AIRBNB

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The Court of Justice of the European Union (“CJEU“) ruled in favor of Airbnb Ireland (“Airbnb”) on December 19, 2019 (C-390/18), understanding that Airbnb is an “information society service,” and, therefore, France cannot go against the free provision of services within EU territory.

The process started with a lawsuit filed in France by the Association for Professional Tourism and Accommodation  (“AHTOP“) claiming that the Irish company (i) did not act merely as an intermediary; and (ii) it violated the Hoguet Act, under which real estate agents must have a professional real estate agent card to conduct their activity in the country.

Airbnb, in turn, argued its case on the grounds of its nature as an ‘information society service” under Directive 2000/31/EC on electronic commerce, meaning that it is covered by the free provision of services.

The highly anticipated judgment of the CJEU follows on from the opinion expressed by the advocate general, pointing out that Airbnb’s activity is limited to putting potential tenants in contact with professional landlords and private individuals providing short-term accommodation through an electronic platform, and that Airbnb does not exert any control over the essential modes of that provision.

Within this framework, the CJEU understands that, as landlord and tenant are placed in contact with one another through an electronic platform that does not require the simultaneous presence of the intermediary service provider and of the landlord or tenant, the service is provided remotely and by electronic means within the framework of Directive 2000/31/EC.

Similarly, regarding the additional services that Airbnb offers to landlords (such as civil liability insurance and price estimation tools), these services do not detract from the consideration as an information society service.

The CJEU also stated that the service provided by the defendant is not indispensable for the provision of accommodation, and that there are many other avenues available to landlords and tenants. As indicated by the advocate general, the CJEU also emphasizes that Airbnb does not determine the rental amount charged for the accommodation published on its platform.

Thus, the judgment establishes a fundamental difference between the activity carried out by Airbnb and intermediation activity carried out by Über. In its judgments of December 20, 2017 and April 10, 2018 (C‑434/15 and C‑320/16, respectively), the CJEU understood that the service provided by Über is not a mere information society service and forms “an integral part of an overall service whose main component is a service that requires a different legal classification,” in this case, transport, thus subjecting its activity to the obligation of obtaining licenses required by national legislation. In contrast to Airbnb, Über does—according to the CJEU—have a decisive influence on the conditions of transport provision by non-professional drivers through the application it provides.

Therefore, this judgment is particularly relevant when it comes to knowing with greater legal certainty the framework applicable to digital service platforms, which are increasingly important in the global offer of services accessed via the internet.

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ana.sanchezrodriguez@cuatrecasas.com

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Jorge Monclús

jorge.monclus@cuatrecasas.com