346 COMPETITION LAW IN TOURISM From this perspective, according to the case law, there are two fundamental guidelines to judge the provisions that govern accommodation facilities, even when these provisions are included in sub-national acts such as the regional ones- According to the first criteria, “anything that is not expressly prohibited by law must be considered permitted, unless: a) it contrasts with EU law and international obligations; b) it contrasts with the fundamental principles of the Constitution; c) it could damage security, freedom, human dignity, or conflict with social utility; d) it goes against indispensable provisions for the protection of human health, the conservation of animal and plant species, the environment, the landscape and the reserved cultural heritage; e) it goes against provisions that have effects on public finance”. According to the second criteria, “access to and exercise of service activities, as an expression of freedom of economic initiative, cannot be subjected to unjustified or discriminatory limitations, and such limitations, to be legitimate, must in any case be justified by imperative reasons of general interest”32. Furthermore, all the rules that preclude undertakings from carrying out in a business form some innovative tourist-accommodation activities, such as garden sharing, are considered as creating an unjustified limitation on the freedom of economic initiative. In fact, these limitations negatively impact both the variety of the offer and the competitive dynamics in the tourist services sector. For this purpose, the case law recognised that the definition of what activity is (or is not) carried out in a business form should not be “based on its entrepreneur character (...), but instead on its economic efficiency, which derives from the need or not to pay for the good or service offered”33. 3.6. With regard to point ii), ICA examined various regional laws concerning tourist agencies. In this sector, for example, it assessed the measures adopted by the Puglia Region law no. 17/2019, which subordinated the access to and exercise of the role of a travel agency technical director to passing a specific exam. In the Authority’s opinion, there weren’t information asymmetries sufficiently significant to justify a competition limitation like the imposition of a specific qualification exam. In this case, the Authority also adopted this opinion at the request of the Presidency of the Council of Ministers pursuant to art. 4 of law 32 See judgment of the Tribunale Amministrativo Regionale del Lazio, 13 June 2016, no. 6755. 33 See judgment of the Tribunale Amministrativo Regionale del Lazio, 13 June 2016, no. 6755.
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