STR-Belgium’s response in L’Echo of 28 September 2023
On 28 September, the Government of the Brussels-Capital Region approved, on third reading, the preliminary draft ordinance on tourist accommodation, replacing the ordinance of 8 May 2014.
Below, we break down this press release — a real smokescreen, if ever there was one…
We reproduce excerpts from the press release in quotation marks and comment on them in bold.
“The preliminary draft results from an evaluation and broad consultation with all stakeholders in the accommodation sector (the 19 Brussels municipalities, SIAMU, tenants’ and owners’ unions, the Minister of Housing, etc.).”
One cannot help but be struck by the list of stakeholders mentioned above… and yet we are indeed talking about a tourism matter and “stakeholders in the accommodation sector”! The direction given to the draft legislation already becomes quite clear…
“The outcome of the preliminary draft ordinance on tourist accommodation is a point of balance between two objectives:”
- on the one hand, to regulate and allow the exercise of an economic activity in complete safety;
- and, on the other hand, to limit the most negative effects that could result from it. The text therefore aims to better protect housing by preventing it from competing with a chaotic tourist accommodation supply that disregards the applicable rules in this area.”
One must probably read this as a “balanced” point — weighted by the Government at its own discretion: how can the Government claim that it “allows” the exercise of an economic activity in complete safety? We refer you to the “Statements” section of our website: the market is currently 95–98% underground because the Government simply prohibits tourist residences from existing!
As for “the most negative effects that could result from it,” we simply observe that the Government:
- Sees only the negative aspects and proposes a ban rather than regulation as a solution.
- Ignores the positive effects generated directly and indirectly by the rapidly growing non-hotel tourist accommodation sector (direct and indirect employment, local spending in shops, various taxes, etc.).
“Prior registration before starting the activity is maintained to enable the general objectives of the preliminary draft ordinance to be achieved in a realistic and effective way, such as:”
- “The protection of access to housing. By regulating tourist accommodation activities, the consequences of making properties available to consumers — which are thereby removed, temporarily or permanently, from the residential rental market — are limited.”
We will insist, through legal channels, that the Government justify its claims: the Court of Justice of the European Union (Cali Apartments case, 2021) specifies that any authorisation scheme must be justified by an Overriding Reason relating to the Public Interest (ORPI) and that this scheme must remain proportionate to the objective pursued. In particular, the legislator must ensure the “strict appropriateness” of the regulation to the specific situation not of the municipality as a whole, but of “each neighbourhood.” To our knowledge, no study specific to certain neighbourhoods has been produced to justify the policies put in place, nor to identify — let alone quantify — their possible effects in relation to the stated objectives.
- “The protection of operators by standardising and simplifying procedures in order to avoid potential inequalities of treatment, while introducing greater transparency in the processing of applications.”
How benevolent the Government appears… It is difficult to comment on this objective, given how complicated it is to understand in what way the procedures are being standardised and simplified… We are still far from the online procedure promoted by the European Commission.
- “The protection of new operators by carrying out prior checks on certain elements in order to prevent future operators from making investments that could be lost, or from generating additional obligations due, for example, to non-compliance with the Regional Land Use Plan (PRAS).”
Once again, one can only commend the Government’s apparent goodwill towards new operators! Especially since there cannot be any new operators of tourist residences rented year-round (cf. the divergence between economic and urban planning regulations — PRAS). Meanwhile, limited-duration tourist residences (120 days) or home-sharing accommodation remain, in principle, within the bounds of the PRAS “Housing” category.
- “The protection of service recipients, particularly with regard to safety and fire protection.”
This objective was already announced nearly 10 years ago — and has clearly not been achieved, far from it, in a market that is largely underground. One might congratulate the Government here: with its policy of increased fines introduced by this new ordinance, it may perhaps reach this objective… but at what cost??? It is extremely damaging to have to destroy an entire sector to achieve one’s aims. And what about the protection (of the interests) of the service recipient? We will further develop this notion in a forthcoming opinion piece.
- “The protection of the quality of life of residents and neighbours by verifying that the operation is consistent with the proper planning of the area, in order to prevent economic activities that are poorly compatible from being established in neighbourhoods intended for housing.”
We are puzzled: does the application of the PRAS therefore guarantee public peace and quiet?! Renting out one’s primary residence as tourist accommodation (for fewer than 120 cumulative days), by definition when the resident is not present, would therefore help maintain public tranquillity. There is no mention in the ordinance of any certification label, nor of obligations to install smart noise monitors with potential security or concierge service contracts… There is a real gap between this stated objective and the means proposed.
Procedures have been adapted and simplified in proportion to the various situations.
By way of example, the following may be cited, in a non-exhaustive manner:”
- “A relaxation in obtaining the approval of the co-ownership association, which may be presumed in the absence of formal opposition following notification to the operators. This represents a time-saving measure for the operator.”
One can indeed speak here of only a marginal relaxation, since the co-ownership association will remain, in substance, sovereign — and rightly so.
- “The fire safety certification system has been harmonised with the one that applies to nursing homes. Applicants will also be able to submit requests for exemptions without first having to lodge an appeal against a refusal decision by the Mayor.”
- A system of temporary safety certification has been introduced to allow operations to begin while awaiting compliance through minor works.
- Bodies will be accredited by the Brussels Government to issue simplified inspection certificates; this will relieve the SIAMU and speed up the processing of applications.
- “The validity period of safety certificates has been extended to 8 years (instead of 5 years).”
We will assess over time the four adjustments mentioned above, which at first glance appear positive. The only (small) ray of light in an otherwise deeply gloomy picture!
“These relaxations are offset by a strengthening of sanctions, which are also adjusted according to the seriousness of the shortcomings or infringements in order to ensure compliance with the procedures.”
It is unfortunate that the press release is not clearer here and does not specify its real objective, which could be formulated as follows: “with the strengthening of sanctions, to make the real market (several thousand tourist residences) converge towards the ‘legal’ market (fewer than 100 tourist residences)” … to the detriment of the Brussels-Capital Region, its economy, employment, and its residents!
Rudi Vervoort, Minister-President in charge of Tourism, welcomed this decision:
“This future ordinance will allow a balance between the exercise of an economic activity and the protection of ordinary housing and its accessibility in our Region. It also brings relaxations and improvements to the current legislation and pursues a number of objectives we have set ourselves, such as the protection of service recipients (safety), the protection of residents’ quality of life, the preservation of Brussels’ image, the regulation of competition in this sector, as well as the protection of future operators.”
Quite a peculiar balance, Mr Minister-President… service recipients around the world will thank you for driving prices upward; the majority of local economic actors will thank you for negatively impacting their business; and residents will thank you, in particular, for having improved nothing in terms of public tranquillity (labels, sound meters, etc., absent from the ordinance). As for the regulation of competition, the tourist residence sector has unfortunately lost hope in your impartiality with regard to the different stakeholders in the tourist accommodation market in Brussels.
Mr Minister-President, are you fully aware of the European Commission figures: on average, 25% of tourist accommodation supply in the EU is provided by short-term rentals. Why legislate (and effectively prohibit) in complete contradiction with this trend? No European city applies a prohibition policy like Brussels! We ask you to urgently and fundamentally reassess your preliminary draft. We will not give up and are determined, if necessary, to continue defending our arguments through legal channels.
