www.tourismlaw.pt Tourism, sustainability and circularity in Law 3/2022, of 15 June, on urgent measures for the sustainability and circularity of tourism in the Balearic Islands Antonia Paniza Fullana Spain, University of the Balearic Islands International Journal of Tourism, Travel and Hospitality Law PRE-PRINT
Tourism, sustainability and circularity in Law 3/2022, of 15 June, on urgent measures for the sustainability and circularity of tourism in the Balearic Islands Antonia Paniza Fullana1 I.- A previous step to Law 3/2022, of 15 June: Decree Law 3/2022, of 11 June. II. Aim of the Rule and Modifications of the Law on Tourism in the Balearic Islands. 1. In general. 2. New concepts and some changes. III. New Title V of The Law On Tourism In The Balearic Islands: measures for circular economy. 1. Circularity strategy. 2. Calendar, infractions, and administrative sanctions. IV. Temporary suspension of acquisition of new tourist bed places for tourist accommodation. V. Classification of tourist accommodation establishments. VI. Conclusions. Bibliography. Documents. Regulations Law 3/2022, of 15 June, entails turning around the regulation of tourism in the Balearic Islands. It is a shift towards sustainability and circularity. This is supposed to be attained with great obligations to be fulfilled by the companies in the tourism sector, especially those in accommodation. These obligations are temporally specified in a calendar foreseen by the rule itself, with sanctions in case of unfulfillment. This law is a modification of the Law on Tourism in the Balearic Islands, and it stresses fields like energy, residues, water, and proximity products. This goes hand in hand with a moratorium on the acquisition of new tourist bed places for a period of time, up to a maximum of four years. The end goal of all of this is achieving sustainability in a key sector in the economy of the Balearic Islands. KEYWORDS: Tourism, sustainability, circularity, tourist accommodation, contractual offer. I.- A PREVIOUS STEP TO LAW 3/2022, OF 15 JUNE: DECREE LAW 3/2022, OF 11 JUNE. Between February and June of 2022, a decree law and a law with the same title were published: urgent measures for the sustainability and circularity of tourism in the Balearic Islands. The first, in the form of a decree law, which was criticised because of its lack of debate in the Parliament, was approved on the 11th of February of 2022; the latter, in the form of a law, was approved on the 15th of June of 2022. Once the decree law was ratified, it started to be processed as a bill. This creates some issues for legal security in a rule with many obligations for companies in the tourism sector and with deadlines to be followed. The used formula was justified in the explanatory preamble of the first rule with these words: “in trying to justify the extraordinary and urgent need of approving this decree law, it is important to state, on top of everything that has been explained in this explanatory preamble about the need to implement protection measures for the environment, the consumers, and the users; and goals for social politics, that the financing mechanisms coming from the European Union, the Spanish state and the autonomous community stablish determined deadlines of application and execution of the 1 Civil Law Professor, University of the Balearic Islands.
International Journal of Tourism, Travel and Hospitality Law financed measures”. Different economic aids to the sector made urgent approving this rule2. All the obligations that the law gives to tourism companies make the economic aids to carry them out especially important. After the pertinent parliamentary processing, Law 3/2022 of urgent measures for the sustainability and circularity of tourism in the Balearic Islands was finally approved on the 15th of June, with some changes from the decree law with the same name, but with the same budgets and fundamental aspects. Sustainability and circularity are the key and the basis of both rules. The World Tourism Organisation (UNWTO) defines sustainable tourism as: “tourism that takes full account of its current and future economic, social and environmental impacts, addressing the needs of visitors, the industry, the environment and host communities”3. The law in the Balearic Islands takes this definition into account to substantiate the proposed measures. Both rules agree with the essential objective: ordinance, planning, promotion, discipline of tourism and quality in the provision of tourism services. All of this while promoting sustainable and circular tourism, which makes it a ground-breaking law in the sector4. As it is stated in article 1 of Law 3/2022: “…with the goal of advancing towards a regenerative impact of tourist activity in our territory and our society”5. A specific title is also introduced, with measures to move towards a circular economy in order to turn the Balearic Islands into “the first circular destination in the world”6. How will this leap towards circular economy happen? With an innovative approach, the rule states: “with strong support in the optimisation of processes and the new design of products and services, which allows to 2 For this matter, v. FERRER TAPIA (2022), Revista General de Derecho del Turismo, p. 2. 3 Cf. “Making Tourism More Sustainable - A Guide for Policy Makers”. UNEP and WTO, 2005 (https://www.e-unwto.org/doi/book/10.18111/9789284408214). In relation to sustainability, the World Tourism Organisation states that: “Sustainability principles refer to the environmental, economic, and socio-cultural aspects of tourism development, and a suitable balance must be established between these three dimensions to guarantee its long-term sustainability. Thus, sustainable tourism should: 1.- Make optimal use of environmental resources that constitute a key element in tourism development, maintaining essential ecological processes and helping to conserve natural heritage and biodiversity. 2.- Respect the socio-cultural authenticity of host communities, conserve their built and living cultural heritage and traditional values, and contribute to inter-cultural understanding and tolerance. 3.- Ensure viable, long-term economic operations, providing socio-economic benefits to all stakeholders that are fairly distributed, including stable employment and income-earning opportunities and social services to host communities, and contributing to poverty alleviation”. (In: https://www.unwto.org/sustainable-development). V. MORANDI (2018), The UNWTO Draft Convention on the Protection of Tourists and on the Rights and Obligations of Tourism Service Providers, Sustainable Tourism Law, Lisbon, p. 230 and foll. 4 Article 2 (that modifies article 1.1 of the General Tourism Law 8/2012, of 19 July, on Tourism in the Balearic Islands) of Decree Law 3/2022, and the same article of Law 3/2022, of 15 June, agree with this. 5 Regenerative impact is defined by the law in article 93, i) as the “capacity of restoring the caused ecological damage”. 6 Circular economy is defined by the law in article 93, a) as the “model of production and consumption, strongly based on the optimisation of processes and the redesign of products and services, that tries to maintain the functional value of products and materials for as long as possible, through biological and/or technical cycles and with a clear intention of minimising both the pressure on resources and the generation of residues”.
