A new Administrative Law for a new Tourism by Alejandro Corral Sastre

www.tourismlaw.pt A new Administrative Law for a new Tourism: now or never Alejandro Corral Sastre University CEU-San Pablo of Madrid International Journal of Tourism, Travel and Hospitality Law PRE-PRINT

A NEW ADMINISTRATIVE LAW FOR A NEW TOURISM: NOW OR NEVER 1 Alejandro CORRAL SASTRE Professor of Administrative Law University CEU-San Pablo of Madrid 1.- INTRODUCTION. According to economic estimates, the consequences of the pandemic in Spain have been particularly negative. Even worse than initially expected . Nor have 2 the forecasts immediately after confnement been fulflled, which has led many public administrations to adopt policies aimed at increasing the number of visitors and tourists, so as to compensate for the negative statistics, but without taking into account other circumstances. It should be borne in mind that these forecasts are made on the assumption that the restrictions on activity would be lifted in the last quarters of 2021, so that the fall in GDP was more intense and the expected recovery started later, given that the restrictions have been maintained and even increased in the autumn, winter and the following spring, despite the fact that economic activity has not come to a complete standstill. In the latter part of 2021, uncertainty remained or even increased as, despite the high number of people vaccinated and immunized by the disease itself, cases continued to increase. In the summer of 2022, when these lines are being written, cases are still increasing, especially after the relaxation of certain measures such as the use of masks or the requirement of vaccinations for travel between certain countries. The autonomous communities have opted to allow major tourist events to be held (San Fermín, major concerts in Madrid, the April Fair in Seville, etc.), without taking much care to require health measures to prevent the spread of the virus. I understand that these decisions beneft certain tourist sectors, there is no This work has been carried out within the framework of Project PID2020-120373RB-I00 on 1 DIGITAL IDENTITY, FUNDAMENTAL RIGHTS AND NEURORIGHTS, Ministry of Science and Innovation. State Plan for Scientifc and Technical Research and Innovation. Spanish Government European Economic Forecast, Summer 2020, Institutional Paper 132 | July 2020, p., 22. 2 "Thus, according to the European Commission's forecast for this year 2020 and early 2021, and at the expense of what is set out in the report on the economy for autumn 2020 and 2021, "The economic impact of confnement in the frst half of 2020 is likely to be worse than expected in the spring forecast. This will not be fully ofset by the expected rebound in the second half of 2020 as most of the activity restrictions are removed. As a result, annual GDP growth in 2020 is now forecast at nearly -11%, about 1½ pps. lower than projected in the spring. Activity should continue to recover during the frst half of 2021 and then gradually moderate in the second half. This, together with a positive carryover from the last quarters of 2020, would bring annual GDP growth to around 7% in 2021 (virtually unchanged from the spring), leaving output volume in 2021 about 4½% below its 2019 level." 1

doubt, but in my opinion more caution would have been necessary when allowing certain celebrations, especially when we are talking about an economic sector that is particularly volatile in crisis situations, as has been amply demonstrated in recent years . 3 On the other hand, the terrible spectre of war is once again hanging over us, which is not exactly going to help the economic recovery of tourism. Certainly, as with the pandemic, the most dramatic aspect is still the number of victims and casualties, but regarding what we are analyzing here, we cannot fail to mention that, despite the restrictions, 134,000 Russian tourists visited us last year, spending 228 million euros, according to data from the National Institute of Statistics on Tourist Movements at the Border (FRONTUR). The tourism sector, which accounts for approximately 15% of our country's GDP, is in a particularly precarious situation, as it has been the economic sector that has frst sufered the efects of the pandemic, reaching what has been called "tourist zero" . The restrictions on mobility and the measures 4 imposed on travelers visiting our territory have had a major impact on activity. According to INE data, international tourist arrivals fell by 75.86% in August 2020. In addition, the diferent "waves" that we have sufered throughout 2021 have prevented the activity from taking of, so that the long-awaited recovery is taking longer than desired, although the forecasts for the summer of 2022 are even too fattering, with an estimated growth of 53%, with an increase in activity of 47,000 million euros. Paradoxically, just before the pandemic, the most specialised doctrine on the subject questioned the tourism growth model that was being developed in our country, especially in certain territories (Balearic Islands, Mediterranean coast, etc.), and some autonomous communities even adopted legal regulations that greatly restricted tourism in their territories. The paradigmatic case is that of the Balearic Islands, which, through Decree-Law 1/2020 of 17 January, regulated against so-called "excess tourism" in order to improve quality in tourist areas, empowering the administration to prohibit certain economic activities related to excess tourism. However, data relating to the summer of 2022 give us an idea that the intention is to continue with the same developmentalist policies, especially on the part of the autonomous communities that are especially dedicated to sun and beach tourism. Thus, according to a press release from the INE, "Spain received 7.0 million international tourists in May, compared to 1.4 million in the same month in 2021". Regarding the volatility of the sector, see CORRAL SASTRE, A. (2017), La liberalización del 3 sector turístico, ¿Hacia un modelo de turismo sostenible?, Reus SIMANCAS CRUZ, M., (2020), ‘Deconstruyendo una crisis turística’, in Turismo 4 poscoronavirus, ¿una oportunidad para el reconocimiento?, en Turismo pos-COVID-19. Refexiones, retos y oportunidades, Coord. SIMANCAS CRUZ, M., HERNÁNDEZ MARTÍN, R. Y PADRÓN FUMERO, N., Cátedra de Turismo Caja Canarias-Ashotel de la Universidad de La Laguna. 2

