On Monday, August 5, stakeholders from the non-hotel tourist accommodation sector (owners and property managers) in the Brussels-Capital Region, together with STR-Belgium, filed an action for annulment against the aforementioned ordinance before the Constitutional Court. The press widely covered this development:
Television news: BX1, RTBF (3’08’’)
Print media: Le Soir, L’Echo, Sudinfo, DH, Bruzz, De Morgen, Het Laatste Nieuws, …
If you do not wish to review the extensive appeal document (~200 pages), available upon request and soon to be published in the Belgian Official Gazette, we summarise below its key elements. We also refer to the STR-Belgium Memorandum, which outlines all the sector’s demands during the government negotiation period in the Brussels Region.
I. Context
Short-term rental of housing, like hotel services, is subject to obtaining prior authorisation to carry out activities in the form of an urban planning permit granting a hotel function to the building.
These activities are also subject to obtaining a second prior authorisation in the form of a registration number.
The cumulative application of these two regimes — which pursue identical objectives — imposes strict conditions on the exercise of economic activity, duplicates the verification of a set of prior conditions, creates overlapping administrative procedures that are complex and lengthy, and places a burden on municipal administrations.
This regulatory framework constitutes a major obstacle to the freedom to conduct business.
Furthermore, the reasons justifying these regimes and the proportionality of the measures implemented are contested.
While the legislator had been invited by the academic body responsible for evaluating the legal framework “to fundamentally rethink the text”[1], it chose instead to maintain the economic authorisation regime.
II. Purpose
Sector stakeholders recognise the need to regulate their activities. They wish their activities to be governed in a proportionate manner and that the procedures organised should not be deterrent, but necessary and compliant with the requirements of the rule of law.
Sector stakeholders are therefore seeking the annulment of the authorisation mechanism implemented by the Ordinance of 1 February 2024 relating to tourist accommodation, which does not comply with the expected standards, particularly with regard to European law.
III. The Action for Annulment
The Ordinance of 1 February 2024 relating to tourist accommodation is criticised — non-exhaustively — on the following grounds:
- The regime does not protect housing or the urban environment but rather protects incumbent actors in the sector by limiting the entry of new economic operators into the market;
- The already existing and applicable regulatory framework is sufficient to ensure housing protection and tourist protection, meaning the proposed regime is redundant;
- Subjecting the activity to two cumulative prior authorisations obtained sequentially is disproportionate;
- The exercise of the activity is subject to an excessive number of prior requirements that are neither justified nor necessary;
- The ordinance applies to the entire territory of the Brussels-Capital Region, whereas the concentration of the economic activities concerned and the potential pressure on the long-term rental market are limited to certain neighbourhoods;
- The regime establishes a procedure requiring administrative steps with multiple regional and municipal departments, whereas a similar assessment could be carried out by a single authority, if such an assessment were necessary.
IV. Conclusion
The Constitutional Court has been seized with a series of criticisms concerning the Ordinance of 1 February 2024 relating to tourist accommodation in light of European law, which it will have to assess.
To this end, the Court is free to refer a number of questions to the Court of Justice of the European Union, notably to assess issues that have never previously been ruled upon.
The Court’s conclusions may also affect litigation relating to the previous regulatory framework. To be continued…
[1] Brussels Studies Institute (BSI) and Université libre de Bruxelles (ULB), Evaluation mission of the Ordinance of 8 May 2014 relating to tourist accommodation, 21 May 2019.