ISSN 2184-8793 ISSNe 2975-9056 disconnect the consumption of resources and materials from the expectations of growth and development in the sector”. When it comes to the structure of the law, we must say that it is not a Law on Tourism in the Balearic Islands, but a rule that broadly modifies the current Law on Tourism in the Balearic Islands, with a paradigm change towards sustainability and circularity. The law is structured in two articles. The first refers to the aim of the law, as it has been stated; and the second contains a long list of modifications of the Law 8/2012, of 19 July, on Tourism in the Balearic Islands7. Moreover, the law contains seven additional provisions, two transitory provisions, one derogatory clause, and nine final provisions. This way, it regulates various aspects, ranging from the School of Hospitality of the Balearic Islands to the creation of the Public Health Agency, including different economic and budget aspects. Amongst these modifications, a new title stands out, dedicated to measures of circular economy. And we say that it stands out not only because of the attainment of a more sustainable and circular tourism, but also because of the many obligations that it will entail, mostly for accommodation establishments. The ministry (Balearic Islands) with competency in tourism will have to lay out a strategic plan of circular destination. Hotel accommodations, vacation rentals, and rural tourism accommodations will all be affected by this reform, and they will have to create a plan of circularity, as stated in the explanatory preamble of the law: “a document that includes the priorities and lines of action that a company must carry out to integrate guides for planning, consumption, and production, and commitment in its business strategy, its internal processes, and the relationships with the main groups of interest”. This plan will be made up by the assessment and the circular planning. The critical areas that will be stressed are water, energy, food, materials, and residues. Every accommodation company that wishes to be commercialised as a circular business will need a certificate issued by a company duly authorised to do so. One of the aspects to be highlighted is the area of application of these new measures that will have to be adopted, since they can affect not only hotels but also tourist dwellings. Thus, some individuals may need to face serious obligations to adapt holiday homes to what the new law states. The explanatory preamble affirms that dwellings will be able to implement these measures, since they don’t have common structural elements that prevent it. With the first two additional provisions – the first one for Mallorca, Ibiza, and Formentera; the second one for the island of Menorca – the possibility of acquiring tourist bed places is temporarily suspended. The aim of this measure, according to the law, is stablishing a period during which the administrations can assess the load capacity in every island, so that later on they can determine how many bed places can be commercialised for tourism. This measure has been very talked about. 7 However, this isn’t the only law that is modified. Others that are also affected are: Decree 20/2015, of general principles and guidelines of coordination in tourism, of regulation of advisory bodies, of coordination and cooperation of the Government of the Balearic Islands, of regulation and classification of tourist companies and establishments; Law 2/2020, of 15 October, of urgent and extraordinary measures to boost economic activity and simplify the administration in the area of public administrations of the Balearic Islands to alleviate the effects of the crisis caused by COVID-19; Law 6/2017, of modification of Law 8/2012, related to the commercialisation of tourist accommodation in dwellings; Law 4/2021, of urgent and extraordinary measures to execute actions and projects financed with European funds in the framework of the Recovery, Transfer and Resilience Plan; Law 14/2012, of finances of the CAIB; Law 16/2010, of public health in the Balearic Islands; and Decree Law 1/2020, of 17 January, against tourism of excesses to improve the quality of tourist areas.
