— Essay Nº2, on the nature and scope of the regulation

On the nature and scope of the regulation

A consideration of the constitutional habilitation, the substantive reach, and the regional architecture of Real Decreto 933/2021.

To understand the present regulation it is necessary to begin not with its operative provisions but with its constitutional underpinning, for the obligation imposed upon the host is not an autonomous administrative invention — it is the regulatory exercise of a legislative authority conferred, in turn, by an organic law. The Ley Orgánica 4/2015, de 30 de marzo, de Protección de la Seguridad Ciudadana, in its articles 25 to 27, authorises the Government to impose, by way of a regulation of executive nature, duties of documentary registration and information upon those who engage in certain activities deemed sensitive to public security. The activities so identified are, in the relevant part, the provision of lodging and the rental of motor vehicles without driver. From that habilitation flows the present text: a real decreto of the executive, but anchored in an organic law and, beyond it, in the constitutional competence of the State over public security under article 149.1.29.º of the Spanish Constitution.¹

The full title of the regulation is sufficiently revealing of its scope: Real Decreto 933/2021, de 26 de octubre, por el que se establecen las obligaciones de registro documental e información de las personas físicas o jurídicas que ejercen actividades de hospedaje y alquiler de vehículos a motor. Two declared objectives animate the text. The first is overtly that of public security: the maintenance of a register of those who lodge in establishments of hospedaje, and of those who rent vehicles, is presented as an instrument for the assistance of criminal investigation and, in particular, of counter–terrorist activity under the broader framework of the Ley Orgánica 4/2015. The second is the modernization and digitization of an obligation that had subsisted, since the Decreto 1513/1959, de 18 de agosto, in the analogue medium of the paper libro registro and the manually delivered parte de viajeros. The replacement of those instruments by a unified electronic platform is the secondary but explicit object of the reform.²

The reach of the regulation, in its subjective dimension, is extensive. It binds, in the first place, all categories of formal lodging: hotels, hostales, pensiones, paradores, hospederias, posadas, the apartamentos turísticos that proliferated in the early twenty–first century, casas rurales, campings, albergues, refugios de montaña. It binds, in the second place — and this is the substantive innovation that distinguishes the 2021 regime from its predecessors — the heterogeneous category of the viviendas de uso turístico, known under various regional denominations (VUT in Madrid, VFT in Andalucía, VV in the Canary Islands, HUT in Catalonia), which are private dwellings let to travellers and which had operated, until the consolidation of the autonomous–community tourism registries, in a regulatory penumbra. It binds, in the third place, the digital platforms of intermediation — Airbnb, Booking, Vrbo, Expedia — which are not themselves hosts but which acquire, under the regulation, an autonomous obligation to communicate the confirmation and cancellation of bookings to the central system at the moment of their occurrence.

Within the universe of obligated subjects the regulation draws a distinction between professional and non–professional hosts that has, in practice, considerable operational consequence. The professional host is one who exercises the activity of lodging as a habitual economic activity, is inscribed in the tourism registry of the relevant autonomous community, and operates under tourism legislation as a regulated undertaking. The non–professional host is, broadly, a private individual who lets a property — or a spare room — occasionally, on a handful of occasions per year. Both are bound to communicate the data of their guests within twenty–four hours of check–in; only the professional host, however, is bound to retain the documentary file for the period of three years that the regulation prescribes.³ The boundary between the two categories is, in marginal cases, a matter of interpretation, and the literature already records instances in which the qualification has been a matter of contention before the inspecting authority.

In its territorial dimension the regulation is uniform in vocation but heterogeneous in implementation. The central platform — SES.Hospedajes, operated by the Ministerio del Interior — is the channel for fifteen of the seventeen autonomous communities and for the two autonomous cities of Ceuta and Melilla. The two carve–outs are well known but worth re–stating with precision: in Catalonia the competent system is the Registre de viatgers dels Mossos d’Esquadra, administered by the Generalitat’s autonomous police force under the terms of statutory competence over public security in that community; in the Basque Country the competent system is that of the Ertzaintza, the Basque autonomous police, under analogous statutory provisions. These are not exemptions from the substantive obligation — the duty to register and to communicate the traveller persists — but rather the substitution of a regional channel for the central one. The host with properties straddling, say, Catalonia and the Comunidad Valenciana must register on two distinct systems and observe two distinct procedural rhythms.⁴

Finally, and on a point that is frequently obscured in the popular treatment of the regulation: the duty of registration here described is wholly independent of, and in no respect a substitute for, the parallel obligations to which the host is subject under other regulatory regimes. The communication to SES.Hospedajes does not discharge the host’s obligations under personal–income tax law (IRPF, or IRNR for non–resident landlords), value–added tax law (IVA, or IGIC in the Canary Islands), the tourist–tax regimes of those autonomous communities that levy them (notably Catalonia and the Balearic Islands), the cadastral and urban–planning regimes of the relevant municipality, or the rules of the autonomous community’s tourism registry. Compliance is, in this sense, a multi–regime exercise: a host may be impeccable before one authority and exposed before another.⁵

The nature and the scope of the regulation having thus been outlined, the question that arises is one of mechanics. How, in concrete terms, is the obligation discharged? That question is the subject of the third essay in this series.

Boletín Oficial del Estado, núm. 258, 28 October 2021.

Real Decreto 933/2021, de 26 de octubre, por el que se establecen las obligaciones de registro documental e información de las personas físicas o jurídicas que ejercen actividades de hospedaje y alquiler de vehículos a motor.

Ley Orgánica 4/2015, de 30 de marzo.

Protección de la Seguridad Ciudadana. Articles 25 to 27 confer the legislative habilitation under which Real Decreto 933/2021 was issued; articles 36 to 38 govern the sanctioning regime.

Ministerio del Interior — Sede Electrónica.

SES.Hospedajes, the central electronic system through which obligated subjects in fifteen autonomous communities and the two autonomous cities transmit guest data. Available at sede.mir.gob.es.

Generalitat de Catalunya — Policía de la Generalitat–Mossos d’Esquadra.

Registre de viatgers, the Catalan equivalent of SES.Hospedajes, operated through manual file upload at registreviatgers.mossos.gencat.cat.

Decreto 1513/1959, de 18 de agosto.

The historical predecessor of the present regulation, which established the paper libro registro and the practice of communication to the local comisaría; expressly repealed by Real Decreto 933/2021.