Collaborative platforms in accommodation by Pilar Saura

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.

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