3.2.2009 EN Official Journal of the European Union L 33/10 DIRECTIVE 2008/122/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 14 January 2009 on the protection of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and exchange contracts (Text with EEA relevance) 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. (2) The existing regulatory gaps create appreciable distortions of competition and cause serious problems for consumers, thus hindering the smooth functioning of the internal market. Directive 94/47/EC should therefore be replaced by a new up-to-date directive. Since tourism plays an increasingly important role in the economies of the Member States, greater growth and productivity in the timeshare and long-term holiday product industries should be encouraged by adopting certain common rules. (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. (5) The different contracts covered by this Directive should be clearly defined in such a way as to preclude circumvention of its provisions. (6) For the purposes of this Directive, timeshare contracts should not be understood as covering multiple reservations of accommodation, including hotel rooms, in so far as multiple reservations do not imply rights and obligations beyond those arising from separate reservations. Nor should timeshare contracts be understood as covering ordinary lease contracts since the latter refer to one single continuous period of occupation and not to multiple periods. (7) For the purposes of this Directive, long-term holiday product contracts should not be understood as covering ordinary loyalty schemes which provide discounts on future stays in the hotels of a hotel chain, since membership in the scheme is not obtained for consideration nor is the consideration paid by the consumer primarily for the purpose of obtaining discounts or other benefits in respect of accommodation. (8) This Directive should not affect the provisions of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (4). (9) Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market (Unfair Commercial Practices Directive) (5) prohibits misleading, aggressive and other unfair commercial business-to-consumer practices. Given the nature of the products and the commercial practices related to timeshares, long-term holiday products, resale and exchange, it is appropriate to adopt more detailed and specific provisions regarding information requirements and sales events. The commercial purpose of invitations to sales events should be made clear to consumers. The provisions concerning pre-contractual information and the contract should be clarified and updated. In order to give consumers the possibility to acquaint themselves with the information before the conclusion of the contract, it should be provided by means which are easily accessible to them at that time. (10) Consumers should have the right, which should not be refused by traders, to be provided with pre-contractual information and the contract in a language, of their choice, with which they are familiar. In addition, in order to facilitate the execution and the enforcement of the contract, Member States should be allowed to determine that further language versions of the contract should be provided to consumers. (11) In order to provide consumers with the opportunity of fully understanding their rights and obligations under the contract, they should be allowed a period during which they may withdraw from the contract without having to justify the withdrawal and without bearing any cost. Currently the length of this period varies between Member States, and experience shows that the length prescribed in Directive 94/47/EC is not sufficiently long. The period should therefore be extended in order to achieve a high level of consumer protection and more clarity for consumers and traders. The length of the period, the modalities for and the effects of exercising the right of withdrawal should be harmonised. (12) Consumers should have effective remedies in the event that traders do not comply with the provisions regarding pre-contractual information or the contract, in particular those laying down that the contract should include all the information required and that the consumer should receive a copy of the contract at the time of its conclusion. In addition to the remedies existing under national law, consumers should benefit from an extended withdrawal period where information has not been provided by traders. The exercise of the right of withdrawal should remain free of charge during that extended period regardless of what services consumers may have enjoyed. The expiration of the withdrawal period does not preclude consumers from seeking remedies in accordance with national law for breaches of the information requirements. (13) Council Regulation (EEC, Euratom) No 1182/71 of 3 June 1971 determining the rules applicable to periods, dates and time limits (6) should apply to the calculation of the periods set out in this Directive. (14) The prohibition on advance payments to traders or any third party before the end of the withdrawal period should be clarified in order to improve consumer protection. For resale contracts, the prohibition of advance payment should apply until the actual sale takes place or the resale contract is terminated, but Member States should remain free to regulate the possibility and modalities of final payments to intermediaries where resale contracts are terminated. (15) For long-term holiday product contracts, the price to be paid in the context of a staggered payment schedule could take into consideration the possibility that subsequent amounts could be adjusted after the first year in order to ensure that the real value of those instalments is maintained, for instance to take account of inflation. (16) In the event of a consumer withdrawing from a contract where the price is entirely or partly covered by credit granted to the consumer by the trader or by a third party on the basis of an arrangement between that third party and the trader, the credit agreement should be terminated at no cost to the consumer. The same should apply to contracts for other related services provided by the trader or by a third party on the basis of an arrangement between that third party and the trader. (17) Consumers should not be deprived of the protection granted by this Directive where the law applicable to the contract is that of a Member State. The law applicable to a contract should be determined in accordance with the Community rules on private international law, in particular Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (7). Under that Regulation, the law of a third country may be applicable, in particular where consumers are targeted by traders whilst on holiday in a country other than their country of residence. Given that such commercial practices are common in the area covered by this Directive and that the contracts involve considerable amounts of money, an additional safeguard should be provided in certain specific situations, in particular where the courts of any Member State have jurisdiction over the contract, to ensure that the consumer is not deprived of the protection granted by this Directive. This concept reflects the particular needs of consumer protection arising from the typical complexity, long-term nature and financial relevance of the contracts falling within the scope of this Directive. (18) It should be determined in accordance with Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (8) which courts have jurisdiction in proceedings which have as their object matters covered by this Directive. (19) In order to ensure that the protection afforded to consumers under this Directive is fully effective, in particular as regards compliance by traders with the information requirements both at the pre-contractual stage and in the contract, it is necessary that the Member States lay down effective, proportionate and dissuasive penalties for infringements of this Directive. (20) It is necessary to ensure that persons or organisations having, under national law, a legitimate interest in the matter have legal remedies for initiating proceedings against infringements of this Directive. (21) It is necessary to develop suitable and effective redress procedures in the Member States for settling disputes between consumers and traders. To this end, Member States should encourage the establishment of public or private bodies for settling disputes out of court. (22) Member States should ensure that consumers are effectively informed of the national provisions transposing this Directive and encourage traders and code owners to inform consumers about their codes of conduct in this field. With the aim of pursuing a high level of consumer protection, consumer organisations could be informed of, and involved in, the drafting of codes of conduct. (23) Since the objectives of this Directive cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to eliminate the internal market barriers and achieve a high common level of consumer protection. (24) This Directive respects the fundamental rights and observes the principles recognised in particular by the European Convention on Human Rights and Fundamental Freedoms and the Charter of Fundamental Rights of the European Union. (25) In accordance with point 34 of the Interinstitutional agreement on better law-making (9), Member States are encouraged to draw up, for themselves and in the interests of the Community, their own tables, which will, as far as possible, illustrate the correlation between this Directive and the transposition measures, and to make them public, HAVE ADOPTED THIS DIRECTIVE: Article 1 Purpose and scope 1. The purpose of this Directive is to contribute to the proper functioning of the internal market and to achieve a high level of consumer protection, by approximating the laws, regulations and administrative provisions of the Member States in respect of certain aspects of the marketing, sale and resale of timeshares and long-term holiday products as well as exchange contracts. 