International Journal of Tourism, Travel and Hospitality Law The fifth additional provision contains a command for the ministry (Balearic Islands) competent in tourism so that it lays out the already mentioned strategic plan of circular destination that contains the general policy and the goals of the Government of the Balearic Islands to achieve the transition to circular economy. The sixth additional provision foresees the creation of the business public entity School of Hospitality the Balearic Islands. On the other hand, the Public Health Agency of the Balearic Islands is also created, with the sixth final provision. Furthermore, the annexes with the modification of the classification of hotel establishments, both of stars and of keys, are attached. This modification is needed, considering all the obligations included in the new rule that must be reflected in the classification of the accommodation establishments8. When reading the explanatory preamble, the constant worry of the legislator about legal security stands out. It is a very reiterated sentence: “because of legal security criteria” it is considered necessary to change, for instance, the article 23.4 of Law 8/2012, in relation with inaccuracy, falseness or omission in the documents presented in a declaration of responsibility, amongst others; the modification of the concept of full board; the creation of the role of tourist hostels, different from youth hostels (also to “grant more legal security”). In the text are stressed both the extraordinary and urgent necessity, and the reasons of legal security, repeatedly. II.- AIM OF THE RULE AND MODIFICATIONS OF THE LAW ON TOURISM IN THE BALEARIC ISLANDS. 1.- IN GENERAL. The goal of this law is defined both in the first and the second article of the law: it wants to stablish urgent measures for the sustainability and circularity of tourism, already mentioned. Moreover, it intends to arrange, plan, promote, encourage, and discipline tourism and the quality of the tourist services provided in the Balearic Islands; as well as to promote sustainable and circular tourism in the framework of the Statute of Autonomy and the rest of the legal system. The Statute of Autonomy, in its article 24, states that public powers will recognise tourism as a strategic economic element, and that the planning of tourist activity must be done in a way that is compatible with respect for the environment, cultural heritage, and territory, which is linked to the modification of tourist activity proposed by the new rule9. Furthermore, article 30 establishes the arrangement and planning of tourism, tourist promotion and information, regulation and classification of companies and touristic establishments as an exclusive competence of the autonomous community. The history of tourism laws in the Balearic Islands is shifted with Law 3/2022, of 18 June, which proposes a change of direction in the tourism industry for the sake of sustainability 8 The explanatory preamble affirms that this modification is considered “of an extraordinary and urgent necessity to adjust criteria of classification to the general goals of the law, give more objectivity and certainty, eliminate legal insecurity and, in general, grant more competitivity to the tourist industry of our islands”. 9 Also, v. the preamble of Law 8/2018, of 19 July, on Tourism in the Balearic Islands.
ISSN 2184-8793 ISSNe 2975-9056 and equilibrium amongst many confronted interests, which are specially brought to light with the moratorium of new tourist bed places. 2.- NEW CONCEPTS AND SOME CHANGES. Focusing on the law, besides the bulk of the new regulation developed in the new Title V, the law uses this to introduce new concepts or modify some that were already regulated but required some changes. This way, we can highlight: A.- New definition of full board. Article 37.1 of the Law on Tourism in the Balearic Islands is modified. Now, it is understood that an establishment is exploited in full board if, in a global price, accommodation and food and drinks for breakfast, lunch, and dinner are included; as well as the additional consumption of other food and drinks in the establishment10. The explanatory preamble of the law justifies this change, because the current one was confusing and difficult to interpret. B.- Active tourism companies. The law defines active tourism companies in the new article 61.2: “An active tourism company is understood as one that, for profit, provides services that allow the development of leisure, sports, and adventure activities, which are practised making use of the resources offered by nature, either in air, earth, underground, aquatic or subaquatic environments; and in which a certain degree of physical effort, skills, or experimentation are needed, or that imply a certain controlled risk”. In this type of companies are also included those based on the enjoyment or sensibilisation of the environment or of natural resources. C.- Wellness hotels. The law affirms that they are a specific hotel group in other competing destinations, which is why it is important that they are implanted in the Balearic Islands. They combine accommodation and wellness. They are given a specific category and an incentive so that they can have up to 50% of its area dedicated to offering wellness and beauty services. While the prohibition of acquiring new tourist bed places is in place, there would only be the possibility for already existing establishments to reconvert into this new category. The new article 39 states that a wellness service is one that is destined to promote or improve people’s health. In this type of establishments, one or several services of this kind must be offered, on top of accommodation. Wellness hotels will have at least four stars, and they will be able to use up to 50% of its total area, which includes the use of tourist accommodation, to offer these services. 10 It was previously redacted as it follows: “1. It is understood that a tourist accommodation establishment is exploited under the modality of full board when in the price offered to the users of tourist services, on top of accommodation, are included all the services offered by the establishment, as well as breakfast, lunch, dinner, and any consumption of food and drinks done inside of the hired tourist accommodation establishment.
