INJUNCTIONS FOR THE PROTECTION OF THE INTERESTS OF CONSUMERS (PACKAGE TRAVEL AND PROTECTION OF BUYERS IN CONTRACTS

SUBSIDIARY LEGISLATION 409.17

INJUNCTIONS FOR THE PROTECTION OF THE

INTERESTS OF CONSUMERS (PACKAGE TRAVEL

AND PROTECTION OF BUYERS IN CONTRACTS

FOR TIME SHARING OF IMMOVABLE PROPERTY)

REGULATIONS

24th November, 2006

LEGAL NOTICE 282 of 2006, as amended by Legal Notice 426 of 2007.

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.

(1)

In these regulations, unless the context otherwise

requires -

"the Act" means the Malta Travel and Tourism Services Act;

" t h e A u t h o r i t y " m e a n s t h e M a l t a To u r i s m A u t h o r i t y a s

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

St a te s an d E E A St a t es i n ac c o r d an c e w i t h A r t i cl e 4 o f t h e

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

IN CONTRACTS FOR TIME SHARING OF IMMOVABLE PROPERTY)

package tours;

"the Package Travel Regulations" means the Package Travel,

P a c k a g e H o l i d a y s a n d P a c k a g e To u r s R e g u l a t i o n s , w h i c h

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

regulation 3 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,

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

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, 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

Ti m es h a r e R e g u l a t i o n s a n d , o r a n y o t h e r l a w d e a l i n g w i t h

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 or necessary for the protection of consumers, it may, of

its initiative or 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;

IN CONTRACTS FOR TIME SHARING OF IMMOVABLE PROPERTY)

(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).

(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 Organization and Civil Procedure shall, mutatis

mutandis, govern any actions made to the Court.

Actions instituted under regulations 7 and 9 shall be heard

and determined by the Court 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 time-frames

established under these regulations in relation to the conduct of the

action before it.

The Authority, when issuing a compliance order under

these 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

public

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

copy of a compliance order made under regulation 6

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) 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 two hundred and thirty-two euro and ninety-four cents

IN CONTRACTS FOR TIME SHARING OF IMMOVABLE PROPERTY)

(€232.94) but not exceeding two thousand and three hundred and

twenty-nine euro and thirty-seven cents (€2,329.37) and, or to a

fine (multa) of not less than fifty-eight euro and twenty-three cents

(€58.23) and not exceeding one hundred and sixteen euro and

forty-seven cents (€116.47) 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.