Timeshare and Timeshare-like Products Promotion

L.N. 287 of 2010

MALTA TRAVEL AND TOURISM SERVICES ACT

(CAP. 409)

Timeshare and Timeshare-like Products Promotion

(Licensing of OPC Representatives) Regulations, 2010

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

and Tourism Services Act, hereunder referred to as “the Act”, the

Prime Minister, on the recommendation of the Malta Tourism

Authority, has made the following regulations:-

The title of these regulations is the Timeshare

and Timeshare-like Products Promotion (Licensing of OPC

Representative) Regulations, 2010.

Regulation 7 (5) (d)

Fines for Breaches of the Regulations by OPCs

1. For not being dressed in accordance with the dress code

approved by the Authority ………………………………………… €250

2. For not wearing an identity document or not wearing it

prominently displayed ……………………………………………

€450

3. For being present in an area forming part of a larger

number of OPCs present in that area not so authorised by

the Authority ……………………………………………………… €250

4. For carrying out OPC activities within a distance not

authorised by the Authority ……………………………………..... €450

5. For misrepresenting the operational resort or the product

or for providing misleading information on the resort …………… €450

6. For utilizing cars in a manner which breaches these regulations … €1,200

7. For arguing, shouting or engaging in an argument whatsoever

with other OPCs …………………………………………….…

€1,200

8. For acting in an abusive manner with tourists or with

officials of the Authority …………………………..……………. €2,300.

The object of these regulations is to provide for the

licensing of OPC representatives and to regulate the conduct of

such persons when these are making outside promotional contacts

with prospective buyers as part of a marketing campaign for

the offer of property on a timeshare basis or other equivalent

arrangements.

(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;

“bond” means the amount deposited by a marketing

company to cover fines imposed by the Authority for breaches

of the regulations by the marketing company depositing the

bond and by the OPCs of the same company;

“identity document” means the identity document issued

by the Authority in terms of regulation 6;

“marketing company” means the physical or legal

person being the operational resort or club itself or any of its

marketing agents or representatives which actively market,

promote the timeshare and timeshare like products of the

same resort or club through an off-premises system;

“off-premises system” means the marketing and

promotion of timeshare and timeshare-like products in public

areas;

“OPC representative” means an individual who is

employed or otherwise engaged by the marketing company to

act as its representative in the making of outside promotional

contacts as part of a communications campaign to attract

prospective buyers;

“operational resort” means a hotel licensed under the Act

which operates units on timeshare or operates other timeshare

like products and is recognised as such by the Authority;

“sale of a timeshare and timeshare-like products”

includes both the marketing and sales aspects of a contract

concerning intermittent rights of occupancy for holiday

accommodation, and shall include, but shall not be limited to,

approaching prospective buyers for such purpose;

“timeshare-like products” means any agreement of

any duration which includes elements of timeshare and

shall include, but shall not be limited to, a contract of a

duration of more than one year under which a consumer, for

consideration, acquires primarily the right to obtain discounts

or other benefits in respect of accommodation, in isolation or

together with travel or other services.

(2) All other words and expressions shall have

the same meaning as is assigned to them by the Act and by the

Protection of Buyers in Contracts for Time Sharing of Immovable

Property Regulations, 2000.

(1) (a) No marketing company shall employ or Licensing of OPC

otherwise engage a person who shall offer or promote timeshare or representatives.

timeshare like products or act as a seller or carry out duties which

are normally carried out by an OPC representative unless that

person is in possession of a valid licence issued by the Authority

under these regulations

Provided that such a licence is not required where the

person offering or promoting timeshare or timeshare like products

or acting as a seller or carrying out duties which are normally

carried out by an OPC representative, carries out his duties from

a premises licensed to be used for commercial purposes with the

consent of the licensee of the same premises.

(b) The Authority may issue such number of licences

which shall not exceed such number of licences as may, from

time to time, be determined by it as may be appropriate and

proportionate to the inventory of timeshare and timeshare products

being marketed by the marketing company and having regard to

the tourism policy current at the time.

