Provisional text
OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 5 February 2026 (1)
Case C‑813/24
Smartflats SA
v
Région de Bruxelles-Capitale
(Request for a preliminary ruling from the Cour d’appel de Bruxelles (Court of Appeal, Brussels, Belgium))
( Reference for a preliminary ruling – Freedom to provide services – Directive 2006/123/EC – Services in the internal market – Operation of tourist accommodation – Authorisation scheme – Conditions for the grant of authorisation – Operation conditional on a prior declaration and registration – Requirement of a certificate of town planning compliance – Need for planning permission – Involvement of regional and municipal authorities in the procedure – Absence of decision-making deadlines and legal remedies in the procedure for obtaining a certificate of town planning compliance )
1.        This reference for a preliminary ruling concerns the compatibility with Directive 2006/123/EC (2) of the provisions governing the authorisation and registration of tourist accommodation in the Région de Bruxelles-Capitale (Brussels-Capital Region, Belgium).
2.        The complex regional legislation, the application of which by municipal authorities raises a number of questions, includes the requirement to obtain a certificate of town planning compliance among the conditions laid down for the authorisation of tourist accommodation.
3.        In the judgment in Cali Apartments, (3) the Court of Justice examined legal issues more or less similar to those in this reference, relating to the French legislation on tourist accommodation subject to a prior authorisation scheme. (4)
4.        With this case, the Court has the opportunity to refine its case-law on the compatibility with Directive 2006/123 of national provisions which restrict the freedom to provide tourism services. Regulation (EU) 2024/1028, (5) a new legislative instrument adopted after the judgment in Cali Apartments, may assist with a better understanding of the debate.
5.        The background to the dispute which gave rise to the reference for a preliminary ruling is one in which many European cities with tourist attractions are seeing the effects of the expansion of tourist accommodation. The broad spectrum of (economic, social, planning) problems which the rapid increase in such accommodation causes is on the agenda in political debate in the Member States. (6)
I.      Legal framework
A.      European Union law: Directive 2006/123
6.        I refer to the transcription of the recitals and provisions of Directive 2006/123 contained in paragraphs 3 to 11 of the judgment in Cali Apartments.
B.      Belgian law
1.      Ordinance of 8 May 2014 (7)
7.        Article 2 states that it partially transposes Directive 2006/123 into Belgian law.
8.        Article 3(2) defines tourist accommodation (hébergement) as ‘any accommodation [(logement)] offered for one or more nights, in return for payment, on a regular or occasional basis, to tourists’.
9.        Article 3(6) includes ‘holiday homes’ among the various categories of accommodation.
10.      In accordance with Article 4, the provision of tourist accommodation is subject to a ‘prior declaration’ and registration and to compliance with the conditions laid down inter alia in Article 5(2). (8)
11.      The conditions laid down in Article 5(2) are:
–        The obtaining of a fire safety certificate issued by the mayor of the municipality in which the tourist accommodation is located, after an opinion has been received from the competent department. (9) For certain establishments, including holiday homes, a simplified inspection certificate may suffice under the conditions laid down by the government (point (a)).
–        The obtaining of a certificate from the municipality in which the tourist accommodation is located, confirming that the accommodation ‘is provided in accordance with the land use and planning regulations and town planning rules in force’ (point (b)).
2.      Decree of 24 March 2016 (10)
12.      As regards the fire safety certificate, Article 27 specifies the conditions for obtaining a simplified inspection certificate within the meaning of Article 5(2)(a) of the Ordinance of 8 May 2014.
13.      Article 27 provides that the maximum capacity of the accommodation must be less than 10 persons and no other accommodation is to be located in the same building, or, where the accommodation is located in a building housing several tourist accommodation units, the combined capacity must be less than 10 persons, on condition, in the case of holiday homes, however, that the tourist accommodation is not provided by an operator which simultaneously operates more than five accommodation units.
3.      Regional Land Use Plan (11)
14.      The certificate of town planning compliance requires the municipal authority to confirm that the planned use is in accordance with the planning status of the property.
15.      In that regard, the reference document is the glossary (12) of the PRAS, which distinguishes between:
–        a ‘dwelling’ (logement), defined as ‘a set of premises which have been designed for the habitation or residence of one or more persons, provided that another use has not been legally established, including old people’s homes and approved or subsidised accommodation facilities, but excluding hotel establishments’, and
–        a ‘hotel establishment’, defined as an ‘establishment for the accommodation of persons which is able to offer services to customers, such as a hotel, hostel, youth hostel, motel, guesthouse, apartment hotel, flat hotel …’
4.      Brussels Town and Country Planning Code (13)
16.      Article 98(1)(5) requires planning permission to be obtained when the intended use (that is to say the function for which the property is to be used according to the relevant building or planning permission) or the use (understood, within the context of the aforementioned intended use, to mean the specific activity that is carried out in or on the property) of premises is to be changed.
5.      Explanatory ministerial circular of 10 May 2016 (14)
17.      In accordance with paragraph 2:
–        ‘From the point of view of town planning, the main criterion distinguishing a hotel establishment from a dwelling is the fact that the function of a residence/dwelling is secondary to the concept of accommodation for a transient clientele’.
–        The concept of hotel establishment ‘is to be interpreted broadly and covers any form of establishment intended to accommodate a transient population, which distinguishes it from the concept of dwelling’.
–        ‘It is necessary to determine, in particular, whether the tourist accommodation provided in the premises does – or does not – require the premises to be classified as a “hotel establishment” within the meaning of the PRAS’.
–        ‘If the property in which the tourist accommodation establishment is located retains its main function as a residential dwelling, it should not be used as a hotel establishment. That is the case, for example, with a dwelling which is offered for occasional rental to tourists or a dwelling in which the operator habitually resides, while operating part of the dwelling as tourist accommodation’.
–        ‘On the other hand, where the property is given over entirely to tourist accommodation, with the result that no occupant habitually lives in it, the tourist accommodation activity is no longer ancillary and the property must be regarded as a hotel establishment within the meaning of the PRAS’.
–        ‘Of course, the municipalities retain full discretion to assess in the specific case the conformity of the use of the property in question’.
II.    The facts, the dispute and the questions referred for a preliminary ruling
18.      Smartflats is an undertaking active in the Brussels real estate sector, which is engaged, in particular, in short-term rentals.
19.      On 10 September 2020, Smartflats submitted a prior declaration to the Service Economie et Emploi du Service Public Régional de Bruxelles, (15) in accordance with Article 4
of the Ordinance of 8 May 2014, to register a tourist accommodation activity in a property situated in Brussels.
20.      On 11 November 2021, the Brussels Economy and Employment Department declared that the application was inadmissible on the ground that the file was incomplete. It stated that, in the absence of a registration number, the provision of accommodation would not be authorised.
21.      On 24 June 2022, Smartflats sent a letter to the mayor of the City of Brussels to complain that it appeared that applications for a fire safety certificate were not being processed in cases where the city council considered that the certificate of town planning compliance could not be issued (even though the Ordinance of 8 May 2014 does not make the issue of one of those documents subject to the issue of the other). (16)
22.      On 24 September 2022, when called upon to do so by the Brussels Economy and Employment Department, Smartflats confirmed that it operated four short-term rental accommodation ‘units’ in the property.
23.      On 5 October 2022, an inspector from the Brussels Economy and Employment Department stated that tourist accommodation was being provided in the property, which did not meet the requirements of the Ordinance of 8 May 2014.
