TIMESHARE AND TIMESHARE-LIKE PRODUCTS PROMOTION (LICENSING OF OPC REPRESENTATIVES) REGULATIONS

SUBSIDIARY LEGISLATION 409.16

TIMESHARE AND TIMESHARE-LIKE PRODUCTS

PROMOTION (LICENSING OF OPC

REPRESENTATIVES) REGULATIONS

14th May, 2010

LEGAL NOTICE 287 of 2010.

The title of these regulations is the Timeshare and

Ti m e s h a r e - l i k e P r o d u c t s P r o m o t i o n ( L i c e n s i n g o f O P C

Representatives) Regulations.

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 ............................................................................

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

prominently displayed ...................................................................

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 ..........

4. For carrying out OPC activities within a distance not authorised by

the Authority .................................................................................

5. For misrepresenting the operational resort or the product or for

providing misleading information on the resort ..............................

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

o ff e r o f p r o p e r t y o n a t i m e s h a r e b a si s o r o t h e r e q u i v a l e n t

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

ot h e r w i se en g a ge d b y th e m a r k et i n g co m p a n y t o a ct a s i t s

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.

4.(1) (a) No marketing company shall employ or otherwise

engage a person who shall offer or promote timeshare

or 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.

7.(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

TIMESHARE AND TIMESHARE-LIKE PRODUCTS

PROMOTION (LICENSING OF OPC REPRESENTATIVES)

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

th e m a x im um n u m b er of i t s O P C r ep r e sen t at i v e

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), 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.

(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)

TIMESHARE AND TIMESHARE-LIKE PRODUCTS

PROMOTION (LICENSING OF OPC REPRESENTATIVES)

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.

(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), 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.

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

company and of OPC representatives employed or otherwise

eng ag ed by t he co m pan y w ho ar e law f ul ly e stab li she d and

providing services in another Member State to provide services in

Malta on a temporary and occasional basis in accordance with the

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) 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 regulation 7(4), (5) and (6)

Provided that such OPC representatives shall, in complying

with regulation 7(4), 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.

Any licence issued under the Timeshare and Timeshare-

like Products Promotion (Licensing of OPC Representatives)

Regulations, 2004, revoked by these regulations, and which is in

f or ce i m med iat ely bef or e su ch rev ocat ion sh all, su bj ect 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.