International Journal of Tourism, Travel and Hospitality Law D.- Statutory obligation to regulate hostels as accommodation tourist companies. Section 39 of article 2 of Law 3/2022 introduces a 22nd additional provision about hostels as tourist accommodation companies. It establishes the statutory obligation of regulating opening and operating requirements of hostels as tourist accommodation companies in a deadline of two years since Decree Law 3/2022, of 11 February11, becomes effective. However, the law states that hostels that operate as youth hostels and aren’t authorised by the competent authority since the law becomes effective, will be under the scope of application of Law 8/2012, of 19 of July, on Tourism in the Balearic Islands. From this point forward, it states several specific aspects for hostels that are excluded from future rule development. This way, they fall under Law 2/2016 on tax on tourist stays in the Balearic Islands, and they can’t have more than 150 tourist bed places in Mallorca, 80 in Menorca and Ibiza, and 60 in Formentera. These hostels will have the obligations and duties determined in Law 8/2012. Even though article 88 does not apply to them, bed places in hostels can’t be swapped between individuals. The number of bed places that hostels will compute in effects of the maximum number of bed places in tourist accommodations per island must be taken into account, in effect of article 5.3 of the Law on Tourism in the Balearic Islands. The seventh additional provision temporarily suspends the start of youth hostel activity, under Law 10/2006, of 26 July, integral of youth, until the of 31st December of 2023, or until the new law of educational leisure for children and youth in the Balearic Islands is published, with the exception of the corresponding to youth hostels of public titularity or management. E.- Modernisation and innovation in hygiene and cleanliness: adjustable beds. One of the obligations that has received more comments amongst those imposed by the law is the one included in the new article 37 bis, which demands changing all the beds of an establishment, except the extra ones, for adjustable beds, either mechanically or electrically, which will allow a better and easier cleaning, thus improving working conditions in the sector12. Who is under the obligation of making this change? Hotels, city hotels, aparthotels, rural hotels, and any establishment that has received a rating in stars. The law also includes a few exceptions13. Firstly, establishments with up to 30 rooms that are in buildings considered Bienes de Interés Cultural (goods of cultural interest), Bienes catalogados (catalogued goods) or of singular protection, or that are in an old town, as long as beds and structure have properly authorised historical and heritage significance. The mention to an “old town”, as well as the “historical and heritage significance” of its furniture will have to 11 Here is an example of the effects of dictating a decree law and a law on the same matter in such a short amount of time, when the first already contained certain obligations for tourist establishments. 12 In this sense, the explanatory preamble of the law affirms that: “The cleaning staff of the rooms must be able to activate the elevation of the bed, so it can be situated at a height that allows better cleaning of the floor of the room or of the elements on which the bed is standing, which will also impact the protection of their occupational health”. 13 These exceptions were not contemplated in Decree Law 3/2022, of 11 February, of urgent measures for the sustainability and circularity of tourism in the Balearic Islands. They were included later. The press in the Balearic Islands discussed repeatedly this obligation for accommodation establishments.
ISSN 2184-8793 ISSNe 2975-9056 be interpreted. These exceptions weren’t included in the decree law, but they are now included in the law. A calendar to implant this measure is established in the new tenth transitory provision of the Law on Tourism in the Balearic Islands. There are five distinct points that attend to the different categories of the accommodation establishments, marking percentages of completion between the years 2023 and 2028, depending on each category. In the case of companies that own several establishments, they will be able to select the establishment independently of its category. In this case, the percentage of adjustable beds that must be installed each year will correspond to the establishment of a highest category. If this obligation could not be met in the predicted deadlines because of reasons that can be attributed to the providers, it will be considered accomplished by certifying the acquisition of the beds. Breach of this obligation will entail important financial sanctions. Breach of the obligation within the stablished deadlines will be considered a serious or very serious infraction. In the case of a very serious infraction, there is a sanction of 500 euro per non-installed adjustable bed within the deadline, with the total limit for very serious infractions (which are sanctioned with a penalty of between 40,001 to 400,000 euro), and the same sanction is imposed when it qualifies as a serious infraction, in this case with a maximum of 40,000 euro. III.- NEW TITLE V OF THE LAW ON TOURISM IN THE BALEARIC ISLANDS: MEASURES FOR CIRCULAR ECONOMY. 1.- CIRCULARITY STRATEGY. The main novelty of Law 3/2022, as stated in the first part of this work, are the measures introduced to assure sustainability and circularity. For this reason, this section will expose the measures included in the new Title V of the Law on Tourism in the Balearic Islands. There are several steps to be made, according to the law, and many obligations that have to be fulfilled by accommodation companies. Firstly, the ministry competent on tourism will have to elaborate a strategic plan of circular destination, in which will appear the principles of general policy and the goals to be accomplished. After the definitions and the enumeration of principles and general goals, the new title of the law refers in chapter II to the strategy for circularity. Who must apply this strategy? According to article 96 of the Law on Tourism in the Balearic Islands, tourist establishments in the Balearic Islands that are part of these groups: hotel accommodation, which includes the categories of hotels, city hotels, aparthotels, and accommodation for tourism in the interior of the islands; tourist apartments, and rural tourism accommodation, that includes rural hotels and agrotourisms. This strategy will be made effective through the elaboration and approval of a plan of circularity. They are marked as priority sectors of the plan of circularity: water, energy, food, materials, and residues. In general, article 100 of the Law on Tourism in the Balearic Islands (novelty introduced by Law 3/2022, of 15 June), states the main actions in the different areas. In the energy sector, it focuses on the yearly carbon footprint per overnight stay, the certification of energetic efficiency of the building, ability of self-supplying energy, installed renewable capacity, and storage capacity. In the main sector of water, the ability of self-
