CELEX: 51992PC0220
Language: en
Date: 1992-07-24
Title: Proposal for a COUNCIL DIRECTIVE concerning the protection of purchasers in contracts relating to the utilisation of immovable property on a timeshare basis

29 . 8 . 92                                 Official Journal of the European Communities                                No C 222 / 5
                                                                       II
                                                              (Preparatory Acts)
                                                       COMMISSION
                  Proposal for a Council Directive concerning the protection of purchasers in contracts relating
                                     to the utilization of immovable property on a time-share basis
                                                                (92 /C 222 / 05)
                                                      COM(92) 220 final — SYN 419
                                             (Submitted by the Commission on 2 July 1992)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                                   3 . Whereas, in the Community Action Plan for
                                                                          Tourism (}), the Commission's guidelines with a view to
                                                                           improving protection for tourists as consumers include
 Having regard to the Treaty establishing the European                     'drafting a proposal regarding cross-border property
 Economic Community, and more particularly Article                         transactions (time-sharing)';
 100a thereof,
                                                                           4. Whereas the time-share market is very largely of a
Having regard to the proposal from the Commission,                        transfrontier nature by reason of the geographical
                                                                           location of supply and demand in most cases , and hence
                                                                           has an impact on the free movement of persons, services
In cooperation with the European Parliament,                              and capital ;
Having regard to the opinion of the Economic and                           5. Whereas, although most of the Member States have
Social Committee,
                                                                          as yet no specific legislation on time-share contracts,
                                                                          others do, taking the view that the provisions of ordinary
                                                                          law applicable to this type of transaction have failed to
 1 . Whereas one of the main aims of the Community is                     generate the requisite legal clarity or the appropriate
to complete the internal market by 31 December 1992 at                    level of protection for consumers ;
the latest ; whereas it is important to adopt measures to
ensure       that    the    internal     market    is   established
progressively ; whereas the internal market comprises an
area without internal frontiers in which goods, persons ,                 6.     Whereas the application of the rules of ordinary
services and capital can move freely ;                                    law in some Member States and of specific legislation,
                                                                          albeit with different rules, in others creates disparities
                                                                          which might hamper the orderly development of this
                                                                          sector of economic activity; whereas this situation is thus
2 . Whereas the European Parliament, in its resolution                    prejudicial to the proper functioning of the internal
of 13 October 1988 on the need to fill the legal gap in                   market.
the time-share market (*), called on the Commission to
submit a proposal for a directive to harmonize national
legislation on time-share property ownership ; whereas, in
its resolution of 11 June 1991 on a Community tourism                     7.     Whereas under the circumstances and with a view
policy (2), the European Parliament took the view that                    to ensuring a high level of protection for consumers, it is
the Commission should present a general time-share                        essential to make provision for a basic set of specific
directive as a matter of urgency ;                                        rules for this type of transaction, applicable throughout
                                                                          the Community ;
(') OJ No C 290, 14 . 11 . 1988 , p . 148 .
(J) Resolution A3 - 1 55 / 9 1 , point 91 (Document PE 152.802 ,
    p . 54).                                                              C) COM(91 ) 97 final, p. 20.
 ---pagebreak---  No C 222 / 6                         Official Journal of the European Communities                                   29 . 8 . 92
 8 . Whereas the legal concepts applied under national           15 . Whereas nothing must be done to prevent
 law to time-share arrangements vary considerably from          Member States from maintaining or adopting provisions
 one Member State to another ;                                  which give the purchaser greater protection in
                                                                connection with time-share contracts,
 9.    Whereas it is nonetheless sufficient to harmonize        HAS ADOPTED THIS DIRECTIVE :
 the rules concerning time-share contractual transactions,
 the law applicable in each case deriving exclusively from
 the lex rei sitae :
                                                                                            TITLE I
                                                                                   Objective and definitions
 10 . Whereas, with a view to establishing effective
 standards for protecting purchasers in this field, it is
 necessary to stipulate minimum obligations which                                          Article 1
vendors must comply with vis-a-vis purchasers ;
                                                                The purpose of this Directive is to approximate the laws,
                                                                regulations and administrative provisions of the Member
                                                                States in respect of contracts relating to the utilization of
                                                                immovable property on a time-share basis .
