European Union (Protection of Consumers in respect of Timeshare, Long-term Holiday Product, Resale and Exchange Contracts) Regulations 2011.

• Published date: 25 February 2011
• Statutory Instrument No.: 73/2011

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 25th February, 2011.

I, MARY HANAFIN, Minister for Enterprise, Trade and Innovation, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving effect to Directive No. 2008/122/EC of the European Parliament and of the Council of 14 January 20091 , hereby make the following regulations:

Citation and Commencement

1. (1) These Regulations may be cited as the European Union (Protection of Consumers in respect of Timeshare, Long-term Holiday Product, Resale and Exchange Contracts) Regulations 2011.

(2) These Regulations come into operation on 23 February 2011.

Interpretation

2. (1) In these Regulations—

“Act of 2007” means the Consumer Protection Act 2007 (No. 19 of 2007);

“Agency” means the National Consumer Agency;

“authorised officer” means a person appointed under section 30 of the Act of 2007;

“Directive” means Directive 2008/122/EC of the European Parliament and of the Council of 14 January 20091 on the protection of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and exchange contracts;

“European Union” has the same meaning as it has in the European Communities Act 1972 (No. 27 of 1972);

“Member State” means a state that is a member of the European Union or a state that is a party to the agreement on the European Economic Area signed at Oporto on 2 May 1992, as adjusted by the protocol done at Brussels on 17 March 1993;

“regulated contract” shall be construed in accordance with Regulation 3;

“withdrawal period” shall be construed in accordance with Regulation 13.

(2) For the purposes of calculating the duration of a timeshare contract or a long-term holiday product contract any express or implied term contained in the contract and providing for renewal or prolongation shall be taken into account.

(3) A word or expression which is used in these Regulations and which is also used in the Directive has, unless the context otherwise requires, the same meaning in these Regulations as it has in the Directive.

Regulated contracts

3. These Regulations apply to a timeshare, long-term holiday product, resale or exchange contract to which the Directive applies between a trader and a consumer and which in these Regulations shall be referred to as a “regulated contract”.

Application

4. (1) These Regulations apply to a regulated contract if it is to any extent governed by the law of the State.

(2) These Regulations apply to a regulated contract if—

(a) it is to any extent governed by the law of a state other than a Member State,

(b) the relevant accommodation is in immoveable property situated in a Member State, and

(c) the parties to the contract are to any extent subject to the jurisdiction of a court in the State.

(3) In paragraph (2)(b) “relevant accommodation” means—

(a) the accommodation which is the subject of the regulated contract, or

(b) in a case where a pool of accommodation is the subject of the regulated contract, some or all of the accommodation in that pool.

(4) These Regulations apply to a regulated contract if—

(a) it is to any extent governed by the law of a state other than a Member State,

(b) it is not directly related to immoveable property,

(c) the trader carries on commercial or professional activities in the State or by any means directs such activities to the State, and

(d) the contract falls within the scope of those activities.

Advertising

5. (1) A trader who advertises a regulated contract shall include a notification in the advertisement that the information referred to in Regulation 6(1) in relation to the contract is available and how a person may obtain the information.

(2) A trader who offers a regulated contract directly to a consumer at a promotion or sales event shall clearly indicate, in any invitation to that event that he or she issues or notifies to the consumer, that the event is of a commercial nature and purpose.

(3) A trader who offers a regulated contract directly to a consumer at a promotion or sales event shall at all times during the event make available to the consumer, in respect of each contract so offered, all of the information referred to in Regulation 6(1) in relation to that contract—

(a) by displaying the information in a prominent position at the event, and

(b) by having literature on paper or on another durable medium easily accessible to the consumer, containing the information, displayed in a prominent position at the event and which may be taken away from the event by the consumer.

(4) A trader shall not market or sell a timeshare contract or a long-term holiday product contract as an investment.

