Sustainable Tourism Law

COMPETITION LAW VERSUS SPATIAL PLANNING 317 the performance of a check to ensure that there is no other measure that would be less restrictive.) Article 17, though, goes a step further: it deals with the application of the principles of necessity and proportionality when regulations require some measure of control that affects access to or the practice of an economic activity by requiring the relevant authorities that have set up one of the measures to choose between an authorization, a sworn statement or a communication – depending on the public interest that is the object of protection – related to the conditions that will have to be met in order to safeguard said public interest and based on the nature of the activity and whether the intervention mechanism will affect the activity itself or physical infrastructures. Thus, firstly, for those government regulations that establish the requirement of an authorization, in addition to considerations for the constitutional stipulations on authorizations, article 17.1 further restricts the specific overriding reasons of public interest that can justify this requirement. As concluded in the ruling of the Constitutional Court of 22 June 2017, the overriding reasons of public interest that justify requiring authorizations shall not be all of those that are stipulated in art. 5 of Law 20/2013 and which can be found in art 3.4 of Law 17/2009 of 23 November, but rather, shall be those reasons explicitly contained in the same art. 17.1. Secondly, article 17.2 regulates the implementation of the principles of necessity and proportionality with regard to those government regulations that require the submission of a sworn statement, and it states that the principles must concur when the regulation calls for compliance with requirements that are justified by some overriding reason of public interest and how they must be proportional. Thirdly, article 17.3 regulates the implementation of the principles of necessity and proportionality with regard to those government regulations that require the submission of a communication, and it states that such a requirement can only be made when, for some overriding reason of public interest, the relevant authorities aim to gather information about the number of economic agents, installations or physical infrastructures present in the market. All of this applies to restrictions imposed by ex-ante government intervention mechanisms established by autonomous communities acting in their own capacities. And, as pointed out in the Constitutional Court’s ruling of 22 June 2017, the most stringent requirements are established in Law