2. This Directive applies to trader-to-consumer transactions. This Directive is without prejudice to national legislation which: (a) provides for general contract law remedies; (b) relates to the registration of immovable or movable property and conveyance of immovable property; (c) relates to conditions of establishment or authorisation regimes or licensing requirements; and (d) relates to the determination of the legal nature of the rights which are the subject of the contracts covered by this Directive. Article 2 Definitions 1. For the purposes of this Directive, the following definitions shall apply: (a) ‘timeshare contract’ means a contract of a duration of more than one year under which a consumer, for consideration, acquires the right to use one or more overnight accommodation for more than one period of occupation; (b) ‘long-term holiday product contract’ means 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; (c) ‘resale contract’ means a contract under which a trader, for consideration, assists a consumer to sell or buy a timeshare or a long-term holiday product; (d) ‘exchange contract’ means a contract under which a consumer, for consideration, joins an exchange system which allows that consumer access to overnight accommodation or other services in exchange for granting to other persons temporary access to the benefits of the rights deriving from that consumer’s timeshare contract; (e) ‘trader’ means a natural or legal person who is acting for purposes relating to that person’s trade, business, craft or profession and anyone acting in the name of or on behalf of a trader; (f) ‘consumer’ means a natural person who is acting for purposes which are outside that person’s trade, business, craft or profession; (g) ‘ancillary contract’ means a contract under which the consumer acquires services which are related to a timeshare contract or long-term holiday product contract and which are provided by the trader or a third party on the basis of an arrangement between that third party and the trader; (h) ‘durable medium’ means any instrument which enables the consumer or the trader to store information addressed personally to him in a way which is accessible for future reference for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored; (i) ‘code of conduct’ means an agreement or set of rules not imposed by law, regulation or administrative provision of a Member State which defines the behaviour of traders who undertake to be bound by the code in relation to one or more particular commercial practices or business sectors; (j) ‘code owner’ means any entity, including a trader or group of traders, which is responsible for the formulation and revision of a code of conduct and/or for monitoring compliance with the code by those who have undertaken to be bound by it. 2. In calculating the duration of a timeshare contract or a long-term holiday product contract, as defined in points (a) and (b) of paragraph 1 respectively, any provision in the contract allowing for tacit renewal or prolongation shall be taken into account. Article 3 Advertising 1. Member States shall ensure that any advertising specifies the possibility of obtaining the information referred to in Article 4(1) and indicates where it can be obtained. 2. Where a timeshare, long-term holiday product, resale or exchange contract is to be offered to a consumer in person at a promotion or sales event, the trader shall clearly indicate in the invitation the commercial purpose and the nature of the event. 3. The information referred to in Article 4(1) shall be available to the consumer at any time during the event. 4. A timeshare or a long-term holiday product shall not be marketed or sold as an investment. Article 4 Pre-contractual information 1. In good time before the consumer is bound by any contract or offer, the trader shall provide the consumer, in a clear and comprehensible manner, with accurate and sufficient information, as follows: (a) in the case of a timeshare contract: by means of the standard information form as set out in Annex I and information as listed in Part 3 of that form; (b) in the case of a long-term holiday product contract: by means of the standard information form as set out in Annex II and information as listed in Part 3 of that form; (c) in the case of a resale contract: by means of the standard information form as set out in Annex III and information as listed in Part 3 of that form; (d) in the case of an exchange contract: by means of the standard information form as set out in Annex IV and information as listed in Part 3 of that form. 2. The information referred to in paragraph 1 shall be provided, free of charge, by the trader on paper or on another durable medium which is easily accessible to the consumer. 3. Member States shall ensure that the information referred to in paragraph 1 is drawn up in the language or one of the languages of the Member State in which the consumer is resident or a national, at the choice of the consumer, provided it is an official language of the Community. Article 5 The timeshare, long-term holiday product, resale or exchange contract 1. Member States shall ensure that the contract is in writing, on paper or on another durable medium, and drawn up in the language or one of the languages of the Member State in which the consumer is resident or a national, at the choice of the consumer, provided it is an official language of the Community. However, the Member State in which the consumer is resident may require that in addition: (a) in every instance, the contract be provided to the consumer in the language or one of the languages of that Member State, provided it is an official language of the Community; (b) in the case of a timeshare contract concerning one specific immovable property, the trader provide the consumer with a certified translation of the contract in the language or one of the languages of the Member State in which the property is situated, provided it is an official language of the Community. The Member State on whose territory the trader carries out sale activities may require that, in every instance, the contract be provided to the consumer in the language or one of the languages of that Member State, provided it is an official language of the Community. 2. The information referred to in Article 4(1) shall form an integral part of the contract and shall not be altered unless the parties expressly agree otherwise or the changes result from unusual and unforeseeable circumstances beyond the trader’s control, the consequences of which could not have been avoided even if all due care had been exercised. These changes shall be communicated to the consumer on paper or on another durable medium easily accessible to him, before the contract is concluded. The contract shall expressly mention any such changes. 3. In addition to the information referred to in Article 4(1), the contract shall include: (a) the identity, place of residence and signature of each of the parties; and (b) the date and place of the conclusion of the contract. 4. Before the conclusion of the contract, the trader shall explicitly draw the consumer’s attention to the existence of the right of withdrawal, the length of the withdrawal period referred to in Article 6, and the ban on advance payments during the withdrawal period referred to in Article 9. The corresponding contractual clauses shall be signed separately by the consumer. The contract shall include a separate standard withdrawal form, as set out in Annex V, intended to facilitate the exercise of the right of withdrawal in accordance with Article 6. 5. The consumer shall receive a copy or copies of the contract at the time of its conclusion. Article 6 Right of withdrawal 1. In addition to the remedies available to the consumer under national law in the event of breach of the provisions of this Directive, Member States shall ensure that the consumer is given a period of 14 calendar days to withdraw from the timeshare, long-term holiday product, resale or exchange contract, without giving any reason. 2. The withdrawal period shall be calculated: (a) from the day of the conclusion of the contract or of any binding preliminary contract; or (b) from the day when the consumer receives the contract or any binding preliminary contract if it is later than the date referred to in point (a). 3. The withdrawal period shall expire: (a) after one year and 14 calendar days from the day referred to in paragraph 2 of this Article, where a separate standard withdrawal form as required by Article 5(4) has not been filled in by the trader and provided to the consumer in writing, on paper or on another durable medium; (b) after three months and 14 calendar days from the day referred to in paragraph 2 of this Article, where the information referred to in Article 4(1), including the applicable standard information form set out in Annexes I to IV, has not been provided to the consumer in writing, on paper or on another durable medium. In addition, Member States shall provide for appropriate penalties in accordance with Article 15, in particular in the event that, on expiry of the withdrawal period, the trader has failed to comply with the information requirements set out in this Directive. 