TOWARDS A REGULATION OR A DEREGULATION OF TOURIST APARTMENTS 677 the horizontal property regime. For this point, diverse possibilities appear, from the obligation of an authorisation by the community of owners – when statutes do not apply – until the free commercialisation of the apartment when there is no expressed prohibition by those. Thus, some options can arise polemics since they include clauses that can affect areas where the State operates. On the other hand, councils are the entities having an essential role within the operation of this kind of accommodation. The use of power of the Local Administration and, more particularly, of those charged of urbanism, environment or sustainability, among others, become the transcendental actors in relation with the regularisation of tourist apartment and housing within their respective areas of action35. In fact, there are many ordinances that are tangentially referred to this kind of accommodation-like jurisprudence and National Securities Market Commission36 (CNMC by the Spanish acronyms) – those containing some measures of doubtful legality since they create barriers of “free provision of services” within their respective municipal sector. However, with regards to the touristic activity, it is to be outlined that both regional and local legislators ignore the definition of the legal framework of action of the CNMC, which results to be highly advisable in order to improve the fulfillment of the legality and security certainty. Let us remember that Article 38 of the Spanish Constitution reckons the freedom of enterprise within the framework of the market economy and, at the same time, entrusts the public authority its guarantee and protection. For this reason, it is necessary that, when elaborating the rules and, in general, within the administrative activity, we encourage the rise of competence, through regulatory frameworks that promote effectiveness and effectiveness of the markets, avoiding that any regulatory arrangements introduce distortions altering the competitive game. In this sense, it is to be highlighted the tendency of modern Law, as stated by Esteve Pardo, start by “decide and regularise among incertitude towards the regulated self-regulation”37. In summary, the regulation of these new modalities of accommodation that complete the touristic offer is absolutely necessary in order to achieve the aim 35 At a local level, about urban planning, tourism and influences on the tourist housing in Spain, a new and very interesting study by ROMÁN MÁRQUEZ, A. (2018). “Planificación urbanística del turismo: la regulación de las viviendas de uso turístico en Madrid y Barcelona”, Revista de Estudios de la Administración Local y Autonómica, No. 10, pp. 22-39. 36 See L 3/2013, of 4 June, de creación de la Comisión Nacional de los Mercados y la Competencia. 37 See ESTEVE PARDO, J. (2009). El desconcierto del Leviatán. Política y derecho ante la incertidumbre de la ciencia, Marcial Pons, Madrid, pp. 153-154; and ESTEVE PARDO, J. “Decidir…, op. cit., p. 46.
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