International Journal of Tourism, Travel and Hospitality Law 2023

A NEW ADMINISTRATIVE LAW FOR A NEW TOURISM: NOW OR NEVER We will focus here on the way in which the competent administrations should act to promote smart tourism in order to achieve an adequate level of tourism sustainability. In short, it is a question of analysing the different tools that can be used by the public sector to ensure that the private sector meets the necessary requirements to achieve the desired tourism sustainability, complying with the European parameters related to the freedom to provide services and the freedom of establishment, in short, with the freedom of enterprise and the free market, limits which, as I have said, cannot be exceeded without complying with the minimum requirements demanded in European and national regulations and which have already been mentioned ut supra. Before referring to the different instruments for developing the administrative tools to implement smart tourism, it should be analysed whether there is a general authorisation for the competent public administrations to use artificial intelligence systems or similar. The answer, which is affirmative, can be found in Article 41.1 of Law 40/2015, of 1 October, on the Legal Regime of the Public Sector, which allows administrations to adopt automated decisions without the intervention of public employees30. The legal guarantees for citizens are contained in the same article of the aforementioned law, but in its second paragraph stating that: “In the case of automated administrative action, the competent body or bodies, as appropriate, must be previously established for the definition of the specifications, programming, maintenance, supervision and quality control and, where appropriate, auditing of the information system and its source code. It shall also indicate the body which is to be held responsible for the purposes of the contestation”. Along these lines, what we intend to analyse here has to do with the use of tools related to artificial intelligence (algorithms, software and the like) to make the work of public administrations more effective and efficient. In what is now being analysed, essentially, for the control of tourism supply and demand so as to avoid the excesses that are so detrimental to sustainability and quality. 30 In this sense, the General Data Protection Regulation of the European Union, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC, is much more restrictive by preventing, as a general rule, automated decisions and profiling that produce legal effects on him or her or significantly affect him or her in a similar way. This is stated in Recital 71 and Article 22 of the aforementioned European regulation. However, the regulation itself allows Member States to establish exceptions to this general prohibition in their own domestic law, as Spain has done in the aforementioned Law on the Legal Regime of the Public Sector.