24.      On 8 November 2022, the Brussels Economy and Employment Department issued an order for the immediate cessation of the provision of tourist accommodation on the ground that Smartflats had not made a declaration prior to its activity.
25.      On 10 November 2022, Smartflats applied to the mayor of the City of Brussels for a simplified inspection certificate relating to fire protection for the tourist accommodation at issue.
26.      On 7 December 2022, the Minister-President of the Government of the Brussels-Capital Region, with responsibility for tourism, confirmed the cessation order of 8 November 2022 on the ground that Smartflats did not have the fire safety certificate referred to in Article 5(2)(a) of the Ordinance of 8 May 2014 or the registration number authorising it to operate the establishment, in accordance with Article 4 of that ordinance.
27.      Smartflats continued to operate the properties, as a result of which, on 7 February 2023, a report was drawn up which found that the order to cease activities immediately had been infringed.
28.      Smartflats then applied for a simplified fire safety certificate. This was refused on 22 May 2023 by Brussels City Council on the ground that no application for planning permission had been submitted in order to change the use of the premises. That certificate was finally granted on appeal.
29.      On 15 June 2023, the inspectorate of the Brussels Economy and Employment Service informed Smartflats of its intention to enforce the order for the immediate cessation of the activity. It proceeded to seal the property on 23 June 2023.
30.      On 3 July 2023, Smartflats brought proceedings before the Tribunal de première instance francophone de Bruxelles (Brussels Court of First Instance (French-speaking), Belgium), seeking the withdrawal of the order for the immediate cessation of the activity, adopted on 8 November 2022.
31.      The Brussels-Capital Region claimed that the application lodged by Smartflats was unfounded and filed a counterclaim, arguing that the prohibition on operating the premises should be accompanied by a penalty payment.
32.      By order of 13 November 2023, the Tribunal de première instance francophone de Bruxelles (Brussels Court of First Instance (French-speaking)) ruled that the action brought by Smartflats was unfounded and upheld the counterclaim lodged by the Brussels-Capital Region.
33.      Smartflats appealed against that decision to the Cour d’appel de Bruxelles (Court of Appeal, Brussels, Belgium), the court which has submitted the request for a preliminary ruling, in which it seeks answers from the Court of Justice to seven questions, of which I shall transcribe the third, fourth, fifth and sixth below.
34.      Those four questions are worded as follows:
‘(3)      Does Article 9 of Directive [2006/123] preclude, from the point of view of the requirement of proportionality, a legal scheme that makes the provision of any accommodation equipped with the fixtures and fittings necessary for sleeping and cooking, and including, where appropriate, hotel-type services for an additional charge, that is offered to tourists for one or more nights, in return for payment, on a regular or occasional basis, subject to a prior declaration and registration, on the principal ground that tourists should be protected and on the subsidiary (and implicit) ground that that scheme protects the urban environment, including, by implication, accommodation?
(4)      Does Article 10 of Directive [2006/123] preclude a legal scheme that makes the provision of any accommodation equipped with the fixtures and fittings necessary for sleeping and cooking, and including, where appropriate, hotel-type services for an additional charge, that is offered to tourists for one or more nights, in return for payment, on a regular or occasional basis, subject to a prior declaration and registration, which involves, inter alia, producing a certificate, issued by the municipality in which the tourist accommodation in question is located, confirming that that accommodation is provided in accordance with the land use and planning regulations and town planning rules in force, given that the national legislation on land use and town planning requires planning permission to be obtained in the event of a change in the use or intended use of immovable property from “dwelling” to “hotel establishment” and that the provision of accommodation in the sense referred to above would be classified as the operation of a hotel establishment, in the light of the way in which the concepts of hotel establishment and tourist accommodation are each defined in the sets of rules at issue?
(5)      Does the answer to the previous question differ depending on whether or not the classification of “hotel establishment” is left to the discretion of the municipal authority as provided for in a ministerial circular?
(6)      Does Article 13 of Directive [2006/123] preclude a legal scheme that makes the provision of any accommodation equipped with the fixtures and fittings necessary for sleeping and cooking, and including, where appropriate, hotel-type services for an additional charge, that is offered to tourists for one or more nights, in return for payment, on a regular or occasional basis, subject to a prior declaration and registration, which involves, inter alia, producing a certificate, issued by the municipality in which the tourist accommodation in question is located, confirming that that accommodation is provided in accordance with the land use and planning regulations and town planning rules in force, given that no time limit is set for the issue of that certificate, no specific obligation to state reasons is imposed and no specific means of redress is provided for?’
III. Procedure before the Court of Justice
35.      The request for a preliminary ruling was received at the Registry of the Court of Justice on 27 November 2024.
36.      Written observations were lodged by Smartflats, the Belgian and Netherlands governments, and the European Commission. Smartflats, the Belgian Government and the Commission appeared at the hearing, held on 12 November 2025.
37.      As directed by the Court, my Opinion will be confined to questions 3, 4, 5 and 6.
IV.    Assessment
A.      Preliminary point
38.      The premisses on which the referring court relies help to delimit the scope of the dispute.
39.      In essence, the referring court asks the Court of Justice to interpret Articles 9, 10 and 13 of Directive 2006/123 in order to determine whether the authorisation scheme for tourist accommodation in force in the Brussels-Capital Region is compatible with those articles, in particular, in so far as that scheme requires the mandatory production of a certificate of town planning compliance (17) in order to use a property for tourist accommodation. (18)
40.      According to the referring court:
–        It is not disputed that the Ordinance of 8 May 2014 falls within the scope of Directive 2006/123 and that activities such as those pursued by Smartflats (consisting in the letting, for remuneration and for short periods, of furnished dwellings for residential use to a transient clientele which does not take up residence there) constitute services within the meaning of Article 4 of that directive.
–        Nor is it disputed that the Ordinance of 8 May 2014 creates an authorisation scheme within the meaning of Article 9 of Directive 2006/123, and not a ‘requirements’ scheme as referred to in Articles 14 and 15 of that directive.
–        As regards the requirements laid down by Article 9 of Directive 2006/123, the Brussels-Capital Region scheme is not discriminatory and is based on overriding reasons relating to the public interest, the proportionality of which is open to debate.
–        Although the requirement for a fire safety certificate appears to meet the requirements of Article 10 of Directive 2006/123, it is uncertain whether that is also the case of the requirement to produce a certificate of town planning compliance.
B.      Question 3
41.      The referring court requests an interpretation of Article 9 of Directive 2006/123, ‘from the point of view of the requirement of proportionality’, in order to determine whether it precludes a legal scheme such as that at issue, which:
–        makes the provision of any accommodation equipped with the fixtures and fittings necessary for sleeping and cooking, and including, where appropriate, hotel-type services for an additional charge, that is offered to tourists for one or more nights, in return for payment, on a regular or occasional basis, subject to a prior declaration and registration;
–        is based on the ‘principal ground that tourists should be protected and on the subsidiary (and implicit) ground that that scheme protects the urban environment, including, by implication, accommodation’.
42.      The conformity of a national authorisation scheme with Directive 2006/123 must be examined in the light of Article 9(1) of that directive. The Member States may establish such a scheme only if it is non-discriminatory, is justified by an overriding reason relating to the public interest and is proportionate to its aim.
43.      The conditions for obtaining authorisation must comply with Article 10 of Directive 2006/123. In accordance with that article, authorisation schemes must be based on criteria which delimit the exercise by the competent authorities of their power of assessment and meet the criteria set out in paragraph 2 thereof.