 11 . Whereas nothing must be done to affect the
 freedom of Member States to establish guarantees under
 their own legislation in respect of the vendor's obli­
 gations ;                                                                                 Article 2
                                                                For the purposes of this Directive :
 12 . Whereas it is necessary to avoid any misleading or        — contract relating to the utilisation of immovable
 incomplete details in information concerned specifically            property on a time-share basis', hereinafter referred
with the sale of time-share rights ; whereas such infor­             to as 'time-share contract', means any contract by
mation must be supplemented by a document which the                  which a vendor transfers or undertakes to transfer to
purchaser must formally acknowledge receipt of at the                a purchaser, on payment of a certain price, a real
time the contract is signed ; whereas this supplementary             property right or any other right relating to the util­
document must be drawn up in a language which the                    ization of immovable property at a certain time of
purchaser states he knows ; whereas the items of infor­              the year, which may not be less than one week,
mation contained therein must constitute an integral part            covering a minimum of three years,
of the time-share contract ;
                                                                — 'immovable property' means any building or part of a
                                                                     building to which the time-share contract relates,
                                                                     such as a house, flat, bungalow, studio flat, etc.,
 13 . Whereas , to give the purchaser the chance to
realize what obligations and rights he has under the
contract, he has to be given the right of withdrawal for a      — 'vendor' means any natural or legal person who, in
period which takes account of the fact that the property             transactions covered by this Directive and in his
is often situated in a State and is subject to legislation           professional capacity, transfers or undertakes to
which are different to those of the purchaser ; whereas it           transfer to a purchaser a real property right or any
is necessary to make provision for the purchaser to be               other right relating to the utilization of immovable
informed by writing of this cooling-off period ;                     property, where he is himself the owner of the said
                                                                     property to which the right refers or is authorized by
                                                                     the owner to carry out such transaction,
14 . Whereas the protection afforded to the purchaser           — 'purchaser' means any natural person who, in trans­
must be supplemented in terms of private international               actions covered by this Directive, acts as a consumer,
law, given that time-share contracts are very often trans­           i.e. for purposes which may be regarded as being
frontier in nature ;                                                 outside his professional capacity.
 ---pagebreak--- 29 . 8 . 92                              Official Journal of the European Communities                              No C 222 / 7
                             TITLE II                                                         Article 4
                                                                   Member States shall make provision for :
                    Obligations of the vendor
                                                                    1 . measures to establish the purchaser's rights and obli­
                                                                        gations in respect of the management and main­
                             Article 3                                  tenance of the property to which the time-share
                                                                        arrangement relates ; such measures shall be in
1.      Member States shall make provision to ensure that,              conformity with point (m) of the Annex ;
in the time-share contact, the vendor guarantees, more
particularly :
                                                                   2 . the bases for the breakdown of common and occu­
                                                                        pation-linked charges, in annual terms, in which the
(a) that the immovable property, and any connected                      purchaser is required to participate ; such bases shall
      facilities, has been built or will be built according to          lay down clearly and unequivocally, and in
      the state of the art and under such conditions as to              conformity with the terms of point (j) of the Annex,
      obtain from the authorities of the country in which               the share of each category of charges to which each
      the property is or will be situated the necessary auth­           purchaser is liable, in the light of the situation and
      orization, according to the national law, so that he              category of the property to which the time-share
      can effectively occupy the property ;                             arrangement relates, and the period and duration of
                                                                        the time-share right.
(b) the transfer to the purchaser, on payment of the
      price stipulated in the time-share contract, of the real                                Article 5
      right or any other right of use in respect of the
      property, exclusive of all charges or subject only to         1 . Member States shall make provision for measures
      such charges as are stipulated in the time-share             to ensure that the vendor is required to make available to
      contract ;                                                   any potential purchaser a document providing infor­
                                                                   mation in an unequivocal, detailed and complete form on
                                                                   at least the items set out in the Annex.
(c) where appropriate, the purchaser's right to use, in
      addition to such common services as lighting,
      cleaning, refuse collection, etc., special facilities such   The documents shall be in a languange which the
      as swimming pools, tennis courts, golf courses,              purchaser states he knows .
      saunas, etc. existing at the time of signature of the
      timeshare contract or in the future , subject to the
      conditions stipulated in the time-share contract or          2. Any other form of advertising shall indicate the
      otherwise provided for by the vendor;                        possibility of obtaining the document.
(d) the purchaser's right to be involved in the process of
      making any decisions concerning the administration                                      TITLE III
      of the time-share scheme and the management and
      maintenance of the property to which the time-share                            Rules governing contracts
      arrangement relates. The purchaser may delegate this
      right provided this is done in a separate document
      and subsequent to signature of the time-share                                           Article 6
      contract ; such delegation of powers may be revoked
      at any time .
