Collaborative platforms in accommodation by Pilar Saura Collaborative platforms in accommodation. Administrations' monitoring activity in the digital sphere Pilar Juana Garcia Saura University of Murcia International Journal of Tourism, Travel and Hospitality Law PRE-PRINT

COLLABORATIVE PLATFORMS IN ACCOMMODATION. ADMINISTRATIONS' MONITORING ACTIVITY IN THE DIGITAL SPHERE Pilar Juana García Saura11, , Universidad de Murcia. SUMMARY This communication aims to deepen the practical exercise of control activity in the new digital environment characterized by the existence of collaborative platforms in accommodation. To this end, we will first refer to the Smart City, Smart Tourist Destinations, and Big Data as an ecosystem in which the intervention or control activity of the Administration is developed. For its analysis, we will delve into the important and different role (with its underlying responsibilities) that both digital platforms and the Administration itself are being called upon to play in this environment. In the digital environment in which the activity we are studying takes place, the analysis of platformadministration collaboration is fundamental. Thus, we will refer to initiatives by some of the hosting platforms to promote compliance with regulations (first level of collaboration). We will also analyze what we have called the second level of collaboration, which is nothing more than communication with transcendence - upon request by the Administration. Starting from the platforms' great reluctance to communicate any kind of data to the Administration, we will see what data may be requested from them and what liability they incur if they do not comply with such requests. We will analyze the role that the Administration must play in this new context and the different information channels it has. We will delve into the responsibility of the platforms if the administration has detected non-compliance - what responsibility can the platforms be held liable for? Keywords: collaborative hosting platforms, public administrations, control activity. 1 Pilar Juana García Saura, Profesora Titular de Derecho Administrativo, Universidad de Murcia,

ABSTRACT This communication aims to deepen the practical exercise of control activity in the new digital environment characterized by the existence of collaborative platforms in accommodation. We will first refer to the Smart City, Smart Tourism Destinations, and Big Data as an ecosystem where the intervention or control activity of the Administration takes place. For its analysis, we will delve into the important and different role (with its underlying responsibilities) that both digital platforms and the Administration itself are being called upon to play in this environment. In the digital environment in which the activity we are studying takes place, the analysis of platform-administration collaboration is fundamental. Thus, we will refer to initiatives by some of the hosting platforms to promote compliance with regulations (first level of collaboration). We will also analyze what we have called the second level of collaboration, which is nothing more than communication with transcendence - upon request by the Administration. Starting from the platforms' great reluctance to communicate any kind of data to the Administration, we will see what data may be requested from them and what liability they incur if they do not comply with such requests. We will analyze the role that the Administration must play in this new context and the different information channels it has. We will delve into the responsibility of the platforms if the administration has detected non-compliance - what responsibility can the platforms be held liable for? Keywords: Collaborative hosting platforms, public administrations, inspection activity. 1. Introduction. Smart City, Smart Tourism Destinations and Big data: the new environment/ecosystem in which the exercise of inspection activity takes place. Our reality is not the same as it was a few decades ago. In the field of tourism, the birth of new ways of marketing and contracting services has changed exponentially. As MELGOSA ARCOS points out, the emergence of platforms such as Airbnb, Homeaway,

and Windu has led to a massive increase in the supply of accommodation, contributing to the creation of sustainability problems in some destinations and the increase in price and reduction of the supply of urban rentals2. As a consequence of the above, the environment in which the Administration has to carry out its control tasks has changed a great deal in recent years. We refer to the so-called smart city, which is nothing more than the application of technical means to the management of local public services to achieve greater efficiency in the use of means, spaces, and infrastructures of municipal ownership3, all based on the analysis of macrodata provided through big data techniques. In the tourism sector, this data revolution is particularly intense and important and, as MARTÍNEZ GUTIERREZ points out, "in the case of tourist cities, the search for, implementation, development, and management through Smart models is an imperative and essential need"4. Thus, the digitization of management processes and public services is a cardinal point. As stated in the Commission Communication entitled Digital Compass 2030: Europe's approach for the Digital Decade5, digital transformation must enable more effective public action, including police and investigative capacities. This highlights the important role that public administrations are called upon to play in limiting or monitoring activity. In this environment, the use of new technologies by public administrations in the exercise of tourism inspection is becoming increasingly frequent. Certain European cities (Barcelona and Berlin) are pioneering online tracking to optimize the management of tourist accommodation in the destination using big data and analytics technologies. In this way, in collaboration with companies specializing in web scraping technology, VUT digital platforms are being monitored to detect the supply of tourist accommodation marketed in the destination. In this way, the Administration collects the information on the websites of the collaborative platforms, including such investigations in its inspection plans, thus bringing to light opaque or submerged activities. Web scraping systems or 2 Melgosa Arcos, 2021, p.417. 3 Bauza Martorell, 2017, p. 33. 4 Martinez Gutiérrez, R., 2018, p. 30. 5 Communication from the Commission to the European Parliament, the Council, the European Economic, and Social Committee, and the Committee of the Regions (2021). Digital Compass 2030: Europe's approach to the Digital Decade, Brussels, 9.3.2021 COM 118 final.

