Information society services offering services for residential accommodation for holiday letting purposes.
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).
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:
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.
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).