(2) An application for a person to be licensed to act

as an OPC representative shall be submitted by the marketing

company that shall be employing or otherwise engaging the OPC

representative, in the form established by the Authority for the

purpose and it shall be accompanied by such information and

documentation as required by the Authority, including

(a) a recent police conduct certificate showing that the

person is of good conduct, or any other proof or attestation

of good character standing and good conduct of the applicant

OPC representative which may be in the form of an attestation

drawn up by the marketing company that shall be employing

or otherwise engaging the applicant OPC representative;

(b) a certificate or attestation drawn up by the

marketing company that shall be employing or otherwise

engaging the OPC representative, certifying that the person

is competent to act as an OPC representative and that the said

person has an acceptable educational background;

(c) a certificate or attestation of acquired knowledge

following appropriate training of not less than ten hours in

the carrying out of duties which are normally carried out by

an OPC representative in an ethical and respectful manner

towards potential consumers of time share and timeshare-

like products; and in the regulatory framework governing

this activity, including these regulations and any other law,

particularly those concerning consumer rights in general and

as may be specific to the promotion and selling of timeshare

and timeshare-like products; and

(d) a written declaration signed by the applicant

OPC representative committing to perform his duties in

a proper and ethical manner; to abide by the provisions

of these regulations and any other law, particularly those

concerning consumer rights in general and as may be specific

to the promotion and selling of timeshare and timeshare like

products; to adhere to the conditions of his licence and to

accept the fines and penalties indicated in these regulations

Provided that where the Authority is not satisfied

with the information or documentation submitted by the

applicant it shall reserve the right to request additional

information or documentation and to take recourse to other

sources of information or audit to verify the information or

documentation submitted by the applicant.

(3) Where an applicant OPC representative requires a

work permit or any other permit issued by or under the provisions

of the Immigration Act or any other law, no licence shall be issued

until such permit or permits have been issued or approved.

(4) When a licence has been issued to an OPC

representative under these regulations, such licence shall be issued

in relation to the marketing company that shall be employing or

otherwise engaging the OPC representative and the licence so

issued shall only be valid in relation to such marketing company.

(5) The Authority shall have the right to refuse to

issue a licence or renew a licence where the documentation and

attestations listed in sub-regulation (2) are not to its satisfaction, or

where the applicant OPC representative or the marketing company

has been found guilty of a breach of any of the regulations issued

under the Act or of the conditions of a licence issued by the

Authority.

(6) A licence issued under this regulation shall be valid

for a period of one year from the date of issue. An application for

its renewal must be lodged with the Authority by the marketing

company not later than one month prior to its expiry. Any person

who fails to renew a licence as aforesaid shall be deemed to be

acting without a valid licence

Provided that the renewal of such licence shall only

be subject to the continued fulfilment of the relevant applicable

requirements current at the time.

(7) Applications for the renewal of a licence of an

OPC representative shall be accompanied by a signed attestation

in writing by the marketing company certifying the OPC

representative’s conduct and compliance with all applicable rules

and regulations.

(8) The Authority may subject any licence issued under

these regulations to such conditions as it may deem appropriate,

necessary and proportionate including conditions relating to the

proper attire which licensed OPC representatives may wear while

carrying out functions and activities subject to the licence.

Notwithstanding the provisions of these regulations,

the Authority may, in consultation with the Minister, after giving

due advance and reasoned notice to licensees, review and amend

its policy in relation to the allowable methods and channels of

promotion of timeshare and timeshare-like products; in particular,

the promotion, offering and selling activities normally carried out

by an OPC representative and revoke such OPC representative

licences or withhold their renewal.

(1) The Authority shall issue an identity document

to any OPC representative licensed under these regulations.

The identity document shall contain a photograph of the OPC

representative and such other information as the Authority may

deem appropriate.

(2) The identity document shall remain the property of

the Authority and shall be returned to the Authority on reasonable

demand, or on the suspension or revocation of the licence issued

under these regulations.

(3) An OPC representative shall wear the identity

document in a clearly visible manner while carrying out any

of the duties or functions which are subject to these regulations.

