IMPACT ON FREE COMPETITION IN THE REGULATIONS 653 town planning instruments approved by the various town councils; the possibility of assigning the rooms of a VUT separately or of not giving them up completely; and the limitations contained in some Decrees regarding the assignment of VUT. 2.1. Legal nature of collaborative hosting With respect to the legal nature of the VUT as it relates to the rest of tourist accommodations, there are two jurisprudential positions. The first of them considers that the activity of the VUT is not equal to that of other tourist accommodations (hotels, tourist apartments) not only because the autonomous decrees establish a differentiated regulation but also because the VUT are integrated into buildings in which there are residential dwellings (generally in horizontal property regime). According to this thesis, it would be advisable to introduce a different legal regime for this type of tourist accommodation2. The second position maintains that the VUT constitute another category of tourist accommodation. This is the case of the Supreme Court of Madrid when analysing the prohibition of VUTs being assigned for periods of less than 5 days3 and the TSJ of the Canary Islands when analysing the ban on the location of VUT in tourist areas or tourist urbanizations4. 2.2. Applicability in urban planning instruments approved by the different city councils of Directive 2006 on services in the internal market The ninth recital in the preamble of the Directive5 is literal enough to bring about doubts, as it expressly excludes town planning from the matters to which the Directive applies. However, the Manual on the transposition of the Directive states (point 2.3.2) that in order to qualify for a certain urban regulation rule, the criteria should not be based on the instrument used but on the nature of the regulation it contains. Therefore, it would be necessary to analyse if the concrete content of the urbanistic regulation is limited to governing the urban uses of the area or if it goes further, regulating in a direct and substantial way the exercise of a certain economic activity, specifically that of tourist accommodations. There are no jurisprudential discrepancies on this issue. This is harder to answer in the 2 Sentencing No. 5827/2018, of 13 September, of the Hight Court of Justice of Catalonia. 3 Sentencing No. 291/2016, of 31 May, of the Hight Court of Justice of Madrid. 4 Sentencing No. 41/2017, of 21 March, of the Hight Court of Justice of Canary Islands. 5 Directive 2006/123 / EC of the European Parliament and of the Council of 12 December, 2006 relating to services in the internal market, DOUE 27 December 2006.
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