software automatically perform real-time queries through the platforms' APIs. This extracted and compiled information is integrated into a single directory to subsequently compare the results obtained at a specific moment with the historical data stored in a database. Finally, the information is updated for analysis and obtaining results. The use of these techniques is a very innovative alternative for measuring the phenomenon of TUVs and, above all, it is very useful for exercising public control over the private activity. So much so that the experience of Barcelona and Berlin is shared as a good practice to be imitated by the tourist destinations of the Smart Destinations Network6. The fact that the Administration develops its inspection powers using these new ICT tools based on web scraping certainly means that the Administration obtains relevant information for making decisions about the sector in smart tourism districts, thus being able to make better decisions taking into account the true extent of the phenomenon of the TUVs in that specific area or smart district (trying to avoid all the social and environmental problems that TUVs generate). Thus, if the Administration has accurate information on the number of existing accommodations in each sector (smart district), it can make appropriate decisions on urban design with a much broader and more detailed vision. 2. The importance of public-private partnerships In this ecosystem where inspection activities have to be developed, it is essential, within local public management, to strengthen public-private partnerships. We must put into practice the promotion of new interactions between the different subjects that operate in the market. Let us not forget that, in the field of tourism, and more specifically, in the field of tourist accommodation, new subjects have appeared on the market: collaborative platforms. Well, each of them must be clear about their responsibilities. 6 SEGITTUR and RED de Destinos Turísticos Inteligentes (2021). Guide to good practices in digitization for Smart Tourist Destinations: 50 good digital practices for a new generation of destinations, Available at: , date of last access: 3 December 2021.

Tourism administrations (and specifically their inspection services) are being overwhelmed by the great proliferation of tourist accommodations. So much so that the constant disputes between the political groups over whether or not there are enough inspectors dedicated to controlling this activity or whether they have sufficient resources to do so have been a regular feature of parliamentary activity7. Also, the confederations of entrepreneurs in the tourism sector have been making proposals in this respect. If the activity is not declared, that the owner of the activity has not submitted the responsible declaration or prior communication required for the start of the activity, the Administration faces a series of problems to guarantee the application of the regulations. One of them is the collaboration of the platform (which does not always occur). 3. The role of the various parties involved in the control activity. Responsibilities 3.1. What should be the role of collaborative digital platforms? The problems in the application of tourism legislation on TUVs, which are giving rise to many conflicts, lead us to consider what the role of the platform should be. The power to inspect, which normally affects the inspected party, understood as the party whose compliance with the law is to be ascertained, sometimes falls to a third party who must provide what is necessary to investigate the behavior of the other party. This is the case with the collaborative platforms that must support these inspection activities. The fact is that the Administration must be able to access the information and this is in the hands of the platform which, due to its role as an intermediary, works with the platform, putting people who offer their homes as tourist accommodation in contact with people who stay in them. 7 Date of last access: 4 March 2019.

In dynamic and changing contexts such as the one under study, information obligations are a growing phenomenon. The purpose of such obligations is not only for the administration to exercise control over those obliged to provide information, but also to dissuade and prevent evasive conduct. This preventive nuance increases exponentially when the person providing information has to do so, not only with his data but also with that of others. The phenomenon of the collaborative economy poses new challenges and questions, as there is certain deregulation and informality of the relationships that have been causing misgivings both in the Administrations and in the regulated tourist accommodation sector. Thus, we must now delve into the fact that this situation has caused mistrust - in addition, of course, to the serious social and environmental impacts on our cities - which has led the Administration, firstly, to establish collaboration agreements with the different platforms and, secondly, to establish information obligations for the most important players in this phenomenon: the collaborative platforms. Thus, the intermediary, the collaborative platform, becomes the central figure both in terms of the negotiating power it possesses and the wealth of information it manages. All this leads us to question not only the role or position of digital platforms but also the determination of their responsibilities in terms of fraud prevention. The pressure from local councils is mainly due to the need to plan tourism activity in the long term, as they need to know exactly how many dwellings of this type are on the market to set limits on their expansion and length of stay. For this reason, there are Autonomous Communities that set maximum rental periods per dwelling, as part of packages of measures that include the prohibition of opening new businesses for tourism in certain neighborhoods -generally those in the center. The problem is not tourism but the volume of visitors. Possession of this information is vital to monitor - and ensure - that sustainability thresholds set by regional and local regulations are not exceeded. To achieve this, the first step was that the platforms could not have anonymous hosts, and

