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Advocate General Szpunar Comments on Air BNB Service

19.08.2019

On 13 June 2018, a request for a preliminary ruling was lodged as part of indictment proceedings launched by the office of the Parisian public prosecutor. The case concerned crimes allegedly carried out by Air BNB Ireland under the Hoguet Law on real estate brokerage activities. Air BNB Ireland denies all claims that it performed the business of a real estate broker. It also maintains that the Hoguet Law does not apply due to its incompatibility with the European Parliament and Council Directive of 8 June 2000 on legal aspects of information society services, particularly electronic commerce, in the Internal Market (the Directive on Electronic Commerce).

Air BNB is a platform used to facilitate communication between landlords who offer rental accommodation and renters interested in that accommodation. The company also offers other products, including photography services, civil liability insurance and damage protection. The key issue in the case was whether the services provided by Air BNB Ireland in France via an electronic platform from Ireland were the information society service of a mere intermediary or they amounted to a fully-fledged real-estate brokerage undertaken by a real estate agency. This distinction was essential in light of the applicable legal regulations.

It is worth mentioning that the classification of the Air BNB platform in this case occurred in the context of earlier European Union Court of Justice judgments regarding Asociación Profesional Elite Taxi and Uber France. This was, thus, not the first time the Court of Justice had been called on to address the classification of a business described as part of a “shared economy”. In those two judgments, the court proposed two tests to determine whether an electronically delivered service which – on its own – a priori meets the definition of an information society service, is separable from other services. Those criteria are: whether the provider i) has created a range of critical services and ii) decisively influences the conditions on which those services are provided. This seems to suggest that platforms like Air BNB or Uber must be assessed based on their main business activity, which will – in turn – decided how they are legally classified.

In a statement on 30 April 2019, Advocate General Maciej Szpunar considered the Air BNB situation, noting that the services provided by Air BNB Ireland do a priori meet the definition of an information society service. Based on this reasoning, we may conclude that while the services of Uber and Air BNB Ireland may seem identical and they each – on their own – qualify as information society services, they are very different from one another. Uber facilitates the connection of (exclusively) non-professional drivers and individuals wanting to travel to some destination. In contrast, Air BNB is open to both private and corporate landlords and renters. Moreover, it is not uncommon for landlords to use their own websites in addition to Air BNB. It therefore cannot be said that Air BNB Ireland produces a range of critical services. Another difference lies in the system for controlling the conditions of service delivery. While Uber sets maximum journey rates, checks the quality of vehicles and drivers and oversees minimum safety requirements by setting conditions for driver entry, Air BNB Ireland has no way to oversee economic aspects of the real estate market or to manage the conditions on which services are delivered. Given this situation, the Advocate General sees the services provided by Air BNB Ireland as information society services.

At the same time, it should be borne in mind that the Advocate General’s opinion is in no way binding on the Court of Justice’s decision-making. It will, thus, be interesting to observe whether the Court of Justice chooses to follow the views of the Advocate General.