44.      Both Article 9(1), on justification, and Article 10(2) of Directive 2006/123, on the criteria for the granting of authorisations, include clear, precise and unconditional obligations which give them direct effect. (19)
45.      The administrative authorisation scheme must therefore comply with those two articles. (20) To confirm that it does so, it is necessary to establish that the restriction ‘(i) does not discriminate on grounds of nationality, (ii) is justified by an overriding reason relating to the public interest and
(iii) is suitable for securing the attainment of the objective pursued, does not go beyond what is necessary to attain that objective and may not be replaced by other, less restrictive measures which attain the same result.’ (21)
46.      It is ultimately for the referring court to examine whether the three conditions laid down by Article 9 of Directive 2006/123 are met, because it is best acquainted with the facts of the dispute. (22)
47.      However, the Court of Justice, in order to provide answers of use to the referring court, may provide guidance in order to enable the referring court to give judgment. (23)
1.      Discrimination
48.      It cannot be concluded from the information in the case file that the authorisation scheme is discriminatory because it applies equally to operators established in the Brussels-Capital Region and to nationals or residents of other Member States who wish to carry out the independent economic activity concerned in that region.
49.      The referring court confirms that assessment. In its view, that scheme does not create any discrimination between providers of tourist accommodation services. (24)
2.      Justification based on overriding reasons relating to the public interest
50.      The referring court explains that the legislation at issue is aimed at the protection of tourists and the urban environment. (25)
51.      Pursuant to Article 4(8) of Directive 2006/123, ‘overriding reasons relating to the public interest’ means ‘reasons recognised as such in the case-law of the Court of Justice, including the following grounds: … the protection of consumers, recipients of services …; the protection of the environment and the urban environment …’
52.      In principle, the protection of tourists, as users of tourist accommodation, may be covered by the more general concept of the protection of consumers and recipients of services. In addition, the protection of the urban environment is explicitly referred to in Directive 2006/123.
53.      The double justification relied on therefore satisfies a number of the reasons permitted under Directive 2006/123 and the case-law of the Court. (26)
54.      Furthermore, as I noted above, Regulation 2024/1028 refers to the possible effects of tourist accommodation on housing policy. The Court ‘has … acknowledged that requirements relating to public housing policy and seeking to combat land pressure, especially where a specific market is experiencing a structural housing shortage and a particularly high population density, may constitute overriding reasons relating to the public interest’. (27)
3.      Need for and proportionality of the authorisation scheme based on the objective of the protection of tourists
55.      In accordance with Article 9(1) of Directive 2006/123, it must be determined whether the authorisation scheme at issue: a) is necessary for the protection of tourists; and b) meets the requirements of the principle of proportionality.
56.      Restrictions imposed by the Member States on the provision of services must comply with the principle of proportionality. That will be the case if those restrictions are appropriate for ensuring that the objective pursued is attained, they do not go beyond what is necessary to attain it, and it is not possible to replace them with other, less restrictive measures which attain the same result. (28)
57.      In addition, national legislation is appropriate for ensuring the attainment of the objective sought only if it genuinely meets the concern to attain that objective in a consistent and systematic manner. (29)
58.      It is the Member State wishing to rely on an objective capable of justifying the restriction of the freedom to provide services which must supply the court called on to rule on that question with all the evidence of such a kind as to enable the court to be satisfied that the measure does indeed comply with the requirements deriving from the principle of proportionality. (30)
59.      The Belgian Government:
–        Claims that the protection of tourists was the overriding reason relating to the public interest which the legislation at issue primarily sought to protect.
–        Justifies the need and the proportionality of that legislation on the ground that it enables better protection of tourists than a system of simple registration and ex-post control, which is less effective. Prior authorisation guarantees to tourists that the accommodation they rent is operated lawfully and, therefore, satisfies all the statutory requirements (minimum rules on habitability, health and safety, town planning rules, and other rules guaranteeing the integrity of the service provider).
60.      The Commission and Smartflats submit, on the contrary, that the authorisation scheme for tourist accommodation established in the Brussels-Capital Region is neither necessary nor proportionate in order to protect tourists, because less restrictive alternatives exist. (31)
61.      Although the final decision on that matter rests with the referring court, I find the arguments put forward by Smartflats and the Commission more persuasive.
62.      First, as the Commission points out, the guarantee of compliance with the minimum rules on habitability, health and safety does not require the application of the prior authorisation scheme at issue in the dispute. Compliance with those requirements by all accommodation in the Brussels-Capital Region is already stipulated, inter alia, by Articles 4 and 219 of the Code du logement. (32)
63.      The requirement of a certificate of town planning compliance in the context of a prior authorisation scheme does not contribute anything additional as regards compliance with the minimum rules on habitability, health and safety by tourist accommodation. That certificate confirms that a property is given over (allocated) to a particular use, either residential or hotel-related.
64.      Second, viewing the issue from the perspective of the information provided to persons who use tourist accommodation, those persons have, in the context of the collaborative economy linked to the most used intermediation platforms (for example, Airbnb), tools for reviewing and rating the quality of accommodation. (33)
65.      Such tools make it possible for ‘those seeking accommodation to make a fully informed choice from among the accommodation offerings proposed by the hosts on the platform’. (34)
66.      To protect tourists when they rent short-term accommodation, the (informal) tools linked to electronic platforms are, in general, effective in the context of a market economy of the kind underlying Directive 2006/123 and, of course, less restrictive than a prior authorisation scheme.
67.      Lastly, in Belgium itself, the Flemish Region and the Walloon Region use forms of ex-post control of tourist accommodation. It is apparent from the information available that those forms of control reap better results, on a practical application, than the prior authorisation scheme in the Brussels-Capital Region. (35)
68.      Accordingly, subject to the referring court’s final assessment, all the evidence suggests that the scheme at issue does not fully satisfy the criteria of necessity and proportionality in order to obtain the objective of the protection of tourists.
4.      The necessity and proportionality of the authorisation scheme based on the objective of protection of the urban environment
69.      The Belgian Government argues that the scheme at issue is necessary and proportionate in order to protect the urban environment and housing in the Brussels-Capital Region.
70.      In that connection, the Belgian Government relies on a number of studies (36) which show that, in Brussels, the ‘Airbnb phenomenon’ has led to a rapid increase in tourist accommodation, because it is more lucrative, with the resulting deterioration of the housing market for residents.
71.      In the Belgian Government’s submission, the negative effects of the ‘Airbnb phenomenon’ can be seen in the increased price of residential lets and property for sale. It is difficult for residents to afford rental accommodation or to buy residential property and waiting lists for officially protected housing are on the increase.
72.      Smartflats puts forward a different
interpretation of the studies and data relating to the housing market in the Brussels-Capital Region:
–        The number of dwellings withdrawn from the residential rental market in that region, due to the rental of tourist accommodation, is estimated at 2 400, in other words, barely 0.7% of the private rental stock. Restrictions on the provision of tourist accommodation are not the solution to the housing crisis, the causes of which are the failure to build affordable housing and the existence of a large number of empty dwellings.(37)
–        A 2024 study (38) estimated
that there are some 11 500 empty homes in the Brussels-Capital Region (the real number depends on the methodology used to calculate it). A further 5 000 empty social housing units need to be added to that figure. Therefore, Smartflats argues, the number of unoccupied properties is five times higher than the number of properties withdrawn from the residential market as a result of tourist accommodation rentals.
73.      Smartflats also draws attention to the inadequate application of the authorisation scheme in the Brussels-Capital Region, compared with the schemes in the regions of Flanders and Wallonia. (39) In the case of Flanders, registered accommodation amounted to 60% while in Wallonia it was 48%, those regions having simple registration and ex-post control schemes for tourist accommodation.