this was achieved by requiring the registration of the dwellings in the corresponding Register. Once this obligation has been imposed, the different competent administrations can decide based on the grounds what the maximums are: 30 days as in Amsterdam or 120 days as in Paris. This obligation has an immediate effect: the achievement of more real knowledge of this type of occupation to be able to control overcrowding with real data8.The platforms Airbnb and HomeAway (now Vrbo) account for most of the accommodation offers in holiday homes. We refer to the accommodation service providers as "hosts", as this is a very widespread qualification in collaborative platforms. As we will see, and as we have already seen, some Autonomous Communities in Spain are already taking a proactive stance in the face of the large number of problems generated by this type of accommodation9 A) Initiatives by collaborative accommodation platforms to promote voluntary compliance with regulations a) A bit of history. Evolution of voluntary collaboration As is well known, this digital society, in which collaborative platforms play a major role, was born relatively recently. The current collaboration between the platforms and the tourism administration is the result of evolution and, to a large extent, has been brought about by court rulings. Collaboration with the Administration began with the great pressures that, after the emergence of the first regulations of this phenomenon in our country, around 2015, began to emerge in three areas: the regional or local administrations that saw that this phenomenon was getting out of hand with the consequent environmental and social problems that it was beginning to cause; the confederations and associations that brought together local businessmen and women against a new type of collaborative accommodation that competed in the market, in most 8 According to the third Vacation Rental Barometer by HomeAway and the University of Salamanca, there were up to eight million holiday home stays between April 2014 and April 2016. 9 Especially the Catalan and Valencian Autonomous Communities.

cases, outside the law; and, last but not least, the indiscriminate complaint of the local population caused, fundamentally, by the exit from the real estate market of houses for rent to the tourist market and the consequent rise in prices on the rental market which stimulated a decrease in supply. b) From the Handbook for being a responsible host to the City Portal At this early stage, the platforms are certainly cornered and begin to implement some measures aimed at encouraging providers of accommodation services in VUTs to present the appropriate prior notification or responsible declaration of commencement of activity and to register in the appropriate tourism register. Thus, the platforms are beginning to include, among the information they provide to future hosts, data on the specific obligations, as a result of the specific regulations - tourism and also tax - that they must comply with to carry out the activity of providing accommodation. One example is the Airbnb platform, which has adopted some measures, albeit limited, for this purpose. There are some references in this regard in the link "Being a responsible host", which includes some questions on compliance with various regulations, albeit in very generic terms. Information on local regulations is provided on the platform, but in any case, it is not precise information10. Also, the Vrbo platform (formerly HomeAway) offers information on the applicable regulations per Autonomous Community, in a more detailed way, but excludes itself from any responsibility11 10 "This article is not exhaustive and cannot be considered legal or tax advice, so we recommend that you do your research on these issues. Also, as we do not update this content in real-time, you will need to check all sources and make sure the information has not changed recently" , last access date: 6 February 2022. 11 "HomeAway UK Ltd is not responsible for the truthfulness, accuracy, adequacy, suitability, completeness, and timeliness of the information provided through this website nor for the interpretation of the same by the Administration or judicial bodies. The contents of this page are general and are merely informative to facilitate compliance with the regulations applicable to holiday tourism activity by its users, without in any way constituting the provision of a legal advice service of any kind, so that this information is insufficient for the user to make personal or business decisions. Consequently, it is recommended that users of this website contact the competent bodies and/or the corresponding professionals to resolve any doubts and questions they may have about the holiday tourism activity before its commencement. HomeAway UK Ltd. accepts no liability whatsoever for any decisions made based on the information provided on the website or for any damages caused to the user or third parties as a result of actions based on information obtained from this website". , last access date: 6 February 2022.

