Airbnb portal is an information society service: AG Opinion in Case C-390/18

April 29, 2019

Advocate General Szpunar has issued an opinion in Case C-390/18 saying that a service like the one provided by the Airbnb website is an information society service.  

Airbnb Ireland runs a website to link up hosts of accommodation with potential guests. The case concerned whether Airbnb Ireland was to be considered as a real estate agent or whether the service is an information society service.

The French courts referred the case to the Court of Justice for a preliminary ruling on whether the services provided in France by Airbnb Ireland, via the website managed from Ireland, 

benefit from the freedom to provide services provided by the Directive 2000/31/EU on certain legal aspects of information society services, and whether the restrictive French laws (the Hoguet law) on real estate agents in France apply to it.  

Firstly, the Advocate General set out the definition contained in the Directive laying down a procedure for the provision of information in the field of technical regulations and of rules on information society services. After that, he stated that it was necessary to consider the nature of the service provided by Airbnb Ireland. That involved considering if it is a service provided at a distance, without the parties being simultaneously present, and whether it is entirely provided by the use of electronic equipment and has no relation to services having a material content even though they are provided by electronic means.

After looking at Airbnb Ireland’s service, taking into account those criteria, the Advocate General said that a service consisting of connecting potential guests with hosts offering short-term accommodation, via a website, in a situation in which the provider of that service does not exercise control over the essential procedures for the provision of those services, constitutes an information society service.

He pointed out that the fact that the provider also offers other services having a material content does not prevent the service provided by electronic means from being classified as an information society service, as long as the latter service does not form an inseparable whole with those services. 

The Advocate General observed that the Hoguet Law appeared to fall within the scope of the Directive, because it is legislation of a member state other than the member state of origin which is liable to restrict information society services. He further pointed out that for a requirement laid down by a member state other than the one in which the provider of the information society services is established to be enforceable against that service provider and to result in the restriction of the free movement of those services, that requirement must be a measure that satisfies the substantive and procedural conditions laid down by the Directive. 

In the light of the Directive’s requirement, the Advocate General said that a member state other than the member state of origin may derogate from the free movement of information society services only by measures taken on a case-by-case basis. In addition, in any event, it is for the national court to decide whether the measures at issue are required to ensure the protection of consumers and do not go beyond what is necessary to attain the objective pursued.

The Advocate General also considered the procedural conditions under Article 3(4)(b) of the Directive. He said that a member state which intends to restrict the free movement of information society services originating in another member state must first notify the European Commission and ask the member state of origin to take measures in respect of information society services. There was no indication that France requested Ireland to take the necessary measures in relation to information society services, and it seemed that the condition relating to notification of the European Commission was not fulfilled either, whether during or after the transposition period of the Directive. The measures were therefore not enforceable.

In conclusion, the Advocate General considered that in the circumstances of this case, the Directive prevents a member state from being able to restrict the free movement of information society services from another member state.