Keywords

Summary



Keywords

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 immoveable properties 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)

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 immoveable 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))

Summary

1 Whilst it is true that time-share contracts are covered by Directive 94/47 on the protection of purchasers in respect of certain aspects of contracts relating to the purchase of the right to use immoveable 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 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 protection of Directive 85/577 even when the contract was concluded away from business premises.

2 Directive 85/577 to protect the consumer in respect of contracts negotiated away from business premises applies to a contract relating to the acquisition of a right to use immoveable property on a time-share basis and to the provision of services whose value is higher than that of the right to use the immoveable 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 construction, sale and rental of immoveable property or contracts concerning other rights relating to immoveable 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 certain distance from the place where the consumer lives, and which is different from the premises where the trader usually carries 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 considered 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 renunciation 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 directive, 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 directive 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 concerns the time-limits within which notice of renunciation must be given, that this must be done in writing. That provision 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 inclusion 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 exercised 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.