Legal Conclusions on the Operation of Internet Platforms - C

OPINION OF ADVOCATE GENERAL SZPUNAR

https://curia.europa.eu/juris/document/document.jsf?text=&docid=213504&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=27786348

delivered on 30 April 2019 (1)

Case C‑390/18

in the presence of:

YA,

AIRBNB Ireland UC,

Hotelière Turenne SAS,

Association pour un hébergement et un tourisme professionnel (AHTOP),

Valhotel

(Request for a preliminary ruling from the investigating judge of the Tribunal de grande instance de Paris (Regional Court, Paris) (France))

(Reference for a preliminary ruling — Freedom to provide services — Directive 2000/31/EC — Connection of hosts, whether businesses or individuals, with accommodation available to rent with persons seeking that type of accommodation — Additional provision of various other services — National legislation laying down restrictive rules for the exercise of the profession of real estate agent)

I. Introduction

1. In the judgments in Asociación Profesional Elite Taxi (2) and Uber France, (3) the Court held that an intermediation service the purpose of which is to connect non-professional drivers using their own vehicles with persons wishing to make urban journeys, which is inherently linked to a transport service, does not constitute an information society service and is excluded from the scope of Directive 2000/31/EC. (4)
2. The present case also relates to the problem of the classification of services provided via electronic platforms. The Court is requested by the investigating judge of the Tribunal de grande instance de Paris (Regional Court, Paris) (France) to determine whether a service consisting in connecting hosts with accommodation to rent with persons seeking that type of accommodation corresponds to the definition of ‘information society services’ and thus benefits from the free movement of services, as guaranteed by Directive 2000/31.

II. Legal framework

A. EU law

3. The alleged facts occurred during the period between 11 April 2012 and 24 January 2017. In that regard, it should be noted that, with effect from 7 October 2015, Directive (EU) 2015/1535 (5) repealed and replaced Directive 98/34/EC. (6) Article 2(a) of Directive 2000/31 defines ‘information society services’ by reference to Article 1(1) of Directive 2015/1535, which provides:

‘For the purposes of this Directive, the following definitions apply:

…

(b) “service” means any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.

For the purposes of this definition:

(i) “at a distance” means that the service is provided without the parties being simultaneously present;

(ii) “by electronic means” means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means;

(iii) “at the individual request of a recipient of services” means that the service is provided through the transmission of data on individual request.

An indicative list of services not covered by this definition is set out in Annex I;

…’

4. The definition of ‘information society service’ in Article 1(b) of Directive 2015/1535 is essentially identical to that given in Article 1(2) of Directive 98/34. Furthermore, references to Directive 98/34 are to be construed as references to Directive 2015/1535. (7) For those reasons, the analysis concerning the classification of a service as an ‘information society service’ within the meaning of Directive 2015/1535, to which I shall therefore refer in this Opinion, is, to my mind, capable of being transferred to the provisions of Directive 98/34.
5. In the words of Article 2(h) of Directive 2000/31:

‘For the purpose of this Directive, the following terms shall bear the following meanings:

…

(h) “coordinated field”: requirements laid down in Member States’ legal systems applicable to information society service providers or information society services, regardless of whether they are of a general nature or specifically designed for them.

(i) The coordinated field concerns requirements with which the service provider has to comply in respect of:

– the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification,

– the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider;

(ii) The coordinated field does not cover requirements such as:

– requirements applicable to goods as such,

– requirements applicable to the delivery of goods,

– requirements applicable to services not provided by electronic means.’

6. Article 3 of that directive reads as follows:

‘1. Each Member State shall ensure that the information society services provided by a service provider established on its territory comply with the national provisions applicable in the Member State in question which fall within the coordinated field.

2. Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State.
3. Paragraphs 1 and 2 shall not apply to the fields referred to in the Annex.
4. Member States may take measures to derogate from paragraph 2 in respect of a given information society service if the following conditions are fulfilled:

(a) the measures shall be:

(i) necessary for one of the following reasons:

– public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons,

– the protection of public health,

– public security, including the safeguarding of national security and defence,

– the protection of consumers, including investors;

(ii) taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives;

(iii) proportionate to those objectives;

(b) before taking the measures in question and without prejudice to court proceedings, including preliminary proceedings and acts carried out in the framework of a criminal investigation, the Member State has:

– asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate,

– notified the Commission and the Member State referred to in paragraph 1 of its intention to take such measures.