International Journal of Tourism, Travel and Hospitality Law supplying water and yearly consumption. In the case of residues, the law focuses on recycling residues from construction sites, alterations, and demolitions, and the selective pickup of residues. In the subject of food, it opts for the consumption of km 0 produce and the minimisation of use of packaging. This plan integrates circular planning and assessment to measure how the strategy for circularity progresses. The plan will have a validity of five years, after that, it will have to be renewed. It is not only about implanting it, but also about monitoring it. Companies that fulfil the obligations stated by the law will be able to obtain a certification by authorised entities, which will allow them to commercialise under the label of “circular company”. This goes hand in hand with the publicity and supply of accommodation establishments: only those that have obtained the certification will be able to present themselves as such, according to what is stated in the new article 101. Article 102 establishes the environmental and efficiency measures in the use of resources, according to the different types of tourist companies. Firstly, there are detailed a series of obligations for hotel accommodation establishments, tourist apartments, rural tourism accommodations, and houses used for tourist commercialisation or tourist holiday dwellings that are detached, between party walls, and semi-detached14. These accommodation companies will have to get rid of fuel or diesel oil thermal systems and will have to substitute them for other energy sources that reduce environmental impact. As an exception, those cases of duly credited impossibility. On the other hand, temperature and use of thermal systems will be adjusted to what the corresponding rules anticipate. In the priority sector of energy, the mentioned establishments will have to abide by the yearly carbon footprint per overnight stay, according to what the specific rule states; certification of energetic efficiency of the building, ability of self-supplying energy, installed renewable capacity, and storage capacity. In the materials and residues sector, it is stressed the recycling of residues from construction sites, alterations, and demolitions, and the selective pickup of residues. Besides, single-use courtesy toiletries can’t be given to clients, unless the client requests so, and they must always come with containers and packaging that are reusable or recyclable. The next point expands on the area of application of the obligation of having a dual flush button or a button with flush interruption in the tank of toilets, as well as water saving systems in sinks, showers, and baths faucets. In this case, it will apply to all the establishments enumerated in the previous paragraph, plus all kinds of tourist dwellings, as well as restaurant and entertaining establishments. There will be special attention towards the ability of selfsupplying water and the yearly consumption. On the other hand, every company and tourist establishment of Law 8/2012, of 19 July, once it becomes effective, won’t be able to use threatened marine species and will have to clearly indicate in the menus the products of Balearic origin, be agricultural, cattle, fishing, or drinks; as well as the certificates of origin, geographical indications, or distinctive stamps. In the case 14 We agree with FERRER TAPIA in that the law makes no distinction between big hotel chains, small establishments, or even tourist dwellings that might belong to an individual, which will cause great imbalance when facing the obligations imposed by the law. (FERRER TAPIA, 2022, p. 10-11).
ISSN 2184-8793 ISSNe 2975-9056 of fish and seafood, the type of fishing that was used will have to appear. Article 102 bis states the commitment to consume proximity products. This article sets the obligation for every company and tourist establishment regulated by the Law on Tourism in the Balearic Islands to use at least a 3% of fresh produce, either agricultural, cattle, or fishing, of the Balearic Islands. In the case of hotel establishments of four and five stars, the percentage goes up to 4%, and in agrotourism, to 5%. Sector 3 of article 102 bis establishes an incentive in the case of establishments that guarantee at least a 10% of Balearic product. These will obtain a distinction of “tourist establishment committed to local production”, which will be developed by the ministry (Balearic Islands) competent in food and agriculture and will give access to a priority promotion in matters of sustainable and responsible tourism. 2.- CALENDAR, INFRACTIONS, AND ADMINISTRATIVE SANCTIONS. Even though some of the sanctions imposed by the law, specifically when it comes to the installation of adjustable beds, have already been mentioned, infractions, with its corresponding sanctions, related to every measure introduced by the new law are added to the list of infractions and sanctions of the Law on Tourism in the Balearic Islands. When it comes to the calendar, a new tenth transitory provision is added, in which compliance deadlines of the new obligations imposed by the law are established. In the case of adjustable beds, it depends on the category of the accommodation establishments, and compliance percentages are being established between 2023 and 2027 or between 2023 and 2028, depending on the case15. On the other hand, measures related to implanting the circularity plan, with the measures anticipated in the new Title V, will have to be implanted, in the case of tourist accommodations of at least four stars or keys, on the 1st of May of 2023, and for the rest of accommodations forced to apply these measures, on the 1st of January of 2024. The deadline for substituting thermal systems is no later than the 1st of May of 2027, and in the case of establishments of new construction (2019, 2020, and 2021), the 1st of May of 2028. The calendar to implant water saving measures will be the 1st of May of 2023 for higher category establishments, and a year later for the resting accommodation establishments, dwellings, and restaurant and entertainment establishments affected by the rule. When it comes to toiletries, they are prohibited as soon as the law becomes effective, unless they were already acquired, which must be accredited with documents. Measures related to identifying products of Balearic origin will be applied from the 1st of May of 2023, and the minimal percentage of products of the Balearic Islands, from the 1st of July. 15 The exception to this rule is establishments that have made reformations in the years 2019, 2020, and 2021, with a minimum percentage of change of beds of at least 50%. In this case, they can postpone the purchase of adjustable beds in that specific establishment until 2027, having installed 50% of beds on the 1st of May, and on the 1st of May of 2028, the resting 50%. They can also opt to change 100% of beds from January 2028 up until the 1st of May of 2028, maximum.