74.      For those reasons, Smartflats argues, the scheme at issue is neither necessary nor proportionate for the purpose of protecting the urban and accommodation environment in the Brussels-Capital Region.
75.      For my part, I understand the Belgian Government’s legitimate concerns, which are on the same lines as those set out recital 1 of Regulation 2024/1028, cited above. It is not easy to balance satisfaction of the growing need for tourist accommodation with the (possible) negative effects of the rapid increase in such accommodation, whose owners prefer that type of use of their properties to long-term rentals.
76.      From the point of view of EU law (with freedom of establishment as the guiding principle), the precedent laid down in the judgment in Cali Apartments sheds light on the compatibility of a scheme more or less similar to that now at issue with Directive
2006/123.
77.      The French scheme passed the necessity and proportionality test applied by the Court of Justice in the judgment in Cali Apartments on the grounds that it included three important features:
–        It was based on a study of the housing market in France and the pressure exerted on it by the rapid increase in tourist accommodation. That study was provided to the Court by the French Government. (40)
–        It was not applicable to housing which constitutes the lessor’s main residence, as the letting of such housing has no effect on the long-term rental market, since there is no need for that lessor to establish his or her main residence in another dwelling. (41)
–        From a geographical perspective, the scheme was not of general application, but of limited scope, concerning a limited number of densely populated municipalities experiencing tensions on the rental housing market. (42)
78.      The authorisation scheme for tourist accommodation in the Brussels-Capital Region appears to have none of those three features, although it is the responsibility of the referring court to reach definitive findings in that respect.
(a)    Prior studies
79.      In the first place, there is no evidence that the adoption of the Ordinance of 8 May 2014 (and of the provisions supplementing it) was preceded by an in-depth study of the tourist accommodation market in the Brussels-Capital Region and the impact of the latter on residential housing.
80.      At the hearing, the parties agreed that the objective of combatting the scarcity of housing on the long-term rental market in the Brussels-Capital Region was not the basis for the adoption of the Ordinance of 8 May 2014, which related solely to land use and planning.
81.      The Belgian Government stated that the aim of that ordinance was to prevent the rapid increase of tourist accommodation, linked to the development of collaborative economy platforms, which has subsequently occurred in other large European tourist cities. Smartflats countered that its true aim was to protect the traditional hotel sector.
82.      The studies of the housing market in the Brussels-Capital Region, cited by Smartflats and the Commission, make clear that the housing tension in that region and the lack of affordable accommodation is due to multiple factors (rapid population growth, the fact that a significant number of inhabitants are poor, increased rental prices and the scarcity of new housing, in particular officially protected housing).
83.      In
those studies, the development of tourist accommodation is mentioned as an additional factor which, while creating tension on the housing market, does so with limited impact since it amounts to no more than 0.7% of the accommodation in the region.
(b)    Tourist accommodation in the owner’s home
84.      The legislation at issue also requires prior authorisation for tourist accommodation where this takes the form of rooms in an owner’s home and the owner continues to live there.
85.      The protection of the urban environment does not justify that restrictive measure where the owner-occupiers of residential properties continue to live in those properties. In those circumstances, the urban environment is not altered as such: the housing concerned retains the same primary use as it had before.
86.      Certainly, the 2016 Ministerial Circular provides that, where the operator is usually resident in the property and uses only part of it as tourist accommodation, the primary use (housing) and not the secondary use (tourist accommodation) takes precedence. That factor simplifies the attainment of the certificate of town planning compliance because no change of use of the property is required.
87.      It cannot be inferred from the information available in the case file that the authorities in the Brussels-Capital Region exercised that option, which is mentioned only in the 2016 Ministerial Circular. The circular grants municipal authorities a broad discretion with regard to whether or not to require a change of use of the dwelling concerned in those circumstances. That is a matter which the referring court must determine.
(c)    The affected geographical areas
88.      The legislation at issue applies without distinction throughout the Brussels-Capital Region, without differentiating between areas on the grounds of the greater or lesser impact of the proliferation of tourist accommodation. (43)
89.      The Belgian Government states that the PRAS divides the territory of the Brussels-Capital Region into zones, in which it already supports different uses of properties. In its view, it would not be helpful to create a new division in order to provide for different schemes for the operation of tourist accommodation.
90.      The PRAS zones are not defined on the basis of the extent to which tourist accommodation has multiplied and, therefore, those zones are irrelevant for the purposes of determining the necessity and proportionality of the prior authorisation scheme, which is generally applicable, that is to say, it applies without taking into account the actual situation in each zone.
91.      The Commission (44) cited, by way of contribution to the discussion on this point, a judgment of the referring court (sitting in a different composition) of 16 January 2023, which concerned a tourist accommodation activity in the municipality of Schaerbeek in the Brussels-Capital Region. (45) The Belgian Government also referred to that judgment at the hearing, confirming that it was final.
92.      The first Chamber F of the Cour d’appel de Bruxelles (Court of Appeal, Brussels) held, in that judgment, that the requirement of a certificate of town planning compliance, laid down in the Ordinance of 8 May 2014, for any tourist operation in the territory of the Brussels-Capital Region did not comply with the judgment in Cali Apartments because ‘it applies without distinction to all municipalities in the territory of the region, whereas the judgment of the [Court of Justice] requires a “particularly marked” tension on rentals, which involves … a different and comparative approach between the municipalities in the territory of the region’. (46)
93.      In the light of the foregoing considerations, it is possible to provide the Court with a twofold response to question 3:
–        Article 9 of Directive 2006/123 does not preclude, in principle, a legal scheme that makes the provision of a dwelling for use as tourist accommodation on a regular or occasional basis subject to a prior declaration and registration, provided that that scheme is necessary and proportionate for the purposes of the protection of tourists and the urban environment.
–        It is for the national court to assess the necessity and proportionality of that scheme, taking into account its geographical scope, whether it is based on studies and precise data, and its effects on residential needs in the urban areas in which it applies.
C.      Questions 4 and 5
94.      Questions 4 and 5 may be considered together. By those questions, the referring court asks, in essence:
–        Whether Article 10 of Directive 2006/123 precludes a legal scheme such as that at issue which requires the presentation of a certificate of town planning compliance issued by the municipality. The referring court states, for those purposes, that ‘the national legislation on land use and town planning requires planning permission to be obtained in the event of a change in the use or intended use of immovable property from “dwelling” to “hotel establishment” and that [a dwelling used as tourist accommodation] would be classified as the operation of a hotel establishment, in the light of the way in which the concepts of hotel establishment and tourist accommodation are each defined in the sets of rules at issue’.
–        Whether the reply to that question would change in the event that the classification of ‘hotel establishment’ is left to the discretion of the municipal authority, as provided for in a ministerial circular.
95.      Article 10(1) of Directive 2006/123 states that ‘authorisation schemes shall be based on criteria which preclude the competent authorities from exercising their power of assessment in an arbitrary manner.’
96.      Article 10(2) provides that the criteria for the granting of authorisation must be non-discriminatory, be justified by an overriding reason relating to the public interest, be proportionate to that public interest objective, be clear, unambiguous and objective, be made public in advance, and be transparent and accessible. (47)
97.      The referring court has already found that the authorisation scheme at issue is non-discriminatory. In my examination of the previous question, I analysed its justification on the basis of the protection of tourists and the urban environment.