5. Member States may, in urgent cases, derogate from the conditions stipulated in paragraph 4(b). Where this is the case, the measures shall be notified in the shortest possible time to the Commission and to the Member State referred to in paragraph 1, indicating the reasons for which the Member State considers that there is urgency.
6. Without prejudice to the Member State’s possibility of proceeding with the measures in question, the Commission shall examine the compatibility of the notified measures with Community law in the shortest possible time; where it comes to the conclusion that the measure is incompatible with Community law, the Commission shall ask the Member State in question to refrain from taking any proposed measures or urgently to put an end to the measures in question.’

B. French law

7. Article 1 of Law No 70-9 of 2 January 1970 regulating the conditions of the exercise of activities relating to certain transactions concerning real property and business assets, in its consolidated version, (‘the Hoguet law’) (8) provides:

‘The provisions of the present law shall apply to natural or legal persons who habitually engage in or provide their assistance, even on an ancillary basis, to transactions affecting the assets of others and relating to:

1. The purchase, sale, search, exchange, letting or sub-letting, seasonal or otherwise, furnished or unfurnished, of existing property or property under construction;

…’

8. Article 3 of the Hoguet law provides:

‘The activities referred to in Article 1 may be practised only by natural or legal persons in possession of a professional licence issued, for a period and according to the procedures determined by decree in the Council of State, by the President of the district Chamber of Commerce and Industry or by the President of the departmental Chamber of Commerce and Industry of Île-de-France, specifying those transactions that they may carry out.

This licence may be issued only to natural persons who meet the following conditions:

1 they provide proof of their professional ability;

2 they provide proof of a financial guarantee permitting the reimbursement of funds …;

3 they obtain insurance against the financial consequences of their professional civil liability;

4 they are not disqualified for or prohibited from practising …’

9. Furthermore, Article 5 of that law states:

‘The persons referred to in Article 1 who receive or hold sums of money … must comply with the conditions laid down by decree of the Council of State, in particular the formalities of keeping records and issuing receipts and the other obligations arising under the mandate.’

10. A decree therefore requires that special registers, records and detailed accounts be kept, with the aim of preserving the interests of individuals who entrust funds to intermediaries.
11. Last, Article 14 of the Hoguet law states that failure to hold a professional licence is to be punishable by 6 months’ imprisonment and a fine of EUR 7 500. Furthermore, under Article 16 of that law a term of imprisonment of 2 years and a fine of EUR 30 000 may be imposed on a person who handles sums of money in breach of the obligation to hold a professional licence (Article 3) or of the obligation to maintain special registers, records and detailed accounts (Article 5).

III. The facts of the main proceedings

12. AIRBNB Inc., a company established in the United States, is the parent company of the AIRBNB group.
13. AIRBNB Ireland UC, a company governed by Irish law established in Dublin (Ireland), is part of the AIRBNB group and is wholly owned by AIRBNB Inc. AIRBNB Ireland administers, for all users established outside the United States, an online platform designed to connect, on the one hand, hosts (professionals and individuals) with accommodation available to rent with, on the other hand, persons seeking that type of accommodation.
14. Following a complaint against an unknown person, together with an application to join in the proceedings as civil party, lodged by, in particular, the Association pour un hébergement et un tourisme professionnel (AHTOP), the Prosecutor’s Office, Paris (France) on 16 March 2017 issued an initial indictment for handling of funds, for activities involving mediation and management of real property and business activities by a person not in possession of a professional licence, in accordance with the Hoguet law, and for other offences, alleged to have been committed between 11 April 2012 and 24 January 2017, and changed the status of AIRBNB Ireland to a ‘témoin assisté’ (a person who is not merely a witness, but to some extent a suspect).
15. AIRBNB Ireland denies acting as a real estate agent and claims that the Hoguet law is inapplicable on the ground that it is incompatible with Directive 2000/31.

IV. The questions for a preliminary ruling and the procedure before the Court

16. It was in those circumstances that the investigating judge of the Tribunal de grande instance de Paris (Regional Court, Paris) (France), by decision of 6 June 2018, received at the Court on 13 June 2018, decided to stay proceedings and to refer the following questions to the Court:

‘(1) Do the services provided in France by the company AIRBNB Ireland via an electronic platform managed from Ireland benefit from the freedom to provide services provided for in Article 3 of [Directive 2000/31]?

(2) Are the restrictive rules relating to the exercise of the profession of real estate agent in France, laid down by [the Hoguet law], enforceable against the company AIRBNB Ireland?’

17. Written observations have been lodged by AIRBNB Ireland, AHTOP, the French, Czech, Spanish and Luxembourg Governments and the European Commission. Those parties, with the exception of the Czech and Luxembourg Governments, were represented at the hearing that was held on 14 January 2019.

