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The Anfi Way (Part 2 of 7) The following 2 Laws cover Timeshare in Spain TODAY; (including the dates I worked there) 1) Real Decreto-ley 8/2012, de 16 de Marzo. 2) EU Directive 122 (16/3/2012) These 2 laws are not an ‘either/or’ option. They BOTH MUST be complied with. You will clearly see the following words in the EU Directive 122; “Member States should not be allowed to maintain or introduce in their national legislation provisions diverging from those laid down in this Directive”. I have included the Articles and Chapters which include the “No monies to be taken”, because I appreciate Lawyers may miss this if it is mentioned only the one time. Count how many times the 2 LAWS refer to “No monies to be taken” (in Parts 2 to 7. Parts 3/4/5/6 and 7 will follow) EU Directive 122 (16/3/2012) Consumers: Determined Commission action ensures timeshare protection in all EU countries Brussels, 31 May 2012 – Today, the European Commission closed an infringement case against Spain on the Timeshare Directive (Directive 2008/122/EC) after the country notified the Commission of a new law (Decreto-ley) transposing the rules. (Real Decreto-ley 8/2012, de 16 de marzo) The Directive also ensures that consumers may withdraw from a contract within a "cooling-off" period of 14 calendar days and that traders can never ask them for any form of advance payment or deposit during that period. Before the conclusion of the contract, the trader is required to explicitly draw the consumer’s attention to the existence of the right of withdrawal, the length of the withdrawal period and the ban on advance payments during the withdrawal period. Protection by the Directive now also covers new products and contracts which had been developed so as to avoid the application of the previous Timeshare Directive. ***********************The Anfi Way.******************** The Anfi Cold Sales lines sold a ‘Trial Membership’ (a part Time Membership). The part time membership consisted of either a 2 week, 3 week, 4 week up to a maximum of 5 weeks, all of which were to be used at Anfi Del Mar. Did Anfi circumvent the 2 laws by ‘PROVISIONALLY’ booking all the weeks purchased, into an 11 month time slot from the date of the purchase (thus, not breaching the 2 laws). The purchasers would hear the word PROVISIONALLY numerous times from the management and verifications department. The purchasers were also given the use of ‘RCI Extra Weeks’ after the 11 month period if they didn’t UPGRADE to a full membership during their first holiday at Anfi. The ‘Trial Membership’ was presented as a 2 and a half year ‘package’. It was then up to the In-House sales department to upgrade these clients. I have always wondered, if an INDEPENDENT AUDIT was completed on how many of these part time membership weeks were actually used outside the 11 month period? A deposit or ‘cash out’ was always taken on the day of purchase of these ‘Trial Memberships’. ******************************************************************************************************* On 17 March 2012, Spain published Real Decreto-Ley 8/2012 transposing the Timeshare Directive. It entered into force the following day and was validated by the Spanish Parliament on 29 March 2012.Through its recent transposition, Spain avoided the risk of financial sanctions which the Commission could have requested under the Lisbon Treaty (Article 260 (3) of the Treaty on the Functioning of the EU) when taking a Member State to court for failing to transpose an EU directive. THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 95 thereof, Having regard to the proposal from the Commission, Having regard to the opinion of the European Economic and Social Committee (1), Acting in accordance with the procedure laid down in Article 251 of the Treaty (2), Whereas: (1) Since the adoption of Directive 94/47/EC of the European Parliament and of the Council of 26 October 1994 on the protection of purchasers in respect of certain aspects of contracts relating to the purchase of the right to use immovable properties on a timeshare basis (3), timeshare has evolved and new holiday products similar to it have appeared on the market. These new holiday products and certain transactions related to timeshare, such as resale contracts and exchange contracts, are not covered by Directive 94/47/EC. In addition, experience with the application of Directive 94/47/EC has shown that some subjects already covered need to be updated or clarified, in order to prevent the development of products aiming at circumventing this Directive. (3) In order to enhance legal certainty and fully achieve the benefits of the internal market for consumers and businesses, the relevant laws of the Member States need to be approximated further. Therefore, certain aspects of the marketing, sale and resale of timeshares and long-term holiday products as well as the exchange of rights deriving from timeshare contracts should be fully harmonised. Member States should not be allowed to maintain or introduce in their national legislation provisions diverging from those laid down in this Directive. Where no such harmonised provisions exist, Member States should remain free to maintain or introduce national legislation in conformity with Community law. Thus, Member States should, for instance, be able to maintain or introduce provisions on the effects of exercising the right of withdrawal in legal relationships falling outside the scope of this Directive or provisions according to which no commitment may be entered into between a consumer and a trader of a timeshare or long-term holiday product, nor any payment made between those persons, as long as the consumer has not signed a credit agreement to finance the purchase of those services. (4) This Directive should be without prejudice to the application by Member States, in accordance with Community law, of the provisions of this Directive to areas not within its scope. Member States could therefore maintain or introduce national legislation corresponding to the provisions of this Directive or certain of its provisions in relation to transactions that fall outside the scope of this Directive. Real Decreto-ley 8/2012, de 16 de Marzo. Title I. standards General. Chapter i. Scope of application EXHIBITION OF MOTIVES II It Directive 2008 / 122 / CE of 14 of January of the 2009 relative to the protection of them consumers with regard to certain aspects of them exploitations by shift of goods of use tourist, of acquisition of products rentals of long duration, of resale and Exchange, repeals the directive of 1994. The new directive is based on the appearanceof new holiday products that precisely defines, fill in gaps, extends the harmonization of the internal legal systems of States, reinforces the information consumer, regulates more precisely the deadlines for exercising the right of withdrawal, insists and extends the prohibition of payment of advances during the term of office of such law, requires a calendar of payments for those contracts of long duration and determines the ineffectiveness of certain loans of financing for the case of withdrawal. Should highlight is that them circumstances of extraordinary and urgent need, that under the article 86.1 of the Constitution enabled to the Government to adopt measures through real decree-law, come certain by the need of give compliance to them obligations derived of our membership to the Union European. It should be noted that the deadline for incorporation of Directive 2008/122/EC was on February 23, 2011 and since the European Commission already it has initiated appropriate actions to punish Spain with a significant fine. The adoption of this Royal Decree-Law responds accordingly, in avoiding the negative economic consequences for Spain which would be derived from the imposition of a fine by the European Union, at the time that is ahead of the entry into force of a rule which, on the one hand, improves the protection of consumers and, on the other hand, serves to boost an important sector of the Spanish economy. IV Chapter II transposes the rules of the directive on advertising and pre-contractual information with particular reference to the right of withdrawal, as well as banning consumer pay advances during the period of exercise of such right. In terms of facilitating the pre-contractual information, the European standard is looking for total harmonisation require the use of certain standardized forms that are incorporated by the corresponding annexes to this standard. Are also transposition of the directive them rules on prohibition of advances or payments to charge of the consumer during the term of exercise of the right to desist,as well as the inefficiency of them contracts accessories, even them loans, in case of withdrawal, and the need of organize a plan stepped of payments for them contracts of products rentals of long duration. TITLE I General rules CHAPTER I Scope of application Article 1. Scope of application. 1). the contracts of marketing, sale, resale of rights of use by shift of goods of use tourist and of products rentals of long duration, as well as to them contracts of Exchange, is govern by it willing in this real decree-law when is held between a businessman and a consumer. 2). is understands by entrepreneur all person physical or legal that act with purposes related with its activity economic, business, trade or profession and any person that act in name or by features of an entrepreneur. (Includes Thomas Cook Representatives)