b) the need for an authorization scheme is justified by an overriding reason relating to the public interest; c) the objective pursued cannot be attained by means of a less restrictive measure, in particular because an a posteriori control would take place too late to be genuinely effective. Deconstructing this provision, it is evident that the European legislator considers prior authorization regimes to be exceptional. They may only be utilized when the cumulative criteria of what some authors term the “triple test” are met: 1. Non-discrimination. 2. The existence of an overriding reason relating to the public interest that justifies an exhaustive ex-ante control. 3. Proportionality, meaning that a subsequent (ex-post) control would be ineffective in protecting the legal asset in question. This demonstrates that while there is no blanket prohibition on prior authorizations, their application by Member States must strictly comply with these stringent parameters. The purpose of generalized prior authorizations is to verify compliance before an activity begins to avert harm to protected legal assets. The Services Directive introduces necessity and proportionality as pivotal criteria for national legislators to weigh whether to implement an authorization scheme or rely on a declaración responsable. Prior authorizations can only be justified if the protected asset possesses sufficient weight to constitute an “overriding reason relating to the public interest” and no less restrictive, equally effective mechanism exists (Corral Sastre, 2017). Consequently, contrary to the Supreme Court’s assertion, there is a clear hierarchy of legal assets. Some assets do not carry the same weight for the general public interest; there are primary assets (overriding reasons relating to the public interest) and secondary assets (all remaining protected interests). Both European and Spanish transposition legislators established a clear gradated scale of public interest: highly critical assets merit ex-ante administrative control, whereas less critical assets are relegated to subsequent ex-post verification. V. THE STRUCTURAL FAILURE OF EX-POST CONTROLS As noted in previous work, the Spanish legislator—and now the High Court—misunderstood the core spirit of the Services Directive. The directive aimed to streamline administrative procedures to enhance the competitiveness 55 THE LEGAL DILEMMA OF EX-POST CONTROLS IN TOURISM
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