In view of these data, and this is the aim of this paper, it is interesting to analyse what measures the public authorities can take, and in what sense, to recover the tourism sector without falling into the problems that some destinations sufered before the pandemic. Thus, I believe that this is an unbeatable opportunity to recover the activity, avoiding overcrowding, congestion and gentrifcation. In short, by committing to quality and sustainable tourism. May the so-called "zero tourism" serve as a catalyst for us not to fall into some of the mistakes we were making before the terrible health crisis. 2. - TOURISM ISSUES BEFORE THE PANDEMIC. As we have already indicated above, a large part of the doctrine specializing in public intervention in the tourism sector had shown that, in recent years, certain phenomena were occurring that prevented us from speaking of sustainable and quality tourism, which, in principle, is the main objective of the autonomous community laws regulating the sector . 5 Thus, the overloading of certain destinations, the ofer of a tourism of excesses absolutely at odds with quality, the damage to the environment, the gentrifcation of many cities, outbreaks of "tourism phobia", etcetera. These are problems that existed before the health crisis and to which attention had already been drawn, because they represented, I repeat, a challenge in the implementation of public policies in the sector . 6 And we speak of a challenge because the public authorities do not have all the legal tools at their disposal to put a stop to these problems. Especially, following the publication and subsequent transposition into domestic law of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market and, at the national level, SOCIAS CAMACHO, J. M., (2020) ‘Espacio público en la ciudad turística’ in BARRERO 5 RODRIGUEZ, C. y SOCIAS CAMACHO, J. M, La ciudad del siglo XXI: transformaciones y retos, INAP. RODRÍGUEZ-BARCÓN, A., CALO, E. and OTERO-ENRÍQUEZ, R, (2021) “Una revisión crítica 6 sobre el análisis de la gentrifcación turística en España”. Rotur, Revista de Ocio y Turismo, 15(1), “"However, tourism has proved to be a double-edged sword. Several studies have found some negative consequences of the massive arrival of visitors. The relevance that concepts such as ove r tour i sm (Mi l ano , 2018 ; Mi l ano , Chee r and Nove l l i , 2019 ) or "tourismphobia" (Guitart, Alcalde, Pitarch and Vallvé, 2018; Mansilla, 2020) are recently acquiring point to a certain collapse of the current model and the need to seek other ways to manage mobility in a more sustainable way, with a smaller ecological footprint and less intrusive with the day-to-day life of residents (Colomb and Novy, 2016). Among its consequences we can highlight: the increase in the price of housing and commercial land, the precariousness and seasonalization of employment associated with the service sector, the homogenization of commerce and loss of identity of spaces, the municipal economic pressure to maintain certain infrastructures and services, or the privatization of public spaces”. 3

Law 20/2013 of 9 December, on guaranteeing market unity . It is becoming 7 more and more complicated to limit the economic activity of tourism because we are moving, inexorably, towards a greater liberalization of the economy. This liberalization is motivated, to a large extent, by the need to boost an economic sector such as tourism, which provides large macroeconomic fgures, especially in times of crisis such as those we have experienced in recent decades: the crisis of the fnancial system, the economic crisis resulting from the Pandemic and the crisis resulting from the war in Ukraine, whose consequences we cannot yet fully assess. The risk, as can be perceived, is related to an uncontrolled increase in the tourist ofer, with the corresponding increase in demand, leading to situations of environmental, social and economic tension. In short, that public policies, perhaps well-intentioned, tend to promote low-quality tourism that is difcult to A comprehensive analysis of the impact of these regulations on the tourism sector can be 7 found at CORRAL SASTRE, A. (2017), La liberalización del sector turístico, ¿Hacia un modelo de turismo sostenible?, Op. Cit., pp. 151 y ss. 4

sustain in the future . Let us now look at some of the main problems in more 8 detail, without wishing to be exhaustive. 2.1. - Exponential growth The liberalization to which I have referred above is intended to facilitate access to the tourism market for developers and service providers. This, in itself, is not only not bad, but is in line with the main liberalization policies of both the European Union and the State. The problem arises when, due to the absence of adequate administrative control, the supply increases exponentially, so that the demand increases in the same terms, generating stressful situations in diferent ways: environmental, social, public services, etc. This perspective of tourism growth at all costs, based on short-term economic benefts, has much in common with the tourism policies that were MANTECÓN, A., (2020), “La crisis sistémica del turismo: una perspectiva global en tiempos 8 de pandemia”, en SIMANCAS CRUZ, M., HERNÁNDEZ MARTÍN, R. y PADRÓN FUMERO, N. (Coords.), Turismo pos-COVID-19. Refexiones, retos y oportunidades, Op. Cit., págs. 24 y 25, “Over the last six decades, the Spanish tourism sector has articulated a "model" guided by the basic objective of increasing the number of visitors. All other considerations were subordinated to this principle (both during the dictatorship and during democracy), which has ended up giving it certain structural features. Among others: • Specialization in a predominantly "sun and beach" tourism product, with low added value and demanded by price-sensitive low-middle income consumers. • A highly atomized business development, characterized by the formation of family businesses with little margin to resist disturbances and with low qualifed human capital (as also pointed out by the Davos Forum). • Permission of speculative practices, carried out by real estate entrepreneurs who have often used the promotion of tourism development as an excuse to beneft the interests of the construction industry. • The projection of a stereotyped international tourist image as a center of "mass tourism". • Excessive dependence on foreign tour operators. • The sufering of problems derived from the excessive seasonality centered on the summer months. • The environmental degradation of many tourist enclaves linked to the overexploitation of scarce natural resources, the destruction of landscapes and the occupation of large amounts of land by intense urban development activity. • The progressive transformation of traditions into cultural heritage and, through their subsequent media spectacularization, into products aimed at mass tourism consumption. The interaction of all these elements has favored the appearance of tensions that are not a mere anecdotal refection of economic prosperity. Rather, they propagate an atmosphere of doubt that calls into question its future viability. The crisis caused by the coronavirus poses challenges and also raises discussions about the type of responses that deserve to be taken into account. However, the vehement commitment to certain dynamics and the reluctance to undertake profound changes both in the confguration of tourism products and in consumer habits now leads to a scenario with very consolidated inertias and limited margins for maneuver (especially in some cases). 5