It would be desirable for hosts to declare that they agree with and comply with the rules laid down (by the rules regulating holiday home accommodation) before posting their offers on the relevant platforms. This is the case in Amsterdam, where Airbnb provides them with a link on its website to make such a declaration (together with information on holiday rental regulations). Airbnb also agreed with the city of Amsterdam to send an email to hosts in that city to remind them of the current regulations12. Likewise, the Vrbo platform, once the information on the property for which the advert is to be included has been indexed, proposes to the future host a series of links that lead directly to the official websites where different procedures can be carried out before the administration itself, making it abundantly clear, however, that the existence of these links does not, in any case, imply that the platform has signed any collaboration agreement with the owners of these sites. A further step in achieving a good understanding between these collaborative platforms and Administrations is the creation, at the end of 2020 by Airbnb, of the so-called City Portal, which is nothing more than a tool to assist City Councils to enhance transparency by collaborating with them by offering them diverse information that can help improve their management. This tool can help to develop short-term rental policies and also to better enforce VUT regulations. The City Portal works much like a "backdoor pass" to the Airbnb platform that the inspecting administration can use to query listings and directly access listings and other relevant data. This is access to locally aggregated metrics with detailed information on platform bookings by area or district, average group size, the average price per night, cities of origin of the bookings, etc... This new resource, which is currently being piloted in 15 destinations13, is a clear example of these synergies aimed at promoting open data, in short, actionable information in real-time for the good management of destinations. In short, this technology directly connects the Airbnb 12 The document "Levelling the playing field. Document on the so-called collaborative or shared economy", edited by the Spanish Confederation of Hotels and Tourist Accommodation (CEHAT) and HOTREC Hospitality Europe, p.18. 13 , last access date: 4 March 2022.

platform with the corresponding public administration, providing the latter with data on the short-term rental market in their municipality and the income from tourism taxes remitted in places where tax agreements have been established. B) Communication with significance. Considerations on the possibility that the Public Administration may demand/require the platform to provide the data. a) Initial situation: reluctance on the part of the platforms The second level of collaboration is proving to be key for some Administrations: the transmission of relevant information upon request by the Administration. However, the exact information on who "shares" or "rents" each type of accommodation has proven to be difficult to obtain from the platforms. Access to data by Public Administrations can be ad hoc and is characterized as information by collection, as we will see below, or an exchange of information upon request. In this sense, it is common for platforms to refuse to provide information on hosts, despite a request from a public body, because providing it would go against the right to privacy of those who use the platform, as protected by European e-commerce regulations. The platforms' reluctance to provide data may also be due, logically, to the fact that this requirement may affect their business model since the most valuable asset for them is not revealing the identity of the owners, otherwise, the interested party could contact them directly and avoid paying the management fees (a percentage of the agreed rent). This requirement to provide data can also reveal one of the most uncomfortable aspects of these platforms: recognizing that 20% of the owners are not people who offer a

room/home to obtain extra income, but rather real estate networks with more than ten properties14. Faced with this situation of constant refusals to requests for information from Public Administrations, local councils with a significant supply of tourist accommodation issued a Declaration whose aim was to ask the European Commission to draw up new rules to control tourist rental platforms, obliging them to disclose the identity of the owners offering the properties and to share their data15 (which are legally obliged to share data with the Administrations). This declaration was adopted at the Conference on "European Tourism Rentals" held in Amsterdam in January 2018. About the situation that was occurring in parallel in certain destinations in our country, we can note that, in Barcelona, its City Council and the Airbnb platform reached an agreement whereby, since June 2018, hosts of new listings that share their VUT through the platform must give their consent so that some data, including name, address or ID, can be shared with local and regional authorities. It was a simple way to achieve verification that the accommodation complies with its legal obligations. Similar agreements exist in other cities such as New York or San Francisco. But the problem is far from being solved. While it is true that, as we have seen, the platforms usually require service providers to declare their income, the administrations of each country cannot have truly effective control if they only depend on their goodwill. This is why, in the following, we will analyze the possibility of the administration successfully demanding certain information from collaborative platforms. 14, last access date: 24 November 2021. 15 Madrid, Barcelona, Brussels, Paris, Krakow, Vienna, Reykjavik, and Amsterdam (London and Berlin did not attend but were invited to join the declaration.

b) Can the administration request/require data from the platform from a third party? What data can it request from the third party? To answer this question, we look at taxation in Spain, where a specific obligation to provide information on "collaborative platforms" that intermediate in the transfer of the use of dwellings for tourist purposes was established to prevent tax fraud16. This obligation was challenged and annulled by the Supreme Court in 2020 but, by Royal Decree 366/2021, a new obligation is set up that maintains the previous state of affairs without apparent alteration. Thus, the Royal Decree 1070/2017 amending the General Regulation on tax management and inspection actions and procedures17, introduced this obligation of periodic declaration of an informative nature of the transfers of use in which they intermediate holding that, "are considered intermediaries, persons or entities that, constituted as collaborative platforms, intermediate in the transfer of use and are considered to be providers of information society and e-commerce services, regardless of whether or not they provide the underlying service that is the object of intermediation or impose conditions on the transferors or transferees such as price, insurance, terms or other contractual conditions". The informative declaration must contain identification of the owner of the property transferred, identification of the property, identification of the assignee persons or entities as well as the number of days of enjoyment of the property and the amount received by the assigning owner for the use of the property for tourism purposes. The party intermediaries in such real estate transactions are subject to an obligation to provide information on external data. We must draw attention to the fact that this information obligation includes, in turn, two obligations. Firstly, an obligation to provide information on external data derived from its intermediation relationship, on data that the 16 Previously, the Tax Agency had introduced as a novelty in the 2015 Income Tax Campaign a warning to taxpayers about property rental advertisements in different advertising media, including the Internet, reminding them that, if income was received in this respect, it should be declared. 17 Of 29 December, BOE 30 December 2017, núm.317, art. 54 ter.

