700 COMPETITION LAW IN TOURISM proportionate, causing a minimum distortion (principles of necessity and proportionality)28. The Spanish competition agency, the CNMC, is entrusted with the legal mandate of preserving and promoting competition in all economic sectors. In order to accomplish that goal, it has two kinds of authorities: enforcement and advocacy. Enforcement tackles anti-competitive behaviour by undertakings in markets and anti-competitive mergers. Advocacy refers to the promotion of a competitive environment by means of non-enforcement mechanisms, mainly through its relationships with other governmental entities and by increasing public awareness in regard to the benefits of competition29. Within its advocacy powers, the CNMC monitors and advises the public sector, with the aim of promoting efficient economic regulation. It also has the ability to adopt reports and studies, to make policy recommendations and to challenge anti-competitive regulation before the Courts30. 3.2. The Cost of Restrictiveness As discussed in section 2, beginning in 2013, regional and local regulation not only sought to clarify the legal framework applicable to short-term housing rentals, but in some cases, regulation also introduced significant restrictions on the activity. For the purposes of this chapter, we can classify the most concerning restrictions in the following categories: a. Authorisation schemes: following the provisions of the Services Directive31, the majority of regulations opted for requiring new entrants to submit a declaration of compliance (“declaración responsable”), rather than subjecting access to authorisations (“autorización previa”). However, in some cases, regulations require explicit consent by a public authority, 28 This is reinforced by other legal provisions that seek to ensure that all kinds of public intervention are consistent with these principles. Namely, Article 129 of Law 39/2015, of 1 October, requires that regulatory initiatives by all public administrations follow principles of necessity and proportionality. Article 4 of Law 40/2015, of 1 October, provides that all kinds of intervention of public administration that limit individual or collective rights have to abide by the principles of necessity and proportionality. 29 Definition by the International Competition Network (www.internationalcompetitionnetwork.org). 30 Article 5.4 of Law 3/2013 instituting the CNMC gives it standing to challenge, before the competent courts, acts of public authorities subject to administrative law and general provisions of subordinate legislation which impede the maintenance of effective competition in the markets. Article 27 of Law 20/2013 on Market Unity gives the CNMC standing to challenge regulations as well as any kind of act, activity, inactivity or conduct of competent authorities in breach of the freedom of establishment and free movement. 31 Directive 2006/123/CE, Recital 39.
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