implemented in our country in the ffties of the last century, that is, at the height of the so-called developmentalism . The circumstances are not the same, of 9 course. There are currently certain legal instruments that allow us to curb this excessive growth, but we must adopt a frm and not hesitant, clear stance . 10 In this sense, the Pandemic may cause the exorbitant growth we were experiencing before the virus to take two very diferent paths: i. The frst and most encouraging one, that we shake of that short-term vision that brings quick profts, but to very few, and make a proper medium-long term planning, based on essential factors such as quality and sustainability. ii. The other path I am referring to, which I believe we cannot aford, is to continue with the above, that is, to increase the number of tourists at all costs, without taking into account other public interests worthy of VELASCO GONZÁLEZ, M., (2020) “Políticas turísticas ante una pandemia”, en Turismo pos- 9 COVID-19. Refexiones, retos y oportunidades, Op. Cit., p. 132, "In the case of Spain's tourism policy, the main restrictions are the persistence of the reference to growth and competitiveness as the basic principle of public action related to tourism; the structural problems of the Spanish tourism model; the characteristics of the private tourism sector and the cross-cutting nature of the activity itself, which goes far beyond the sectorised work format of governments [...] The Spanish tourism model was built in the sixties and seventies and since then it has had some structural problems that it has not been possible to modify, despite various attempts. As early as 1973, the public actors themselves spoke of a "quadruple concentration" caused by the Spanish tourism model: concentration of supply, highly oriented towards the sun and beach product; temporal concentration, since the basic product requires a climate that occurs in the summer months, which is also when holiday periods are concentrated; spatial concentration, linked to the coastal territories; and concentration of demand, with a very high dependence on two specifc issuing markets. This concentration is not easy to change as it is linked to the country's own tourism development model”. ROMERO PADILLA, M., ROMERO MARTÍNEZ, J. Mª. y NAVARRO JURADO, E., (2020), 10 “Refexiones desde el post crecimiento: ideas, estrategias y tácticas para el turismo postCOVID-19” en Turismo post-COVID-19. El turismo después de la pandemia global. Análisis, perspectivas y vías de recuperación, op. cit., p. 4, “Tourism is an activity marked by developmentalist thinking, almost exclusively economistic, related to the evolution of the global economy and with a geographical growth/expansion unprecedented in history. International tourism reached 1 billion tourists for the frst time in 2012 and continued to grow to 1.5 billion in 2019, an increase of more than 30% in just 7 years.” 6

protection. We run the risk that the eagerness for tourist recovery will lead us back to this obsolete model . 11 And this cannot imply a negative vision of tourism. We start from the necessary assumption that tourism is positive, an essential asset for our economy. And we are a country especially prepared for these fows of people . Therefore, I 12 do not share the idea that we have to stop being a country that bases its economy on tourism, which does not imply leaving aside or advancing in other economic activities. But it would be a mistake, I insist on the idea, not to take advantage of the special geographical, climatological and social circumstances that we have in Spain. But we need to be more competitive, and this implies, as I understand it, betting on quality tourism and, inevitably, using the legal instruments at our disposal to limit certain types of tourist ofer that confict with that quality and that generates, as I have already indicated, certain social problems. 2.2. – Overcrowding and congestion: a breeding ground for "tourismphobia". The uncontrolled growth referred to in the previous section led, logically, to the overcrowding of certain destinations, especially sun and beach destinations, and to the congestion of public services, which led to social tensions in certain destinations. This is nothing new. Since the middle of the last century, the tourist "boom" of developmentalism, we have experienced moments of great tourist pressure that the respective competent public authorities have failed, or with little success, to tackle. RODRÍGUEZ-BARCÓN, A., CALO, E. y OTERO-ENRÍQUEZ, R, (2021), “Una revisión crítica 11 sobre el análisis de la gentrifcación turística en España”. Rotur, Revista de Ocio y Turismo, 15(1), Op. Cit., They refer, for their part, to the risk we run of wanting to make up for lost time: "Will we witness a structural and profound transformation of the processes of tourist gentrifcation, for the sake of greater - and indispensable - urban sustainability? Or, on the contrary, once the worst phases of the pandemic have been overcome, will we observe a sharpening of hedonism and a liquid desire for new tourist experiences and, consequently, will we witness a widening of the problems associated with this type of gentrifcation? In any case, the analytical treatment of the eight themes identifed here in the Spanish literature, in our opinion, will probably constitute the "continent" of the answers to these questions”. RIVERO CEBALLOS, J. L., HERNÁNDEZ HERNÁNDEZ, J., CORRAL QUINTANA, S. y 12 NAVARRO IBÁÑEZ, M., (2021) “Una breve refexión desde el cero turístico”, en SIMANCAS CRUZ, M., HERNÁNDEZ MARTÍN, R. y PADRÓN FUMERO, N. (Coords.), Turismo posCOVID-19. Refexiones, retos y oportunidades, Op. cit., p. 63, “Unfortunately, there is a widespread view that tourism is concentrated in regions and countries that are not capable of doing better, so that available resources can only be allocated to tourism activities. Hence some voices have been heard during the current pandemic urging the replacement of the supposedly low or non-existent value of tourism with activities that provide greater economic and social value. Moreover, the reduction of tourism in particular in the way we have known it in Spain would, according to this vision, mean less dependence on the outside world and a considerable improvement in economic and environmental sustainability. For all these reasons, it is not superfuous to call attention to the fact that we should avoid falling into such a biased (and erroneous) perspective of the very varied and diversifed tourism activities”. 7

