The Court of Justice of the European Union (CJEU) has rendered a new ruling on the classification of Airbnb Ireland UC (Airbnb) services and the rules on the application of a Member State’s restrictive measures to the freedom to provide information society services. The judgement clarifies that Airbnb services classifies as an ‘information society service’, distinct from the subsequent service to which it relates. Additionally, the ruling specifies that restrictive measures to such services shall be notified to the Commission.
On 19 December 2019, the CJEU delivered its preliminary ruling on Case C-390/18 (Airbnb Ireland) concerning whether the electronic hosting platform Airbnb could be required under national Member State law to hold an estate agent’s professional license. The ruling details how the services provided by Airbnb must be classified as an ‘information society service’ as provided under Directive 2000/31 (the ‘e-Commerce Directive’). Additionally, the CJEU found that a French restriction on Airbnb’s freedom to provide information society services in France should have been notified to the Commission and Ireland in accordance with the second indent of Article 3(4) (b) of the e-Commerce Directive.
On 24 January 2017, the French Association for professional tourism and accommodation (‘AHTOP’) lodged a complaint against Airbnb claiming that the company acted as a real estate agent and thus violated the requirement of the French “Hoguet Law” to hold an estate agent’s professional license. Airbnb denied this claim by arguing that the services they provided were covered by the e-Commerce Directive as information society services, and thus that Airbnb was not required to hold a estate agent’s professional license.
In the preliminary ruling, the CJEU referred to the following questions:
The key items of the CJEU ruling are:
The CJEU focuses on which conditions must be met in order to classify as an information society service under the e-Commerce Directive. In that regard the CJEU states that the four cumulative conditions as set out in Article 1(1) (b) of Directive 2015/1535 must be met.
Following the requirement that the services must comply with the cumulative conditions the CJEU established that:
Additionally, the CJEU established that the online Airbnb services does not form an integral part of another overall service, which primarily connects to another legal classification. Thus, the CJEU ruling established that the online services on the Airbnb website are distinct from the subsequent service of the accommodation services to which it relates. Consequently, the CJEU specifies that the Airbnb service is provided when guests are using the Airbnb website and not when the guests actually enjoys the rented property.
This means that Airbnb services are classified as information society services under the e-Commerce Directive and consequently that Airbnb cannot be regarded as an estate agent.
The judgement distinguished itself from the Court’s rulings in the Uber-cases (C‑434/15 and C/320/16) by the applicability of the e-Commerce Directive. The CJEU pointed out that unlike the services provided by Uber, the intermediation services and ancillary services provided by Airbnb does not make it possible to establish that Airbnb has decisive influence on:
The separate nature of the intermediation service and accommodation services and the fact that Airbnb’s intermediation services in no way are indispensable to provision of accommodation services therefore resulted in an outcome differing from the Uber-cases.
Thirdly, the CJEU examined Article 3(4) of the e-Commerce Directive setting out conditions subject to which Member States are allowed to adopt measure restricting the freedom to provide information society services.
It follows from the ruling that:
The CJEU concluded that France’s failure to give notification would have direct effect and an individual could thus invoke it before national courts. The French Houget Law containing restricting measurements was consequently not enforceable against Airbnb and thus Airbnb does not have to hold an estate agent’s professional license.
The ruling reflects a broader scope of application for the e-Commerce Directive than previously seen in the Uber-cases consequently giving platform operators extended protection against restricting measurements granted by the Directive.
However, the window for nationally imposed restrictions is not entirely closed as the Member States still have the possibility of enforcing national restricting provisions provided the conditions of Article 3(4) of the e-Commerce Directive is met including the obligation to notify the Commission.
The case will now return to the Paris high court for final adjudication.
Read the CJEU ruling here (in English) and here (in Danish).