42/1998 sobre 
derechos de aprovechamiento por turno de bienes inmuebles de uso turístico y 
normas tributarias) of 15 December 1998: Article 1(1) and second additional 
provision  
Law 4/2012 on timeshare, long-term holiday product, resale and exchange 
contracts and the tax regulations in this area (Ley 4/2012 de contratos de 
aprovechamiento por turno de bienes de uso turístico, de adquisición de productos 
vacacionales de larga duración, de reventa y de intercambio y normas tributarias) 
of 6 July 2012: Article 1 (Scope) and Article 2 (Timeshare contracts) 
Succinct presentation of the facts and procedure in the main proceedings 
1 An action was brought before the referring court, seeking the annulment of two 
contracts (of 14 April 2008 and of 28 June 2010) (‘the contracts at issue’) 
concluded between the United Kingdom company DIAMOND RESORT 
EUROPE LIMITED (SUCURSAL EN ESPAÑA) and the applicants in these 
proceedings Mr JF and Ms NS, of British nationality. The contracts relate to the 
purchase of points (10 000 and 20 000 in this case), which enable consumers to 
use accommodation belonging to the club owned by the defendant (DIAMOND) 
in Europe, including Spain. Consumers are not allocated specific accommodation, 
even for a specified period each year; instead, consumers are offered a brochure of 
accommodation and must request availability for each property at a particular 
time. 
The essential arguments of the parties in the main proceedings 
2 The applicants seek the annulment of the contracts at issue, arguing that those 
contracts do not comply with the conditions laid down in two national laws (Law 
42/1998, applicable to pre-2012 contracts, and Law 4/2012, applicable to post-
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-632/21 
 
4  
2012 contracts), such as, for example, the registration of the timeshare in the 
Spanish Land Register, identification of the properties allocated to a consumer and 
of the conditions relating to those properties, and specification of the duration of 
the contracts, up to a maximum of 50 years. The applicants describe the rights 
acquired as timeshare rights in rem. 
3 The defendant contests the action, arguing, inter alia, that contracts of this kind 
concern rights in personam (not rights in rem); that Spanish law has been wrongly 
applied to those contracts when the contracts should have been governed by 
United Kingdom law because the applicants are nationals of and have their 
habitual residence in the United Kingdom and the defendant’s registered office is 
in the United Kingdom (although it acknowledges that it has branches in Spain 
and that the contracts at issue were concluded in Spain); and that all of the above 
is compatible with the 1980 Rome Convention (applicable to pre-2009 contracts) 
and the Rome I Convention (applicable to post-2009 contracts). 
Succinct presentation of the reasoning in the request for a preliminary ruling 
4 First, a question has arisen regarding the determination of the law applicable to the 
contracts at issue in the light of the different conflict rules in the Rome 
Convention and the Rome I Regulation. The referring court states that, according 
to the case-law of two provincial courts, Spanish law is applicable, either pursuant 
to Article 3 of the Rome I Regulation (freedom of choice of law and application of 
the law of the State in which all the elements of the contract are situated – for 
example, application of Spanish law in the case of a contract between a trader and 
a consumer where the trader has a branch in Spain, the contract is signed in Spain 
and the parties’ obligations are connected to an immovable property in Spain 
which is ‘allocated’ to them) or pursuant to Article 4 of that regulation (applicable 
law in the absence of choice, whether those contracts concern rights in rem, a 
tenancy or the provision of services). However, the defendant contends that, under 
Article 5 of the Rome Convention and Article 6 of the Rome I Regulation, since 
these are consumer contracts, the general principle of the consumer’s place of 
habitual residence must take precedence; the defendant further submits that the 
consumer and the trader are both entitled to rely on the law of the consumer’s 
place of habitual residence. The fact that contracts of this kind come under 
Article 6 of the Rome I Convention means that United Kingdom law must apply 
since the consumers are habitually resident in and the company has its registered 
office in the United Kingdom. 
5 Moreover, in view of the fact that the Rome Convention was applicable at the 
time when the contract was concluded in 2008, the referring court asks whether 
the Rome I Regulation, which repealed that convention but did not set a degree of 
retroactivity, applies to contracts concluded before the entry into force of the 
regulation or whether the earlier rules are maintained. 
DIAMOND RESORTS EUROPE AND OTHERS 
 
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6 In addition, in view of the United Kingdom’s exit from the European Union, the 
referring court is also uncertain whether the provisions of EU law continue to 
apply to nationals of that State. 
7 Lastly, the referring court also seeks clarification of the nature of the contractual 
relationship between the parties. The referring court considers that it is unclear 
whether the contracts at issue create rights in rem or association-type rights in 
personam, while it is also possible to treat those rights as tenancy rights. In the 
latter case, the referring court takes the view that, under Article 4 of the Rome I 
Regulation, two possibilities are available (application of the law of the country 
where the immovable property is situated or the law of the country in which the 
consumer has his or her place of habitual residence), depending on whether the 
tenancy is for a period of more or less than six months. 
At purely national level, the referring court states that determination of the nature 
of the contract could have consequences for the validity of the contracts at issue, 
since the Spanish legislation in force when those contracts were signed (Law 
42/1998) treated the contracts as contracts relating to rights in rem in immovable 
property and stipulated certain formal conditions for the validity of the contracts 
which are not required by United Kingdom law. However, the current provision in 
force (Law 4/2012) has been interpreted in case-law as treating contracts of this 
kind as association contracts, for which fewer formal conditions are required, 
which would mean that they are valid under the Spanish legislation.