Before the Pandemic, there were certain places where the increase in tourist demand had led the competent authorities to limit, as far as legally possible, the increase in tourists. Cities such as Barcelona, Palma de Mallorca and, in general, cities on the Mediterranean coast were beginning to be saturated with visitors who, in addition, were consuming low-quality tourism, i.e. short, cheap stays, in short, what Decree-Law 1/2020 of 17 January of the Balearic Islands has rightly come to refer to as "tourism of excess" . 13 The essential issue in the face of these problems lies, in my opinion, in the policies that many public administrations have implemented in order not to control and limit these negative efects, taking refuge in certain rights and principles such as freedom of enterprise and the need to activate the economy after the great fnancial crisis of 2009. It is true that the instruments of administrative intervention in the economy have changed since the liberalisation initiated by Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (hereinafter I will refer to it as the Services Directive), and the Spanish transposition regulations, as well as Law 20/2013, of 9 December, on guaranteeing market unity. However, this does not mean that there are no control instruments that allow the competent authorities to control the activity in order to avoid certain pernicious efects. They do exist, and should be used when necessary. The tourism legislation of the diferent Autonomous Communities no longer relies practically on the classic authorisations and prior licences, which are very efective, but perhaps somewhat outdated. However, there are other control methods, such as responsible declarations and prior communications which, although perhaps less efective, if used appropriately, can perfectly fulfl their function of controlling the quality of tourism. Notwithstanding the above, it should be pointed out that with technological advances it does not make much sense, in my opinion, to speak of prior ROMERO PADILLA, M., ROMERO MARTÍNEZ, J. Mª. y NAVARRO JURADO, E., (2020) 13 “Refexiones desde el post crecimiento: ideas, estrategias y tácticas para el turismo postCOVID-19” in Turismo post-COVID-19. El turismo después de la pandemia global. Análisis, perspectivas y vías de recuperación, BAUZÁ MARTORELL F. J., y MELGOSA ARCOS, F. J. (dir.), RONDÓN GARCÍA, L. M., TROITIÑO TORRALBA, L. y MULET FORTEZA, C. (coord..), AECIT, p. 4, “In Spain, the weight of tourism is even greater (12.3% of GDP and 12.7% of employment). This weight has a bearing on the degree of dependence that the Spanish economic structure has on the tourism-real estate dynamic, which has been reinforced in recent years as it has been stimulated as a way out of the 2008 fnancial crisis. Destinations have grown by promoting the construction and development of more accommodation, facilities and infrastructure. The result is a model of mass tourism, which Spain already had, but now with a low-cost format, precarious employment, a boom in the supply of low-cost accommodation (tourist accommodation, hostels, etc.), etc. This model has generated for the frst time in Spain two critical positions in the local population with respect to tourism: rejection of tourism (tourism-phobia and urbanophilia, in Barcelona or Palma de Mallorca) or social movements against the overcrowding and touristifcation of public spaces, not rejecting tourism, but denouncing that the positive impacts are insufcient compared to the negative ones (for example, in Malaga, Madrid, Valencia) (Navarro-Jurado et. al. 2019). 8