obligor already possesses as a consequence of its economic relationship with the transferor and the transferee. But, secondly, an obligation is imposed on the platform that consists of obtaining new data not derived from its business relationships, such as the determination of the assignor's right concerning the assigned property, the specification, and qualification of the ownership of the assigned property, and the identification of the property far beyond the mere spatial location of the object of the intermediation contract - by requesting the cadastral reference number. The Supreme Court, in its judgment of 23 July 2020, annuls such an information obligation, not for a substantive but merely procedural reason: for failure to notify the Commission of the intention to adopt such an obligation which is considered a "technical regulation" following Directive 2015/1535, laying down a procedure for the provision of information in the field of technical regulations and rules on information society services18. However, the obligation is reintroduced in Royal Decree 366/2021, of 25 May, which develops the procedure for filing and payment of self-assessments of the tax on financial transactions and modifies other tax regulations. This regulation, after justifying its existence due to the annulment of the previous provider with the Supreme Court ruling, transcribes the previous provision verbatim. Despite this new reintroduction, doubts remained as to whether platforms can be required to provide information that goes beyond what they have or may have in the normal course of their business, as the Supreme Court did not enter into the merits of the case. These uncertainties are resolved by the new Council Directive 2021/514 amending Directive 2011/16/EU on administrative cooperation in the field of taxation19. This Directive creates an information obligation for digital platforms that intermediate in real estate 18 EU Directive 2015/1535 of 9 September 2015, LCEur 2015, 1360. 19 EU Directive 2021/514 of 22 March 2011, LCEur 2011, 346.

leasing transactions by introducing, under the term "due diligence", inquiry and collection tasks. This legitimizes the national obligation imposed and confirms the existence of preventive information obligations that entail the need to obtain data. The establishment of due diligence implies the recognition of a position of collaboration that involves extending the traditional duty to inform of data held by third parties to a more extensive duty that entails obtaining the data. We are referring to data that the platform does not need to possess to carry out its intermediation activity, such as, in the case of a natural person, the date of birth, or the cadastral registration number. The transposition of this Directive should therefore include the regulation of the information obligation that platform operators obliged to communicate information to the Spanish tax administration must comply with; the scope of this obligation in terms of the due diligence of the platforms; and the establishment of the corresponding sanctioning regime that may derive from these obligations. Finally, in the field of taxation, the collection of information is thus entrusted to digital platforms due to the business position they occupy. We also wonder whether or not this legal regime applicable to the tax sphere can be applied analogically to other inspections, such as the one we are dealing with here, the tourism inspection. Because of this tax obligation, we will have to wait and see how the market reacts and, in particular, the possible modifications to current IT systems so that, among others, collaborative platforms can automatically capture this information to comply with their new tax obligation20. 3.2. The role of the administration The reality of the tourism sector is moving towards the digital world and, therefore, administrative intervention can no longer be limited to inspection visits and the traditional 20 Albidaña, C., 2018, p.38.

requirement for documentation. The analysis of networks is becoming essential to ensure compliance with tourism regulations, in addition to the fact that the analysis of macro data allows massive and automated checks to be carried out for this purpose. If public administrations were to neglect their obligation to control this phenomenon, the applicable regulations would not apply to a large number of obliged parties, as there is no evidence of their intervention in the market as tourism operators. Control would only be possible following a possible complaint when the inspection mechanism is triggered. A) Information channels of the Administration a) Citizen collaboration through reporting and active monitoring One of the most relevant channels of information that the Administration has is citizen collaboration: the neighbors of the property and the tourists themselves can be of great help in denouncing or "reporting" the existence of these unlicensed flats. However, very few rules of positive law attempt to favor or stimulate the presentation of complaints about irregularities or situations of disobedience to the law. Barcelona City Council, in its fight against illegal VUTs, has set up a website where it is possible, by filling in a form, for both tourists - who have contracted an illegal tourist accommodation - and the neighbors of a property - where there is unlicensed tourist accommodation - to inform the Administration of this situation21. This website provides any interested party with a search engine that gives access to a Register where they can check whether or not a dwelling is registered - whether or not it is legal. 21 using claim phrases such as: "Just because this bed is available on the internet does not mean it is legal. It helps to detect unlicensed tourist accommodation" , last access date: 17 February 2022.

