Modification of Law 13/2002, of 21 June, on Tourism in Catalonia, by Law 5/2020, of 29 April, on tax, financial, administrative and public sector measures and the creation of a tax on installations that affect the environment.
The recent Law on tax measures approved by the Parliament of Catalonia has modified, among many other regulations, the Tourism Law in several of its precepts. The aforementioned modifications (16 in total) refer to various aspects and are included in article 169 of Law 5/2020. Despite the fact that the preamble of the Law does not specify them, it can be inferred from the content of the modifications that their main objectives are: (1) to better define the actions or acts that include tourism activity; (2) to provide a more clearly defined legal coverage of the sanctioning actions that the Administration can carry out against possible violators in the area of tourism; and (3) to facilitate the statutory development of the Law.
Firstly, article 2.g) of the Tourism Law introduces the definition of tourist accommodation, which until now, surprisingly, was not expressly included in the Law.
Secondly, article 50 bis of the Tourism Law adds that tourist housing (HUT) must be sold in its entirety (not by rooms), an issue which was already included in the same way in Decree 159/2012. Furthermore, it is added that the provision of the HUT service begins when it is publicized or commercialized – in case of possible infractions and sanctions, as we will see through this note -. In the same sense, article 73 of the Law is modified to establish that the registration number of the tourist accommodation in the Registry of Tourism of Catalonia must be included in all types of advertising, promotion or marketing.
Concerning the definition of violations, the distinction between the severe violation of article 88.a) and the very severe violation of article 89.a) is clarified, apart from introducing advertising or marketing as a defining element of the violation in both cases.
More specifically, Article 88.a) is drafted as follows:
5. Se modifica la letra a del artículo 88 de la Ley 13/2002, que resto redactado de la manera siguiente:
«a) Ofrecer, prestar o ejercer actividades o servicios turísticos, o hacer publicidad, sin disponer del título habilitante correspondiente, siempre que se cumplan todos los requisitos establecidos para poderlo obtener.»
As can be seen, the new definition of the violation is characterized by the fact that the operator who offers or provides the tourist service without a licence could obtain it, differing from the very severe violation of Article 89.a) in which the requirements or regulatory conditions for obtaining the corresponding licence are not available. In other words, it would never be possible to obtain the licence.
In addition, with regard to severe violations, new types of infringing conducts are defined:
- Failure to inform the Administration that an illegal tourist activity is taking place in a property owned by them.
- Exceed the maximum number of guests allowed.
- Failure to take appropriate action when there is activity that violates the basic rules of coexistence in tourist housing (HUTs).
On the other hand, by the modification of articles 91.2 and 93 of the Tourism Law, it is introduced the role of the marketer as responsible in the violations that provide for it and adds new criteria to graduate the sanctions.
By the introduction to the Law of the Ninth Additional Provision, it is allowed the creation of tourist accommodation modalities by regulation, being able to regulate the conditions and characteristics of these.
Finally, through the introduction in the Law of the Tenth Additional Provision, it is created a special regime for the municipality of Barcelona in relation to HUTs and shared homes, which can be regulated by municipal regulations. More specifically, it is stipulated that the City Council will be able to establish particular requirements and may set time limitations and maximum periods of validity for the licences to carry out these activities, in accordance with the current legislation.
Barcelona, May 2020
Albert Llop i Martí
Pareja i Associats, Advocats