Sustainable Tourism Law

312 SUSTAINABLE TOURISM LAW principles of non-discrimination, which is necessary for overriding reasons of public interest and to remain proportional, as acknowledged in the particularly important ruling of the Court of Justice of the European Union of 30 January 2018 (Case C-360/15). As a consequence, it is possible to imagine two distinct situations that highlight the applicability of the Services Directive in the touristic commercialization of dwellings. The first situation is related to city or spatial planning and involves the building of residences that could be destined for vacation rentals and whose final purpose is to avoid the excessive and detrimental dispersal of tourists in residential neighbourhoods, i.e., to avoid gentrification and maintain the habitability of the city. In this case, planning instruments determine, via zoning, certain preconditions and side-effects of the practice of touristic commercialization of residences, in the same way that planning regulates other elements by setting standards or establishing other procedures. In this case, the motivation behind the spatial measures and their adherence to principles of non-discrimination – required for overriding reasons of public interest and proportionality – is crucial. The second situation is related to the activity and the conditions of service provision (fully subject to the Services Directive and its incorporation into national law), referring to the scope of use or service considered in its strictest sense, i.e., the precise and specific activity to be carried out and the conditions under which it will operate thereafter. In this context, the day-to-day operation of the touristic commercialization of residences and related authorizations can be regulated, in a broad sense, with either ex-ante or ex-post controls. This case is undoubtedly subject to the Services Directive and its incorporation into national law, and thus it would be useful to understand the scope of application of this regulation in the touristic commercialization of residences. B) The administrative intervention scheme regarding the touristic com- mercialization of residences The freedom to establish a business in any sector of the economy, including tourism, does not imply that governments have no responsibility regarding the activities of entrepreneurs; rather it implies a change in the way they act. The government of the new regulator and guarantor state – acting under the umbrella of open competition and liberalization – must guarantee and monitor the actions of service providers in order to ensure the safeguarding of public interests under the legal framework of the regulation and via the application of