Another tool used by Public Administrations is the screening of both municipal and Autonomous Community tourist license databases, to check that everything is in order, by visiting the physical address22. For this reason, it has become normal for local councils to hire workers whose primary mission is to carry out these active surveillance tasks consisting of on-site searches in buildings detected on websites based on the addresses of the properties listed on the offers of intermediary platforms. This task facilitates the work of the inspectors, as these "viewers" alert the inspectors to the existence of irregularities, which is the first step towards the opening of proceedings and, if necessary, the subsequent sanction23. In addition, the spotter's interview tourists to obtain the address where they are staying, the channel through which they have contracted the flat, and, if possible, a copy of the contract. This information will be useful to carry out the inspection task when they detect dwellings that are operating as tourist flats without being so. They also carry out interviews with neighbors, asking them if they know of the existence of illegal tourist accommodation and, if they do, the viewers obtain their address. b) Use of scraping techniques. Practical legal issues The greater availability of data on the internet facilitates the development of new data analysis and processing tools and the application of new technologies to improve the detection of offenses. These are proactive tools that allow for the improvement of ex officio detection. Thus, the most important information channel in this digital ecosystem consists of tracking or automated searches on digital platforms. The inspection activity of the tourism administration can link data obtained on the web with its databases and confirm in a very short time whether it is aware that a private individual is marketing his or her property and therefore can or should be subject to administrative control24. In such 22 It is common for providers of TUV services to have a license, but not to have it visible to the public (as required by some regulations). 23 In Barcelona, there is a team of forty workers, visualizers, who are dedicated to this task. They work in pairs for 7 or 8 hours a day, equipped with a Smartphone with license data and maps of the city from which they can open and close files. , last accessed: 17 February 2022. 24 Bauza Martorell, 2017, p. 26.

a case, the Administration could either issue an administrative order to cease the private activity, which is being carried out without authorization (thus re-establishing the violated legality), or initiate the corresponding sanctioning procedure. B) What liability can platforms be held liable for? It has become commonplace to demand that the registration number of these dwellings in the Autonomous Tourism Register appear in all advertising and marketing actions through virtual intermediation channels, in a clear reference to the different collaborative platforms, implicitly -or not- ordering them to disseminate the offers of dwellings that do not have it. In this regard, it has been common for different regional administrations, in the application of their tourism regulations, to order these platforms to cease offering tourist accommodation that does not have a registration number in the Tourism Register. Also, in the face of such non-compliance, they have proceeded to impose significant penalties. Barcelona City Council, in the belief that platforms should take responsibility for the offers they publish, has carried out an increase in inspections in recent years, resulting in the imposition of the appropriate sanction. All the collaborative accommodation platforms - except Airbnb - reached an agreement with the City Council not to publish accommodation offers that did not have a registration number. With Airbnb, an agreement was reached - after the imposition of heavy fines - that any flats advertised that do not have a license and that have been detected by the City Council, the platform will have to expel them from the license. In this situation, are the platforms obliged to filter the ads beforehand or only to remove, upon request, those that do not comply with the regional provisions? In the opinion of the City Council, this would be an incomplete solution, as it should be the platform that is responsible for ensuring that the properties that are advertised have a license and not depend on the proactive attitude of the Administration

looking for offers without a license25. However, we should not forget that the Commission document entitled "A European Agenda for the Collaborative Economy" states that "under EU law, Member States may not impose on collaborative platforms, insofar as they provide data hosting services, a general obligation to monitor and actively search for facts or circumstances indicating illegal activities". In this sense, some of these collaborative accommodation platforms -such as HomeAway- already include a registration field to include the number of the license or registration of the tourist rental property in the Autonomous Communities where it is compulsory. However, despite including this registration field, the platforms do not check the veracity of all this data because, according to them, they do not have direct management or ownership of the properties, so they are not obliged to carry out this prior control and verification of the data contained on the platform. Those who are truly obliged to comply with these regulations are the users of the platform themselves, as they are the ones who publish the advertisements. Faced with this situation, we wonder whether it is possible to demand this liability from the platform, questioning whether it would violate the provisions of Directive 2000/31. Thus, the first question to be asked is whether or not the service provided by platforms operating within the framework of the Collaborative Economy can be included within the concept of Information Society Service Provider (ISSP). If so, the exceptions to liability provided for in the regulations would apply. For ISSPs there is a liability regime that, in principle, exempts them from liability for the external content to which they provide access, host, temporarily copy, or link, and which -in short- they manage. This exemption from liability only applies if they have not actively participated in the creation of the illegal content, or if they are aware of its illegality and act swiftly to remove it or prevent access26. At present, therefore, the digital platform - the data hosting service provider - is 25 A very interesting debate was the IX Exceltur Tourism Leadership Forum (2018) "Reshaping Tourism: how to grow sustainably and speed up the digital transformation" held in Madrid. Accessible on the website , last access date: 21 December 2021. 26 Vid. Art. 16 Ley 34/2002, de Servicios de la Sociedad de la Información, BOE 12 July 2002, núm.166.