98.      It is necessary to consider now whether the requirement of a certificate of town planning compliance, around which the authorisation scheme at issue revolves, satisfies the other requirements of Article 10(2) of Directive 2006/123.
99.      Specifically, it will be necessary to examine whether the legislation which lays down the requirement is clear, unambiguous and objective, whether it was made public in advance, and whether it is transparent and accessible. (48)
100. The prior publicity requirement is fulfilled, as the Ordinance of 8 May 2014 was officially published. That is not the case of the 2016 Ministerial Circular, which was not officially published and is available only on a website.
101. As regards the remaining requirements, the Court of Justice has expressed its view in the following (summarised) terms:
–        The conditions for authorisation will be clear and unambiguous if they are easily understandable by all while avoiding any ambiguity.
–        The requirement of objectivity means that requests for authorisation are to be assessed on the basis of their own merits, in order to provide the parties concerned with a guarantee that their request will be dealt with objectively and impartially, as is required by Article 13(1) of that directive. (49)
102. In accordance with the information in the Court’s possession, it is my view that the scheme at issue cannot be classified as clear, unambiguous and transparent. That is a matter which it ultimately falls to the referring court to decide, taking into account the guidance provided to it by the Court of Justice.
103. If I have understood the legislation at issue correctly, two distinct situations exist with regard to the issuing of a certificate of town planning compliance:
–        Where a dwelling is already given over to use as tourist accommodation, its owner is entitled to be issued with a certificate of town planning compliance by the municipal council, without the need to take any additional action. In those circumstances, there is no need to apply for planning permission recognising the use of the dwelling as tourist accommodation in accordance with the provisions of the
CoBAT. (50) In that case, the certificate of town planning compliance is a ‘mere formality’ and is compatible with Article 10(2) of Directive 2006/123.
–        The situation is different where a dwelling is not given over to use as tourist accommodation and its operation as tourist accommodation requires a change of use. In those circumstances, before the certificate of town planning compliance is issued by the municipal council, planning permission needs to be obtained in accordance with Article 98 of the CoBAT.
104. In the latter situation, which is at issue in this case and applies to most persons seeking to provide tourist accommodation services, the certificate of town planning compliance is not a mere document substantiating the use of the property (as the Belgian Government argued at the hearing), since it is issued subject to a prior administrative procedure of the municipal authorities.
105. I should point out that, in any event, we are not dealing here with the simple application of town planning rules, which are not governed by Directive 2006/123, (51) but rather with an applicable criterion in an authorisation scheme for the pursuit of an activity involving the provision of tourism services, which is subject to Directive 2006/123. (52)
106. The requirement of a certificate of town planning compliance entails the application of Article 98 of the CoBAT (need for planning permission for a change of intended use or use of a property) in combination with Article 5(2)(b) of the Ordinance of 8 May 2014 (the certificate must confirm that the accommodation ‘is provided in accordance with the land use and planning regulations and town planning rules in force’).
107. Thus, where the assigned use of a property is as a residential dwelling, the obtaining of a certificate of town planning compliance in order to then obtain a registration number from the regional authorities is complicated: the involvement of the municipal council is necessary and, according to the information available, that is difficult in so far as it requires (fresh) planning permission to be issued.
108. Article 5(5)(b) of the Ordinance of 8 May 2014 does not set any clear guidelines concerning the technical specifications which municipal authorities must check before issuing a certificate of town planning compliance for the purposes of the registration and authorisation of tourist accommodation.
109. No further clarification is provided by Article 98 of the CoBAT, which does not refer to tourist accommodation activities.
110. The distinction in the PRAS between the term ‘dwelling’ and the term ‘hotel establishment’ (53) means that, if premises are classified under planning rules as being for use as a dwelling, planning permission will be required to change their use to that of hotel establishment.
111. Municipal authorities also have a broad discretion to determine whether or not to accept the change of use and the criteria appear to vary from one municipality to another.
112. The relationship is not clear either between the definitions of ‘tourist accommodation’ (54) in the Ordinance of 8 May 2014 and that of ‘hotel establishment’ in the PRAS, provisions which municipalities in the Brussels-Capital Region apply differently.
113. In the referring court’s view, the issue is whether all tourist accommodation (within the meaning of Article 3 of the Ordinance of 8 May 2014) must be classified as ‘hotel establishments’ (within the meaning of the PRAS) and, therefore, whether or not the conversion of a dwelling into tourist accommodation requires planning permission. (55)
114. According to the available information, the practice of the municipalities of the Brussels-Capital Region tends in the main to treat any tourist accommodation as a hotel establishment for the purposes of the PRAS. That practice normally necessitates a change of intended use of the property concerned (which is not easy) in order to obtain planning permission.
115. Since the planning rules limit the possibility of creating hotel establishments, it is difficult to obtain planning permission, which, I repeat, opens up the possibility of obtaining a certificate of town planning compliance, which is essential in order to register tourist accommodation.
116. Under those circumstances:
–        Anyone who wishes to provide, as tourist accommodation, a room in their own home, where they continue to be resident, needs to obtain planning permission for a hotel establishment, which is clearly disproportionate. As I pointed out above, such a person may avoid that requirement only if the authorities consider that the tourist activity in the property is ancillary to its primary function as a dwelling. However, it does not appear that that exception, which is referred to only in the 2016 Ministerial Circular, is applied in a systematic and homogenous manner by municipal authorities when it comes to issuing certificates of
town planning compliance.
–        Anyone who wishes to operate as tourist accommodation a property which, under the planning rules, is not intended for use as a hotel establishment, is faced with the dilemma of classifying for planning purposes the planned tourist operation by allocating to it one of the
PRAS categories which were not designed for that purpose. The referring court (56) refers to legal literature which criticises the conceptual hiatus derived from that difficulty.
117. In addition to the foregoing, there is a requirement which was pointed out at the hearing: the total or partial change of use of a dwelling to a hotel establishment, required by the PRAS in order to operate that dwelling as tourist accommodation, must be offset by the owner through the retention of the same surface area as a dwelling in the zone, as laid down by rule 0.12(1) of the ‘General requirements relating to all zones’ of the PRAS.
118. The offsetting requirement, unlike that laid down in the French legislation examined in the judgment in Cali Apartments, (57) is not governed by precise rules and its application is left to the municipal authorities. As Smartflats argued at the hearing, it would be difficult for individuals seeking to use their homes for tourist accommodation for short periods of time, while not living in those homes, to afford the cost inherent in that offsetting.
119. The requirement to purchase another dwelling in the same residential area of Brussels to offset the change of use of the previous dwelling, as a necessary condition to carry on the activity of tourist accommodation services provider (where the property was not previously classified for planning purposes as a hotel establishment), seems to me, subject to the assessment of the referring court, to be disproportionate.
120. That complex legislative landscape creates significant legal uncertainty for anyone seeking to establish themselves or to provide tourist accommodation services in the Brussels-Capital Region. It is difficult for any individual or undertaking to get an idea in advance about whether their plan to operate tourist accommodation in that region will be compatible with the legislation at issue. (58)
121. The lack of clarity and the legal uncertainty are increased by the lack of a sufficiently clear delimitation of the decision-making powers of municipalities (59) to deal with planning permission, which is required (where there is a change of use of the property concerned) in order to obtain a certificate of town planning compliance, which opens the door to the registration of tourist accommodation. (60)
122. The 2016 Ministerial Circular is clearly insufficient to make the administrative practices of municipal authorities uniform. It is an instrument which lacks binding legal force, was not even officially published and allows the municipalities full discretion to determine on a case-by-case basis when a property must be treated as a dwelling or a hotel establishment under the
PRAS.
