Collective Commentary about the New Package Travel Directive

614 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE of tax) and leave without requiring, on the contrary, the general taxation of VAT, leaving them exempt. Based on the foregoing, we believe that a modification of the national VAT law would have to be made to differentiate situations based on the different uses of housing, so that tourist leases are not within the scope of the exemption we have been commenting on. We even take advantage of those theses that indicate that the VAT Directive really thinks about the lease of non-occasional housing, since it must proceed to a restrictive interpretation of VAT exemptions provided for in this Directive in its art. 135 17 , which does not allow the exemption of leases of real estate “within the framework of the hotel sector or in sectors that have a similar function”, and this would leave aside, for us, the leasing of tourist homes and apartments, in the opinion that they comply that “similar function” referred to in the precept 18 . In addition, we consider that, if Annex III section 12 of the Directive provides for the possibility of applying reduced rates to “accommodation provided by hotels and related establishments, including holiday accommodation [we think there is room here for tourist rental] and the lease of sites on campsites and caravan parking spaces”, it is because they all put them in the same package when sharing cause and purpose. And even if one does not start from the fact that the VAT Directive only thinks about the lease of non-occasional housing at the time of allowing the exemption, with the CJEU doctrine it would be possible to grant a different treatment to the rental of housing in the VAT, allowing only the exemption to the rental of non-temporary housing. Of course, the rental of habitual residence, and even a second residence, is not a term of homogeneous comparison with a seasonal, tourist and, therefore, occasional or temporary lease. Both factors that make them not comparable to a stable housing lease, such as the rental of the usual residence or second residence, converge both in the lessee and in the lessor 17 Art. 135. 1. Member States shall exempt the following operations: l) the lease and rental of real estate. 2. The following operations are excluded from the exemption established in letter l) of paragraph 1: a) accommodation operations, as defined in the laws of the Member States, which are carried out within the framework of the hotel sector or in sectors that have a similar function, including the leasing of holiday camps or camping grounds […]. Member States may establish additional exclusions from the exemption provided for in letter 1 (1). On the lease of real estate, so that they can qualify for the exemption provided for in the VAT Directive, it is necessary, on the one hand, that the lessee has the right to occupy the property, and on the other, prevent others from enjoying it without their consent. For these two reasons, not giving both, the CJEU Judgment of December 6, 2012, does not consider that it is before a lease of real estate when the rental of a fishing right is agreed where the occupation of the property is not conferred or that others or enjoy (section 22 of the Judgment). 18 ANEIROS PEREIRA J.: IVA y economía colaborativa…, op. cit., p. 13-14.