                                                                   Member States shall make provision to ensure that the
                                                                   time-share contract, which must be in writing, contains
                                                                   at least the following items :
2.      Member States shall make provision in their legis­
lation for appropriate measures to ensure that the vendor
gives adequate guarantees concerning, where appro­                 (a) a detailed and unequivocal description of the
priate :                                                                 property in repect of which the time-share right is
                                                                         transferred to the purchaser. This description must
                                                                         be in conformity with the information contained in
— correct completion of the property,                                    point (a) of the Annex ;
— reimbursement of any advance payment, in the event               (b) the precise type of time-share right which is being
     of non-completion of the property or in exercise of                 transferred to the purchaser. This type of right must
     the right of withdrawal within the meaning of Article               feature among those referred to in point (d) of the
     7, without prejudice to the terms of Article 7 (4).                 Annex ;
 ---pagebreak--- No C 222 / 8                              Official Journal of the European Communities                                     29 . 8 . 92
(c) the period and date, in words, within and from                              reimbursable are calculated so as to ensure that
     which the purchaser may exercise his time-share                            reimbursement does not entail any unjustified
     right, such information being in conformity with the                       enrichment for either of the parties concerned ;
      information contained in point (f) of the Annex ;
                                                                         (b) establish the deadline for reimbursement.
(d) express reference to the other items indicated in the
     Annex ;                                                                                      Article 8
                                                                    Member States shall make provision for :
(e) the date, in words, of signature of the contract ;
                                                                     1 . any clause under which the purchaser renounces his
                                                                         right to benefits under this Directive to be null and
(f) the purchaser's declaration indicating that he has                   void ;
      received and understood the document referred to in
      the first subparagraph of Article 5 ( 1 ) in accordance       2 . any clause under which the vendor is exonerated from
      with the second paragraph thereof.                                 liability arising from this Directive to be null and void .
                                                                                                  Article 9
                            Article 7
Member States shall make provision for :                            Member States shall make provision, notwithstanding a
                                                                    choice of the law by the parties to the contract or the
                                                                    application of the objective criteria of international
                                                                    private law for determining which law shall apply, for
1 . the obligation on the vendor to inform the purchaser,           the purchaser not to be deprived of the protection given
    in writing, at the time of signature of contract, that          him by this Directive :
    the contract will take effect unless the purchaser
    withdraws within a period of :
                                                                    (a) if the property to which the time-share contract
                                                                           relates is situated in a Member State ; or
    — at least 14 calendar days from the date of
         signature of contract, or                                  (b) if the purchaser has his normal residence in a
                                                                           Member State and
    — at least 28 calendar days from the date of                             (i) if conclusion of the contract was preceded in
         signature of contract where the time-share right                         that Member State by a specially drafted
         can be exercised in a country other than where the                       proposal or by advertising, and if the purchaser
         purchaser has his normal residence ;                                     has completed in that same Member State the
                                                                                  necessary legal steps for completion of the
                                                                                  contract ;
2 . the information referred to in point 1 to be contained
    in the contact in an unequivocal and clearly legible                          or
    form and at least in the same print as the rest of the
    contract, immediately preceding the signatures of the                   (ii) if the vendor or his representative received the
    parties to the contract ;                                                     order from the purchaser in that Member State ;
                                                                                  or
3 . the right of withdrawal provided for in point 1 to be
    exercised by the purchaser by notifying the person
    whose name and address figure in the contract for                      (iii) if the purchaser went from that Member State
    this purpose. As regards compliance with the deadline,                        to a foreign country and signed the time-share
    it is sufficient for notification to be sent, by registered                   contract there, on condition that the journey
    letter, before expiry of the relevant deadline ;                              was organized by the vendor for the purpose of
                                                                                  inducing the purchaser to conclude such a
                                                                                  contract .
4 . measures designed to :
                                                                                                 Article 10
    (a) lay down the conditions in which, where the                 The Member States shall make provision in their legis­
         purchaser exercises the right of withdrawal                lation for the consequences of non-compliance with the
         provided for in point 1 , any sums which may be            provisions of this Directive.
 ---pagebreak--- 29 . 8 . 92                              Official Journal of the European Communities                                        No C 222 / 9
                           Article 11                                     this Directive by 31 December 1994 . They shall
                                                                          immediately inform the Commission thereof.
This Directive shall not prevent Member States from
adopting or maintaining provisions which are more                         When Member States adopt these provisions, these shall
favourable with regard to protecting the interests of the                 contain a reference to this Directive or shall be accom­
purchaser in the field in question, without prejudice to                  panied by such reference at the time of their official
their obligations under the Treaty.                                       publication . The procedure for such reference shall be
                                                                          adopted by the Member States .
                           Article 12
                                                                                                     Article 13
Member States shall bring into force the law, regulations
and administrative provisions necessary to comply with                    This Directive is addressed to the Member States .
                                                                  ANNEX
                    Minimum list of items to be included in the document referred to in Articles 5(1 ) and 6 (d)
              (a) A description of the immovable property to which the time-share rights relate or will relate, giving
                  details of geographical situation, whether the property has already been built, is being built or is
                  planned and stating that it has been built or will be built according to the state of the art and so as to
                  obtain from the authorities of the country in which the property is or will be situated the necessary
                  authorization , under national legislation, so that the property in question can effectively be occupied.
