The High Court in the Balearics (TSJB) has ruled in favour of Airbnb and annulled the €300,000 fine imposed by the Government in 2018, for marketing Tourist Apartments not registered with the the Ministry of Innovation, Research & Tourism.
The TSJB argues that the activity of Airbnb is covered by a Community Directive, which clashes with the Regional Regulation of inserting the Ministry of Tourism’s registration number.
The Government amended the General Tourism Law in July 2017 to tighten control over illegal Tourist Accommodation stating that adverts for Tourist Apartments and Holiday homes "must include the Tourist Registration Number for the property."
On November 28, 2017, the Department of Tourism discovered that Airbnb was marketing unregistered Tourist Apartments and gave the website 15 days to withdraw the adverts.
In February 2018, Tourism Inspectors found that Airbnb was still violating the Tourism Regulations and initiated the sanctions, charging Airbnb with the commission of a very serious Tourism infraction.
Airbnb launched a series of legal actions, but the Ministry of Innovation, Research & Tourism slapped a €300,000 fine on the website.
A subsequent appeal was dismissed, forcing Airbnb to go to court to avoid paying the fine, which has resulted in the TSJB ruling dated April 29, 2020.
The judgment explains that, as Article 15 of Directive 2000/31/EC of the European Parliament on electronic commerce in the internal market applies, 'screenshots may not serve as proof of charge which would undermine the principle of presumption of innocence or administrative liability. '
The TSJB ruling specifies that Airbnb cannot be forced to carry out a thorough and detailed review of all adverts published on its website.
"Therefore, it follows from this precept that the obligation to insert the number must be addressed by the Tourist Company that issues it, not the company that owns the website that advertises the offer," it states.
The TSJB added that Airbnb is protected by the exemptions from liability provided for in Directive 2000/31/EC.
The court order also specifies that the Government's sanction would violate the object of the Community Directive "by colliding with EU law and National law,” giving priority to the Community rule over Spanish law.
The TSJB declared the CAIB sanction null and void but the Government says it will appeal the court's ruling.
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