Sustainable Tourism Law

COMPETITION LAW VERSUS SPATIAL PLANNING 313 resilient, effective control mechanisms. This liberalizing, deregulating and streamlining course of action does not diminish the position or decrease the responsibility of either the legislature or public administrations. Rather it does the opposite. On the one hand, in order to safeguard public interests, not only is rigorous regulation needed (regulation that could be in line with the self- -regulation of private businesses), but the state must act as a guarantor, which is equipped with regulatory instruments and executive powers to steer the market towards competition. And on the other hand, as is reflected in the legislation that constitutes the legal frameworks of public administrations, it is necessary to increase the liability of public administrations, as they must monitor and ensure compliance with applicable requirements according to relevant legislation (formerly, second paragraph of article 39-bis of Law 30/1992 of 26 November; and currently, article 4 of Law 40/2015 of 1 October). The guiding principle behind the 2006 Services Directive was, as we know, the free economic initiative. However, this freedom is not without limits, and such limits must always be conditioned by the existence of a justification or significant reasons for legitimately restricting a freedom. The Services Directive envisaged that this freedom could be impinged upon on the basis of three criteria: non-discrimination, justification and the motivation of the intervention for overriding reasons of public interest 3 and proportionality (art. 9). The incorporation of this article, which occurred in Law 17/2009 (art. 5), highlights that the core principle upon which access to and the practice of service activities is based is, effectively, freedom itself, with the aforementioned criteria being the constraints on this freedom 4 . 3 EC case law has demonstrated that these overriding reasons of public interest include the following: public order and safety; civil protection; public health; animal health; social security; consumer, user, and worker protection; principles of good faith in commercial transactions; intellectual and industrial property; the fight against fraud; environmental and urban-environmental protection; social and cultural policy objectives; and the conservation of national historic or artistic heritage. 4 Because of the rationale defined and understood by the Court of Justice of the European Union case law (see previous footnote), article 3.11 of Law 17/2009 establishes a “closed” list of the overriding reasons of public interest, and they include: public order; public safety; civil protection; public health; maintaining the financial stability of the social security system; the protection of rights; the health and safety of consumers, receivers of services, and workers; principles of good faith in commercial transactions, the fight against fraud; the protection of the environment and the urban environment, animal health; intellectual and industrial property; the conservation of national historic or artistic heritage; and social and cultural policy objectives.