¿Ha modificado el Tribunal de Justicia de la UE la Directiva Bolkstein en relación con el alquiler turístico? Evaluación desde el punto de vista de la legislación española de interés para los inversores extranjeros en España. // Has the EU Court of Justice modified the Bolkstein Directive in relation to tourist rentals? Assessment from the point of view of Spanish legislation of interest to foreign investors in Spain.
Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market -also known as the Bolkestein Directive- establishes a set of principles applicable to regulations governing access to service activities and the exercise thereof in the European Union. The ultimate aim of these principles is to reshape, reduce and simplify unjustified or disproportionate barriers to the exercise of these activities, either by establishing themselves in a Member State or by taking advantage of the free movement of services – whether temporary or occasional – by providing a more favourable and transparent environment for economic agents. As of December 2009, the Spanish legal system was obliged to include this directive in its domestic legislation, passing Law 17/2009, of 23 November, on free access to and exercise of service activities.
In recent years, both internationally and nationally, there has been a growing trend to rent out one’s usual home for tourist purposes on a daily or weekly basis, which has been encouraged by the development of new technologies, giving rise to the creation of companies that offer this type of accommodation through their websites so that it can be rented online quickly and easily. In addition, the financial crisis has led investors around the world to turn to real estate as a source of income, especially in historic centres and coastal cities through the renovation of buildings and houses for tourist use. The most significant problems linked to this activity are of various kinds: economic and social impact, guarantee and safety of users, disturbance caused to residents and citizens, intrusion and unfair competition or reduction in the supply of residential accommodation rentals, among others. According to the provisions of the Bolkstein Directive, the exercise of tourist holiday or tourist accommodation activity is not subject to a system of prior administrative authorisation, but is governed by the system of prior notification whereby the entrepreneur may carry out the activity without the need for an administrative resolution legitimising its exercise, the simple notification of the interested party to the corresponding Administration being sufficient for this purpose. In accordance with article 148.1.18 of the Spanish Constitution, the 17 Autonomous Communities (Galicia, Asturias, Catalonia, Canary Islands, Andalusia, Madrid, etc.) and 2 Autonomous Cities (Ceuta and Melilla) have transferred responsibility for tourism so that the different autonomous regulations have assumed this system of prior notification (not authorisation): Canary Islands (art. 13 of the Canary Islands Holiday Accommodation Regulations approved by Decree 113/2015, of 22 May); Andalusia (art. 9 of Decree 28/2016, of 2 February, on accommodation for tourist use); Madrid (art. 17 of Decree 79/2014, of 10 July, regulating tourist flats and accommodation for tourist use; or Galicia, Article 30 of Decree 12/2017, of 26 January, establishing the regulation of tourist flats, tourist accommodation and accommodation for tourist use in the Autonomous Community of Galicia), to name but a few.
However, the judgment of the Court of Justice of the European Union of 22 September 2020 clarified the administrative regime relating to the commencement of the activity of holiday or tourist homes. The judgment responds to the preliminary question posed by the French Court of Cassation, whose domestic legislation assesses the effect of this activity on inflation in densely populated municipalities, which determines that the change to the obligation of prior authorisation instead of simple notification by the interested party must be based on objective, clear and unequivocal reasons. In other words: the CJEU modifies the prior notification regime established by the Bolkstein Directive in some specific and objective cases; it is not a carte blanche for the administration to impose a change in the prior notification system in favour of authorisation.
We can summarise the above in the following conclusions:
1. Directive 123/2006/EC applies to tourist accommodation rental services.
2. Ensuring a sufficient supply of long-term rental accommodation at affordable prices is an overriding reason of general interest protected by EU law and, in particular, by Directive 123/2006/EC.
3. Administrative authorisation (and not prior notification) is in conformity with Directive 123/2006/EC when it is intended to ensure a sufficient supply of long-term rental housing at affordable prices, applicable in certain municipalities where the tension on rentals is particularly strong.
4. Administrative authorisation schemes cannot be exercised arbitrarily and must be justified by an overriding reason of general interest, be proportionate to that general interest objective, be clear, unambiguous, objective, transparent, accessible and made public in advance. Prior notification and not administrative authorisation remains the rule for holiday or tourist dwellings. However, where there is an overriding reason in the general interest which is clear, objective, unambiguous, proportionate, justified and non-discriminatory, a system of prior authorisation rather than prior notification could be imposed. The Court of Justice of the European Union considers that ensuring a sufficient supply of long-term rental housing at affordable prices for those municipalities where the pressure on tenancies is particularly high is one of the overriding reasons in the general interest which would justify the imposition of prior authorisation instead of prior notification.
