Regulations, 2006

L.N. 282 of 2006

MALTA TRAVEL AND TOURISM SERVICES ACT

(CAP. 409)

Injunctions for the Protection of the Interests of Consumers

(Package Travel and Protection of Buyers in Contracts for

Time Sharing of Immovable Property)

Regulations, 2006

IN exercise of the powers conferred by article 47 of the Malta

Travel and Tourism Services Act, the Minister for Tourism and Culture

acting on the recommendation of the Malta Tourism Authority has made

the following regulations>-

The title of these regulations is the Injunctions for the

Protection of the Interests of Consumers (Package Travel and Protection

of Buyers in Contracts for Time Sharing of Immovable Property)

Regulations, 2006.

(1)

In these regulations, unless the context otherwise

requires -

“the Act” means the Malta Travel and Tourism Services Act<

“the Authority” means the Malta Tourism Authority as

established under the Act<

“the Commission” means the Commission of the European

Community<

“the Court” means, unless otherwise stated in these

regulations, the Court of Magistrates in its civil jurisdiction<

“EEA State” means any State which is a contracting party to

the agreement on the European Economic Area signed at Oporto

on the 2nd May, 1992 as amended by the Protocol signed at Brussels

on 17th March, 1993 and as amended from time to time<

“European Community” means the organisation established

by the Treaty of Rome in 1957 and amended institutionally and

otherwise in 1986 by the Single European Act, in 1993 by the

Treaty on European Union, in 1997 by the Treaty of Amsterdam

and in 2001 by the Treaty of Nice and as amended by accession

agreements and as may be further amended from time to time<

“the Injunctions Directive” means Directive 98#27#EC of the

European Parliament and of the Council of 19th May, 1998 on

injunctions for the protection of consumers’ interests<

“list of qualified entities” means the list compiled and updated

by the Commission and published in the Official Journal of the

European Communities listing the qualified entities in Member

States and EEA States in accordance with Article 4 of the

Injunctions Directive<

“Member State” means a member of the European

Community<

“the Package Travel Directive” means Council Directive

90#314#EEC of 13th June 1990 on package travel, package holidays

and package tours<

“the Package Travel Regulations” means the Package Travel, L.N. 157 of 2000.

Package Holidays and Package Tours Regulations, 2000 which

regulations transpose the Package Travel Directive<

“qualified entity” means any body or organisation which,

being properly constituted according to the law of a Member State,

has a legitimate interest in ensuring that the provisions referred to

in article 3 of these regulations are complied with and, without

prejudice to the generality of the foregoing, includes>

(a) a registered consumer association within the

meaning of Part IV of the Consumer Affairs Act,

(b) one or more independent public bodies, having a

legitimate interest in ensuring the protection of the collective

interests of -

(i) consumers of package travel, package holidays

and package tours, and, or

(ii) buyers in contracts for time sharing of

immovable property,

in other Member States or EEA States in which such bodies

exist,

(c) voluntary organisations in other Member States or

EEA States whose purpose is to protect the interests referred

to in paragraph (b) of this definition in accordance with the

criteria laid down by their national law,

(d) organisations recognised by the Authority as

collectively representing travel agents and, or sellers of time

sharing of immovable property, or

(e) any qualified entity from a Member State or EEA

State included in the list of qualified entities<

“the Timeshare Directive” means Council Directive 94#47#EC

of the European Parliament and of the Council of 26th 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<

“the Timeshare Regulations” means the Protection of Buyers

in Contracts for Time Sharing of Immovable Property Regulations,

2000 which regulations transpose the Timeshare Directive.

(2) Words and expressions used in these regulations which

are also used in the Act, the Package Travel Regulations or the Timeshare

Regulations shall have the same meanings as in the Act, the Package

Travel Regulations or the Timeshare Regulations.

(3) The provisions of the Act unless provided otherwise in

these regulations, shall apply in relation to any notification of any acts

however so described and, or of any enforcement measures.

The object of these regulations is to implement the provisions

of the Injunctions Directive insofar as it is applicable in protecting the

collective interests of consumers and, or of buyers in relation to the

Package Travel Regulations, and to the Timeshare Regulations, and

shall be interpreted and applied accordingly.

These regulations apply to any transaction or requirement

under the Package Travel Regulations and, or under the Timeshare

Regulations.

(1) Where a qualified entity wishes to seek a compliance

compliance orders

order, it shall submit a written application to the Authority. In its

application, it shall satisfy the Authority that it has tried to achieve the

cessation of the infringement of the Package Travel Regulations and,

or of the Timeshare Regulations in consultation with either the defendant

or both the defendant and another qualified entity of the Member State

or EEA State in which the compliance order is sought. The Authority

shall only entertain a written application if the qualified entity shows to

its satisfaction that the cessation of the infringement was not achieved

within two weeks after the request for consultation was received.

(2) Where the qualified entity is from another Member State

or EEA State, the Authority shall treat the list of qualified entities

published by the Commission as conclusive proof of the legal capacity

of the legal entity to present such written application in Malta.

(3) The Authority shall, at the request of a qualified entity

from Malta, communicate to the Commission the name and objects of

such an entity, and that such qualified entity should be added to the list

of qualified entities so as to facilitate the redress of inter-community

infringements.