International Journal of Tourism, Travel and Hospitality Law When it comes to infractions and sanctions, the Law on Tourism in the Balearic Islands is modified, and it introduces new hypothetical cases in every one of the three groups: minor, serious, and very serious infractions. Amongst the first, the lack of indication of local produce or certificate of origin in menus is added. As serious infractions are added, amongst others, non-compliance with the deadline of adjustable bed percentages, non-compliance with the obligation of having the circularity plan and the yearly assessments or having a circularity plan that doesn’t correspond with that one of the law. In the case of water saving measures, not having a dual flush button or a button with flush interruption, breaking the prohibition of leaving courtesy toiletries for the costumers, not adjusting the temperature, or self-promoting as a circular company without complying with the budgets for it. Amongst very serious infractions, inaccuracy, falseness, omission of substantial aspects to get the license or preceptive qualification; a very serious breach relating to adjustable beds or unfulfilling the obligation of eliminating thermal systems of fuel or diesel oil within the established deadline. In general, minor infractions will be punished with a warning or fine of up to 4,000 euro, serious infractions with a fine of between 4,001 and 40,000 euro, and very serious ones with a fine of between 40,001 and 400,000 euro. There are other specific sanctions. Such is the case of unfulfillment of the obligation of installing adjustable beds, which will be sanctioned with 500 euro per non-installed bed, with the limit of the maximum for very serious infractions. The infraction of breach of the obligation of eliminating thermal systems that work on fuel or diesel oil will be sanctioned with a fine of 100,000 euro. Accessory sanctions can also be imposed: temporary suspension of the exercise of activity of the company or professional exercise, revoking the authorisation given by the tourist administration or the loss of the effects of the responsible declaration of the start of tourist activity, or temporary or definitive closing of the establishment, according to the last paragraph of section 35 of article 2 of Law 3/2022. IV.- TEMPORARY SUSPENSION OF THE ACQUISITION OF NEW BED PLACES FOR TOURIST ACCOMMODATIONS. One of the most talked about measures is the temporary suspension of licences for new bed places for tourist accommodations. It is laid out as a precautionary measure on tourist activity, necessary to achieve sustainability in the sector. The first additional provision of the Law suspends for a maximum period of four years the acquisition of tourist bed places for Mallorca, Ibiza, and Formentera, and the second additional provision suspends the start of new tourist activities of hotel accommodation establishments, tourist apartments, rural tourism accommodation establishments and hostels, shelters and inns, dwellings object of tourist commercialization or vacation tourist dwellings in Menorca16. During this period, the administrations will assess the load capacity of each island through the Plans of Intervention in Tourist Areas (PIAT) and the territorial plans (PTI) and establish the number of tourist bed places that can be offered. 16 The different types of tourist accommodation establishments are regulated in Law 8/2012, of 19 July, on Tourism in the Balearic Islands, in articles 30 and following.
ISSN 2184-8793 ISSNe 2975-9056 In the case of Mallorca, Ibiza, and Formentera, not only the acquisition of tourist bed places to the managing organism or tourist administration is suspended, but also the exchange of bed places between individuals, either to begin activity or to expand, in the cases of tourist accommodation establishments as well as dwellings for tourist commercialization. This suspension will last until the assessment or reassessment of the load capacity of each island is done, which will determine the total number of bed places that can be commercialised, and in a period of no longer than four years since the law becomes effective. This will be done through an exceptional modification of the PIAT or PTI. It is important to highlight the closing clause of section three of the first additional provision: if in the established period the assessment of the bed places has not been carried out, they will be considered extinguished. The rule understands that, in any way, this will suppose a reduction of the number of tourist bed places that are currently inscribed, and of those integrated to the stocks when this law becomes effective. This reduction will be equitable amongst tourist accommodation bed places and bed places of tourist stays in dwellings17. The law stipulates a series of exceptions to the suspension. In general, they are hypothetical cases that are being processed either for urbanistic licenses, constructions in process, solicitudes of bed places already being processed or set up in buildings that are Bienes de Interés Cultural or Bienes catalogados, placed in common urban or rural areas. In this last case, it is the second transitory provision that establishes limits to the suspension. This rule sets up the limits for the exception of article 4 h) of the first additional provision: in no case can we go over 200 bed places for Mallorca, 100 for Ibiza, and 50 in Formentera, with a maximum of 30 bed places per accommodation, as long as each Insular Council don’t agree to reduce this amount in the period of three months since this law becomes effective. City halls can also determine to not apply the exception of the already mentioned section 4 h), if the plenary session agrees, in three months since the law becomes effective. Unlike the maximum limit of the suspension, these agreements are of application since they are published in the BOIB until the assessment or reassessment takes place and with a maximum of four years, this time, since the publication of Decree Law 3/2022, of 11 February, not since the law. The complexity in the calculation of bed places is evident. Exceptionally, the exchange of bed places amongst individuals is allowed in the case of change of use, as laid down in article 78 of the Law on Tourism in the Balearic Islands, in accordance with the redaction of the new law. According to this precept18: “Tourist bed places of the establishment can only be exchanged between individuals. This exchange is only possible to move the spots to hotel establishments of four or five stars. If the establishments or accommodations are registered, it is a condition to carry out the exchange surrogating the totality of the staff by an acquiring natural or juridical person”. If the change of use intended is to residential with the parameters that states article 78, the resulting dwellings won’t be able to be commercialised as tourist stays in dwellings. 50% of the resulting dwellings will be destined to subsidized housing, either for trade or renting. 17 According to article 49 of Law 8/2019, of 19 July, on Tourism in the Balearic Islands, companies that commercialise tourist stays in dwellings are: “natural or juridical people that commercialise the entirety of a residential dwelling for tourism, short-term, in conditions for immediate use, and with a lucrative aim. This commercialisation may alternate with the actual housing use that characterises them”. 18 Article titled: “New residential use in parcels of tourist use and reconversion and change of use of tourist accommodation establishments” (Nuevo uso residencial en parcelas de uso turístico y reconversión y cambio de uso de establecimientos de alojamiento turístico).