123. The 2016 Ministerial Circular also supports a rather broad interpretation of the term ‘hotel establishment’, the effect of which is that a change of use of a property will be necessary as a prior step for obtaining planning permission and subsequently a certificate of town planning compliance.
124. The wording of the legislation at issue, together with the fact that it is not applied uniformly by the municipalities of the Brussels-Capital Region, (61) create – I repeat – legal uncertainty and make the requirement of a certificate of town planning compliance less transparent and objective. In this respect, the clarity and objectivity of the legislation at issue are undermined. (62)
125. In short, I believe that Article 10 of Directive 2006/123 precludes a legal scheme which makes the operation of tourist accommodation conditional on the presentation of a certificate of town planning compliance, where planning permission must be obtained before that certificate can be issued and the certificate is issued by the municipal authorities with a broad discretion, under national legislation which lacks clarity, objectivity and transparency.
D.      Question 6
126. The referring court requests the interpretation of Article 13 of Directive 2006/123 in order to ascertain whether a legal scheme which requires, in the circumstances set out above, a certificate of town planning compliance to be issued, for the purposes of which ‘no specific obligation to state reasons is imposed and no specific means of redress is provided for’, is compatible with that article. (63)
127. In accordance with Article 13(1) to (4) of Directive 2006/123, authorisation procedures and formalities:
–        must be clear, made public in advance and be such as to provide the applicants with a guarantee that their application will be dealt with objectively and
impartially;
–        must not be dissuasive and must not unduly complicate or delay the provision of the service;
–        must be easily accessible and any associated costs must be reasonable and proportionate;
–        must provide applicants with a guarantee that their application will be processed as quickly as possible and, in any event, within a reasonable period which is fixed and made public in advance.
128. The Belgian Government submits that the Decree of 24 March 2016 supplemented the Ordinance of 8 May 2014 and that the procedure for the authorisation and registration of tourist accommodation satisfies the requirements of Article 13 of Directive
2006/123.
129. In the Belgian Government’s submission, the Decree of 24 March 2016 sets specific time limits for regional authorities to process and decide on applications for the authorisation and registration of tourist accommodation, in addition to possible remedies. Indeed, the Belgian Government continues, all properly completed applications have been processed and the decisions of the regional authorities are, in general, based on reasons and subject to judicial review. At the hearing, the Belgian Government stressed that there is hardly any litigation resulting from the requirement of a certificate of town planning compliance and that the regional authorities have not had to exercise their supervisory powers in relation to municipal authorities with regard to the application of the Ordinance of 8 May 2014 as a result of complaints by affected individuals.
130. The Belgian Government’s explanation is, however, insufficient, as it deals only with the ‘regional stage’ of the authorisation procedure without taking into account the fact that the real difficulty with the procedure is the ‘municipal stage’, that is, the issue of the certificate of town planning compliance. That is what the reference for a preliminary ruling concerns: in particular, question 6 focuses on that certificate, the refusal of which does not require reasons and is not open to appeal.
131. As explained above, the authorisation and registration of tourist accommodation is subject to complex formalities which encompass two connected procedures:
–        the authorisation and registration procedure for tourist accommodation, conducted by the regional authorities; and
–        the procedure to obtain a certificate of town planning compliance, which is conducted by the municipal authorities. In most cases, to obtain that certificate, there is a need for planning permission which, in turn, relates to the change of use of the premises.
132. Therefore, it is not possible to argue, as the Belgian Government does, that the certificate of town planning compliance is merely a procedural document and that the time limits and other requirements laid down in Article 13 of Directive 2006/123 apply once the application for registration and authorisation is complete.
133. Fulfilment of the requirements laid down in Article 13 of Directive 2006/123 must be examined in relation to both connected procedures because, if a certificate of town planning compliance is not obtained, it is impossible to obtain a registration number for the tourist accommodation in question.
134. In the case of an incomplete application, Article 13(6) of Directive 2006/123 provides that the applicant must be informed of the need to supply any additional documentation, as well as of any possible effects on the period referred to
in paragraph 3. Moreover, the period for deciding on an application, in accordance with Article 13(3), in fine, of the directive, runs only from the time when all documentation has been submitted.
135. Those requirements must be satisfied in both connected procedures. Further, as the Commission states, the period (which starts to run when an application is complete) cannot start to run if an applicant has been unable to supply the documentation for reasons attributable to the authorities.
136. According to the information provided by the referring court, to which the Court of Justice must restrict itself, in the procedure before the municipal authorities to obtain a certificate of town planning compliance, no time limit is laid down for the adoption of a decision, there is no requirement to state reasons, and no specific remedy is provided for. The procedural guarantees laid down by the Decree of 24 March 2016, which was supplemented by the Ordinance of 8 May 2014, do not apply to the procedure before the municipal authorities to obtain a certificate of town planning compliance.
137. In addition to the foregoing, in the absence of a response from the regional authority, the authorisation and registration of tourist accommodation is deemed to be refused. That provision is incompatible with the rule in Article 13(4) of Directive 2006/123, in accordance with which, failing a response within the time period set, authorisation is deemed to have been granted, unless different arrangements have been put in place which are justified by overriding reasons relating to the public interest; no such reasons have been pleaded by the Belgian Government in this case.
138. Accordingly, I believe that Article 13 of Directive 2006/123 precludes a legal scheme which makes the operation of tourist accommodation conditional on the presentation of a certificate of town planning compliance, where no time limit is set for the issue of that certificate, no specific obligation to state reasons is imposed and no specific means of redress is provided for against a refusal decision.
V.      Conclusion
139. In the light of the foregoing considerations, I propose that the Court of Justice give the following reply to the Cour d’appel de Bruxelles (Court of Appeal, Brussels, Belgium):
‘Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market
must be interpreted as meaning that
–        Article 9 of Directive 2006/123 does not preclude a legal scheme that makes the provision of a dwelling for use as tourist accommodation on a regular or occasional basis subject to a prior declaration and registration, provided that that scheme is necessary and proportionate for the purposes of the protection of tourists and the urban environment. It is for the national court to assess the necessity and proportionality of that scheme, taking into account its geographical scope, whether it is based on studies and precise data, and its effects on residential needs in the urban areas in which it applies.
–        Article 10 of Directive 2006/123 precludes a legal scheme which makes the operation of tourist accommodation conditional on the presentation of a certificate of town planning compliance, where planning permission must be obtained before that certificate can be issued and the certificate is issued by the municipal authorities with a broad discretion, under national legislation which lacks clarity, objectivity and transparency.
–        Article 13 of Directive 2006/123 precludes a legal scheme which makes the operation of tourist accommodation conditional on the presentation of a certificate of town planning compliance, where no time limit is set for the issue of that certificate, no specific obligation to state reasons is imposed and no specific means of redress is provided for against a refusal decision.’
1      Original language: Spanish.
2      Directive of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36).
3      Judgment of 22 September 2020, Cali Apartments (C‑724/18 and C‑727/18, EU:C:2020:743; ‘judgment in Cali Apartments’). I shall inevitably refer to this judgment many times in my discussion.
4      That case concerned ‘national legislation requiring prior authorisation for the exercise of activities consisting in the repeated short-term letting, for remuneration, of furnished accommodation to a transient clientele which does not take up residence there’ (judgment in Cali Apartments, paragraph 2).