controls or subsequent controls insofar as, as seems logical, these advances should make us reconsider the means of intervention of public administrations in citizens' rights. As I said, institutions such as administrative silence, maximum periods for resolving and notifying procedures, etc., sound like Larra's "Come back tomorrow". The instruments of administrative policing cannot be based on mechanisms more typical of the 19th century than of today. Hence, as I understand it, the administrative procedure should be completely reconfgured and adapted to the current digital reality, without prejudice to other rights that should be respected, such as data protection, in the broadest sense, or the rights of those citizens who wish to stay out of the digital world. 2.3. Gentrifcation and "touristifcation" of cities The excess of tourist supply in cities produces phenomena such as gentrifcation or the "touristifcation" of large urban centres. Gentrifcation is understood as the arrival of new residents with greater purchasing power in certain neighbourhoods, which raises the standard of living and prices, thus expelling the old residents who cannot cope with the new economic situation. By "touristifcation", we can understand the loss of identity of certain cities as a consequence of an excessive focus on tourists, sometimes leaving aside the needs of the residents themselves . 14 These situations often generate unease among residents, who see tourists as a privileged group with better rights than the citizens themselves. It is perceived that public administrations are more concerned with increasing the number of tourists, the benefts of which ultimately fall on very few, without any substantial improvement in public services. The crisis, as MILANO (2018) rightly points out , is deeper than it may seem at frst sight, and does not 15 involve implementing the classic policies (which the author himself describes RODRÍGUEZ-BARCÓN, A., CALO, E. Y OTERO-ENRÍQUEZ, R., (2021) “Una revisión crítica 14 sobre el análisis de la gentrifcación turística en España”, Revista de Ocio y Turismo, Vol. 15(1) p. 4, “In order to conceptually integrate the complex processes derived from touristifcation and gentrifcation on urban space, yet aware of the need to revisit the debate around these concepts, in this paper we speak in terms of "tourist gentrifcation". This concept defnes a particular model within the complex theory of contemporary gentrifcation, which highlights "the role that public policy plays in promoting both gentrifcation and tourist development, and the actions of large leisure companies (...) in remodelling (places) into spaces of entertainment and consumption". However, although the processes of gentrifcation and touristifcation often act concomitantly and, in spatial terms, converge on the central and coastal sectors of cities, we should not lose sight of the existence of certain diferential nuances. In the case of gentrifcation, for example, the traditional population is replaced by socio-economic sectors with greater purchasing power, while touristifcation tends towards the partial disappearance of certain sectors of the local population. Naturally, the two phases may overlap at some point, as touristifcation may hit the most vulnerable social sectors frst, reinforcing the processes of spatial displacement”. MILANO, C., (2018) “Overtourism, malestar social y turismofobia. Un debate controvertido”, 15 Revista de Turismo y Patrimonio Cultural, Vol. 16, 3., p. 556 9

as The Myth of the 5Ds: De-seasonalisation, Decongestion, Decentralisation, Diversifcation, "Deluxe Tourism"), but rather "proposing structural changes to the economic model in which the tourism phenomenon is currently inscribed". However, I cannot agree with this author as far as the promotion of tourism quality . is concerned. The concept of tourist quality that is humbly proposed 16 has to do with global quality, that is to say, not thinking about luxury for the tourist and forgetting about the resident. The issue is more complex, in my opinion. It is a question of achieving adequate quotas of tourist quality in a context of environmental and social sustainability. From the social point of view, sustainability is about creating an enabling environment not only for tourists, but also for residents. Investing in adequate infrastructure and public services that beneft all citizens, regardless of whether they are tourists or not. This achieves two objectives: frst, that the resident is comfortable with the tourism industry and sees the tourist as a consumer or citizen. Secondly, that the visitor's tourist experience is highly satisfactory and that he or she does not perceive discomfort in those who receive him or her. In this sense, Title II of Law 15/2018, of 7 June, on tourism, leisure and hospitality of the Valencian Community, which emphasises the principle of hospitality and balance between tourists and local residents, is particularly interesting. This basic principle of tourism policies is essential to achieve social sustainability, avoiding problems that can lead to a feeling of unease from the resident towards the visitor. 3. – CAN WE BUILD A NEW TOURISM MODEL FROM AN EXCEPTIONAL TOURISM "ZERO": AN ANALYSIS FROM AN IUSADMINISTRATIVIST PERSPECTIVE? 3.1. – The health crisis: zero tourism In March 2020 we witnessed, perplexed, the declaration of a State of Alarm by the Spanish Government as a consequence of a pandemic declared by the Ibidem, p. 558, “Finally, another strategy for the reconversion of the tourism ofer has been 16 directed at pricing policies to align demand with what is being called Deluxe Tourism. In other words, increasing the cost of visiting a destination, site or tourist attraction in an attempt to elitise the tourists who visit it. This measure could also be justifed by the illusory objective of decongesting specifc areas. This type of tourism reconversion is very often related to diversifcation policies that, in addition to renewing its attractions, are aimed at reconverting its target public. Inevitably, such measures and the economic consequences of elitisation call into question the very nature of the tourism phenomenon. They also have classist overtones that do not seem to be able to beneft and provide a direct response to issues such as rising housing prices, the transformation of the commercial fabric or the privatisation of public space, among others. However, there is evidence that so-called quality tourism presents a greater socioeconomic distance from residents that could lead to price infation and a rise in the price of local goods and products. Finally, to a large extent, these tourist fows (e.g. cruise passengers or trips organised by tour operators) are guided and managed around specifc tourist bubbles, with the result that the redistribution of benefts would be much reduced. 10

