Notification Detail

Article 23a(3) and 23d of the Amendment to the Housing Act 2014 and the Municipalities Act in connection with tackling undesirable side-effects of residential accommodation for holiday letting purposes and tackling residential nuisance (Act on residential accommodation for holiday letting purposes).

Notification Number: 2020/746/NL (Netherlands )
Date received: 02/12/2020
End of Standstill: 03/03/2021

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Message 002

Communication from the Commission - TRIS/(2020) 04269
Directive (EU) 2015/1535
Translation of the message 001
Notification: 2020/0746/NL

No abre el plazo - Nezahajuje odklady - Fristerne indledes ikke - Kein Fristbeginn - Viivituste perioodi ei avata - Καμμία έναρξη προθεσμίας - Does not open the delays - N'ouvre pas de délais - Non fa decorrere la mora - Neietekmē atlikšanu - Atidėjimai nepradedami - Nem nyitja meg a késéseket - Ma’ jiftaħx il-perijodi ta’ dawmien - Geen termijnbegin - Nie otwiera opóźnień - Não inicia o prazo - Neotvorí oneskorenia - Ne uvaja zamud - Määräaika ei ala tästä - Inleder ingen frist - Не се предвижда период на прекъсване - Nu deschide perioadele de stagnare - Nu deschide perioadele de stagnare.

(MSG: 202004269.EN)

1. Structured Information Line
MSG 002 IND 2020 0746 NL EN 02-12-2020 NL NOTIF


2. Member State
NL


3. Department Responsible
Ministerie van Financiën
Belastingdienst/Douane centrale dienst voor in- en uitvoer


3. Originating Department
Ministerie van Binnenlandse Zaken en Koninkrijksrelaties


4. Notification Number
2020/0746/NL - SERV20


5. Title
Article 23a(3) and 23d of the Amendment to the Housing Act 2014 and the Municipalities Act in connection with tackling undesirable side-effects of residential accommodation for holiday letting purposes and tackling residential nuisance (Act on residential accommodation for holiday letting purposes).


6. Products Concerned
Information society services offering services for residential accommodation for holiday letting purposes.


7. Notification Under Another Act
-


8. Main Content
As a result of the Amendment to the Housing Act 2014 in connection with tackling undesirable side-effects of residential accommodation for holiday letting purposes (Act on residential accommodation for holiday letting purposes), municipalities are given the power to set up a licensing system for providers of residential accommodation for holiday letting purposes in the form of, for example, an obligation to register, a night criterion, possibly in combination with an obligation to report, and/or an obligation to obtain a permit.

During the parliamentary debate on the Act, in addition to these powers for municipalities, two amendments were adopted which aim to impose direct obligations on information society services offering residential accommodation for holiday letting purposes. In dealing with these amendments, the Dutch government has made it a condition that, if adopted, the amendments must first go through the European notification requirements before they can enter into force. Specifically, this concerns (I) a ban on publishing advertisements without a registration number and (II) an obligation to provide information. The relevant articles read as follows:

Article 23a(3):
To the extent that the Municipal Council has applied the provisions of paragraph 1, it is prohibited to publish an offer for the use of residential accommodation as referred to in paragraph 1 without a registration number for a form of holiday letting as described in the Housing Ordinance.

Article 23d:
To the extent that the Municipal Council has applied Article 23a(1) or Article 23b(1) or (2), the party providing a service aimed at publishing offers for residential accommodation for holiday letting purposes shall inform the party offering residential accommodation for holiday letting purposes of the prohibitions referred to in Article 23a(1) and Article 23b(1) and (2).

In accordance with Directive 2015/1535, Article 5(1), these articles shall be notified as technical regulations, with the possibility of making any amendments based on input from the European Commission (EC) and/or the Member States. After completion of the notification procedure, the two articles - whether or not amended as a result of the notification procedure - will enter into force by means of a separate Order.

In accordance with the second line of Article 5(1), the basic laws, regulations and administrative provisions directly concerned are attached in order to enable the EC to assess the scope of the notified articles.