5      Regulation of the European Parliament and of the Council of 11 April 2024 on data collection and sharing relating to short-term accommodation rental services and amending Regulation (EU) 2018/1724 (OJ L, 2024/1028).
6      Recital 1 of Regulation 2024/1028 refers to the impact of tourist accommodation in the following terms: ‘… The volume of short-term accommodation rental services is increasing significantly across the Union as a result of the growth of the platform economy. While short-term accommodation rental services create many opportunities for guests, hosts and the entire tourism ecosystem, their rapid growth has given rise to concerns and challenges, in particular for local communities and public authorities, such as their contribution to the decrease in the availability of long-term rental housing and the increase in rents and housing prices …’.
7      Ordonnance relative à l’hébergement touristique (Ordinance on tourist accommodation) of 8 May 2014 (Moniteur belge of 17 June 2014, 2nd ed., p. 45695) (‘the Ordinance of 8 May 2014’).
8      The combined mechanism of the prior declaration and the grant of a registration number under certain conditions leads, in reality, to the requirement of ‘authorisation’ from the regional authorities to use a dwelling for tourist accommodation.
9      This is the Service d’Incendie et d’Aide Médicale Urgente de la Région de Bruxelles-Capitale (Brussels-Capital Region Fire and Emergency Medical Service).
10      Arrêté du Gouvernement de la Région de Bruxelles-Capitale portant exécution de l’ordonnance du 8 mai 2014 relative à l’hébergement touristique (Decree of the Government of the Brussels-Capital Region implementing the Ordinance of 8 May 2014 on tourist accommodation) of 24 March 2016 (Moniteur belge of 14 April 2016, 2nd ed., p. 24452) (‘the Decree of 24 March 2016’).
11      Plan Régional d’Affectation du Sol (Regional Land Use Plan) (‘PRAS’).
12      That glossary is available at https://perspective.brussels/fr/outils-de-planification/pras/les-prescriptions-litterales-legales-du-pras/l-glossaire-des-principaux-termes-utilises-dans-les-prescriptions-urbanistiques.
13      Code bruxellois de l’aménagement du territoire (Brussels Town and Country Planning Code) (Moniteur belge of 26 May 2004, p. 40738; ‘CoBAT’), in the version applicable at the material time. That provision changed following amendment in 2017 https://urbanisme.irisnet.be/lesreglesdujeu/le-code-bruxellois-de-lamenagement-du-territoire-cobat.
14      Circulaire ministérielle explicative du 10 mai 2016 relative aux missions de la Commune et du Bourgmestre dans le cadre de l’exécution de l’ordonnance du 8 mai 2014 (Explanatory ministerial circular of 10 May 2016 concerning the tasks of the municipality and the mayor in the implementation of the ordinance of 8 May 2014; ‘the 2016 Ministerial Circular’), available at https://pouvoirs-locaux.brussels/10-mai-2016-circulaire-explicative-relative-aux-missions-de-la-commune-et-du-bourgmestre-dans-le.
15      Economy and Employment Department of the Brussels Regional Public Service (‘Brussels Economy and Employment Department’).
16      Subsequently, Smartflats sent seven reminders, the last one on 12 January 2023.
17      I shall use the term ‘certificate of town planning compliance’ to denote the certificate referred to in Article 5(2)(b) of the Ordinance of 8 May 2014. That certificate must state that the tourist accommodation ‘is provided in accordance with the land use and planning regulations and town planning rules in force’.
18      The referring court has not asked about the requirement of a standard or simplified fire safety certificate for the authorisation of tourist accommodation. Therefore, I shall not refer to that requirement which, moreover, does not appear to raise issues of incompatibility with Article 10 of Directive 2006/123.
19      Judgment in Cali Apartments, paragraph 58.
20      The conformity of the legislation of a Member State laying down an authorisation scheme with both articles requires that separate and consecutive assessments must be made of, first, whether the principle of establishing that scheme is justified, and, then, the criteria for granting the authorisations provided for by that scheme. Judgment in Cali Apartments, paragraph 58.
21      Judgment of 23 December 2015, Hiebler (C‑293/14, EU:C:2015:843, paragraph 55).
22      On a number of occasions, the Court of Justice, when replying to a request for a preliminary ruling concerning Directive 2006/123, has examined for itself whether the national measures are justified and proportionate. In that connection, see the judgment in Cali Apartments (points 3 and 4 of the operative part). However, in most cases, it either leaves that examination to the referring court (judgment of 10 July 2025, INTERZERO and Others, C‑254/23, EU:C:2025:569, paragraph 103) or it states its position ‘subject to verification by the referring court’ (judgment of 23 December 2015, Hiebler, C‑293/14, EU:C:2015:843, paragraph 70).
23      Judgments of 13 February 2014, Sokoll-Seebacher (C‑367/12, EU:C:2014:68, paragraph 40), and of 1 October 2015, Trijber and Harmsen (C‑340/14 and C‑341/14, EU:C:2015:641, paragraph 55).
24      Judgment annexed to the order for reference, paragraphs 43 and 44.
25      Judgment annexed to the order for reference, paragraph 45.
26      Judgments of 15 October 2015, Grupo Itevelesa and Others (C‑168/14, EU:C:2015:685, paragraph 74); of 4 July 2019, Commission v Germany (C‑377/17, EU:C:2019:562, paragraph 70); and of 27 February 2025, AEON NEPREMIČNINE and Others (C‑674/23, EU:C:2025:113, paragraph 54). In referring to the protection of consumers as an overriding requirement, Directive 2006/123 meets the requirements laid down in Article 38 of the Charter of Fundamental Rights of the European Union, as confirmed by recital 40 of that directive.
27      Judgments in Cali Apartments, paragraph 68; of 8 May 2013, Libert and Others (C‑197/11 and C‑203/11, EU:C:2013:288, paragraphs 50 to 52); and of 1 October 2009, Woningstichting Sint Servatius (C‑567/07, EU:C:2009:593, paragraph 30).
28      Judgment of 19 December 2024, Halmer Rechtsanwaltsgesellschaft (C‑295/23, EU:C:2024:1037, paragraph 67).
29      Judgment of 21 March 2024, LEA (C‑10/22, EU:C:2024:254, paragraph 85); and of 11 June 2015, Berlington Hungary and Others (C‑98/14, EU:C:2015:386, paragraph 64).
30      Judgments of 11 June 2015, Berlington Hungary and Others (C‑98/14, EU:C:2015:386, paragraph 65), and of 30 April 2014, Pfleger and Others (C‑390/12, EU:C:2014:281, paragraph 50).
31      See the uncertainties regarding the proportionality of that scheme expressed by Bernard, N., Debroux, L., Von Kuegelgen, M., and Servais, D., ‘La réglementation bruxelloise en matière d’hébergement touristique’, Jurim Pratique: revue pratique de l'immobilier, 2020, No 3, pp. 54 to 59, available at https://hdl.handle.net/2078.3/251968.
32      Ordonnance modifiant l'ordonnance du 17 juillet 2003 portant le Code bruxellois du Logement (Ordinance amending the Brussels Accommodation Code) of 11 July 2013 (Moniteur belge of 26 July 2013), https://www.ejustice.just.fgov.be/eli/ordonnance/2003/07/17/2013A31614/justel.
33      Judgment of 19 December 2019, Airbnb Ireland (C‑390/18, EU:C:2019:1112, paragraph 59): ‘… in addition to its activity of connecting hosts and guests via the electronic platform of the same name, Airbnb Ireland provides hosts with a format for setting out the content of their offer, an optional photography service for the rental property and a system for rating hosts and guests which is available to future hosts and guests.’