The failure to wear the identity document in accordance with the

provisions of these regulations shall constitute an offence.

(4) Any person making use of any identity document

issued to another person or of a false identity document, or of an

identity document which has, in any manner, been tampered with,

or who fails to return the identity document when so requested

by the Authority, shall be guilty of an offence against these

regulations.

(1) (a) No person shall operate and provide services

of a marketing company for the promotion of timeshare and

timeshare-like products unless such person has previously applied

for and obtained a licence for that purpose issued by the Authority.

Any such licence shall remain valid until the thirty-first day of

December next following the date of issue and may be renewed

from year to year or for such further periods as may be specified by

the Authority

Provided that the renewal of such licence shall only

be subject to the continued fulfilment of the relevant applicable

requirements and tourism policy current at the time.

(b) All applications for the issue of licences to

marketing companies to market and promote timeshare and

timeshare-like products are to be made to the Authority in the form

established for the purpose.

(c) The Authority shall issue any such licence

if it is satisfied that the person applying to operate and provide

services of a marketing company for the promotion of timeshare

and timeshare-like products has submitted the information and

documentation as requested by the Authority. Such information

and documentation includes

(i) proof of the identity, place of residence, contact

details and legal status of the applicant;

(ii) the registration number and the articles of

association when the applicant is a body corporate;

(iii) good character reference or certificate of good

conduct of the applicant; when the applicant is a body

corporate, the character reference or certificate of good

conduct shall be of the person or persons who hold the legal

representation of the company;

(iv) total itemised inventory of the timeshare units or

timeshare-like products to be marketed by the applicant in

Malta; including the main features of the immovable property

or ancillary services;

(v) declaration by a trustee confirming the itemised

inventory referred to in sub-paragraph (iv);

(vi) proof of the identity, contact details, legal status,

place of residence or place of incorporation as applicable,

and registration number of the trustee making the declaration

referred to in sub-paragraph (v).

(2) (a) The marketing company shall not market

and promote an operational resort for timeshare and timeshare-

like purposes through the off-premises system unless any OPC

representative carrying out such activities is licensed by the

Authority in accordance with these regulations.

(b) The marketing company which is marketing

and promoting an operational resort for timeshare and timeshare-

like purposes through the off-premises system shall apply to the

Authority for every resort it promotes

(c) The marketing company shall be held

responsible by the Authority for its OPC representatives, whether

these are engaged on a full-time or part-time basis or any other

contractual basis or terms of engagement, to conform fully with the

provisions of these regulations, with any other applicable law and

with the conditions of their licence.

(d) The marketing company shall deposit a bond

in favour of the Authority, at a bank and an account indicated by

the Authority, for the amount of two thousand and five hundred

euro (€2500) for every OPC representative it employs or otherwise

engages.

(3) Any OPC representative licensed by the Authority

shall

(a) display prominently the identity document issued

to him by the Authority, which identity document shall be of

a colour different from those of other marketing companies

and shall show the name of the OPC representative and the

marketing company in bold clear letters;

(b)

if using a car -

(i) for the last twenty-five metres, approach the

tourist and public on foot;

(ii)

strictly adhere to the driving code of conduct;

(iii) not approach and contact a tourist while the

OPC is in the car;

(iv) not utilize another OPC as a driver but shall

ensure that such a driver, if utilized, waits for him in the

car;

(c) not conduct his activities in the company of more

than one other OPC in the same area;

(d) not conduct his activities within fifty metres of

another OPC marketing the same resort;

(e) show respect towards other OPCs, whether these

are engaged by the marketing company he represents or are

engaged by another marketing company; he shall furthermore

not at any time argue, shout or engage in an argument

whatsoever with any other OPC;

(f) respect the privacy of tourists and the responsibility

of the Authority’s officials in carrying out their duties and

shall not, in any way, cause emotional distress to any person

by verbal or physical harassment or coercion;

(g) not loiter within a distance of twenty metres of

any commercial outlet and shall not carry out his activities

from inside any commercial outlet unless so authorised by the

licensee of the same outlet;

(h) not misinterpret, in any way, the operational resort

and the product he is marketing and shall provide true and

genuine information of such resort and product to the tourist

he is contacting; and

(i) be properly dressed at all times.