4. Where a separate standard withdrawal form as required by Article 5(4) has been filled in by the trader and provided to the consumer in writing, on paper or on another durable medium, within one year from the day referred to in paragraph 2 of this Article, the withdrawal period shall start from the day the consumer receives that form. Similarly, where the information referred to in Article 4(1), including the applicable standard information form set out in Annexes I to IV, has been provided to the consumer in writing, on paper or on another durable medium, within three months from the day referred to in paragraph 2 of this Article, the withdrawal period shall start from the day the consumer receives such information. 5. In the event that the exchange contract is offered to the consumer together with and at the same time as the timeshare contract, only a single withdrawal period in accordance with paragraph 1 shall apply to both contracts. The withdrawal period for both contracts shall be calculated according to the provisions of paragraph 2 as they apply to the timeshare contract. Article 7 Modalities for exercising the right of withdrawal Where the consumer intends to exercise the right of withdrawal the consumer shall, before the expiry of the withdrawal period, notify the trader on paper or on another durable medium of the decision to withdraw. The consumer may use the standard withdrawal form set out in Annex V and provided by the trader in accordance with Article 5(4). The deadline is met if the notification is sent before the withdrawal period has expired. Article 8 Effects of exercising the right of withdrawal 1. The exercise of the right of withdrawal by the consumer terminates the obligation of the parties to perform the contract. 2. Where the consumer exercises the right of withdrawal, the consumer shall neither bear any cost nor be liable for any value corresponding to the service which may have been performed before withdrawal. Article 9 Advance payment 1. Member States shall ensure that in relation to timeshare, long-term holiday product and exchange contracts any advance payment, provision of guarantees, reservation of money on accounts, explicit acknowledgement of debt or any other consideration to the trader or to any third party by the consumer before the end of the withdrawal period according to Article 6, is prohibited. 2. Member States shall ensure that in relation to resale contracts any advance payment, provision of guarantees, reservation of money on accounts, explicit acknowledgement of debt or any other consideration to the trader or to any third party by the consumer before the actual sale takes place or the resale contract is otherwise terminated, is prohibited. Article 10 Specific provisions relating to long-term holiday product contracts 1. For long-term holiday product contracts, payment shall be made according to a staggered payment schedule. Any payment of the price specified in the contract otherwise than in accordance with the staggered payment schedule shall be prohibited. The payments, including any membership fee, shall be divided into yearly instalments, each of which shall be of equal value. The trader shall send a written request for payment, on paper or on another durable medium, at least fourteen calendar days in advance of each due date. 2. From the second instalment payment onwards, the consumer may terminate the contract without incurring any penalty by giving notice to the trader within fourteen calendar days of receiving the request for payment of each instalment. This right shall not affect rights to terminate the contract under existing national legislation. Article 11 Termination of ancillary contracts 1. Member States shall ensure that, where the consumer exercises the right to withdraw from the timeshare or long-term holiday product contract, any exchange contract ancillary to it or any other ancillary contract is automatically terminated, at no cost to the consumer. 2. Without prejudice to Article 15 of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers (10), where the price is fully or partly covered by a credit granted to the consumer by the trader, or by a third party on the basis of an arrangement between the third party and the trader, the credit agreement shall be terminated, at no cost to the consumer, where the consumer exercises the right to withdraw from the timeshare, long-term holiday product, resale or exchange contract. 3. The Member States shall lay down detailed rules on the termination of such contracts. Article 12 Imperative nature of the Directive and application in international cases 1. Member States shall ensure that, where the law applicable to the contract is the law of a Member State, consumers may not waive the rights conferred on them by this Directive. 2. Where the applicable law is that of a third country, consumers shall not be deprived of the protection granted by this Directive, as implemented in the Member State of the forum if: — any of the immovable properties concerned is situated within the territory of a Member State, or, — in the case of a contract not directly related to immovable property, the trader pursues commercial or professional activities in a Member State or, by any means, directs such activities to a Member State and the contract falls within the scope of such activities. Article 13 Judicial and administrative redress 1. Member States shall ensure that, in the interests of consumers, adequate and effective means exist to ensure compliance by traders with this Directive. 2. The means referred to in paragraph 1 shall include provisions whereby one or more of the following bodies, as determined by national law, shall be entitled to take action in accordance with national law before the courts or competent administrative bodies to ensure that the national provisions for implementing this Directive are applied: (a) public bodies and authorities or their representatives; (b) consumer organisations with a legitimate interest in protecting consumers; (c) professional organisations with a legitimate interest in taking such action. Article 14 Consumer information and out-of-court redress 1. Member States shall take appropriate measures to inform consumers of the national law transposing this Directive and shall encourage, where appropriate, traders and code owners to inform consumers of their codes of conduct. The Commission shall encourage the drawing up at Community level, particularly by professional bodies, organisations and associations, of codes of conduct aimed at facilitating the implementation of this Directive, in conformity with Community law. It shall also encourage traders and their branch organisations to inform consumers of any such codes, including, where appropriate, by means of a specific marking. 2. Member States shall encourage the setting up or development of adequate and effective out-of-court complaints and redress procedures for the settlement of consumer disputes under this Directive and shall, where appropriate, encourage traders and their branch organisations to inform consumers of the availability of such procedures. Article 15 Penalties 1. Member States shall provide for appropriate penalties in the event of a trader’s failure to comply with the national provisions adopted pursuant to this Directive. 2. Those penalties shall be effective, proportionate and dissuasive. Article 16 Transposition 1. Member States shall adopt and publish, by 23 February 2011, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of those provisions. They shall apply those provisions from 23 February 2011. When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made. 2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive. Article 17 Review The Commission shall review this Directive and report to the European Parliament and the Council no later than 23 February 2014. If necessary, it shall make further proposals to adapt it to developments in the area. The Commission may request information from the Member States and the national regulatory authorities. Article 18 Repeal Directive 94/47/EC shall be repealed. References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex VI. Article 19 Entry into force This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union. Article 20 Addressees This Directive is addressed to the Member States. Done at Strasbourg, 14 January 2009. For the European Parliament The President H.