34      Judgment of 19 December 2019, Airbnb Ireland (C‑390/18, EU:C:2019:1112, paragraph 60). Criticisms or praise of accommodation received from persons who have used it are likely to have a greater effect on its reputation than the mere record provided by an official certificate.
35      As I shall explain below, the level of non-compliance with the scheme in force in the Brussels-Capital Region and the proliferation of illegal tourist accommodation may be evidence of the lack of proportionality of that scheme, although a more appropriate administrative application is always possible in order to avoid that criticism.
36      In particular, May, X., Pongi Nyuba, R., and Decroly, J.-M., La situation du logement à Bruxelles au regard de l’hébergement touristique, Focus No 62, February 2024, https://ibsa.brussels/sites/default/files/publication/documents/Focus-62_FRv4.pdf.
37      May, X., Pongi Nyuba, R., and Decroly, J.-M., La situation du logement à Bruxelles au regard de l’hébergement touristique, Focus No 62, February 2024, p. 5.
38      Rembert De Blander, R., Vandenbroucke, A., Marissal, P., and Wayens, B., Analyse de la faisabilité et l’opérationnalité d’un recensement des logements inoccupés en Région Bruxelles-Capitale, Brussels Studies Institute, 29 February 2024, available at https://bsi.brussels/wp-content/uploads/sites/2/2021/10/LI_SyntheseGlobale_final.pdf.
39      Of the 6 092 accommodation units available on average through online collaborative economy platforms, only 292 (27 aparthotels, 93 tourist residences and 172 accommodation units in private homes) were registered, that is, 4.7%. Observatoire du tourisme à Bruxelles, Rapport annuel 2023, pp. 12 to 14, https://www.visit.brussels/content/dam/visitbrussels/pdf-brochures/presse/studies/annual-reports/Rapport%20annuel%202023%20%20FR.pdf.
40      Judgment in Cali Apartments, paragraph 69.
41      Judgment in Cali Apartments, paragraph 72.
42      Judgment in Cali Apartments, paragraph 73. The French legislation concerned the repeated short-term letting of furnished accommodation to a transient clientele which does not take up residence there.
43      The pressure existing in some areas of the Brussels-Capital Region (for example, the ‘Pentagone’ and the European district of Brussels) contrasts with that in other municipalities of the region which have limited tourist accommodation.
44      The Commission’s written observations, footnote 22.
45      Judgment of 16 January 2023, law report No 2023/390, 2022/KR/31, not published.
46      Paragraph 25 of the judgment of 16 January 2023. In that judgment, however, the Cour d’appel de Bruxelles (Court of Appeal, Brussels) found that the obligation to obtain a certificate of town planning compliance was justified by the objective of protecting the recipient of the services.
47      Judgments in Cali Apartments, paragraph 57, and of 3 December 2020, Star Taxi App (C‑62/19, EU:C:2020:980, paragraph 86).
48      See infringement proceedings INFR (2018)4142, press release IP/19/467, of 24 January 2019, available at https://ec.europa.eu/commission/presscorner/detail/en/ip_19_467. The Commission sent Belgium a letter of formal notice on the ground of the possible incompatibility with Directive 2006/123 of the authorisation procedure and the general conditions which the Brussels-Capital Region applies to providers of tourist accommodation services. Those proceedings are still underway, as the Commission confirmed at the hearing.
49      Judgments in Cali Apartments, paragraph 96; of 26 December 2018, Van Gennip and Others (C‑137/17, EU:C:2018:771, paragraph 85); and of 1 June 1999, Konle (C‑302/97, EU:C:1999:271, paragraph 44).
50      The order for reference, paragraph 8, in fine, cites the Belgian case-law which confirms that explanation. The judgment of the Conseil d’État (Council of State, acting as Supreme Administrative Court, Belgium) of 30 September 2021 (BE:RVSCE:2021:ARR.251.700) states that the certificate of town planning compliance has ‘the sole function of certifying that the tourist accommodation is provided in accordance with the land use and planning regulations and town planning rules in force’ and that it ‘is based entirely on a finding of fact and legal classification and differs, in that regard, from a town planning certificate, which entails some discretion in the assessment of what is appropriate in the light, in particular, of proper planning of the premises’. The judgment goes on to state that, if ‘tourist accommodation complies with the land use and planning regulations and town planning rules in force, interpreted in a manner consistent with European Union law and in particular the Services Directive, a municipality is obliged to issue a certificate of town planning compliance in respect of that property’. The Ordinance of 8 May 2014 effectively establishes an individual right to obtain the certificate.
51      Judgments in Cali Apartments, paragraphs 41 and 42, and of 30 January 2018, X and Visser (C‑360/15 and C‑31/16, EU:C:2018:44, paragraph 123).
52      Recital 9 of Directive 2006/123.
53      See point 15 of this Opinion.
54      Article 3(2) of the Ordinance of 8 May 2014 defines tourist accommodation as ‘any accommodation offered for one or more nights, in return for payment, on a regular or occasional basis, to tourists’. Article 3(4) to (9) differentiates between the following types of tourist accommodation: hotels, apartment hotels, tourist residences, accommodation in private homes, social tourist accommodation centres and campsites. This dispute concerns ‘tourist residences’, defined in Article 3(6) as ‘any villa, house or flat, studio or room reserved for the exclusive use of the renter, equipped with the fixtures and fittings necessary for sleeping and cooking, and including, where appropriate, hotel-type services for an additional charge’, and ‘accommodation in private homes’, defined in Article 3(7) as ‘any establishment which has one or more rooms or separate spaces fitted out for that purpose, which form part of the owner’s personal and habitual dwelling or of adjoining annexes’.
55      Judgment annexed to the order for reference, paragraph 35.
56      Judgment annexed to the order for reference, paragraph 65.
57      Judgment in Cali Apartments, paragraphs 81 to 94.
58      Bernard, N., and Debroux, L., ‘Mise à disposition de logements à une “clientèle de passage”: les mesures nationales “anti-Airbnb” ne sont pas (nécessairement) contraires au droit européen’, Revue de jurisprudence de Liège, Mons et Bruxelles, 2021, No 18, pp. 814 and 815.
59      Directive 2006/123, in particular Article 10 thereof, does not call into question the allocation of the competences, at local or regional level, of the Member States’ authorities that grant authorisations. It permits an authorisation scheme for tourist accommodation in which municipal authorities act with a certain margin of discretion, provided that their actions are delimited by national legislation with clear parameters for the actions of those authorities (judgment in Cali Apartments, paragraphs 97 and 98).
60      Judgment in Cali Apartments, paragraph 99.
61      That fact is highlighted in the study commissioned by the Brussels-Capital Region from the Brussels Studies Institute, Mission d’évaluation de l’ordonnance du 8 mai 2014 relative à l’hébergement touristique, Cahier spécial des charges, No 2018/ServECO/024, 21/05/2019, section 4.4, unpublished.
62      See Bernard, N., Debroux, L., Von Kuegelgen, M., and Servais, D., ‘La réglementation bruxelloise en matière d’hébergement touristique’, Jurim Pratique: revue pratique de l'immobilier, 2020, No 3, pp. 59 to 64.
63      The shortcomings in the authorisation procedure are highlighted in detail by Bernard, N., Debroux, L., Von Kuegelgen, M., and Servais, D., ‘La réglementation bruxelloise en matière d’hébergement touristique’, Jurim Pratique: revue pratique de l'immobilier, 2020, No 3, pp. 71 to 78.