International Journal of Tourism, Travel and Hospitality Law Article 88, modified by Law 3/2022, of 15 June, for when the imposed temporary suspension ends, makes the efficacy of the responsible declaration of the start of tourist activity conditional on providing at least the same number of bed places that are going to be commercialised, and apply according to its availability, obtained from the bed places’ stocks regulated by management bodies or tourist administrations. They can also be obtained from other tourist accommodations or dwellings that are commercialised for tourism if they are permanently deregistered and had acquired the bed places, at the time, in an onerous and indefinite way. In this last case, twice as many bed places as the ones that are going to be commercialised and registered will have to be provided, except for those established in article 78, for which the same amount will have to be provided. Moreover, bed places to expand or open new tourist accommodations will come from other tourist accommodations, not from dwellings subject to tourist commercialisation, or vice versa. In the case of Menorca, the second additional provision cancels the start of new tourist activities of accommodation establishments19 and the expansion of bed places of those currently operational. The Plan of Intervention in Tourist Areas (PIAT) or the Insular Territorial Plan (PTI) will assess or reassess the load capacity of each island and with this result the total number of tourist bed places that can be commercialised in Menorca will be determined. For this reason, stocks will be created for the bed places that can be object of authorisation according to the limit of bed places that can be commercialised. This cancellation, as in the case of Mallorca, will last until the assessment or reassessment of the load capacity of the island is done or until a maximum of four years since the publication of this law. As it is the case in the other islands, there are exceptions. This suspension won’t affect tourist activity in areas of territorial reconversion of tourist areas, delimited in Menorca’s PTI; when there are construction sites destined to the start of activity or expansion in the case of tourist accommodation; when there are licenses being processed; when the urbanistic license in edification has been obtained in the previous six months to the law becoming effective and, in the case of rural tourism, when the process of declaration of general interest of the activity has begun. V.- CLASSIFICATION OF ACCOMMODATION ESTABLISHMENTS. The decree law published in February already delegalised the classification of accommodation establishments, allowing the government to modify them by decree, and so does the law in its second additional provision. It modifies Decree 20/2015, of 17 April, of general principles and guidelines of coordination in tourist matter; of regulation of advisory bodies, of coordination and cooperation of the Government of the Balearic Islands, and of regulation and classification of tourist companies and establishments, dictated in development of Law 8/2012, of 19 July, on Tourism in the Balearic Islands. Annexes 1 and 2 of the law establish the criteria of the categories of keys and stars, adjusting them to the new obligations foreseen in the law. This final provision also modifies article 100 of the cited decree and establishes the possibility of specific plans of inspection regarding the category of the establishments. 19 Including tourist apartments, rural tourism accommodation establishments, hostels, shelters, and inns. It also includes residential dwellings of tourist commercialisation or vacation tourist dwellings.
ISSN 2184-8793 ISSNe 2975-9056 VI.- CONCLUSIONS. It is an important modification for the sector of tourism, key in a territory like the Balearic Islands. It means a shift towards sustainable and circular tourism. This entails many obligations for tourist companies, especially accommodation ones, with important sanctions in case of unfulfillment. The shift that this new regulation substantiates entails action by different administrations, which may complicate some processes. Tourist aspects, urbanistic aspects, bed places, uses, etc., are entangled. The seventh final disposition already establishes that the ministry in charge of tourism matters must design an action and coordination plan with insular administrations to look out for the fulfilment of the obligations that the Title V on circularity foresees. It is a rule that introduces many changes with a bet on change in the tourism sector. BIBLIOGRAPHY Ferrer Tapia, B. (2022) “La economía circular y la protección del territorio en la nueva regulación del alojamiento turístico balear”, Revista General de Derecho del Turismo, 5, p. 1-25. Morandi, F. (2018), “The UNWTO Draft Convention on the Protection of Tourists and on the Rights and Obligations of Tourism Service Providers”, Sustainable Tourism Law, Lisbon, p. 230 and foll. DOCUMENTS - “Making Tourism More Sustainable - A Guide for Policy Makers”. UNEP and WTO, 2005 (https://www.e-unwto.org/doi/book/10.18111/9789284408214). - Sustainable tourism strategy of Spain 2030. (https://turismo.gob.es/en-us/estrategiaturismo-sostenible/paginas/index.aspx). REGULATIONS - Law 3/2022, of 15 June, of urgent measures for the sustainability and circularity of tourism in the Balearic Islands. - Decree Law 3/2022, of 11 February, of urgent measures for the sustainability and circularity of tourism in the Balearic Islands. - Law 8/2012, of 19 July, on Tourism in the Balearic Islands.