not obliged to investigate the legality of the content it hosts. If a competent judicial or administrative body orders it to remove the content or prevent access to it, it must do so immediately; it will not be liable for the illegal content hosted on it if it does not have actual knowledge of the illegality of the activities carried out through that channel. Actual knowledge of its unlawfulness can be obtained by any of the three means highlighted in the Law: Knowledge of a resolution issued by a competent body declaring the unlawfulness of the content and ordering its removal or that access to it be made impossible; Receipt of a notification sent following a procedure for the detection and removal of content to which the service provider has subscribed; Others that may be established by legal rule or agreement between the parties. The fact is that this order to remove allegedly infringing content should not be generic. When requiring these platforms to remove content that does not comply with the applicable rules, they should be told exactly what content they must remove. Giving them a generic order to remove advertisements that do not comply with a certain obligation would mean imposing on them the task of conducting active fact-finding and monitoring of the content hosted, which, as we have seen, would be contrary to Directive 2000/31 from which the LSSI derives. Therefore, intermediation service providers (such as these Sharing Economy platforms) are not, in principle, responsible for third-party content that they transmit, host, or provide access to However, they may incur liability if they take an active part in its production or if, being aware of the illegality of certain material, they do not act quickly to remove it or prevent access to it. Law 34/2002, of 11 July, on information society services and electronic commerce, BOE no. 166, of 12/07/2002. There are, in any case, two aspects, one formal and the other substantive (already studied), regarding the compliance of the Spanish regulations governing tourist dwellings with Directive 2000/31.

The formal condition imposed by the Directive concerns the need to notify the European Commission of the establishment of any technical regulations and rules relating to information services following the procedure laid down in Directive 2015/1535 of the European Parliament and the Council27. It was precisely the lack of this notification that led CJEU on 19 December 2019, Case C-390/18, to conclude that Airbnb could not be condemned for non-compliance with a law that had not been notified. In this judgment, the court states that such inaction has as a consequence "the impossibility of invoking such a measure against individuals". The CJEU's doctrine was followed by the STS 1106/2020, of 23 July on the modification, not notified to the Commission, of the General Regulation on tax management and inspection actions and procedures, which imposed information obligations on the managers of the platforms regarding the transfer of use of tourist accommodation. The SC understands that it should have been notified to the Commission and that the lack of this prior control not only entails its "unenforceability" but also its nullity as of right, in the application of art. 47.2 Law 39/2015. Some Autonomous Communities have learned their lesson as demonstrated by Madrid Decree 29/2019 which modifies the regime of tourist dwellings as its preamble states that "this decree has been submitted to the procedure provided for in Directive 2015/1535, laying down a procedure for the provision of information in the field of technical regulations and rules on information services". Because of the above, we conclude that the administration must first identify the illegal advertisements. If the administration informs the platform which specific advertisements are illegal, the platform will be obliged to comply with this requirement and, if it does not, it will be able to act against it by sanctioning it. The administration cannot, therefore, 27 Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on information society services Official Journal of the European Union 17.9.2015.