-G. PÖTTERING For the Council The President A. VONDRA (1) OJ C 44, 16.2.2008, p. 27. (2) Opinion of the European Parliament of 22 October 2008 (not yet published in the Official Journal) and Council Decision of 18 December 2008. (3) OJ L 280, 29.10.1994, p. 83. (4) OJ L 158, 23.6.1990, p. 59. (5) OJ L 149, 11.6.2005, p. 22. (6) OJ L 124, 8.6.1971, p. 1. (7) OJ L 177, 4.7.2008, p. 6. (8) OJ L 12, 16.1.2001, p. 1. (9) OJ C 321, 31.12.2003, p. 1. (10) OJ L 133, 22.5.2008, p. 66. ANNEX I STANDARD INFORMATION FORM FOR TIMESHARE CONTRACTS ANNEX II STANDARD INFORMATION FORM FOR LONG-TERM HOLIDAY PRODUCT CONTRACTS ANNEX III STANDARD INFORMATION FORM FOR RESALE CONTRACTS ANNEX IV STANDARD INFORMATION FORM FOR EXCHANGE CONTRACTS ANNEX V SEPARATE STANDARD WITHDRAWAL FORM TO FACILITATE THE RIGHT OF WITHDRAWAL ANNEX VI CORRELATION TABLE BETWEEN PROVISIONS OF THIS DIRECTIVE AND DIRECTIVE 94/47/EC Directive 94/47/EC This Directive Article 1, first paragraph Article 1(1) and Article 1(2), first subparagraph Article 1, second paragraph — Article 1, third paragraph Article 1(2), second subparagraph Article 2, first indent Article 2(1)(a) — Article 2(1)(b) (new) — Article 2(1)(c) (new) — Article 2(1)(d) (new) Article 2, second indent — Article 2, third indent Article 2(1)(e) Article 2, fourth indent Article 2(1)(f) — Article 2(1)(g) (new) — Article 2(1)(h) (new) — Article 2(1)(i) (new) — Article 2(1)(j) (new) — Article 2(2) (new) Article 3(1) Article 4(1) Article 3(2) Article 5(2) Article 3(3) Article 3(1) — Article 3(2) (new) — Article 3(3) (new) — Article 3(4) (new) Article 4, first indent Article 5(1), first subparagraph, and Article 5(2), first subparagraph Article 4, second indent Article 4(3) and Article 5(1) — Article 4(2) (new) — Article 5(4) (new) — Article 5(5) (new) Article 5(1), introductory sentence Article 6(1) Article 5(1), first indent Article 6(1) and Article 6(2) Article 5(1), second indent Article 6(3) and Article 6(4) Article 5(1), third indent Article 6(3) — Article 6(5) (new) Article 5(2) Article 7 — Article 8(1) (new) Article 5(3) Article 8(2) Article 5(4) Article 8(2) Article 6 Article 9(1) — Article 9(2) (new) — Article 10(1) (new) — Article 10(2) (new) — Article 11(1) (new) Article 7, first paragraph Article 11(2) Article 7, second paragraph Article 11(3) Article 8 Article 12(1) Article 9 Article 12(2) Article 10 Articles 13 and 15 Article 11 — — Article 14(1) (new) — Article 14(2) (new) Article 12 Article 16 — Article 17 (new) — Article 18 (new) — Article 19 (new) Article 13 Article 20 Annex Annex I Annex, point (a) Article 5(3)(a), and Annex I, Part 1, first box Annex, point (b) Annex I, Part 1, third box, and Annex I, Part 3, point 1, first indent Annex, point (c) Annex I, Part 1, second box, and Annex I, Part 3, point 2, first indent Annex, point (d)(1) Annex I, Part 3, point 3, first indent Annex, point (d)(2) Annex I, Part 1, fourth box, and Annex I, Part 3, point 3, second indent Annex, point (d)(3) Annex I, Part 3, point 3, third indent Annex, point (d)(4) Annex I, Part 3, point 3, first indent Annex, point (d)(5) Annex I, Part 3, point 3, fourth indent Annex, point (e) Annex I, Part 1, sixth box, and Annex I, Part 3, point 2, second indent Annex, point (f) Annex I, Part 1, sixth box, and Annex I, Part 3, point 2, third indent Annex, point (g) Annex I, Part 3, point 6, first indent Annex, point (h) Annex I, Part 1, fourth box Annex, point (i) Annex I, Part 1, fifth and sixth boxes, and Annex I, Part 3, point 4, first indent Annex, point (j) Annex I, Part 2, third indent Annex, point (k) Annex I, Part 2, seventh box, and Annex I, Part 3, point 6, second indent Annex, point (l) Annex I, Part 2, first and third indents, Annex I, Part 3, point 5, first indent, and Annex V (new) Annex, point (m) Article 5(3)(b) — Annex I, Part 1, eighth box (new) — Annex I, Part 2, second indent (new) — Annex I, Part 2, fourth indent (new) — Annex I, Part 3, point 1, second indent (new) — Annex I, Part 3, point 4, second indent (new) — Annex I, Part 3, point 5, second indent (new) — Annex I, Part 3, point 6, third indent (new) — Annex I, Part 3, point 6, fourth indent (new) — Annexes II to V (new)

Summary: Protecting consumers in respect of timeshare and long-term holiday contracts Protecting consumers in respect of timeshare and long-term holiday contracts SUMMARY OF: Directive 2008/122/EC on the protection of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and exchange contracts WHAT IS THE AIM OF THE DIRECTIVE? The directive strengthens consumer protection in case of contracts for the sale, resale* and exchange* of timeshare products* and long-term holiday products*. The sector has indeed evolved and new holiday products not covered by previous legislation have appeared on the market. This directive updates and clarifies the rules to protect the consumer and contributes to the proper functioning of the internal market. It lays down rules on advertising, pre-contractual and contractual information, the right of withdrawal and a ban on advance payments during the withdrawal period. KEY POINTS Clear information In good time, before the consumer is bound by any contract, the trader shall provide clear, accurate and sufficient information, free of charge, using a standard information form, in an official language of the consumer’s European Union (EU) Member State. The information form (as set out in templates annexed to the directive) should notably include information about the product (in the case of a timeshare contract, long-term holiday product contract or an exchange contract) or the service (in the case of a resale contract), the consumer’s rights and all costs to bear. It must state that there is a right of withdrawal and the conditions under which it may be exercised. This information is an integral part of the contract. Any advertising should state where the above information can be obtained. Moreover, a timeshare or a long-term holiday product shall not be marketed as an investment. Furthermore, in case of a sales promotion or sales event: the invitation should clearly state the commercial purpose of the event; the information package should be available to the consumer at any time during the event. Right of withdrawal Before the contract is signed, the trader must explicitly draw attention to the consumer’s right of withdrawal, the withdrawal period and the ban on advance payments during that period. These clauses are subject to separate signatures. The contract shall include a separate standard withdrawal form, intended to make it easy to withdraw from the contract. The consumer has the right to withdraw, without giving a reason, within 14 days from signature or receipt of the contract. This cooling-off period is extended by 3 months where the information package has not been given to the consumer, and by 1 year if the withdrawal form is not provided. If a consumer withdraws, any other contract linked to the main contract is automatically terminated at no extra cost. Payment No advance payment, guarantee or acknowledgement of debt to the trader or to a third party is allowed before the end of the withdrawal period. For resale contracts, no fees should be paid to a trader in advance of the actual sale. Payments under long-term holiday contracts are to be made in equal yearly instalments. From the second instalment onwards, the consumer may end the contract without penalty by giving notice within 14 days of receiving the request for payment. Redress Member States shall inform consumers of methods of redress (compensation) under national legislation and encourage out-of-court settlements. FROM WHEN DOES THE DIRECTIVE APPLY? It has applied since 23 February 2009 and had to become law in the Member States by 23 February 2011. BACKGROUND For further information, see: Timeshare directive (European Commission) Package travel and timeshare: Policy information (European Commission) Timeshare and other long-term holiday contracts in the EU (Your Europe). KEY TERMS Resale contract. A contract under which a trader is paid to assist a consumer to sell or buy a timeshare or a long-term holiday product. Exchange contract. A contract under which a consumer joins an exchange system which allows them to temporarily swap the benefits deriving from a timeshare contract with another consumer. Timeshare contract. A contract of a duration of more than 1 year under which a consumer purchases the right to use accommodation on more than one occasion, typically 1 or 2 weeks each year. Long-term holiday product contract. A contract of a duration of more than 1 year which gives the consumer the right to discounts on accommodation or to related benefits, sometimes in combination with travel or other services. MAIN DOCUMENT Directive 2008/122/EC of the European Parliament and of the Council of 14 January 2009 on the protection of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and exchange contracts (OJ L 33, 3.2.2009, pp. 10–30). last update 03.02.2022


8.8.2009 EN Official Journal of the European Union L 206/1 COUNCIL REGULATION (EC) No 723/2009 of 25 June 2009 on the Community legal framework for a European Research Infrastructure Consortium (ERIC) THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Articles 171 and the first paragraph of Article 172, thereof, Having regard to the proposal from the Commission, Having regard to the Opinion of the European Parliament (1), Having regard to the opinion of the European Economic and Social Committee (2), Having regard to the opinion of the Committee of the Regions (3), Whereas: (1) Pursuant to Article 171 of the Treaty the Community may set up joint undertakings or any other structure necessary for the efficient execution of Community research, technological development and demonstration programmes. (2) The support and development of research infrastructures in Europe has been an ongoing objective of the Community, as last reflected in Decision 1982/2006/EC of the European Parliament and of the Council of 18 December 2006 concerning the Seventh Framework Programme of the European Community for research, technological development and demonstration activities (2007 to 2013) (4) and in particular in Council Decision 2006/974/EC of 19 December 2006 on the specific programme ‘Capacities’ (5). (3) While traditional support for the use and development of European research infrastructures has essentially taken the form of grants in favour of established research infrastructures in the Member States, the need for additional efforts has become apparent in recent years in order to stimulate the development of new structures by creating an appropriate legal framework which should facilitate their establishment and operation at the level of the Community. (4) This need has been expressed on numerous occasions both at political level by the Member States and the Community institutions, and by the various