A legislative provision requiring an operator to provide certain information about tourist accommodation establishments is of a fiscal nature and so is excluded from the scope of the Directive on electronic commerce.
The Court of Justice of the European Union has ruled in the case of Case C-674/20 Airbnb Ireland.
Airbnb Ireland is an Irish company which connects for remuneration, potential guests with professional or non-professional hosts offering accommodation services via an electronic platform.
Under a Belgian order about tax on tourist accommodation establishments, Airbnb Ireland had been requested to provide the regional tax authority with information on tourist transactions carried out in 2017. However, it contested that requirement, saying it contravened the EU principle of the freedom to provide services and sought annulment of the contested order.
The Belgian Constitutional Court asked the CJEU if that provision, as applicable to operators of an electronic accommodation services platform, is a fiscal provision which is expressly excluded from the scope of Directive on electronic commerce 2000/31. In addition, it asked if the provision, to the extent that it sets out an obligation to transmit to the tax authority particulars of tourist accommodation transactions, can hinder the free movement of services.
The CJEU said that the Directive’s recitals expressly state that taxation is excluded from its scope. According to the Court, even though property intermediation services such as those provided by Airbnb Ireland are information society services under the Directive, the contested Belgian law constitutes tax legislation. Consequently, the relevant provision falls within the ‘field of taxation’ which is expressly excluded from the scope of the Directive.
Freedom to provide services
With regard to the freedom to provide services, the Court held that the obligation to provide certain information on tourist accommodation transactions concerns all providers of property intermediation services irrespective of the place of establishment of those providers and irrespective of the way in which they provide those services. The Court infers from this that the relevant provision of the contested order is not discriminatory but merely requires the providers concerned to retain the particulars relating to tourist accommodation transactions and to transmit them to the regional tax authority, at its request, for the purposes of the accurate levying of the tax relating to the rental of the property in question.
As regards, in particular, the argument that property intermediation services such as those provided by Airbnb Ireland would be more likely to be affected by the relevant provision of the contested order, the Court observed that a greater impact is merely a reflection of a larger number of transactions made by those intermediaries and of their market share. It states that measures, the only effect of which is to create additional costs for a particular service and which affect the provision of services in the same way irrespective of the provider’s member state are not likely to hinder the free movement of services.
According to the Court, to the extent that it covers all providers of property intermediation services, irrespective of their place of establishment and the manner in which they mediate, the relevant provision of the contested order is not contrary to the freedom to provide services in the EU.