On 30 April 2019, Advocate General Szpunar (the “AG”) delivered his Opinion on the request for a preliminary ruling submitted by the Tribunal de grande instance de Paris, on whether a service such as the one offered by AIRBNB constitutes an information society service. If so, AIRBNB’s service would benefit from the freedom to provide services provided for in the e-Commerce Directive (Directive 2000/31/EC) and may not be subject to the French legislation relating to real estate agents.
The AG starts by recalling that an information society service is defined as “a service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services”. The AG finds that the AIRBNB service is provided for remuneration and upon individual request. However, the test as to whether the service is provided at a distance by electronic means is more problematic. Indeed, it concerns a so-called mixed service, i.e. a service consisting of an element provided by electronic means (in this case, AIRBNB’s platform) and another not provided by electronic means (in this case, the use of an accommodation).
Referring to the EU Court of Justice’s (“CJEU”) judgment in Ker-Optika and the judgments in the Uber cases (Asociacion Profesional Elite Taxi and Uber France), the AG assessed whether the offline accommodation services form “an inseparable whole” with AIRBNB’s online platform service.Comparing AIRBNB with the UberPop service, the AG states that Uber’s offer was a new phenomenon and that the on-demand transport service by non-professional drivers could not have been provided without the UberPop application. The CJEU thus held that Uber’s intermediation service must be considered to be inseparably linked with a transport service and thus excluded from the scope of the e-Commerce Directive.
Conversely, the short-term accommodation market, whether professional or not, existed long before AIRBNB’s services began. Also, professional and non-professional hosts can offer their assets via more traditional channels, and it is not unusual for a host to create a website devoted solely to his accommodation that can be found with the help of search engines. On that basis, the AG concludes that the accommodation services provided via the AIRBNB platform can also be provided independently of that platform.
The AG continues, however, that this is not sufficient to decide whether or not Directive 2000/31 applies. For the offline services to be inseparable from the platform service, the platform service provider must also exercise “a decisive influence” over the conditions of the supply of the offline services. In other words, AIRBNB must also exercise control over the conditions governing the provision of the short-term accommodation services.
Again referring to the Uber judgments, the AG recalls that the CJEU considered that Uber exercised decisive influence over the conditions under which the transport service was provided. In particular, Uber determined the maximum fare and collected the price from the customer before paying part of it to the non-professional driver. Uber also exercised a certain control over the quality of the vehicles and their drivers, as well as over the drivers’ conduct, which could, in some circumstances, result in their exclusion.
According to the AG, AIRBNB, on the other hand, does not exercise control over all the economically significant aspects of the short-term accommodation service, such as the location and standards of the accommodations. Also, AIRBNB does not control the price of the accommodation. It is the host who determines the letting conditions.
For these reasons, the AG concludes that the short-term accommodation services are not inseparably linked to AIRBNB’s platform service connecting potential guests with hosts. The platform service therefore constitutes an information society service.
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