actors within the European research community such as undertakings, research centres and universities and, in particular, the European Strategy Forum on Research Infrastructures (ESFRI). (5) While the central role of world-class scientific research infrastructures for the attainment of the Community’s RTD objectives set out in Article 163 of the Treaty has thus long been recognised under Community RTD Framework Programmes, the rules governing establishment, financing and operation of these structures are still fragmented and regionalised. Considering that European research infrastructures are in competition with those of the Community’s global partners which are and will be strongly investing in modern large-scale research infrastructures, and that these infrastructures are becoming increasingly complex and expensive, often placing them beyond the reach of a single Member State or even continent, it is now necessary to exploit and develop the full potential of Article 171 of the Treaty by establishing a framework containing the procedures and conditions for the setting-up and operation of European Research Infrastructures at Community level which are necessary for the efficient execution of the Community’s RTD programmes. This new legal framework would complement other legal forms existing under national, international or Community law. (6) In contrast to Joint Technology Initiatives (JTI) constituted as Joint Undertakings of which the Community is a member and to which it makes financial contributions, a European Research Infrastructure Consortium (hereinafter referred to as ‘ERIC’) should not be conceived as a Community body within the meaning of Article 185 of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (6) (the Financial Regulation), but as a legal entity of which the Community is not necessarily a member and to which it does not make financial contributions within the meaning of Article 108(2)(f), of the Financial Regulation. (7) Given the close cooperation between Member States and the Community in programming and implementing their respective research activities in a complementary manner, as set out in Articles 164 and 165 of the Treaty, it should be for interested Member States, on their own or in conjunction with other qualified entities, to define their needs for the establishment of research infrastructures in this legal format, based on their research and technological development activities and on the requirements of the Community. For the same reasons, membership of an ERIC should be open to interested Member States with the possible participation of qualified associated countries in the Community framework programme for research, technological development and demonstration (hereinafter referred to as ‘associated states’) and third countries and specialised intergovernmental organisations. In addition to full membership, Member States should be able to become observers of an ERIC on the conditions specified in its Statutes. (8) An ERIC set up under this Regulation should have as its principal task the establishment and operation of a research infrastructure on a non-economic basis and should devote most of its resources to this principal task. In order to promote innovation and knowledge and technology transfer, the ERIC should be allowed to carry out some limited economic activities if they are closely related to its principal task and they do not jeopardise its achievement. The establishment of research infrastructures as ERICs does not exclude that research infrastructures of pan-European interest that have another legal form can equally be recognised as contributing to the progress of European research, including to the implementation of the roadmap developed by ESFRI. The Commission should ensure that ESFRI members and other interested parties are informed about these alternative legal forms. (9) Research infrastructures should help to safeguard the scientific excellence of Community research and the competitiveness of the Community’s economy, as based on medium-term to long-term forecasts, through the efficient support of European research activities. To achieve this they should be effectively open to the European research community at large in accordance with the rules established in their Statutes and should have the aim of enhancing European scientific capabilities beyond the current state of the art and should thereby contribute to the development of the European Research Area. (10) In order to permit an efficient procedure for the setting-up of an ERIC, it is necessary for the entities willing to set up an ERIC to submit an application to the Commission which should assess, with the help of independent experts, which may include ESFRI, whether the proposed research infrastructure is in conformity with this Regulation. Such an application should contain a declaration of the host Member State recognising the ERIC as an international body or organisation for the purpose of the application of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (7) and Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (8), as of its setting up. The ERIC should also benefit from certain exemptions as an international organisation for the purpose of applying Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (9), in conformity with State aid rules. (11) For reasons of transparency, the decision setting-up an ERIC should be published in the Official Journal of the European Union. For the same reasons, the essential elements of its Statutes should be annexed to such decisions. (12) In order to carry out its tasks in the most efficient way, an ERIC should have legal personality and the most extensive legal capacity as from the day on which the decision setting it up takes effect. It should have a statutory seat, in order to determine the applicable law, within the territory of a member of that ERIC which is a Member State or an associated country. (13) Membership of an ERIC should comprise at least three Member States and may include qualified associated countries and third countries other than associated countries as well as specialised intergovernmental organisations. (14) In line with the Community dimension of this Regulation, Member States should jointly hold the majority of votes in the assembly of members of an ERIC. (15) For the implementation of this framework, more detailed provisions should be laid down in Statutes, on the basis of which the Commission should examine the compliance of an application with the framework established in this Regulation. (16) It is necessary to ensure that, on the one hand, an ERIC has the necessary flexibility to amend its Statutes and, on the other hand, that the Community which sets up the ERIC retains control over certain essential elements. If an amendment concerns an essential element of the Statutes annexed to the decision setting up the ERIC, such amendment should be approved, prior to taking effect, by a Commission decision taken following the same procedure as that for setting up the ERIC. Any other amendment should be notified to the Commission, which should have an opportunity to object if it considers the amendment contrary to this Regulation. (17) It is necessary for an ERIC to equip itself with its own bodies for the effective management of its activities. The Statutes should determine the manner in which those bodies legally represent the ERIC. (18) It is necessary for an ERIC to carry out its activities according to sound budgetary principles for the exercise of its financial responsibility. (19) An ERIC could qualify for funding in accordance with Title VI of the Financial Regulation. Funding under the Cohesion Policy could also be possible, in conformity with the relevant Community legislation. (20) In order to carry out its tasks in the most efficient way and as a logical consequence of its legal personality, an ERIC should be liable for its debts. In order to allow the members to find appropriate solutions regarding their liability, the option should be given to provide in the Statutes for different liability regimes going above the liability limited to the contributions of the members. (21) Since an ERIC is established under Community law, it should be governed by Community law, in addition to the law of the State where it has its statutory seat. However, the ERIC could have a place of operation in another State. The law of that latter State should apply in respect of specific matters defined by the Statutes of the ERIC. Furthermore, an ERIC should be governed by implementing rules complying with the Statutes. (22) Member States are free to apply or to adopt any laws, regulations or administrative measures which do not conflict with the scope or objectives of this Regulation. (23) In order to ensure sufficient control of compliance with this Regulation, an ERIC should transmit to the Commission and relevant public authorities its annual report and any information about circumstances threatening to seriously jeopardise the achievement of its tasks. If the Commission obtains indications, through the annual report or otherwise, that the ERIC acts in serious breach of this Regulation or other applicable law, it should request explanations and/or actions from the ERIC and/or its members. In extreme cases and if no remedial action is taken, the Commission could repeal the decision setting up the ERIC; thus triggering the winding-up of the ERIC. (24) Since the objective of this Regulation; i.e. the establishment of a framework for European Research Infrastructures between Member States, cannot be sufficiently achieved by the Member States in the framework of their