Shortly after the publication of the European Agenda for the Collaborative Economy - which was commented in this blog– and which concluded that collaborative online platforms should be exempted from liability for the information they store on the basis of the e-Commerce Directive, the current government of Barcelona, chaired by the major, Ms. Ada Colau, has recently communicated its intention to impose higher fines to those online platforms offering short-term rentals of illegal touristic apartments such as AIRBNB, Homeaway and others.

The reason behind such action is that the government considers that said online platforms are actively offering apartments for rental that to not comply with the mandatory regulatory requirements (namely, they do not have the appropriate licenses, certificate of occupancy, minimum hygienic conditions, etc.). This illegal activity does not guarantee, in the government’s opinion, the exercise of consumer’s rights and it may encourage coexistence problems, speculation and affect neighbors’ lives.

In the light of the above, the municipal government is threatening online platforms offering illegal touristic apartments with the imposition of fines that could amount up to €600,000. In this regard, said government has already conducted 6,000 inspections the result of which has been than just some online platforms have stopped offering such residences whereas others have refused to stop offering such rentals despite the possibility of being fined. In addition, the municipal government has recently inaugurated a section in its website where particulars may report illegal rental of touristic residences.

The above action by Barcelona’s municipal government in relation to collaborative economy is not an isolated one. Also in Madrid’s Community, the government has initiated actions to control and eventually fine the offering of illegal apartments by this type of online platforms on the basis of article 16 of Information Society Services Act.

The lack of a unique and clear regulation of this sector is raising increasing doubts on whether the above mentioned governmental actions are aligned with the European Agenda for the Collaborative Economy, which stated that under EU law, Member States cannot impose on collaborative platforms, to the extent that they provide hosting services, a general obligation to monitor or to actively seek facts or circumstances indicating illegal activity. Apparently, fines would just be applicable if after reception of an administrative requirement, the online platforms continues to offer the illegal touristic apartments disobeying said requirement.

Hopefully the results from the public consultation conducted by the Spanish Market and Competition Commission (“Comisión Nacional de los Mercados y la Competencia”) on its recommendations on collaborative economy that ended on 15 April 2016, will serve as a guidance for regulators and politicians in their actions with regards to this new business model that seems to have become an unstoppable phenomenon.