(5) A regulated contract shall not be enforceable by a trader against a consumer where the trader has, in relation to the contract, contravened paragraph (1), (2), (3) or (4).

Pre-contractual information

6. (1) In good time before a consumer is bound by any contract or offer, the trader shall provide the consumer, in a clear and comprehensible manner, with the following:

(a) in the case of a timeshare contract, the information in the form specified in Schedule 1;

(b) in the case of a long-term holiday product contract, the information in the form specified in Schedule 2;

(c) in the case of a resale contract, the information in the form specified in Schedule 3;

(d) in the case of an exchange contract, the information in the form specified in Schedule 4.

(2) For the purposes of paragraph (1), “good time” means that a sufficient period is given to a consumer to give full consideration to the information furnished under that paragraph in order to make an informed decision before entering a contract, and in any event shall mean a period of not less than 24 hours before the consumer signs the contract.

(3) The trader shall provide the information referred to in paragraph (1)—

(a) free of charge,

(b) on paper or on another durable medium that is easily accessible to the consumer,

(c) if the consumer is resident in, or a national of, a Member State, in the language or one of the languages of the Member State—

(i) in which the consumer is resident, or

(ii) of which the consumer is a national,

provided that the language is an official language of the European Union.

(4)(a) For the purposes of paragraph (3)(c), if the information referred to in this Regulation could be provided to a consumer in more than one language the trader shall so inform the consumer and request the consumer to nominate a language.

(b) A trader shall comply with any nomination expressed by the consumer in response to a request under subparagraph (a).

(c) Where no nomination is made by the consumer in response to a request under subparagraph (a) the trader shall provide the information to the consumer in one of the languages referred to in paragraph (3)(c).

(5) A person who contravenes this Regulation is guilty of an offence.

Form and language of regulated contract

7. (1) A trader shall ensure that a regulated contract—

(a) is in writing, either on paper or on another durable medium, and

(b) if the consumer is resident in, or a national of, a Member State, is drawn up in the language or one of the languages of the Member State—

(i) in which the consumer is resident, or

(ii) of which the consumer is a national,

provided that the language is an official language of the European Union.

(2)(a) For the purposes of paragraph (1)(b), if the contract could be provided to a consumer in more than one language the trader shall so inform the consumer and request the consumer to nominate a language.

(b) A trader shall comply with any nomination expressed by the consumer in response to a request under subparagraph (a).

(3) Where no nomination is made by the consumer in response to a request under subparagraph (a) the trader shall provide the information to the consumer in one of the languages referred to in paragraph (1)(b).

(3) A person who contravenes this Regulation is guilty of an offence.

Additional provisions regarding language of regulated contract

8. (1) Where a consumer is resident in the State, a trader shall, in addition to complying with the requirements in Regulation 7—

(a) provide the regulated contract to the consumer in the English language or, if requested by the consumer, in both the Irish and English languages, and

(b) in the case of a timeshare contract concerning one specific immovable property, provide the consumer with a translation (certified as being a correct translation thereof by a person who is competent to so certify) of the contract in the language or one of the languages of the Member State in which the property is situated, provided it is an official language of the European Union.

(2) Where a trader carries out sales activities in the State, the trader shall, in addition to complying with the requirements of Regulation 7, provide the regulated contract to the consumer in the English language or, at the request of the consumer, in both the Irish and English languages

(3) A person who contravenes this Regulation is guilty of an offence.

Pre-contractual information part of regulated contract

9. (1) The information referred to in Regulation 6(1) shall form an integral part of the regulated contract.

(2) A trader shall not alter the information referred to in Regulation 6(1) unless the parties expressly agree otherwise or the changes result from unusual and unforeseeable circumstances beyond the trader’s control, the consequences of which could not have been avoided even if all due care had been exercised.

(3) A trader shall communicate any changes referred to in paragraph (2) to the consumer—

(a) before the regulated contract is concluded, and

(b) on paper or on another durable medium easily accessible to the consumer.

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