national constitutional systems, by reason of the trans-national nature of the problem, and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective. (25) Since this Regulation is primarily established for the efficient execution of Community research, technological development and demonstration programmes, and since the measures necessary for its implementation are essentially management measures, they should therefore be adopted by the management procedure provided for in Article 4 of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred to the Commission (10), HAS ADOPTED THIS REGULATION: Article 1 Subject-matter This Regulation establishes a legal framework laying down the requirements and procedures for and the effects of setting-up a European Research Infrastructure Consortium (hereinafter referred to as an ‘ERIC’). Article 2 Definitions For the purpose of this Regulation, the following definitions shall apply: (a) ‘research infrastructure’ means facilities, resources and related services that are used by the scientific community to conduct top-level research in their respective fields and covers major scientific equipment or sets of instruments; knowledge-based resources such as collections, archives or structures for scientific information; enabling Information and Communications Technology-based infrastructures such as Grid, computing, software and communication, or any other entity of a unique nature essential to achieve excellence in research. Such infrastructures may be ‘single-sited’ or ‘distributed’ (an organised network of resources); (b) ‘third country’ means a State that is not a Member State of the European Union; (c) ‘associated country’ means a third country which is party to an international agreement with the Community, under the terms or on the basis of which it makes a financial contribution to all or part of the Community research, technological development and demonstration programmes. Article 3 Task and other activities 1. The principal task of an ERIC shall be to establish and operate a research infrastructure. 2. An ERIC shall pursue its principal task on a non-economic basis. However, it may carry out limited economic activities, provided that they are closely related to its principal task and that they do not jeopardise the achievement thereof. 3. An ERIC shall record the costs and revenues of its economic activities separately and shall charge market prices for them, or, if these cannot be ascertained, full costs plus a reasonable margin. Article 4 Requirements relating to infrastructure The research infrastructure to be established by an ERIC shall meet the following requirements: (a) it is necessary for the carrying-out of European research programmes and projects, including for the efficient execution of Community research, technological development and demonstration programmes; (b) it represents an added value in the strengthening and structuring of the European Research Area (ERA) and a significant improvement in the relevant scientific and technological fields at international level; (c) effective access, in accordance with the rules established in its Statutes, is granted to the European research community, composed of researchers from Member States and from associated countries; (d) it contributes to the mobility of knowledge and/or researchers within the ERA and increases the use of intellectual potential throughout Europe; and (e) it contributes to the dissemination and optimisation of the results of activities in Community research, technological development and demonstration. Article 5 Application for the setting-up of an ERIC 1. The entities applying for the setting-up of an ERIC (hereinafter referred to as applicants) shall submit an application to the Commission. The application shall be submitted in writing in one of the official languages of the institutions of the Union and shall contain the following: (a) a request to the Commission to set up the ERIC; (b) the proposed Statutes of the ERIC referred to in Article 10; (c) a technical and scientific description of the research infrastructure to be established and operated by the ERIC, addressing in particular the requirements set out in Article 4; (d) a declaration by the host Member State recognising the ERIC as an international body in the sense of Articles 143(g) and 151(1)(b) of Directive 2006/112/EC and as international organisation in the sense of the second indent of Article 23(1) of Directive 92/12/EEC, as of its setting up. The limits and conditions of the exemptions provided for in these provisions shall be laid down in an agreement between the members of the ERIC. 2. The Commission shall assess the application in line with the requirements laid down in this Regulation. During the assessment it shall obtain the views of independent experts in particular in the field of the intended activities of the ERIC. The result of such assessment shall be communicated to the applicants who shall, if necessary, be invited to complete or amend the application. Article 6 Decision on the application 1. The Commission shall, taking into account the results of the assessment referred to in Article 5(2) and in accordance with the procedure referred to in Article 20: (a) adopt a decision setting up the ERIC after it has satisfied itself that the requirements laid down in this Regulation are met; or (b) reject the application if it concludes that the requirements laid down in this Regulation are not met, including in the absence of the declaration referred to in Article 5(1)(d). 2. The decision on the application shall be notified to the applicants. In the case of a rejection, the decision shall be explained in clear and precise terms to the applicants. The decision setting up the ERIC shall also be published in the L series of the Official Journal of the European Union. 3. The essential elements of the Statutes as set out in Article 10 points (b) to (f) and in points (i) to (vi) of point (g) contained in the application shall be annexed to the decision setting up the ERIC. Article 7 Status of an ERIC 1. An ERIC shall have legal personality as from the date on which the decision setting up the ERIC takes effect. 2. An ERIC shall have in each Member State the most extensive legal capacity accorded to legal entities under the law of that Member State. It may, in particular, acquire, own and dispose of movable, immovable and intellectual property, conclude contracts and be a party to legal proceedings. 3. An ERIC is an international organisation within the meaning of Article 15(c) of Directive 2004/18/EC. Article 8 Seat and name 1. An ERIC shall have a statutory seat, which shall be located on the territory of a member which shall be a Member State or an associated country. 2. An ERIC shall have a name containing the abbreviation ‘ERIC’. Article 9 Requirements for membership 1. The following entities may become members of an ERIC: (a) Member States; (b) associated countries; (c) third countries other than associated countries; (d) intergovernmental organisations. 2. An ERIC shall have at least three Member States as members. Further Member States may join as members at any time on fair and reasonable terms specified in the Statutes and as observers without voting rights on conditions specified in the Statutes. Further associated countries and third countries other than associated countries as well as intergovernmental organisations may also become members of an ERIC, subject to approval by the assembly of members, referred to in Article 12(a), in accordance with the conditions of and procedure for changes in membership laid down in its Statutes. 3. Member States shall hold jointly the majority of the voting rights in the assembly of members. 4. Any Member State, associated country or third country may be represented by one or more public entities, including regions or private entities with a public service mission, as regards the exercise of specified rights and the discharge of specified obligations as a member of the ERIC. 5. Associated countries, third countries and intergovernmental organisations applying for the setting-up of or for membership in an ERIC shall recognise that that ERIC shall have legal personality and capacity in accordance with Article 7(1) and (2) and that it shall be subject to rules determined in application of Article 15. 6. Associated and third countries applying for the setting-up of or for membership in an ERIC shall accord to the ERIC treatment equivalent to that following from Articles 5(1)(d) and 7(3). Article 10 Statutes The Statutes of an ERIC shall contain at least the following: (a) a list of members, observers and, where applicable, of entities representing members and the conditions of and the procedure for changes in membership and representation in compliance with Article 9; (b) the tasks and activities of the ERIC; (c) the statutory seat in compliance with Article 8(1); (d) the name of the ERIC in compliance with Article 8(2); (e) the duration, and the procedure for the winding-up in compliance with Article 16; (f) the liability regime, in compliance with Article 14(2); (g) the basic principles covering: (i) the access policy for users; (ii) the scientific evaluation policy; (iii) the dissemination policy; (iv) the intellectual property rights policy; (v) the employment policy, including equal opportunities; (vi) the procurement policy respecting the principles of transparency, non-discrimination and competition; (vii) a decommissioning, if relevant; (viii) the data policy; (h) the rights and obligations of the members, including the obligation to make contributions to a balanced budget and voting rights; (i) the bodies of the ERIC, their roles and responsibilities and the manner in which they are constituted and in which they decide, including upon the amendment of the Statutes, in compliance with Articles 11 and 12; (j) the identification of the working language(s); (k) references to rules implementing the Statutes. The Statutes shall be publicly available on the website of the ERIC and at its statutory seat. Article 11 Amendments of the Statutes 1. Any amendment of the Statutes concerning the matters referred to in points (b) to (f) or in Article 10(g)(i) to (vi) shall be submitted to the Commission by the ERIC for approval. Such amendment shall not take effect before the decision granting approval has come into force. The Commission shall apply Articles 5(2) and 6, mutatis mutandis. 