(4) Before proceeding to the issue of a compliance order

under regulation 6 of these regulations, the Authority shall, if it considers

it to be possible and reasonable to do so, seek first to achieve voluntary

compliance by a person against whom the compliance order is sought,

in accordance with these regulations, the Act, the Package Travel

Regulations, the Timeshare Regulations and, or any other law dealing

with consumer protection.

(5) For the purposes of these regulations, an infringement

occurs when any act or omission is committed contrary to the Package

Travel Regulations and, or the Timeshare Regulations which act or

omission harms the collective interests of consumers.

(1) Where the Authority feels that it is reasonably appropriate Issue of

compliance

or necessary for the protection of consumers, it may, of its initiative or orders.

on a written application to it by a qualified entity, issue a compliance

order against any person for one or more of the following purposes>

(a) requiring any such person to take any measures specified

in the compliance order, within the time specified in the order to

ensure that the provisions of the Package Travel Regulations and,

or the Timeshare Regulations are complied with<

(b) requiring any such person to cease or desist from

committing a breach of the Package Travel Regulations and, or of

the Timeshare Regulations.

(2) The Authority shall, when issuing a compliance order

under these regulations>

(a) notify a copy of the compliance order on each person

against whom the order is made<

(b) include with the compliance order, information about

the right to contest the order before the Court< and

(c) briefly state the reasons for issuing the compliance order,

which reasons shall be notified to each person against whom the

order is issued and, if any, to the qualifying body on whose

application the order is issued.

(3) No precautionary warrant or other order however so

described under any other law shall be issued by any court or tribunal

restraining or restricting the Authority from issuing a compliance order

under these regulations.

(1) It shall be at the discretion of the Authority whether or

not to issue a compliance order after a written request by a qualified

entity has been made to it in accordance with regulation 6(1) of these

regulations.

(2) If the Authority decides not to issue a compliance order

after an application has been made to it by a qualified entity, the

Authority shall, within seven days from the date of its decision, notify

in writing the qualified entity and the persons against whom the

compliance order is requested with its decision stating the reasons

thereof.

A compliance order issued by the Authority shall come into

force with immediate effect.

(1) A person against whom a compliance order has been

made, may, within fifteen days from receipt of notification of the

compliance order, institute an action before the Court requesting the

revocation or amendment of the compliance order, giving detailed

grounds thereof. The Authority and where appropriate any qualifying

entity that may have requested the issue of the compliance order, shall

be notified with the action and shall have fifteen days from the date

when they are notified with the action in which to reply.

(2) The Court may confirm, change or cancel the compliance

order as it considers appropriate, provided that in doing so the Court

shall in all instances state its reasons thereof.

(3) Where an action is instituted under this regulation, the

compliance order shall remain in force unless the Court at the request

of the party contesting the order, specifically orders that the compliance

order shall be stayed pending the outcome of the action, subject to such

conditions and amendments to the order as the Court may determine.

(4) Subject to the provisions of this regulation, the provisions of

the Code of Organisation and Civil Procedure shall, mutatis mutandis, Cap. 12.

govern any actions made to the Court.

Actions instituted under regulations 7 and 9 of these Cases to be heard

and determined

regulations shall be heard and determined by the Court with urgency with urgency.

and as expeditiously as possible>

Provided that the Court at the request of any of the parties to the

proceedings before it, may abridge any of the timeframes established

under these regulations in relation to the conduct of the action before it.

The Authority, when issuing a compliance order under these No need to prove

actual loss, etc.

regulations, shall not be required to prove>

(a)

actual loss or damage< or

(b) actual recklessness, negligence or fault on the part of

the person against whom the compliance order is made.

(1) The Authority may, for the better information of the Authority may

require

public>

publication.

(a) communicate in any manner it considers appropriate, a

copy of a compliance order made under regulation 6 of these

regulations against any person, in full or in part< and, or

(b) order the person against whom the compliance order

has been issued, to communicate in any manner the Authority may

consider appropriate, a corrective statement in relation to any

infringement of the Package Travel Regulations and, or the

Timeshare Regulations.

(2) Communications in terms of sub-regulation (1) of this

regulation shall be made at the expense of the person against whom the

order has been issued in at least two daily newspapers within seven

days from receipt of a notice requiring the person concerned to pay the

expenses involved in the issue of such communications>

Provided that where the communications are not made as

aforesaid, the Authority may proceed to issue the communications itself>

Provided further that any expenses incurred by the Authority

in issuing any communications made by it in accordance with the

provisions of this regulation, shall be recoverable as a civil debt from

the person against whom the compliance order was issued.

(1) A person who acts in breach of any other provision of

these regulations, or fails to comply with a compliance order issued

under these regulations shall commit an offence against these regulations

and shall be liable on conviction to a fine (multa) of not less than one

hundred Maltese liri but not exceeding one thousand Maltese liri and,

or to a fine (multa) of not less than twenty-five Maltese liri and not

exceeding fifty Maltese liri for each day during which the offence

continues.

(2) If the Authority is satisfied that the person against whom

a compliance order has been issued has repeatedly failed to comply

with a compliance order issued under these regulations, the Authority

may then suspend or decline to renew any licence that that person may

have under the Act for a period not exceeding one year.

Mitbug[ fl-Istamperija tal-Gvern — Printed at the Government Printing Press