Sustainable Tourism Law

272 SUSTAINABLE TOURISM LAW And who will be the biggest injured party in these cases? In my opinion, it is clearly the consumers and users of these services in Andalusia, because if the adequate security measures are not kept, the preparation of the professionals and the quality of thematerials are not guaranteed, life or healthmay be compromised, as well as the physical integrity of the people. Therefore, there are clearly compelling reasons of general interest that would justify, not only the possible intervention of the Autonomous Community of Andalusia in the supervision of the start of activity 31 , but also the requirement of prior authorization, since it could affect, according to my opinion, the public order 32 , considering the wide interpretation that can be given to this concept 33 . However, it should be noted that this national efficiency contained in the LGMU has been annulled by the Constitutional Court in several resolutions that resolved the competition issues interposed by some autonomous communities. It could not be otherwise, since this regulation that has now been annulled, as we have shown above, implied an emptying of the powers of the autonomous communities 34 . III.8. The powers of the autonomous communities are emptied In spite of all the problems that the norm that is now analysed can present, we would be facing more questions of opportunity than of legality. In short, the 31 Article 21.2.b) gives the destination authority powers to supervise the exercise of authority 32 DE LOS REYES MARZAL RAGA, C., “The market unit in tourism”, in ALONSOMÁS, M. J., (Director), The new legal framework of the market unit. Commentary on the Market Unit Guarantee Law, op. cit ., p. 719, “In conclusion, we can argue that the ex ante administrative authorization requirement, as an intervention title in the field of tourism, is compatible with the principles that the LGMU introduces for the achievement of market unity”. 33 REBOLLO PUIG, M., “The principle of necessity and proportionality of limits to economic activities”, in GUILLÉN CARAMÉS, J. Y CUERDO MIR, M., (Directors), RAMS RAMOS, L., (Coordinator), Estudios on the Market Unity Guarantee Act, cit., “That is, said in a general sense: it is possible to allow the Spanish authorities and courts to depart partially from the CJEU’s interpretations and to give the overriding reasons of general interest an amplitude greater than what this one gives them. Thus, sometimes, following a reasoning different from that of the CJEU, they may reach, in the end, a result similar to that achieved by the CJEU, although for other purposes. Moreover, I believe that accepting the possibility of a flexible and comprehensive interpretation of each of the reasons listed in art. 3.11 of the Law 17/2009 (even broader than what the CJEU does) is the most conforming to the Constitution: it is what in your case will more easily support the conformity of art. 5 LGMU with the Constitution and the powers of the Autonomous Communities. So, in short, to interpret each of the compelling reasons of general interest if contained in art. 3.11 of the Law 17/2009 (and, by reference, in those of Article 5.1 LGMU) the jurisprudence of the CJEU can only be brought with caution and adaptations, to the extent that it cannot be ruled out that each of these compelling reasons of general interest are interpreted for the purposes of Spanish law more broadly than the CJEU did. In addition, art. 3.11 of the Law 17/2009 contains a reason that does not appear in art. 4.8 of the Services Directive. Thus, he mentions “the protection of rights”. But what rights? All of them, the fundamental rights or what? Whose rights? Of consumers, workers or anyone? With this non-specific reference to the protection of rights, the possibility of a broad interpretation becomes available. Add to that the final inclusion of “the objectives of social and cultural policy” that gives the list a great scope and possibilities”. 34 The resolutions of the Constitutional Court are as follows: STC 79/2017, of July 19; STC 110/2017, of October 5 and STC 111/2017, of October 5.