issue a general order for the platform to remove the advertisements published which do not have a registration number - and are therefore illegal - as this would be completely contrary to the provisions of the Directive. The Administration must adopt a proactive attitude concerning the control of the activity of tourist accommodation and can require the platform at any time to remove specific advertisements of accommodation that do not comply with current legislation. This role of the Administration would be in line with the digital environment in which it must carry out its inspection activity and the increased importance of ex-post (not ex-ante) control, as prior authorization has been replaced by the responsible declaration and prior communication. Thus, in this situation, the voluntary collaboration of the platforms themselves becomes extremely important because, although, as mentioned above, the ISSP cannot be required to have a general obligation of supervision or a general obligation to carry out active searches for facts or circumstances that indicate illegal activities concerning the services they provide and manage, it is true that, as TOURIÑO points out, this does not exclude the possibility of these ISSPs voluntarily developing an automatic technical filtering system that allows them to detect infringing content28 Meanwhile, in the most important Tourism Forums, it is constantly highlighted that demanding co-responsibility from the platforms is, for the time being, an important way to ensure compliance with the regulation on tourist accommodation29 28 Touriño, A., 2018, p. 92. 29 "The widespread impunity with which platforms prescribe, distribute and commercialize properties in the tourist accommodation market in many destinations, despite the efforts in the regulation and public inspection, makes it necessary to amend the regulations governing information society services to ensure that the platforms are subsidiarily responsible for not uploading to their websites any property that does not comply with regional and/or local legislation in force, through the request and display in each tourist rental property advertisement of its corresponding registration number". This was made clear in conclusion number 4 of the IX Exceltur Tourism Leadership Forum "Reshaping Tourism: how to grow sustainably and speed up the digital transformation" where it is stated that "demanding coresponsibility from the platforms is the only way to ensure compliance with the regulation on tourist accommodation". Held in Madrid on 16 January 2018. Accessible on the website .

4. Conclusions Technological development, together with the incorporation of European regulations in Spain, has meant that the Administration has abandoned its traditional role - based on preventive control through prior authorization - and has taken on new ex-post control mechanisms. This new situation necessarily means that the public administration must be much more diligent in inspecting and checking private activities once they have begun. Thus, ex-post control of private activities has become the real cornerstone of the control system. The standard has lost its function of stabilizing legal relations. Verification, supervision, or inspection of compliance with binding provisions is nowadays an unfinished business in the public administration landscape, especially since the entry of digital platforms into the market. It is essential to deepen the practical exercise of control activity in the new digital environment characterized by the existence of collaborative platforms in accommodation. The ecosystem in which the Administration's intervention or control activity takes place is characterized by the fact that it is carried out within the Smart city, smart tourist destinations, and the use of big data. It is essential to reconsider the different roles (and their underlying responsibilities) that both digital platforms and the Administration itself are called upon to play in this environment. Finally, the inspection activity is a genuinely administrative function, with a long tradition in important areas of public action, which, unlike other traditional public functions, far from being an activity in decline or abandoned, is an activity in full growth and expansion. BIBLIOGRAPHY ALBIDAÑA, C. (2018), “¿Marca el nuevo artículo 54 ter el fin de la opacidad fiscal de los alquileres turísticos?”, Revista Actualidad Jurídica Aranzadi, núm. 938, Ciduz Menor: Aranzadi.

BAUZÁ MARTORELL, F.J. (2017), “Big data y open data en la administración turística: acceso y reutilización de información”, Revista Vasca de Administración Pública, n. 108, p.33. GARCÍA SAURA, P.J. (2019). Viviendas de uso turístico y plataformas colaborativas en España: aproximación al régimen jurídico. Estudio comparado desde la perspectiva de la sostenibilidad. Dykinson. MARTÍNEZ GUTIÉRREZ, R. (2018), “Gestión inteligente y sostenible de las ciudades: gobernanza, Smart cities y turismo” en CANTÓ LÓPEZ, T., IVARS BAIDAL, J.A. y MARTÍNEZ GUTIÉRREZ, R., Gestión inteligente y sostenible de las ciudades. Gobernanza, Smart cities y turismo. Valencia: Tirant lo Blanch. MELGOSA ARCOS, J. (2021) “Los establecimientos de alojamiento en la modalidad de vivienda de uso turístico en la comunidad autónoma de Castilla y León” en GONSÁLVEZ PEQUEÑO, H., Tratado jurídico ibérico e iberoamericano del turismo colaborativo. Aranzadi. TOURIÑO, A. (2018) “Régimen de responsabilidad de las plataformas que operan en el ámbito de la economía colaborativa” en RODRÍGUEZ MARÍN, S. y MUÑOZ GARCÍA, A., Aspectos legales de la economía colaborativa y bajo demanda en plataformas digitales. Wolters Kluwer. Documento “Nivelando las reglas de juego. Documento sobre la denominada economía colaborativa o compartida”, editado por Confederación española de hoteles y alojamientos turísticos (CEHAT) y HOTREC Hospitality Europe, p.18. IX Foro de Liderazgo Turístico de Exceltur "Reshaping Tourism: cómo crecer sosteniblemente y agilizar la transformación digital" celebrado en Madrid 16 de enero de 2018. Accesible en la web , fecha de último acceso: 21 diciembre 2021.

SEGITTUR y RED de Destinos Turísticos Inteligentes (2021). Guía de buenas prácticas en digitalización para Destinos Turísticos Inteligentes: 50 buenas prácticas digitales paras una nueva generación de destinos, Disponible en: ,