2. Any amendment of the Statutes other than that referred to in paragraph 1 shall be submitted to the Commission by the ERIC within 10 days after its adoption. 3. The Commission may raise an objection to such amendment within 60 days from the submission giving reasons why the amendment does not meet the requirements of this Regulation. 4. The amendment shall not take effect before the period for objecting has expired or has been waived by the Commission or before an objection raised has been lifted. 5. The application for the amendment shall contain the following: (a) the text of the amendment proposed or, where appropriate, as adopted, including the date on which it enters into force; (b) the amended consolidated version of the Statutes. Article 12 Organisation of the ERIC The Statutes shall provide for at least the following bodies having the following competencies: (a) an assembly of members as the body having full decision-making powers, including the adoption of the budget; (b) a director or a board of directors, appointed by the assembly of members, as the executive body and legal representative of the ERIC. The Statutes shall specify the manner in which the members of the board of directors legally represent the ERIC. Article 13 Budgetary principles, accounts and audit 1. All items of revenue and expenditure of an ERIC shall be included in estimates to be drawn up for each financial year and shall be shown in the budget. The revenue and expenditure shown in the budget shall be in balance. 2. The members of an ERIC shall ensure that the appropriations are used in accordance with the principles of sound financial management. 3. The budget shall be established and implemented and the accounts presented in compliance with the principle of transparency. 4. The accounts of an ERIC shall be accompanied by a report on budgetary and financial management of the financial year. 5. An ERIC shall be subject to the requirements of the applicable law as regards preparation, filing, auditing and publication of accounts. Article 14 Liability and insurance 1. An ERIC shall be liable for its debts. 2. The financial liability of the members for the debts of the ERIC shall be limited to their respective contributions provided to the ERIC. The members may specify in the Statutes that they will assume a fixed liability above their respective contributions or unlimited liability. 3. If the financial liability of the members is not unlimited, the ERIC shall take appropriate insurance to cover the risks specific to the construction and operation of the infrastructure. 4. The Community shall not be liable for any debt of the ERIC. Article 15 Applicable law and jurisdiction 1. The setting-up and internal functioning of an ERIC shall be governed: (a) by Community law, in particular this Regulation, and the decisions referred to in Articles 6(1)(a) and 11(1); (b) by the law of the State where the ERIC has its statutory seat in the case of matters not, or only partly, regulated by acts referred to in point (a); (c) by the Statutes and their implementing rules. 2. The Court of Justice of the European Communities shall have jurisdiction over litigation among the members in relation to the ERIC, between the members and the ERIC and over any litigation to which the Community is a party. 3. Community legislation on jurisdiction shall apply to disputes between an ERIC and third parties. In cases not covered by Community legislation, the law of the State where the ERIC has its statutory seat shall determine the competent jurisdiction for the resolution of such disputes. Article 16 Winding-up and insolvency 1. The Statutes shall determine the procedure to be applied in the case of winding-up of the ERIC following a decision of the assembly of members. Winding-up may include the transfer of activities to another legal entity. 2. Without undue delay after the adoption of the decision by the assembly of members to wind up, and in any event within 10 days after such adoption, the ERIC shall notify the Commission thereof. The Commission shall publish an appropriate notice in the C series of the Official Journal of the European Union. 3. Without undue delay after the closure of the winding-up procedure, and in any event within 10 days after such closure, the ERIC shall notify the Commission thereof. The Commission shall publish an appropriate notice in the C series of the Official Journal of the European Union. The ERIC shall cease to exist on the day of publication of the notice. 4. At any time, in the event that the ERIC is unable to pay its debts, it shall immediately notify the Commission thereof. The Commission shall publish an appropriate notice in the C series of the Official Journal of the European Union. Article 17 Reporting and control 1. An ERIC shall produce an annual activity report, containing in particular the scientific, operational and financial aspects of its activities referred to in Article 3. It shall be approved by the assembly of members and transmitted to the Commission and relevant public authorities within six months from the end of the corresponding financial year. This report shall be made publicly available. 2. An ERIC and the Member States concerned shall inform the Commission of any circumstances which threaten to seriously jeopardise the achievement of the task of the ERIC or to hinder the ERIC from fulfilling the requirements laid down in this Regulation. 3. Where the Commission obtains indications that an ERIC is acting in serious breach of this Regulation, the decisions adopted on the basis thereof or other applicable law, it shall request explanations from the ERIC and/or its members. 4. If the Commission concludes, after having given the ERIC and/or its members a reasonable time to provide their observations, that the ERIC is acting in serious breach of this Regulation, the decisions adopted on the basis thereof or other applicable law, it may propose remedial action to the ERIC and its members. 5. If no remedial action is taken, the Commission may repeal the decision establishing the ERIC in accordance with the procedure referred to in Article 20. Such decision shall be notified to the ERIC and be published in the L series of the Official Journal of the European Union. This shall trigger the winding-up of the ERIC. Article 18 Appropriate provisions Member States shall take such measures as are appropriate to ensure the effective application of this Regulation. Article 19 Report and Review Not later than 27 July 2014, the Commission shall forward to the European Parliament and the Council a report on its application and proposals for amendments, where appropriate. Article 20 Committee procedure 1. The Commission shall be assisted by a management committee. 2. Where reference is made to this paragraph, Articles 4 and 7 of Decision 1999/468/EC shall apply. The period laid down in Article 4(3) of Decision 1999/468/EC shall be set at two months. Article 21 Entry into force This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union. This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Luxembourg, 25 June 2009. For the Council The President L. MIKO (1) Opinion of 19.2.2009 (not yet published in the Official Journal). (2) Opinion of 14.1.2009 (not yet published in the Official Journal). (3) OJ C 76, 31.3.2009, p. 6. (4) OJ L 412, 30.12.2006, p. 1. (5) OJ L 54, 22.2.2007, p. 101. (6) OJ L 248, 16.9.2002, p. 1. (7) OJ L 347, 11.12.2006, p. 1. (8) OJ L 76, 23.3.1992, p. 1. (9) OJ L 134, 30.4.2004, p. 114. (10) OJ L 184, 17.7.1999, p. 23.

