ISSN 2184-8793 ISSNe 2975-9056 I. Local accommodation - Nature of the activity In a first approach to the regulation of the activity of provision of local accommodation services, as in any economic activity, it is important to try to establish its commercial or non-commercial nature and to address the question of whether those implied in the activity should or not be considered as professional traders. Although we consider inappropriate to discuss, in this work, the theory of the commercial act and of who is or is not considered a trader, already widely discussed in the law literature and jurisprudence3, in the field of local accommodation the discussion if the activity practiced is commercial and if the person practicing it is a trader is fundamental to determine the legal nature of the activity and which rules should apply to it. Based on the principle, as decided by the CJEU in the Kamenova judgment, that the quality of trader is directly linked to the idea of professionalism of the exercise of the activity, after analysing the various forms through which this activity is exercised, we cannot find a uniformity in the used business models which allows us to state that there is a massive practice of acts of commerce performed in a professional manner, which qualifies all the subjects that provide the accommodation in the market as traders and their activity as commercial. Although we are sure that the exploration of a local accommodation establishment requires the gathering of a set of elements apt for the exercise of the activity, with a intention of obtaining an income, we are not so certain that all forms of exercise of this activity have a professional character, either by the frequency with which it is explored or by the lack of a lucrative purpose or by the turnover, which are fundamental assumptions to qualify any activity as commercial4 . This is the reason why the concept of prosumer is often used to qualify the accommodation provider5. Arising from the discussion on the nature of the local accommodation activity, the legal qualification of the use of the property for this activity is also discussed. The provision of local accommodation services has many similar characteristics to housing. However, on the other hand, 3 In this regard, the judgment of the CJEU-, Case C105/17, the Kamenova case, at https://curia.europa.eu/juris/document/document.jsf ?text=&docid=206437&doclang=EN, was important, in which the Court determined that for a person to be qualified as a "trader" within the meaning of the Unfair Commercial Practices Directive, he must act for a purpose "in connection with his economic activity or profession" or in the name or on behalf of a trader. The decision also states that the meaning and scope of the concept of 'trader' must be determined by reference to the concept of 'consumer', which designates any individual who is not engaged in commercial or professional activities. 4 Cf. Olinda Garcia, 2017, pp. 2-23. 5 See Tur Faúndez, 2020, 47-71 y Benavides Velasco, 2018, pp. 176 to 180.
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