The Supreme Court considers it illegal to prohibit the establishment of housing for tourist use in certain areas of the Canary Islands because it violates the principles of necessity and proportionality established in the Market Unity Guarantee Act, as well as the Services Directive and the Law on free access to service activities and the exercise thereof.

In the judgment of 12 December 2018 (Ar. RJ\2018\5689), the High Court analyses whether the regulation of housing for tourist use in the Canary Islands is sufficiently justified and, more specifically, the restriction of uses contained in Article 3.2 of Decree no. 113/2015, of 22 May 2015, enacting the Canary Islands Holiday Rental Property Regulations Act.

The TS analyses the ban on the introduction of this use in certain tourist areas or mixed residential – tourist, coming to the conclusion that it’s contrary to the principles of necessity and proportionality contained therein established in the Market Unity Guarantee Act as follows the Services Directive and the Law on free access to service activities and the exercise thereof, because it does not justify the restrictions it imposes, apparently linked to the protection of strategic tourist areas. In this sense, the SC considers that the regulation under analysis does not contain any justification for the restrictions imposed on the housing for tourist, nor, on the other hand, that such use may directly interfere with the competing legal-economic context, and therefore concludes that the restrictions imposed are contrary to law.

Beyond the importance of the pronouncement in the specific context of tourist uses in the Canary Islands, the Judgment analyzed is framed in an area -the regulation of the aforementioned tourist uses from the sectorial and/or urbanistic slope- that is generating a high degree of litigiousness (with close examples), so it must be taken into consideration for the analysis of analogous cases.