The Lights And Shadows Of High Tourist Influx Zones In Spain
The state legislation regulating business hours is found in Law 1/2004 on Business Hours (hereinafter, LHC). This regulation, also regarding the legal regime of the ZGAT (General Commercial Zones), has been classified as basic legislation, as recognized by the Constitutional Court (TC), as well as several Supreme Court rulings. This includes STC 88/2010, which resolved an appeal of unconstitutionality against the legislation of Cantabria, and also STS No. 2981/2018, regarding the revocation of the ZGAT of Cáceres (FJ 4º), and No. 3051/2018, regarding the challenge to the revocation of the ZGAT of Mérida (FJ 4º).
The LHC has undergone several amendments over its 20 years in force. The most important was introduced in 2012 (Royal Decree-Law 20/2012, of July 13, on measures to guarantee budgetary stability and promote competitiveness), which detailed for the first time, for the entire national territory, the circumstances justifying the declaration of a ZGAT. This amendment also established the obligation to declare a ZGAT in municipalities with a certain registered population and a minimum number of overnight stays.
The national legislator is deeply convinced of the economic benefits of this special timetable regime, insofar as it allows the synergies between tourism and commerce to be leveraged, thereby increasing economic activity. Therefore, all the amendments introduced to the legal framework for ZGATs have sought to facilitate their declaration. In the words of the same legislator:
“These modifications to the regulation of high-tourism zones, first defined in 2012, aim to leverage the synergies arising from the relationship between tourism and trade, as tourism is a driving force for commercial activity that increases the capacity to generate employment and economic activity. In other words, a broad, varied commercial offering available during peak tourist seasons undoubtedly multiplies the economic impact of tourism and contributes to the generation of growth and employment.” (Preamble to Royal Decree-Law 8/2014, of July 4, approving urgent measures for growth, competitiveness, and efficiency).
However, the opinion of the state legislator has not always been shared by regional and local governments. There are numerous examples in which regional parliaments have adopted legislative measures to limit the scope of the circumstances that require the declaration of a ZGAT (ZGAT Zone) or have regulated important procedural specificities that make it difficult to declare these zones. Likewise, there are numerous examples of city councils and regional governments that have reluctantly approved ZGAT declarations in order to formally comply with the obligations imposed by state legislation (for example, ZGAT declarations with very limited perimeters, where only small businesses are established, which already enjoy free hours by legal mandate).
These contrary actions have overshadowed the results achieved by the measures liberalizing business hours adopted by the State.
On the other hand, the unaligned action between the state legislature, which exercises basic powers, and the autonomous communities and local authorities, which develop this legislation and must apply it, has led to a multiplication of disputes, giving rise to numerous appeals before the contentious-administrative jurisdiction. Therefore, the Supreme Court (SC) has now ruled on numerous occasions on the interpretation of the legal regime of the ZGAT (incorporated in Article 5, sections 4 and 5, LHC).
Thus, we can mention the appeals filed against ZGAT declarations that do not extend to the entire municipal area, nor do they allow year-round opening, an increasingly common situation permitted by the LHC, but only when these limits are justified by commercial, tourism, and consumer interests.
Among them, due to its importance in favor of the ZGAT, the Supreme Court ruling repealing the territorial and temporal limitations introduced in the Cádiz ZGAT (Supreme Court Ruling No. 406/2019) stands out. It considers that the specific configuration of the approved ZGAT restricts the effectiveness of the declaration without sufficient justification. At the territorial level, because it only covers part of the old town, and does so by leaving many establishments of large distribution chains and shops of more than 300 m2 outside the ZGAT, without basing this limitation on commercial, tourism, or consumer benefits. Regarding the territorial limitation, it only covers four weeks, leaving out weeks and months that have a similar number of cruise ship influxes in the port of Cádiz as the four weeks during which the ZGAT is in force.
Conversely, we find the Supreme Court ruling, which addressed the declaration of the Burgos ZGAT (ZGAT) (Supreme Court Ruling No. 712/2019), the legality of which was ratified by the Supreme Court, which considered that the territorial limitation it incorporated was justified, since the perimeter favored by the ZGAT contained the assets listed as World Heritage Sites; and that the time limitation was also reasonable, since it coincided with the holidays during which the city experiences the greatest number of visitors.
On another note, it is worth addressing the regulation of the procedure for declaring a ZGAT, which, according to state legislation, must be initiated by the City Council of the municipality in which the declaration is intended. However, this does not mean that those who carry out commercial activities in a municipality cannot initiate a procedure for declaring a ZGAT.
This was recognized in the important Supreme Court ruling regarding the General Urban Zone (ZGAT) of the municipality of Alicante (Supreme Court Ruling No. 1678/2019). In that case, in response to a request for an extension of the ZGAT submitted by several shopping centers that had been outside the scope of the declared ZGAT, the Alicante City Council responded with silence, and the shopping centers appealed to the contentious jurisdiction to challenge the negative silence. The Supreme Court of the Valencian Community rejected the appeal filed against the municipal refusal to process an extension of the current ZGAT, considering that it was an administrative act not subject to appeal.
However, the Supreme Court overturns the ruling and makes a statement of great importance for all shopping centers in its Second Legal Basis: "(…/…) City Councils are obliged to formulate proposals for declaration of a ZGAT (…/…) in response to requests made by third parties, when the circumstances listed in the first paragraph of section 4 of Article 5 of the LHC (Critical Commercial Law) occur."
This right recognized by the Supreme Court to the owners of commercial activities, according to which they can compel City Councils to process the declaration of a ZGAT, provided that the circumstances listed in Article 5.4 of the LHC (Critical Commercial Law) occur, should encourage all commercial operators convinced that their establishments should be part of a ZGAT to judicially demand its declaration, without resigning themselves to suffering the competitive disadvantages often created by the lack of a ZGAT declaration or by the limited territorial configuration of these establishments.