World Health Organisation .. It was not the frst time. The previous State of 17 Alarm was decreed precisely to avoid a tourist crisis resulting from the strike called by the air trafc controllers' union in December 2010 . 18 But the 2020 State of Alarm was for a completely diferent reason. A highly contagious respiratory virus forced all countries to take unprecedented decisions: closing their borders. The only way to stop the spread of the disease was to prevent people from moving. The movement of all citizens was therefore restricted, except for essential reasons. Logically, this drastically afected the tourism industry , as it is not considered an essential activity, 19 despite its economic importance. All tourism activities, leisure, hotels, accommodation, congresses, etc., came to a complete standstill. In fact, one of the main causes of the rapid spread of the virus was the hypermobility in the globalised world in which we live. Hypermobility originated, to a large extent, by tourism itself, so that its closure was inevitable. This is what has been called the "tourist zero", i.e. the total and absolute paralysis of all tourist activity, which has shown, among other things, the fragility of the sector after the fnancial crisis of 2008 despite the good numbers As a general refection, it is true that on the occasion of this pandemic we should, in my 17 opinion, refect on the increasingly important international challenges for the law. Perhaps it would be a good idea to give greater powers to international organisations or institutions such as the World Health Organisation or the World Tourism Organisation. On the impact of the air trafc controllers' strike on tourism consumers see, RACIONERO 18 VALENCIA, S., “El derecho de huelga de los controladores aéreos frente al derecho de los consumidores turísticos” in I Jornadas Doctorales de Castilla-La Mancha el doctorado: impacto social y futuro profesional, coordinated by COLLADO YURRITA, M. A., (coord.), (2011) y HERNÁNDEZ ADROVER J. J., (coord.), Universidad de Castilla- La Mancha, As pointed out by YANG, Y., ZHANG, H. y CHENC, X., (2020) in "Coronavirus pandemic and 19 tourism: dynamic stochastic general equilibrium modeling of infectiours desease outbreak". Ann Tour Res; 83:102913.doi:10.1016/j.annals.2020.102913, “Infectious disease outbreaks, including coronavirus, greatly jeopardize the tourism industry given its reliance on human mobility”. 11

of the last 10 years and the frm commitment to growth at all costs, without taking into account other legal assets that should be protected . 20 3.2. – Tourism as the main industry afected: The change in the tourism model As can be easily understood, tourism is one of the economic sectors most afected by this health emergency . The tourism industry is essentially based 21 on the mobility of the recipients of services, something which, as we have already seen, has been restricted since March 2020 with varying degrees of intensity. From the total limitation of the frst months of the quarantine, with a ban on leaving home except for activities considered essential, to more or less severe restrictions depending on the number of contagions, the situation of intensive care units in hospitals or the degree of immunisation of the population achieved through vaccines or the contagions themselves. The point is that tourism, which is based, as I say, at least for the moment, on experiences outside the place of habitual residence , has been radically 22 afected by the situation, drastically reducing its activity to the point of what we As pointed out by ROMERO PADILLA, M., ROMERO MARTÍNEZ, J. Mª. y NAVARRO 20 JURADO, E., (2020) “Refexiones desde el post crecimiento: ideas, estrategias y tácticas para el turismo post-COVID-19”, p. 3, "The fnancial crisis of 2008 was resolved with labour precariousness, concentration of companies and cheaper holidays (aeroplanes, housing and low cost activities). On the whole, it was decided to reproduce the same economic system: public bailouts for private banks, without demanding too many controls, lack of protection for families and small businesses, concentration of companies and more growth as the only guide along the way. These general elements have a signifcant impact on tourism [...] The aim of this paper is to refect on how to approach the transformation of the tourism operating system in the current health crisis from a post-growth perspective, avoiding reproducing and extending the problems of the previous situation. It would be neither prudent nor proftable to recover a fragile and weakened tourism sector after the crisis. It must emerge stronger, and for this, short-term palliative economic actions are not enough, outside a broader structure with medium- and long-term strategies and objectives that address the climate emergency". PÉREZ GUERRA, R., (2020), “Algunas notas sobre el derecho administrativo del turismo: 21 COVID-19”, Revista General de Derecho Administrativo, Iustel, 54, “Tourism, as an economic activity and one of Spain's most important strategic sectors, will also be afected by this pandemic. Tourism is perhaps the economic sector in which COVID-19 has caused a major tsunami because it is an activity that is based on the movement of people from their habitual residence to other destinations for holiday and/or leisure purposes and which is subject to seasonality; in short, it is a very fragile and completely globalised sector”. In the following sections, I will focus on this idea, i.e. how information and knowledge 22 technologies can provide us with experiences similar to those obtained by tourist consumers without the need to move from our own place of residence. Through, for example, virtual reality instruments or artifcial intelligence systems. It remains to be determined, but this cannot be the subject of this paper, whether this will really be considered tourism or other types of information society services. In international conference ESHTE | INATEL on October 16th, 17th and 18th. 2022 a very interesting presentation on Metaverse and tourism was given, which I am looking forward to reading in full (Claudia Madrid Martínez, Venezuela, Central University of Venezuela) 12