              (b) The nature of the vendor's title to the land on which the immovable property is or will be located ; any
                  charges to which the property is subject (e.g. mortgages, easements); whether the vendor has been
                  granted the requisite permits (e.g. building, connection to telephone, electricity, water, gas , TV
                  services , etc.).
              (c) The precise legal structure of the time-share scheme and its duration.
              (d) An indication of the time-share rights offered by the vendor and their duration ; the number of
                  properties constructed, under construction or planned ; the furnishings and fittings associated with
                  each property.
              (e) The total number of time-share rights in each property.
              (f) A clear and precise description of the fixed and variable periods of occupation, stating the
                  arrangements for determining such periods.
              (g) The date on which the purchaser may occupy the property.
              (h) Common facilities (e . g. swimming pool, sauna, tennis courts, golf course, etc.) and existing and future
                  services to which the purchaser is entitled, and the date on which such facilities and services may be
                  used by the purchaser.
              (i) The total cost for the purchaser, laying down clearly and unequivocally the cost of the various
                  time-share rights over the various periods of the year, where a leasehold arrangement is involved, the
                  rent must be specified.
              (j) The annual cost which the purchaser is expected to assume for use of the common facilities and
                  services ; the annual amount of charges related to occupation of the property by the purchaser ; the
                  annual statutory and mandatory charges (e.g. taxes, fees, etc.) and the annual administrative overheads
                  (e. g. management, upkeep, repairs, etc.) and their expected development ; any costs payable by the
                  purchaser for special services on request.
 ---pagebreak--- No C 222 / 10                                Official Journal of the European Communities                                       29 . 8 . 92
              (k) The guarantees referred to in Article 3.
              (1) Clear and unequivocal details of conditions, limits and cost of time-share exchange and resale services,
                   where these services exist; if they do not exist, this must be indicated. At any event, there must be a
                   statement to the effect that the sale of time-share rights cannot be assured at a fixed price of within a
                   fixed period.
              (m) Measures which have been or will be taken in respect of the management, upkeep and maintenance of
                   the property, and any measures adopted or to be adopted relating to the purchaser's participation in
                   the administration and management.
              (n) The period within which the purchaser can exercise his right to withdraw from the contract, as
                   referred to in Article 7, the arrangements for so doing and the effect of withdrawing.
              Proposal for a Council Directive on common frequency bands to be designated for the
              coordinated introduction of the terrestrial flight telecommunications system (TFTS) in the
                                                                 Community
                                                               (92 /C 222/06)
                                                     COM(92) 314 final — SYN 440
                                             (Submitted by the Commission on 22 July 1992)
THE COUNCIL OF THE EUROPEAN COMMUNITIES ,                                Whereas the Community-wide operation of mobile
                                                                         communications systems will greatly depend upon the
                                                                         provision of common frequency bands and associated
Having regard to the Treaty establishing the European                    harmonised standards ;
Community, in particular Article 100a thereof,
                                                                         Whereas the European Telecommunications Standards
Having regard to the proposal from the Commission,                       Institute (ETSI) is currently developing the European
                                                                         Telecommunications Standard (ETS) for the terrestrial
                                                                         flight telecommunications system (TFTS);
In cooperation with the European Parliament,
                                                                         Whereas this standard is expected to be approved during
                                                                          1992 ;
Having regard to the opinion of the Economic and
Social Committee,
                                                                         Whereas the development of the ETS must observe the
                                                                         safety of aircraft and flight, as well as the need for
Whereas Council resolution 88 / C 257 /01 (*) calls for the              Europe-wide interoperability ;
promotion of Europe-wide services according to market
requirements ;
                                                                         Whereas the European implementation of TFTS will
                                                                         provide a unique opportunity to establish aeronautical
Whereas Council resolution 90 /C 27/05 (2) calls for                     public correspondence (APC) in Europe ;
special priority to be given to the development and inter­
connection of trans-European networks notably, 'inter
alia', in the area of telecommunications ;                               Whereas in order to make the necessary investment in
                                                                         TFTS European airlines and network operators need the
                                                                         assurance of a long term frequency allocation ;
(') Council resolution 88 /C 257/01 on the development of the            Whereas      ETSI      has    estimated    that     TFTS     will
    common     market   for   telecommunication       services  and
    equipment (OJ No C 257, 4. 10. 1988 , p. 1 ).                        progressively require an allocation of 2 x 5 MHz of
(2) Council resolution 90/C 27/05 concerning trans-European              frequency spectrum to meet demand in high traffic
    networks (OJ No C 27 , 6 . 2 . 1990 , p. 8 ).                        density areas up to 2005 ;