Palma de Mallorca
The Administrative Litigation Chamber of the Superior Court of Justice of the Balearic Islands (TSJIB) has issued a judgment in which it annuls the 300,000 euro sanction that the Balearic Government imposed in 2018 to the Airbnb platform by marketing tourist apartments swithout having previously registered them in the Ministry of Tourism. The TSJIB has therefore now estimated the appeal filed by Airbnb against the Govern. The news has been advanced this Tuesday by the newspaper "Última Hora" and confirmed by ABC.
The ruling now made public by the TSJIB considers that in this specific case ha community directive and the Balearic autonomous regulations opened in collision, the first prevailing to the detriment of the second. This is Directive 2000/31 / EC of the European Parliament, regarding certain legal aspects of information society services, in particular electronic commerce in the internal market.
According to this European directive, Airbnb was not obliged that in its advertising of vacation homes the number had to be inserted inscription in an official registry of the Executive autonomic. For their part, official sources from the Ministry of Tourism have confirmed to ABC that, in any case, they will file an appeal against the aforementioned TSJIB ruling.
Background of the case
The background to this case is in July 2018, when the Ministry of Tourism fined Airbnb Ireland UC, owner of the online platform Airbnb, with 300,000 euros, for the alleged commission of a "very serious" infringement of regional regulationsin force, specifically, for «having commercialized tourist homes on the island of Mallorca without the responsible declaration of start of tourist activity (DRIAT) or without indicating the tourist registration number ». According to the Govern, Airbnb would then have carried out this alleged irregularity, considered punishable in article 106.i of the Tourism Law.
The aforementioned law had been approved in 2012 by the Executive who then presided over the popular José Ramón Bauzá. Five years later, in 2017, with the socialist Francina Armengol as president of the Community, that law was partially modified. One of the goals of that modification was to try to control more effectively the offer of tourist accommodation considered illegal. In this context, there were several online platforms fined in 2018 by the Ministry of Tourism based on that premise, which in the case of Airbnb has now been proven unfounded.
Two years ago, the Ministry of Tourism directed the eco-sovereign Bel Busquets, from MÉS per Mallorca, who was also the vice president of Armengol. In the current mandate, Armengol continues to be the President of the Government, although today the socialist Iago Negueruela is in charge of the Ministry of Economic Model, Tourism and Work.
The TSJIB now argues in its judgment that Airbnb "protected" by disclaimers provided for in the aforementioned Directive 2000/31 / EC of the European Parliament, as it is considered an "intermediary operator that limits itself to a neutral, merely technical and automatic provision of accommodation of content inserted by its users". In this sense, Airbnb is an operator that is exempt from controlling the conditions in which it Advertise real estate rental offers.
In its conclusions, the court indicates that "the obligation" that the Balearic Tourism Law "imposes on the holders of tourism marketing channels with respect to the fact that in the vacation home advertising the registration number is inserted in the register - and correlative sanction for non-compliance - must be interpreted as meaning that This requirement does not apply to the company's service providers. of the information included in Directive 2000/31 / EC ". In this sense, the judgment expressly quotes Airbnb.
"The imposition of a sanction without the coverage rule being applicable to it, constitutes a nullity defect, therefore, the estimation of the contentious-administrative appeal is appropriate ”, finally determines the judge's ruling.