Advocate General of the Court of Justice of the European Union (CJEU) Maciej Szpunar, in his Opinion of Tuesday 30 April in Case C-390/18, considered that a service such as that provided by the Airbnb platform constitutes an information society service.
Airbnb Ireland, based in Dublin, Ireland, operates an online platform for users based outside the United States that connects hosts with accommodation for rent and people wishing to rent such accommodation.
Following a complaint against X filed by the Association pour un hébergement et un tourisme professionnel (AhTop), the Paris Public Prosecutor's Office, in 2017, issued an indictment for infringement of the law governing the conditions governing the exercise of certain transactions on buildings and business assets ('Hoguet Law'), concerning, inter alia, the activities of real estate agents. For its part, the Irish company considers that it does not engage in the activities of real estate agents and considers that the Hoguet Law does not apply, as it would be incompatible with Directive 2000/31/EC on certain legal aspects of information society services ('Directive on Electronic Commerce').
The investigating judge of the Tribunal de grande instance de Paris (France) referred the matter to the CJEU for a preliminary ruling in order to ascertain whether Airbnb's activity benefits from the freedom to provide services provided for in Directive 2000/31/EC and whether the restrictive rules concerning the exercise of the profession of real estate agent in France, laid down in the Hoguet Law, are enforceable against it.
Mr Szpunar first analyses whether the service provided by Airbnb can be considered as an information society service. In this respect, he recalls the definition provided for in Directive (EU) 2015/1535 laying down a procedure for the provision of information in the field of technical regulations and of rules on information society services.
He then notes that it is necessary to consider the nature of the service provided, namely whether it is a service provided at a distance without the parties being simultaneously present, entirely provided by the use of electronic devices and not relating to services whose content is material, although these involve the use of electronic devices.
In light of the Court's case-law on mixed services and after examining the service provided by the Irish company, the Advocate General is of the opinion that a service linking tenants and lessors offering short-term accommodation services through an electronic platform in a situation in which the provider of that service does not exercise control over the essential procedures for the provision of those services. As such, the proposed provision must benefit from the freedom to provide services.
On the second question concerning the applicability of the Hoguet Law, Mr Szpunar notes that this law falls a priori within the scope of the Directive on Electronic Commerce. In this context, a requirement imposed by a Member State other than that in which the provider of information society services is established, in order to be enforceable against that provider and lead to a restriction on the free movement of services, must fulfil certain substantive and procedural conditions laid down in Directive 2003/31/EC.
As regards the substantive conditions, the Advocate General considers that the Member State other than the provider's home Member State may derogate from the free movement of services only by measures taken on a case-by-case basis. And the national court must determine whether the measures in question are necessary to ensure consumer protection and are proportionate to achieve the objective pursued.
On the procedural conditions side, Mr Szpunar recalled that a State considering taking such measures must first notify its intention to the Commission and ask the provider's home Member State to take measures in the field of information society services. However, it seems that neither of these two conditions have been met. Directive 2000/31/EC should therefore preclude a State from restricting, in circumstances such as those in the present case, the free movement of information society services established in another Member State.
Link to the conclusions: http://bit.ly/2XQyNC4. (Original version in French by Lucas Tripoteau)