(4) (a) A marketing company using the services of

OPC representatives who are not licensed by the Authority shall

become liable to pay a penalty of two thousand and three hundred

euro (€2,300), and may also have the maximum number of its

OPC representative permits reduced by two for a period of twelve

months from the day the fine has been imposed by the Authority.

(b) The licence of a marketing company to

market and promote an operational resort shall be suspended by

the Authority if, within seven days of the order by the Authority

to reduce its OPC representatives by two in terms of paragraph (a)

hereof, has failed to comply with such an order.

(c) The licence of a marketing company to

market and promote an operational resort shall be suspended by

the Authority for one year, and the OPCs’ licences engaged by the

same marketing company shall be immediately withdrawn, if it is

found by the Authority that the licensee of the marketing company

is permitting any person to carry out OPC activities while the

licence of the same OPC was suspended by the Authority.

(d) The Authority shall impose fines for breaches

of the regulations by OPCs as indicated in the Schedule to these

regulations.

(5) The Authority shall

(a) immediately suspend the licence of any OPC, and

such OPC shall not be issued with a subsequent licence for a

period of twenty-four months following such suspension if the

OPC is found to have tampered with the identity document

issued by the Authority in his name;

(b) immediately withdraw the licence of any OPC

found by the Authority to have acted in an abusive and

incorrect manner with tourists or with the officials of the

Authority or to have acted in liaison with any unlicensed

OPC;

(c) not issue a licence to a person to act as an OPC,

if that person was previously found by the Authority to have

acted as an OPC without a licence for that purpose issued by

the Authority;

(d) suspend the licence of an OPC for a period of

twelve months, if such OPC has been found by the Authority

to have breached these regulations or the conditions of his

licence for three consecutive times within the preceding

twenty four months.

(6) (a) Any amounts withdrawn by the Authority

from the bond deposited with it by the marketing company to cover

fines imposed as per these regulations shall, within seven days of

the imposition of the fine, be replaced by the marketing company

with the same amount withdrawn by the Authority in order that the

bond deposited shall at all times remain equivalent to the amount of

two thousand five hundred euro (€2,500) for every OPC engaged

by the marketing company.

(b) The fines imposed by the Authority in terms of

these regulations shall, following notice in writing to the marketing

company, be withdrawn from the bond deposited by the marketing

company with the Authority unless the marketing company or its

representative shall supply proof to the satisfaction of the Authority

that the breach has not been effected.

(c) Before withdrawing amounts from the bond

deposited with the Authority by the marketing companies to cover

fines, and before imposing fines on OPCs and marketing companies

for breaches of these regulations, the Authority shall inform the

marketing company or the OPC, as the case may be, of its intention

and shall give the marketing company or the OPC an opportunity

to make representations.

(d) If the marketing company or OPC is aggrieved

by any decision of the Authority, the marketing company or OPC

may lodge an appeal from such a decision in accordance with the

provisions of the Third Schedule to the Act on the payment of the

fee set out in the Fees (Tourism) Regulations, 2002.

(1) Without prejudice to any other applicable law in

force at the time, no OPC representative may act in any manner or

make any representation to a prospective buyer who

(a) is misleading or deceptive, including the use of

misleading or deceptive prize draws, award schemes or free

gifts;

(b) involves a failure to disclose information which

is reasonably due in the circumstances or which should be

given due to a legal obligation; or involves force, harassment,

coercion or undue influence or pressure on the prospective

buyer.

(2) Any person who contravenes these regulations

shall be guilty of an offence.

Whosoever employs or otherwise engages the services of

unlicensed OPC representatives shall be guilty of an offence.