have already called "zero tourism". Now is the time, from the bottom of the well, to raise our heads and look around, to analyse whether the situation prior to the pandemic, with an uncontrolled growth in supply and demand and the consequent problems generated, was the one that governments want and society demands. We need to take a medium- to long-term perspective, and not focus on the quick proft and forget about other legal assets that also require protection by the law . 23 JARA SANTAMERA, M. A., “Turismo y economía circular. El necesario alineamiento entre 23 oferta y demanda y una necesidad ambiental” (2019) In, www.researchgate.net. In any case, Covid-19 should represent a driver and accelerator of the changes that were already necessary in the sector, and where the pandemic is consolidating a more sustainable tourism demand, with the necessary adaptation of the tourism ofer to maintain and increase its competitiveness in the long term. In the same vein, on the importance of administrative intervention aimed at correcting the possible excesses of tourism, fostering the circular economy: FLORIDO C., JACOB M. y PAYERAS M., In “How to Carry out the Transition towards a More Circular Tourist Activity in the Hotel Sector. The Role of Innovation”, Administrative Sciences, 2019, 9, 47; doi:10.3390/admsci9020047, pág. 16: We can say that the transition model to a circular destination focuses on three main axis: The public administration and/or destination management organizations (DMOs), the tourism sector and the resident population. Each of them has a differentiated role in this transition, specifically: Role of the Public Administration and/or DMOs. • To design incentives to promote the implementation of CE measures in the tourism sector (i.e., Tax deductions for investment in CE measures/technologies). • To design laws and regulations that reduce the obstacles to the application of CE measures in tourism businesses. • To involve the tour operators in the design of a program of awareness and changes in tourist habits. […] Public administrations and DMOs, both locally and nationally, play a crucial role in the transition to a circular destination. Indeed, they face important planning challenges related to the protection of natural resources, water supply; the promotion of renewable energies, and the reduction of pollution, among others; and at the global level, the role of national tourism policies is decisive in facilitating the implementation of more circular practices. An example of a destination which has implemented a strategy to begin the transition towards a circular destination is the Balearic Islands where different lines of action have been implemented by the regional government and the hotel sector in order to achieve this goal in the near future, taking into account the resident population as well. In fact, they have considered the three-axis model described above, specifically: Role of Public administration and/or DMOs, with the following measures designed and implemented: • New Llei de Residus i Sòls Contaminants of the Balearic Islands (New Waste Law). • Aid programs for the implementation of environmental quality certifications: • Awarding of prizes to encourage the creation of ideas and innovative projects that can contribute to the achievement of the circular economy objectives 13

It is time, I think, to make a 180º turn, to change the model or "rethink tourism” from a sustainable, environmental, social, cultural, economic and, of 24 course, health perspective, avoiding overloading the corresponding territories so that neither the environment nor public health is afected, nor residents look askance at tourists. Of course, understanding that the tourism sector must generate economic benefts is something we cannot disregard, but perhaps it is necessary, as I have been saying, to change our perspective. But in order to achieve this objective, it is also necessary to rethink the instruments available to the public authorities, and even the role they must play in this whole process of reinvention or change of model. Because I understand, as I will try to explain in the following sections, that the public authorities, especially the public administrations competent in the matter, cannot adopt a neutral position. Their position must, I believe, be committed to this change, to the medium and long-term sustainability and quality of a sector that is essential, whether we like it or not, for the Spanish economy. In this sense, the doctrine has already expressed itself in such a way that there has even been talk of the birth of a "new Tourism Law" to generate security RIVERO CEBALLOS, J. L., HERNÁNDEZ HERNÁNDEZ, J., CORRAL QUINTANA, S. y 24 NAVARRO IBÁÑEZ, M., (2020) “Una breve refexión desde el cero turístico”, en SIMANCAS CRUZ, M., HERNÁNDEZ MARTÍN, R. y PADRÓN FUMERO, N. (Coords.), Turismo posCOVID-19. Refexiones, retos y oportunidades, Op. Cit., p. 64, “However, zero tourism can also be an excellent opportunity to "rethink tourism", that is, not to be satisfed with the things that are being done well and to consider the foreseeable dynamics of the changes that will take place in the near future. Thus, for example, the increase in health safety requirements in tourist destinations will be very noticeable in the coming years. In any case, uncertainty about tourism activity should be mitigated by considering the demonstrable infuence of economic growth on tourism”. 14

and confdence . Let us take advantage of these lines to point out something 25 that is well known to those of us who study this branch of the legal system, albeit in all humility: the volatility of the sector in the face of regulatory or economic changes. MELGOSA ARCOS, F. J., (2020) “Coronavirus y turismo. Efectos de la declaración de alarma 25 y de las distintas normas sobre medidas sanitarias y socioeconómicas en el sector turístico español” en “Turismo post-COVID-19. “El turismo después de la pandemia global. Análisis, perspectivas y vías de recuperación”, Op. Cit., p. 15, “If there is one thing all experts agree on, it is that the COVID-19 crisis will mark a turning point for tourism. Tourism businesses and destinations are obliged to generate security and consumer confdence; it is essential to establish rules and protocols that generate security. From now on, it will be necessary for all tourist establishments to display in a visible place - and in all communications with customers - all seals and certifcates certifying that they have complied with cleaning and disinfection processes. In hotels, it will be necessary to ofer guests masks and disinfectant gels in the room amenities; in cleaning, staf protection and the use of new products capable of combating viruses will be mandatory; in catering, it will be necessary to change bufet habits in favour of other alternatives with less risk, without ruling out breakfast in the room; and it will also be essential to reduce contact through the use of digitalised tools and services, for example, to carry out registration. In terms of stafng, new behavioural patterns are needed between staf/clients, between staf and each other, and between clients and other clients. It will also be necessary to review the current regulations on seating capacity in establishments, especially restaurants, in order to achieve a minimum distance between people; the Seville Veterinary Association recommends a maximum capacity of 4 people per 10 square metres. Apart from prior hand disinfection, diners will also have to avoid crossings and contacts with workers, customers and suppliers. However, we will have to wait for the action protocol mentioned in the frst conclusion, although we believe that it will be a minimum protocol that each autonomous community can implement in their tourism and health legislation, if they deem it appropriate. I believe that the most prudent thing to do is to apply the protocol drawn up by the ICTE and avoid falling into the temptation of drawing up diferent protocols and seals of guarantee that end up making the recipient "dizzy" and losing efectiveness; nor would a protocol of maximums be a good thing because of the damage that could be caused to companies in such delicate matters as capacity or the installation of certain protective elements. Portugal already has an ofcial label certifying that an establishment is "clean and safe", which can be obtained from the National Business Registers from 24 April. Establishments must follow an internal operating protocol set by the Department of Health, the certifcate is free of charge and valid for one year. It will also be necessary for public tourism managers to change many of the management models that have served until now. For example, they will have to implement disinfection measures, as well as measures on access and stay on beaches, in museums and monuments; and in general, in all public shows and recreational activities. There is considerable unanimity on the urgency of security measures. Spain has proposed to the G20 to work jointly at a global level on homogeneous measures to create safe destinations. CEHAT calls for a European agency to validate the post-COVID-19 protocols. At EU level, the so-called "health passport" is one of the alternatives being considered to open up air trafc. All in all, all parties involved in tourist destinations will have to be prepared to ofer safe travel to tourists; smoothly and with some fexibility in booking. Travel agencies have an opportunity because of the guarantee that their legal framework provides for consumers. We can afrm that a new stage in tourism law is being born. 15

