New regulation on hotels in Andalucía: changes are coming to the classification system and ‘Grand Luxe’ establishments, among others

One of the most interesting novelties from the regulatory perspective that has recently appeared  in the tourism sector  is the Andalusian Decree-Law 13/2020 on extraordinary and urgent measures on hotel establishments, coordination of alerts, promoting of telematization, reactivating the culture industry and adding flexibility in various areas as a response to the situation created by COVID-19. This decree-law, in which certain points were later corrected by Decree-Law 14/2020, was adopted within the current context in which we are seeing the production of new legislation and coincides in time with initiatives by other regulatory powers of the State seeking, also, to boost key sectors of the Spanish economy that have had their activity stalled by the need to tackle the health crisis.

Among the novelties incorporated by  Decree-Law 13/2020 the regulation of  hotel establishments stands out, appearing mainly in Chapter I of this lengthy law, and also in a few of its final and transitional provisions. This regulation replaces the one  contained in Decree 47/2004, which until now had implemented the legal regime for this important type of tourist accommodation in Andalucía.

The decree-law is a response to the need to update the regulation of the hotel sector  in Andalucía to tackle new demands in the tourist market, by increasing quality, safety and the universality of supply. One of the main goals sought is to broaden the network of higher rated establishments, by encouraging the adaptation of existing establishments and prompting the opening of other new ones. All in pursuit of the recovery of activities in the sector and the promotion of investment in the region.

Taking its cue from these guiding parameters, Decree-Law 13/2020 contains a number of new provisions on hotel establishments. The most important of these are summarized below.

1.- New classification system. The decree-law retains the traditional stars as symbols of the ratings of hotel establishments, although the parameters for assigning those ratings, in the cases of hotels and hotel-apartments are renewed and a points rating system is applied. This is a different concept from the system used to date in Andalucía, which has been used for establishments in Spain and abroad, and the change was adopted in an attempt by the decree-law to increase the standard of excellence and quality of hotels.

Under the new system, hotels and hotel-apartments  will have to meet the minimum infrastructure size requirements specified in annex I to the decree-law, and also their rating will be determined by the sum of the values that annex II allocates to a number of mandatory minimum requirements and to the satisfaction of other demands which that annex describes as optional. Among the requirements and services that are to be considered are not only the traditional structural types related to mandatory physical measures, but also the consideration of quality systems related to social and environmental factors, and a broad supply of ancillary services.

The decree-law states that hotels and hotel-apartments that are already running have a five-year period in order to implement  the mandatory minimum obligations under the points system for rating hotels, together with the necessary voluntary requirements to obtain the minimum rating needed. That rating must be maintained over the whole period of operation of the establishment's business.

2.- Hotels and hotel-apartments with a ‘Grand Luxe’ rating. The decree-law recovers the provisions on the ‘Grand Luxe’ rating applicable to five-star hotels and hotel-apartments meeting certain requirements. Following an amendment to the autonomous community legislation carried out in 2010, the option of obtaining that rating disappeared. This legal void created a certain type of discrimination with respect to hotel establishments that obtained that rating before 2010, and served as a disincentive for investing in modernization and improvements in establishments with the highest rating .

The return of the ‘Grand Luxe’ rating represents a decisive commitment to cater a higher quality tourism and adds another incentive to the wealth of attractive features we offer to tourists. It is important to note that any establishments that had already obtained this label under the old regulation will now have a five-year period to adapt to the new model.

3.- Student residences, residences  for the elderly and other excluded establishments. The decree-law opens up for the first time the option to be used temporarily for tourist accommodation certain types of establishments that are generally excluded from the hotel legislation, such as residences for the elderly or student residences.

Article 1.3 of the decree-law identifies the establishments that are excluded from the scope of application of this regulation (those mentioned above, among others). The last paragraph of this article provides that those establishments will be subject to the decree-law “if they offer, including temporarily, accommodation services to the general public”. That article, therefore, expressly allows student residences and residences for the elderly to be used as hotels in certain periods. For that purpose, they need to meet the requirements set out in the decree-law, and they also have to be built on a land plot in which both uses (equipment and tourist accommodation) are allowed by the urban planning provisions.

4.- Provisions on the tourist accommodation contract. Article 19 of the decree-law foresees the tourist accommodation contract. In contrast to the few general references to “contract” that have appeared to date in either Decree 47/2004, or Law 13/2011 on Tourism in Andalucía (LTA), the new law makes a distinction between tourist accommodation contract and the admission document as separate instruments. The decree-law itself states that this contract will be subject to the general provisions in force on obligations and contracts. Moreover, where the contract takes place by electronic means, the transaction will also be subject to electronic commerce provisions. 

It also provides that confirmation by the establishment of a booking made by the user will be treated as a tourist accommodation contract and that there has to be a physical or electronic record in all cases. Lastly, the company operating the business is required to inform the user, before entering into the contract, of their rights and obligations in relation to providing the accommodation and ancillary services.

5.- Hostels as hotel establishments. The decree-law includes hostels as a separate new category, within the classification of hotel establishments. Decree 47/2004 regulated them as a specific type linked to the boarding house category. The rising demand for this type of accommodation as a result of the growth of international tourism among young people, and its specific characteristics in relation to how the accommodation services are offered, sold and provided, have meant that the decree-law has given separate treatment to them.

The decree-law states that the main characteristic of this category of establishment is that they provide a tourist accommodation service per person in multiple accommodation units. Such decree-law allows them to use the international denominations by which they are identified and recognized, such as hostel.. Additionally, they must meet the minimum infrastructure sizes in annex I, and satisfy a number of specific requirements for their category, which are mentioned in annex III to the decree-law.  

6.- Other amendments. With the aim of taking forward the measures to simplify administrative procedures that have been adopted in various pieces of autonomous community legislation approved over recent months, Decree-Law 13/2020, besides replacing and repealing Decree 47/2004, amends other regulations  on the tourism sector that complete  the legal regime on hotel establishments.

The decree-law introduces, in relation to this aim, a new section in article 34 of the LTA, which regulates  the classification process for tourist accommodation establishments, to adapt it to a recent reform of the urban planning legislation, that has subject  certain building actions to the regime of the responsible declaration . With the same aim, and to impose the obligation on tourism companies to carry out their dealings with Junta de Andalucía (Andalucía’s regional government) by electronic means, the decree-law also includes a number of amendments to Decree 143/2014 which regulates the organization and operations of the Andalucía Tourism Register.