The Supreme Court considers that the Autonomous Communities can impose regulation of the activity of tourist accommodation on homes that exceed thresholds of time and habituality, as well as impose conditions of identification, hygiene and health, and 24-hour customer service.
Thus, it is determined by the Supreme Court in a judgment of September 17, 2019, which dismisses the appeal of the National Commission of Markets and Competition against various articles of decree 3/2017, of February 16, that regulates accommodation establishments in the modality of housing for tourist use.
HABITUALITY AND DESTINED TIME
The Public Administrations can impose thresholds of habituality and time to the activity of tourist accommodation without therefore threatening the freedom of enterprise (article 38 of the Constitution), nor violating the laws of free access to the activities of services and their Exercises and Market Unit Guarantee.
Judge Sanchez-Cruzat reasons that the habituality and the limitation in time in the lease of the housing of tourist purposes, although it can affect the faculties of organization of the operator, is covered in article 29 of Law 14/2010, of December 9, of Tourism of Castilla Y Leon, which states that the provision of the hosting service must be temporary, so that the setting of the two-month duration limit, by its very nature, cannot be considered as an illegitimate restriction to the exercise of the activity.
Sanchez-Cruzat, determines it is in accordance with the current legislation that the company providing the tourist accommodation service must show at the entrance of the property an identification plate of the activity, as well as meet certain requirements on the conditions of habitability, health, hygiene, and comfort of the establishments and set minimum standards in the provision of lodging services.
The magistrate points out that it is not unreasonable to understand that “it is an ideal element to provide security to the user that the selected tourist accommodation complies with current regulations
As for the standards of habitability, Sanchez_Cruzat refuses to question, among other elements of the accommodation, the darkening of living rooms, the dimensions of the beds, toilet paper holders and cots. He considers that the Chamber shares the criteria of the Court of Instance, which considers that the imposition of standard conditions referring to housing conditions is justified as it tries to guarantee a certain quality of the tourism product in defense and protection of the consumer rights.
The magistrate rejects that the mere setting of minimum standards related to the conditioning of tourist dwellings favors traditional establishments and causes the exclusion of operators from the market.
It also emphasizes that Decree 3/2017 establishes, although exceptionally, the possible waiver of the fulfillment of some of the requirements established in those precepts when the current circumstances allow compensating the breach with the joint valuation of the facilities, services and of the improvements that they incorporate, in particular when they are installed in buildings belonging to the Cultural Heritage of Castilla y Leon.
With respect to providing customers with a telephone assistance service available 24 hours a day, “this requirement does not constitute an unnecessary and excessive burden without justification since it is intended to resolve the incidents that may arise during the stay and, therefore, guarantee the protection of users¨rights to the provision of a good hosting service”.
And, finally, the sentence considers that the authorization to Public Administrations to collect data on the prices of tourist accommodation services for statistical, informative or advertising purposes and their conclusion in catalogs, guides or computer application systems of a tourist nature is adjusted according to law.
The sentence considers that “the reasoning of the Court of Instance is convincing, which argues that said regulatory provision does not limit the exercise of the commercial activity of the operator or hinder the existence of competition in the market”.