3.3. – The role to be played by public administrations in changing the tourism business model. This is the current panorama of tourism in our country. A sector immersed in a serious structural crisis, with a model, I believe, anchored in the last century, which means that little or no progress can be made without the decisive impetus of the public authorities. In this sense, the role that public administrations are called upon to judge is crucial , through the diferent instruments of administrative intervention 26 available to them. In this respect, although it is true that the liberalisation carried out in recent years has left the administrations with fewer resources to intervene in the sector, it is no less true that there are currently adequate mechanisms that allow them to carry out this task more or less efectively. And apart from the existence of mechanisms to control the tourist ofer, it is true that, on many occasions, it has been the administrations themselves that have encouraged unsustainable tourism through the implementation of public policies aimed at the "touristifcation" of urban areas. Consequently, it is the public administrations that should, as I understand it, lead the change, frmly spearheading progress towards a sustainable tourism model from all perspectives. May the crisis generated by COVID-19 be, this time, the long-awaited turning point. Of course, public promotion measures, which have been developed in recent years since the beginning of the health crisis, frst, and then the economic crisis (or simultaneously), are not ruled out. There has been a great deal of aid, both from the State and from the autonomous communities, municipalities, provincial councils and the European Union itself. From the European Union, it is worth highlighting the Thomas Cook line of fnancing for companies established in Spain in certain economic sectors, especially tourism. Thus, at the Extraordinary European Council of 10 March 2020, four priorities were identifed: limiting the spread of the virus, supplying medical equipment, promoting research and addressing the socio-economic consequences. The Spanish government addressed this fourth priority in Royal Decree-Law 7/2020 of 12 March 2020, which adopts urgent measures to respond to the economic impact of COVID-19 (BOE 13 March 2020) and devotes chapter III to the articulation of a series of measures to support the tourism sector. On the occasion of World Tourism Day 2021, a specialised media outlet such as Hosteltur 26 recreated an imaginary scene between a teacher and his student following the Socratic method to explain the relationship between tourism and circular economy devised by Professor Alfonso VARGAS-SÁNCHEZ (2021) and reproduced below (the names devised are Amanda -student- and Pedro -professor-): [...] The road to sustainability has to be travelled jointly, with the involvement of all parties with a role to play, who have to be aligned and add up, with special reference to public administrations due to their importance in this and other facets. 16

But the question that arises next is whether this line of aid, whether this public promotion of the tourism sector tends to consolidate a model that has already been exhausted. In other words, is it efcient to spend public money on promoting a model that needs to be changed? There is no doubt, it is necessary to clarify that I defend the granting of indirect public aid such as, for example, reductions in social security contributions for workers and the selfemployed or the suspension of the payment of ofcial loans. But if the aim is to promote a change of model, it does not seem logical to spend resources on lines of aid that promote the consolidation of the previous model, i.e. the one we are trying to change. I believe that this aid should be used for purposes more in line with the model of sustainable tourism that is being advocated here. In such a way that the companies receiving the funds would undertake to meet a series of objectives previously designed by the public administrations responsible for tourism and to develop them in the medium term. These objectives are obviously related to the sustainability of the sector. But apart from this public aid, as I understand it, the real action must come from police activity. With the corresponding prior legal authorisation, to allow the competent public administrations to control the tourist ofer that could be considered contrary to the spirit of what is understood as sustainable tourism in the terms established above. Therefore, to enable the necessary measures and instruments to achieve the desired objectives, and this inevitably involves limiting certain forms of supply, especially those which, I repeat, go against sustainability. I am not just referring here to so-called "overtourism", which is yet another example of unsustainable tourism, but to all forms of tourism which, from whatever perspective - environmental, economic, social or health-related - upset the previous balance of the tourist destination in question. Let us now look at the various measures proposed. 3.4. – Legal-administrative instruments for the implementation of the change of the tourism model Logically, a commitment to sustainable tourism is required from all public authorities. In accordance with the principle of legality, no administrative control measure can be authorised that is not covered by a regulation with the status of law. The judiciary, insofar as they perform jurisdictional functions, must also pay attention to the principles that may or may not be included in the regulations (we often forget that judges and magistrates, in the performance of their duties, must take into account the general principles of law, of which sustainability is a part ). 27 PIÑAR MAÑAS, J. L. (2002) (Dir.), UTRERA CARO, S. F. (Coord.), Desarrollo sostenible y 27 protección del medio ambiente, Thomson. 17