Sustainable Tourism Law

COMPETITION LAW VERSUS SPATIAL PLANNING 315 as the movement of products 6 . Law 20/2013 departs from the general principle of free economic initiative, but it is much more liberalizing than Directive 123/2006 on services, as it both extends the number of sectors subject to liberalization (art. 16) and regulates the principle of necessity and the proportionality of actions taken by the relevant authorities (art. 5) and their implementation (art. 17). Specifically, the principles of necessity and proportionality 7 establish that when the actions taken by the relevant authorities set up limits to accessing or practicing an economic activity, or when they require compliance with some preconditions to carry out an economic activity, they should do so under the conditions listed in article 5 of Law 20/2013, which require the following: a) that the cause behind the need for the limits and preconditions be based upon the safeguarding of one of the overriding reasons of public interest that are specifically detailed in article 3.11 of Law 17/2009 (section 1), which are public order; public safety; civil protection; public health; the maintenance of the economic stability of the social security system; the protection of rights; the health and safety of consumers, recipients of services and workers; the principles of good faith in commercial transactions; the fight against fraud; the protection of natural and urban environments; animal health; intellectual and industrial property; the conservation of national historical and cultural heritage; and the objectives of social and cultural policies; and b) that any limit or precondition established by the relevant authorities be proportional to the overriding reason of public interest invoked and the option that is the least restrictive or disruptive to the economic activity (section 2). As acknowledged in the ruling of the Constitutional Court of 22 June 2017, the principle of necessity entails a restriction on these legitimate reasons 6 This was acknowledged in the previously mentioned ruling of the Constitutional Court of 22 June 2017, which states that Law 20/2013 went beyond the limits of the regulatory scope of Directive 2007/123/EC of 12 December regarding services in the domestic market – and to which reference is made in one of its transposition laws, Law 17/2009 of 23 November on free access to service activities and their practice – as it included in its regulatory scope all economic activities in market conditions (art. 2 of Law 290/2013), including not only the activities involving the provision of services but also those involving the creation and commercialization of products. This is highlighted in the preamble of Law 20/2013, which states that Law 17/2009 of 23 November establishes a precedent regarding market unity for the services sector that should be extended to all economic activities. And thus, it continues to affirm that the law (Law 20/2013) should apply to all sectors expressly excluded from the Services Directive (such as electronic communications, transport, temporary job agencies, private security, etc.) and the movement of products. 7 The principles of necessity and proportionality are detailed in sections 1, 2 and 3 of article 129 of Law 39/2015 of 1 October on common administrative procedures among public administrations, which is titled “Prin- ciples of good regulation” ( “Principios de buena regulación”) . Specifically, it makes reference to the application of these principles in both legislative and regulatory initiatives.