Summary: European Research Infrastructure Consortium (ERIC) European Research Infrastructure Consortium (ERIC) SUMMARY OF: Regulation (EC) No 723/2009 — rules for creating a European Research Infrastructure Consortium (ERIC) WHAT IS THE AIM OF THE REGULATION? It aims to facilitate the establishment and the operation of research infrastructures with European interest among several EU countries and associated countries* by providing a new legal instrument, the ERIC. The ERIC legal framework may be used for new or existing, single-sited or distributed research infrastructures. KEY POINTS An ERIC is a legal entity set up by a decision of the European Commission. It has legal personality and full legal capacity recognised in all EU countries. The basic internal structure of an ERIC is flexible and defined in its statutes by its members. Its members (EU countries and, under certain conditions, also associated countries, other non-EU countries and international organisations) negotiate the content of the statutes of the ERIC and its annexes in accordance with the regulation. The liability of the ERIC’s members can be limited to their respective contributions. An ERIC is recognised, by the country hosting it, as an international body or an organisation for the purposes of the Directives 2006/112/EC on value added tax (VAT) and 2008/118/EC on excise duties. An ERIC may therefore, under certain limits and conditions, benefit from exemptions from these on its purchases in all EU countries. An ERIC qualifies as an international organisation for the purposes of the EU’s public procurement rules. An ERIC may adopt its own procurement rules. The activities of the ERIC are, in principle, non-profit-making. However, an ERIC may carry out some limited economic activities as long they are closely related to its principal task and they do not impede the main aim of the research infrastructure. The ERIC must have its statutory seat in one of its members (EU country or country associated with the EU Framework Programme for Research and Innovation). Its name must include the abbreviation ‘ERIC’. To establish an ERIC a minimum number of members is necessary. At least one EU country and 2 other countries, which are either EU countries or associated countries, is the minimum configuration. Other members can join later depending on the conditions specified in the statutes. For an ERIC to be established, the following requirements must be met: it is necessary for the carrying out of European research activities;it represents a significant improvement in the scientific and technological fields at the European and international level;it grants effective access to the European research community;it contributes to the mobility of researchers and the sharing of knowledge within the European Research Area;it contributes to disseminating and optimising the results of research, technological and demonstration activities. Applications to set up an ERIC must be submitted to the Commission for assessment. They must include: a request to to set up the ERIC;the proposed statutes (a list of members, statutory seat, name of the ERIC, rights and obligations of the members, bodies of the ERIC with their competences and the manner in which they are constituted and in which they decide, duration of the ERIC, basic principles, identification of the working language, references to rules implementing the statutes);a technical and scientific description;a declaration by the host EU country recognising the ERIC as an international body within the meaning of the EU directives on value-added tax (VAT) and on excise duties. Setting up an ERIC involves two steps : Step 1: verification of compliance with the requirements laid down in the ERIC regulation. The Commission must assess the application with the help of independent experts and provide feedback to the applicant;Step 2: a formal request to the Commission to set up the ERIC. Based on this, the Commission seeks the opinion of the ERIC Committee and prepares its decision, which is then notified to the applicants and published in the Official Journal of the European Union. Regulation (EU) No 723/2009 was amended by Regulation (EU) No 1261/2013 to facilitate the participation of associated countries, whose contributions can be fully reflected in terms of membership and voting rights. Unlike in the case of Joint Technology Initiative Joint Undertakings (JTI JUs), in which the EU is systematically a member, the EU is not necessarily a member of an ERIC. FROM WHEN DOES THE REGULATION APPLY? It has applied since 28 August 2009. BACKGROUND This regulation is one of the strategic initiatives following the Green Paper on the ERA of 4 April 2007. This initiative contributes to the implementation of the ‘Research infrastructures’ section of the 7th Framework Programme (2007-2013) and of Horizon 2020 — the Framework Programme for Research and Innovation (2014-2020). The establishment of an ERIC brings advantages to the development of the European Research Area (ERA) since it addresses bottlenecks, like fragmentation and regionalisation, in the rules for establishing, financing and operating this class of research infrastructure. To date, 21 ERICs have been established. For more information, see: ERIC Practical Guidelines (European Commission)European Research Infrastructure Consortium (European Commission). KEY TERMS Associated country: a non-EU country which is party to an international agreement with the EU, under the terms or on the basis of which it makes a financial contribution to all or part of the EU research, technological development and demonstration programmes. MAIN DOCUMENT Council Regulation (EC) No 723/2009 of 25 June 2009 on the Community legal framework for a European Research Infrastructure Consortium (ERIC) (OJ L 206, 8.8.2009, pp. 1-8) Successive amendments to Regulation (EC) No 723/2009 have been incorporated into the original document. This consolidated version is of documentary value only. RELATED DOCUMENTS Commission Implementing Decision (EU) 2019/1854 of 29 October 2019 setting up the European Research Infrastructure for Imaging Technologies in Biological and Biomedical Sciences — Euro-BioImaging European Research Infrastructure Consortium (Euro-BioImaging ERIC) (OJ L 285, 6.11.2019, pp. 9-13) Commission Implementing Decision (EU) 2018/1732 of 30 October 2018 setting up the European Plate Observing System — European Research Infrastructure Consortium (EPOS ERIC) (OJ L 288, 16.11.2018, pp. 10-14) Report from the Commission to the European Parliament and the Council — Second Report on the Application of Council Regulation (EC) No 723/2009 of 25 June 2009 on the Community legal framework for a European Research Infrastructure Consortium (ERIC) (COM(2018) 523 final, 6.7.2018) Commission Implementing Decision (EU) 2018/499 of 20 March 2018 setting up the European Infrastructure of Open Screening Platforms for Chemical Biology European Research Infrastructure Consortium (EU-OPENSCREEN ERIC) (OJ L 82, 26.3.2018, pp. 8-12) Commission Implementing Decision (EU) 2018/272 of 20 February 2018 on setting up the European Marine Biological Resource Centre — European Research Infrastructure Consortium (EMBRC-ERIC) (OJ L 51, 23.2.2018, pp. 17-22) Commission Implementing Decision (EU) 2017/1213 of 4 July 2017 on setting up the Integrated Structural Biology — European Research Infrastructure Consortium (Instruct-ERIC) (OJ L 173, 6.7.2017, pp. 47-52) See consolidated version. Commission Implementing Decision (EU) 2017/996 of 9 June 2017 setting up the European Carbon Dioxide Capture and Storage Laboratory — European Research Infrastructure Consortium (ECCSEL ERIC) (OJ L 149, 13.6.2017, pp. 91-97) Commission Implementing Decision (EU) 2017/995 of 9 June 2017 setting up the Consortium of European Social Science Data Archives — European Research Infrastructure Consortium (CESSDA ERIC) (OJ L 149, 13.6.2017, pp. 85-90) Commission Implementing Decision (EU) 2017/499 of 17 March 2017 on setting up the e-Science and Technology European Infrastructure for Biodiversity and Ecosystem Research — European Research Infrastructure Consortium (LifeWatch ERIC) (OJ L 76, 22.3.2017, pp. 35-39) Commission Implementing Decision (EU) 2016/1757 of 29 September 2016 on setting up the European Multidisciplinary Seafloor and Water Column Observatory — European Research Infrastructure Consortium (EMSO ERIC) (OJ L 268, 1.10.2016, pp. 113-117) Commission Implementing Decision (EU) 2015/2097 of 26 October 2015 on setting up the Integrated Carbon Observation System European Research Infrastructure Consortium (ICOS ERIC) (OJ L 303, 20.11.2015, pp. 19-34) Commission Implementing Decision (EU) 2015/1478 of 19 August 2015 on setting up the European Spallation Source as a European Research Infrastructure Consortium (European Spallation Source ERIC) (OJ L 225, 28.8.2015, pp. 16-48) Commission Implementing Decision 2014/923/EU of 12 December 2014 on setting up the Joint Institute for Very Long Baseline Interferometry as a European Research Infrastructure Consortium (JIV-ERIC) (OJ L 363, 18.12.2014, pp. 156-169) Commission Implementing Decision 2014/526/EU of 6 August 2014 setting up the Digital Research Infrastructure for the Arts and Humanities as a European Research Infrastructure Consortium (DARIAH ERIC) (OJ L 239, 12.8.2014, pp. 64-80) Commission Implementing Decision 2014/392/EU of 24 June 2014 on setting-up the Central European Research Infrastructure Consortium (CERIC-ERIC) (OJ L 184, 25.6.2014, pp. 49-62) Commission Implementing Decision 2014/261/EU of 5 May 2014 on setting up Euro-Argo Research Infrastructure as a European Research Infrastructure Consortium (Euro-Argo ERIC) (OJ L 136, 9.5.2014, pp. 35-50) Commission Implementing Decision 2013/713/EU of 29 November 2013 on setting up the European Clinical Research Infrastructure Network (ECRIN) as a European Research Infrastructure Consortium (ECRIN-ERIC) (OJ L 324, 5.12.2013, pp. 8-20) Commission Implementing Decision 2013/701/EU of 22 November 2013 on setting up the Biobanks and Biomolecular Resources Research Infrastructure Consortium (BBMRI-ERIC) as a European Research Infrastructure Consortium (OJ L 320, 30.11.2013, pp. 63-80) Commission Implementing Decision 2013/700/EU of 22 November 2013 on setting up the European Social Survey as a European Research Infrastructure Consortium (ESS ERIC) (OJ L 320, 30.11.2013, pp. 44-62) Commission Implementing Decision 2013/640/EU of 7 November 2013 on setting up the European Advanced Translational Research Infrastructure in Medicine as a European Research Infrastructure Consortium (EATRIS ERIC) (OJ L 298, 8.11.2013, pp. 38-47) Commission Decision 2012/136/EU of 29 February 2012 setting up the Common Language Resources and Technology Infrastructure as a European Research Infrastructure Consortium (CLARIN ERIC) (OJL 64, 3.3.2012, pp. 13-28) Commission Decision 2011/166/EU of 17 March 2011 setting up the SHARE-ERIC (OJ L 71,18.3.2011, pp. 20-31) See consolidated version. last update 28.02.2020