(1) Where the Authority is satisfied that an OPC

representative has -

(a) behaved in an improper manner not befitting his

duties and responsibilities;

(b) acted in contravention of any of the provisions

of the Act or of these regulations or of any other regulations

made under the Act, or has failed to do something which he is

required to do by the Act or by these regulations, or acted in

breach of any conditions attached to his licence; or

(c) has been convicted of an offence under the Act or

under these regulations, or of any other offence which, in the

opinion of the Authority, renders him unfit to continue to act

as an OPC representative, the Authority may, having regard to

the circumstances of the case, suspend or revoke the licence

issued in favour of that OPC representative.

(2) In the case of any suspension, as is referred to

in sub-regulation (1) hereof, such suspension shall not exceed a

period of five years.

(3) Where the licence of an OPC representative has

been suspended or revoked in terms of sub-regulation (1), the OPC

representative shall not be eligible for a licence before the lapse of

the period of such cancellation or revocation.

(1) Before refusing to grant or renew a licence or

before suspending or cancelling any such licence in accordance

with the provisions of the Act or of these regulations, the Authority

shall notify the applicant or the licensee, as the case may be, of its

intention and reasons, and shall give him an opportunity to make

representations. Such representations shall be received by the

Authority not later than seven days from the date of the notification

of the refusal to grant or renew the licence or the cancellation of

such licence.

(2) If the applicant or licensee is aggrieved by any

decision of the Authority under sub-regulation (1), he may lodge

an appeal from such a decision in accordance with the provisions

of article 14(8) of the Act, on payment of the fee set out in the Fees

(Tourism) Regulations, 2002.

(1) The Authority shall respect the right of a marketing Provision of services

company and of OPC representatives employed or otherwise companies and OPC

engaged by the company who are lawfully established and representatives

providing services in another Member State to provide services in Member States on

Malta on a temporary and occasional basis in accordance with the a temporary and

Services (Internal Market) Act

Provided that, due to the complexity and inherent

economic risks associated with these activities that may be

detrimental to consumers of timeshare and timeshare-like products,

and in order to effectively implement Community and national

law in this area, such marketing company, before commencing to

provide such temporary and occasional services in Malta, shall

submit to the Authority, in a form established for the purpose, the

following documents and information:-

(a) the name, place of residence, contact details, legal

status and Member State of establishment of the marketing

company;

(b) the itemised inventory of the timeshare units or

timeshare-like products to be marketed by the applicant in

Malta; including the main features of the immovable property

or ancillary services;

(c) declaration by a trustee confirming the itemised

inventory referred to in paragraph (b);

(d) identity, contact details, legal status, place of

residence or place of incorporation as applicable, and

registration number of the trustee making the declaration

referred to in paragraph (c);

(e) without prejudice to the provisions of any other

laws and regulations concerning employment, the identity of

the OPC representatives employed or otherwise engaged by

the marketing company to promote and market the inventory

of timeshare and timeshare-like products in Malta mentioned

under paragraph (b) and reference or proof of their lawful

establishment in another Member State.

(2) Where the information requirements mentioned

in sub-regulation (1) hereof have already been fulfilled in the

Member State of establishment, the marketing company or any

OPC representative shall indicate this in the form also mentioned

in sub-regulation (1) and the Authority shall reserve the right to

verify such information in accordance with the Services (Internal

Market) Act.

(3) Without prejudice to any other applicable law in

force at the time, when providing services in Malta, the marketing

company and the OPC representatives it employs or otherwise

engages shall respect the requirements of sub-regulations (4), (5)

and (6) of regulation 7

Provided that such OPC representatives shall, in

complying with sub-regulation (4) of regulation 7, wear a valid

identity document issued to them by the relevant competent

authority in the Member State of their establishment.

Without prejudice to the provisions of regulation 11,

any person who fails to comply with any of the provisions of these

regulations, shall be guilty of an offence and, in that case, the

proceedings and penalties stipulated in articles 43 and 45 of the

Act shall apply.

(1) The Timeshare and Timeshare-like Products

2004. Promotion (Licensing of OPC Representatives) Regulations, 2004,

are hereby being revoked.

(2) Any licence issued under the revoked regulations

and which is in force immediately before such revocation shall,

subject to compliance with the provisions of the Act and regulations

made thereunder, continue to be in force thereafter until such time

as their next renewal falls due.

B