It should be noted that both articles are also notified under Directive 2000/31/EC.

A mutual recognition clause does not apply to the relevant articles at the heart of this notification. For the sake of completeness, it should be noted that a (different) draft decree underlying the basic provisions attached has already been notified (2020/587/NL). However, a mutual recognition clause is included in Article 3(1) of the draft decree.

Note: Articles 23e and 33a(b) contain provisions to the effect that platforms must remove information (advertisements, ed.) that violates the applicable laws and regulations and/or make access to it impossible (notice and take down). This already falls within the scope of the e-Commerce Directive and therefore concerns a further codification of this Directive which is communicated in accordance with Article 5(1) (2015/1535).


9. Brief Statement of Grounds
The Netherlands is of the opinion that the large-scale holiday letting of residential accommodation via digital platforms in certain cities seriously affects liveability and safety and increases scarcity in the housing market. This threatens the rights and freedoms of others. This is sufficiently serious as to constitute an infringement of public policy (overriding reason relating to the public interest).

Necessity
In order to take action against this breach of public policy, it is necessary, among other things, to ensure that only advertisements authorised by the competent authority (the municipality) are offered on the holiday letting market. Because in practice access to this market is almost exclusively via digital platforms, it is necessary to prohibit them from publishing illegal advertisements (those without a registration number, ed.) and to oblige them to inform providers about the laws and regulations that apply to the legal letting of housing.

Suitability
In this way, public policy can be safeguarded because, especially in cities where the problems are greatest, it is ensured that only legal advertisements appear on the market and illegal advertisements are banned from the market. It is also ensured that providers of residential accommodation are (deemed to be) aware at all times of the rules that apply to the legal letting of residential accommodation. This ensures that the rules are effective and suitable for taking effective action against the breach of public policy by holiday letting.

Proportionality
The Netherlands considers that the public interest being served - action against the infringement of public policy, as defined under the heading ‘necessity’ - is sufficient reason for restricting the right of digital platforms not to face local and national restrictions within the internal market. In making this limitation, it has been an important consideration that both proposed measures are practicable and involve only a limited implementation burden for the platforms. In addition, the obligations for platforms do not apply to every advertisement in every Dutch municipality, but only to the advertisements in municipalities where, based on the local situation, a registration, notification and/or permit requirement for holiday letting has been introduced. In view of the above, the measures are proportionate.

Subsidiarity
The proposed measures do not go beyond what is necessary, nor are there any less restrictive measures which could achieve the objective pursued.

Non-discriminatory
The Act has been designed in such a way that it makes no direct or indirect distinction according to nationality. Anyone who owns a property in the Netherlands or is authorised to offer this property for holiday letting is allowed to offer this property for holiday letting if the rules that municipalities may impose on the basis of this Act are met.

For a more detailed justification, reference is made to the explanatory notes relating to Articles 23a(3) and 23d, which have been notified as another text in this notification.


10. Reference Documents - Basic Texts
Numbers or titles of the basic texts: 35 353 - Amendment of the Housing Act 2014 and the Municipalities Act in connection with tackling undesirable side-effects of residential accommodation for holiday letting purposes and tackling residential nuisance (Act on residential accommodation for holiday letting purposes). The relevant texts are attached to enable the EC to assess the scope of the notified articles.
The basic texts were forwarded with an earlier notification: 2020/587/NL


11. Invocation of the Emergency Procedure
No


12. Grounds for the Emergency
-


13. Confidentiality
No


14. Fiscal measures
No


15. Impact assessment
Yes


16. TBT and SPS aspects
TBT aspect

No - the draft does not have any major impact on international trade.

SPS aspect

No - the draft does not have any major impact on international trade.

No - the draft is neither a sanitary nor phytosanitary measure.

**********
European Commission

Contact point Directive (EU) 2015/1535
Fax: +32 229 98043
email: grow-dir2015-1535-central@ec.europa.eu

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