The Court of Justice of the European Union has ruled in the case of Airbnb Ireland C 390/18 that France cannot require Airbnb to hold an estate agent’s professional licence as it did not notify the European Commission of that requirement under Directive 2000/31/EC.

Firstly, the Court found that an intermediation service which, using an electronic platform, is intended to connect, for remuneration, potential guests with professional or non-professional hosts offering short-term accommodation services, while also providing a certain number of services ancillary to that intermediation service, must be classified as an ‘information society service’ under Directive 2000/31/EC on electronic commerce.

Secondly, the Court found that, in criminal proceedings with an ancillary civil action, an individual may oppose the application to him or her of measures of a member state restricting the freedom to provide such a service which that individual provides from another member state, where those measures were not notified under Article 3(4)(b) of Directive 2000/31.

A French association lodged a complaint against Airbnb Ireland arguing that that company did not merely connect two parties through its website but also acted as an estate agent without holding a professional licence, in breach of French legislation. Airbnb claimed that Directive 2000/31 precluded that legislation.

The Court referred to the case law in Asociación Profesional Elite Taxi (C-434/15). This provides, that if an intermediation service satisfies the conditions in Article 1(1)(b) of Directive 2015/1535, to which Article 2(a) of Directive 2000/31 refers, then, in principle, it is an ‘information society service’, distinct from the subsequent service to which it relates. However, this will not be the case if it appears that that intermediation service forms an integral part of an overall service whose main component is a service coming under another legal classification.

In this case, the Court found that an intermediation service like the one Airbnb Ireland provided satisfied those conditions, and the nature of the links between the intermediation service and the provision of accommodation did not justify departing from the classification of that intermediation service as an ‘information society service’ and the application of Directive 2000/31 to that service.

To emphasise the separate nature of such an intermediation service in relation to the accommodation services to which it relates, the Court noted, first, that that service is not aimed only at providing immediate accommodation services, but rather it consists essentially of providing a tool for presenting and finding accommodation for rent, thereby facilitating the conclusion of future rental agreements. Therefore, that type of service cannot be regarded as being merely ancillary to an overall accommodation service. Second, the Court pointed out that an intermediation service, such as the one Airbnb provides, is in no way indispensable to the provision of accommodation services, since the guests and hosts have a number of other channels in that respect, some of which are long-standing. Finally, third, the Court stated that there was nothing to indicate that Airbnb sets or caps the amount of the rents charged by the hosts using that platform.

The Court further stated that the other services offered by Airbnb Ireland do not call that finding into question, since the various services provided are merely ancillary to the intermediation service provided by that company. In addition, it stated that, unlike the cases of Asociación Profesional Elite Taxi and Uber France C-320/16, neither that intermediation service nor the ancillary services offered by Airbnb make it possible to establish the existence of a decisive influence exercised by Airbnb over the accommodation services to which its activity relates, with regard both to determining the rental price charged and selecting the hosts or accommodation for rent on its platform.

In addition, the Court examined whether Airbnb may oppose the application of the French estate agency law because that that law was not notified by France under Article 3(4) of Directive 2000/31. The Court stated that the fact that that law predates the entry into force of Directive 2000/31 did not free France from its notification obligation. 

Further, following the case of CIA Security International (C-194/94), it found that that obligation, which constitutes a substantial procedural requirement, must be recognised as having direct effect. Consequently, it concluded that a member state’s failure to fulfil its obligation to give notification of such a measure may be relied on by an individual, both in criminal proceedings brought against that individual, and in a claim for damages brought by another individual who has been joined as civil party.