Sustainable Tourism Law

QUALITY AND SUSTAINABLE TOURISM DEVELOPMENT 267 III.5. Responsible statements and previous communications under suspicion Another noteworthy addition of the LGMU occurs with respect to the ex post control systems, that is to say, the responsibledeclarations and the communications that, by the way, have ceased to be called “prior”, perhaps to reinforce their subsequent control nature, taking into account they can be used even once the economic activity in question has already begun 21 . The main addition to which I refer has to do, fundamentally, with the fact that according to Article 17, paragraphs 2 and 3, the public authorities can demand the presentation of a responsible declaration or communication as formal requirements for the start of an economic activity or its exercise, the principles of necessity and proportionality have to concur, that is, they must be justified in an overriding reason of general interest and guarantee that there is no other means of less restrictive control. In this sense, neither the Services Directive nor its transposition rules required any kind of justification for these ex post control systems. The public authorities could opt for them as an alternative to ex ante authorizations, which did need to be covered by some overriding reason of general interest. We are, in short, one step further in limiting the control activities that can be carried out by public administrations. Not only are pre-control systems banned as excessively burdensome procedures, the same ex post control systems are banned as well, while they cannot be said to generate significant administrative burdens, they are seen as unnecessary procedures. Of course, it cannot be otherwise if article 16 of the LGMU itself declares total freedom of access to economic activities and their exercise. It is true that, unlike what happens with ex ante control systems, responsible statements and communications can be justified in any of the compelling reasons of general interest referred to in Article 3.11 of Law 17/2009, and not a limited number of them. And yet, the essential question about these systems of posterior control remains unresolved. I am referring to the regulation of the moment following its presentation to the corresponding authorities, in other words, the supervision that the corresponding administrations must necessarily carry out once the responsible declaration or communication has been presented. This question, which is, in my opinion, of vital importance, refers to Article 21 of the LGMU in a very general 21 REBOLLO PUIG, Manuel, “The Autonomous State after the Law of Guarantee of the Market Unit and its principles of national necessity and effectiveness”, op. cit ., p. 110.