After the Uber cases in Spain and France, the Court of Justice of the European Union was again questioned on the issue of the classification of services provided via electronic platforms.
The Court was requested by the investigating judge of the Tribunal de grande instance de Paris (Regional Court, Paris) to determine whether a service consisting in connecting hosts with accomodations to rent with persons seeking that type of accommodation corresponds to the definition of “information society services” (CJEU, 19 December 2019, C-390/18, YA and Airbnb Ireland UC v Hôtelière Turenne SAS and AHTOP and Valhotel).
The underlying question is whether the intermediation services provided by electronic platforms form an inseparable whole with a service having material content, or if they constitute separable services as such. In the event of a negative response – in the sense the former may be provided independently from the later – this intermediation services fall within the scope of Directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (“Directive on electronic commerce”). At the opposite, if both services are considered to be inseparably linked together, the regulations on the related material services are applicable.
In the commented instance, an association of tourism and accommodation professionals, the AHTOP, criticised Airbnb Ireland for having circumvented the French Hoguet law, which requires all property professionals to hold a professional card in order to provide their services. According to the AHTOP, Airbnb's activities were not limited to bringing together potential guests and professional or non-professional hosts, but were actually consisting in real estate agent’s activities. For this reason, Airbnb Ireland had to comply with the national legislation applicable in this sector. On the other side, Airbnb Ireland put forward a diametrically opposite position, arguing that its activity satisfies the criteria set out in the definition of “information society service” within the meaning of the “Directive on electronic commerce” which precludes the application of restrictive national rules such as the Hoguet law in e-commerce matters.
The services provided by Airbnb fall within the classification of "information society services"
In the Court's view, the intermediation services provided by Airbnb must be classified as “information society services” within the meaning of Article 2 of the “Directive on electronic commerce”. Therefore, the platform’s activities fall within the scope of that Directive in all their aspects. This intermediation service is separable from the accommodation service to which it relates. Under Article 4 of the same Directive, Airbnb must therefore be able to provided its services in all the Member States of the European Union, without this activity being subject to any prior authorisation regime.
In reaching that conclusion, the Court began by pointing out that the concept of “information society services” includes “any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of a service”. Whilst there was no particular difficulty in ensuring that Airbnb Ireland's activity complied with this definition, the sticking point here centered on whether the intermediation service offered by Airbnb Ireland was in fact part of an overall service, the main element of which would fall under a different legal classification, in this case the provision of accommodation.
In this respect, AHTOP and other interested parties to the proceedings relied on the solution reached by the Court in a judgment delivered two years earlier in relation to the services offered by Uber in Spain (CJEU, 20 December 2017, C-434/15, Asociacion Profesional Elite Taxi). In that case, the circumstances of which were relatively similar to those of the present case, the Court had held that the UberPop service, which links, via an application, non-professional drivers with persons wishing to make urban journeys, was inseparably linked to a "transport service", which excluded the classification as an "information society service". Therefore the “Directive on electronic commerce” was not applicable. A similar solution had also been adopted for the provision of the same type of service in France (CJEU, 10 April 2018, C-320/16, Uber France SAS).
An intermediation service separable from the accommodation service to which it relates
The reasoning adopted by the Court concerning the services provided by Airbnb Ireland is based on the same assumptions as those adopted in the Uber judgments, while arriving at an opposite solution. Thus, the Court explicitly referred to those judgments in order to establish that, in the case of Airbnb, the nature of the links between the intermediation service offered on the one hand, and the hosting service resulting therefrom on the other, does not make it possible to rule out the classification as an "information society service". In the Court's view, such a service is actually independant from the real estate transaction proper.
Indeed, as pointed out by Advocate General Szpunar in his Opinion of 30 April 2019, the platform developed by Airbnb, unlike Uber’s, is open to both professional and non-professional hosts. The short-term accommodation market, whether professional or not, existed long before the activity of Airbnb Ireland’s service began. Professional and non-professional hosts can offer their assets via more traditional channels (eg. creating a website devoted solely to their accommodation that can be found with the help of search engines).
On the basis of that analysis, the Court concludes that Airbnb’s services fall within the classification of “information society service”, irrespective in that regard of the fact that the hub offers certain ancillary services (providing hosts with a format for setting out the content of their offer, an optional photography service for the rental property and a system for rating hosts and guests which is available to future hosts and guests).
This solution shows a strict application of the criteria developed in the Uber judgments, while both cases must necessarily be understood in relation to each other, in order to specify the extent to which electronic platforms must comply with national rules on administrative authorisations. Il this analysis, it appears that the key element in assessing the separable aspect of a service is whether or not the intervention of those platforms is indispensable in order to enable supply and demand which would not otherwise have met.
More generally, the question of whether Member States or local authorities have the possibility of restricting and/or controlling property rentals carried out via electronic platforms will now be examined by the Court with regard to its conformity with Directive 2006/123/EC on services in the internal market ("Services Directive"), in a dispute between the City of Paris and two Airbnb hosts. In the context of this case, the parties debated before the Court on 19 November last year the conformity of French legislation under which the City of Paris, like certain other European cities, has introduced a system of prior authorisation for the letting of furnished tourist accommodation. The Advocate General's Opinion is expected on 11 February.
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