Contact Estoril Higher Institute for Tourism and Hotel Studies carlos.torres@eshte.pt www.tourismlaw.pt IJTTHL Celebrating five years of the first publication Vincenzo Franceschelli, On Tourism Law | Quest for general principles, https://fles.tourismlaw.pt/On-Tourism-Law-Quest-for-generalprinciples/ Alejandro Corral Sastre, A new Administrative Law for a new Tourism: now or never, https://fles.tourismlaw.pt/A-new-AdministrativeLaw-for-a-new-Tourism-by-Alejandro-Corral-Sastre-/ Jonas Thyberg, The Package Travel Act and the Covid19 pandemic, https://fles.tourismlaw.pt/The-Package-Travel-Act-and-the-Covid19pandemic-by-Jonas-Thyberg/ Caterina del Federico, The use of artifcial intelligence in the travel and hospitality industry. Civil liability profles, https://fles.tourismlaw.pt/The-use-of-artifcial-intelligence-in-the-travel-and-hospitalityindustry.--Civil-liability-profles "We are celebrating the 500 anniversary of the discovery of the Magellan strait with two online publications. On October 21, the launch of Derecho del Turismo en Las Américas brought together colleagues from all Latin American countries. On the same day, the Collective Commentary about the New Package Travel Directive, with colleagues from the then 28 Member States. More recently, Competition Law in Tourism and Tourism Law in Europe are publications demonstrating this group's dynamism. The pandemic has not broken the bonds that have united and unite us. Here we are again here in Lisbon, more numerous and more motivated than ever, to consecrate what will be the voice of our group: The new international journal of Tourism Law, The International Journal of Tourism, Travel and Hospitality Law.” • Vincenzo Franceschelli, The Lisbon Group and International Tourism Law Five years after the frst international publication (The New Package Travel Directive, October 2017) at the ESHTE | INATEL International Conference in October 2022, bringing together 50 speakers from 27 countries, a new project was announced: The International Journal of Tourism, Travel and Hospitality Law (IJTTHL). IJTTHL brings together several universities and is published both in print and online. The central part will be in English but will have an IberoAmerican chapter, and the texts are immediately available through Pre-Print. Monika Jurkova, Liability of online platforms in the tourism sector, https:// fles.tourismlaw.pt/Liability-of-online-platforms-in-tourism-sector-Monika-Jurkova/ Francesco Torchia, Tourism enterprise and cultural heritage protection, as a legal instrument for valorization of the territory and of the person, https:// fles.tourismlaw.pt/Tourism-Enterprise-and-Cultural-Heritage-protection,-as-a-legal-for-valorization-of-the-Territory-and-ofthe-Person-by-Francesco-Torchia/ Valérie Augros, Holiday lettings in France: tips and tricks, https://fles.tourismlaw.pt/ Holidays-lettings-in-France---Tips-and-tricks-by-V.-Augros/ Sarah Prager, Competition law: online travel agents and airlines, https:// fles.tourismlaw.pt/Sarah-Prager,--Competition-Law---OTAs-and-airlines/ Andrej Micovic, Legal Tech and Online Dispute Resolution, https://fles.tourismlaw.pt/ Microsoft-Word---A.-Micovic---Legal-Tech-and-ODR-in-Tourism./ Pilar Juana Garcia Saura, The inspection of tourist accommodation by Public Administrations: problems with the use of the robot inspector (web spider) and the responsibility of collaborative platforms, https://fles.tourismlaw.pt/Collaborativeplatforms-in-accommodation-by-Pilar-Saura/ Michael Wukoschitz, A Wicked Deed’s Curse – Will X v Kuoni change the Organiser’s Liability?, https://fles.tourismlaw.pt/Will-X-v-Kuoni-change-the-organisers-liability,---M.-Wukoschitz/ Bertold Bär-Bouyssiere, Sustainability and Article 101(1) TFEU, Exploring (almost) virgin territory, https://fles.tourismlaw.pt/Sustainability-considerations-and-Article-101-TFEU/ Tatjana Josipovic, Modernisation of information requirements for consumers on online tourism services market, https://fles.tourismlaw.pt/Modernisation-of--informationrequirements-for-consumers-on-online-tourism-services-market-by-Tatjana-Josipovic/ Matija Damjan, The new online platform rules and the accommodation booking services, https://fles.tourismlaw.pt/The-new-online-platform-rules-and-the-accommodation-bookingservices-by-Matija-Damjan/ Ilie Dumitru, EU legislation and contractual relationship between the travel package organizer and the air carrier in case of charter fights. Liability for cancelled and delayed charter fights, https://fles.tourismlaw.pt/EU-legislation-and-contractualrelationship-between-the-travel-package-organizer-and-the-air-carrier-in-case-of-charter-fights.-Liability-for-cancelled-anddelayed-charter-fights-by-Ilie-Dumitru-IJTTHL-PRE-PRINT/ João Almeida Vidal, Arbitration and tourism: a feld to explore, https:// fles.tourismlaw.pt/Arbitration-and-tourism--a-feld-to-explore-by-Joao-Vidal/
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