V. Analysis

A. The first question

18. By its first question, the referring court seeks, in essence, to ascertain whether the services provided by AIRBNB Ireland must be considered as falling within the classification of ‘information society services’ within the meaning of Article 1(1)(a) of Directive 2015/1535, to which Article 2(a) of Directive 2000/31 refers, and as benefiting, therefore, from the free movement ensured by that directive.
19. Pursuant to Article 3(1) of Directive 2000/31, each Member State is to ensure that the information society services provided by a service provider established in its territory comply with the national provisions applicable in the Member State in question that fall within the coordinated field. According to Article 3(2) of that directive, on the other hand, Member States other than that in whose territory a service provider is established may not, in principle, for reasons falling within the coordinated field, restrict the free movement of such services. It is therefore the information society services that benefit from the freedom to provide services referred to in the first question.
20. In that regard, the referring court merely states that Directive 2000/31 precludes the application of restrictive national rules such as the Hoguet law in e-commerce matters and that it is thus necessary to determine whether AIRBNB Ireland’s activities fall within the scope of that directive.
21. On that point, the parties put forward diametrically opposite positions and submit considerations relating to the question whether and, if so, subject to what reservations, AIRBNB Ireland’s activities are comparable to those of Uber, which was the subject of the judgments in Asociación Profesional Elite Taxi (9) and Uber France. (10)
22. In essence, AIRBNB Ireland, the Czech and Luxembourg Governments and the Commission are of the view that a service such as that provided by AIRBNB Ireland — in that it allows service providers and potential customers to be connected — satisfies the criteria set out in the definition of ‘information society service’ within the meaning of Directive 2000/31.
23. AHTOP and the French and Spanish Governments, on the other hand, are of the view that, in accordance with the reasoning followed by the Court in the judgment in Asociación Profesional Elite Taxi, (11) an intermediation service, such as that provided by AIRBNB Ireland, in conjunction with the other services offered by AIRBNB Ireland, constitutes a global service the main element of which is a service connected with real property.
24. In order to answer the first question, I shall first of all make a few general observations about AIRBNB Ireland’s activities and the operation of its electronic platform (points 25 to 33 of this Opinion). Next, I shall answer the question whether, having regard to those observations, AIRBNB Ireland’s activities fall within the concept of ‘information society services’. In doing so, I shall mention the legislative conditions under which a service may be considered to fall within the concept of ‘information society service’ and I shall illustrate the specific problems raised by electronic platforms as regards their classification in the light of Directive 2000/31 (points 35 of 44 of this Opinion). After detailing the solution developed in the case-law in order to overcome such problems (points 45 to 53 of this Opinion), I shall consider whether and, if so, on what conditions, that solution can be transposed to the circumstances of the main proceedings (points 55 to 78 of this Opinion). Last, on the basis of those considerations, I shall analyse the impact of other services offered by AIRBNB Ireland on the classification of its intermediation service (points 80 to 85 of this Opinion).
25. AIRBNB Ireland’s activities
26. As is apparent from the facts of the main proceedings and the explanations provided by certain parties, and from the Terms of Service for European Union users of the platform concerned, (12) AIRBNB Ireland administers an electronic platform that enables hosts with accommodation to rent to be connected with persons seeking that type of accommodation.
27. AIRBNB Ireland centralises listings on its platform, so that a search for accommodation to rent may be carried out according to several criteria, independently of the location of the potential guest. The results of a search carried out, in particular, on the basis of the destination and period of stay are displayed in the form of a list of accommodations together with photographs and general information, including prices. The user of the platform may then obtain more detailed information about each accommodation and, on the basis of that information, make his choice.
28. It is the host’s responsibility to set the tariffs, the calendar of availability and the reservation criteria and also to draw up house rules, which any guests must accept. In addition, a host must select one of the options predefined by AIRBNB Ireland as regards the conditions of cancellation of the rental of his accommodation.
29. The services provided by AIRBNB Ireland are not confined to the provision of a platform that enables hosts and guests to be connected.
30. First of all, AIRBNB Ireland has put in place a system whereby hosts and guests may leave an assessment of each other, by means of a rating of between zero and five stars. The ratings, together with any comments, are available on the platform to hosts and guests.
31. Next, in certain cases, in particular where a host receives mediocre ratings or negative comments or cancels confirmed reservations, AIRBNB Ireland may temporarily suspend the listing, cancel a reservation or even prohibit access to the site.
32. Last, AIRBNB Ireland also offers the host (i) a framework defining the terms of his offer; (ii) a photography service; (iii) civil liability insurance; (iv) a guarantee for damage of up to EUR 800 000; and (v) a tool for estimating the price of his rental by reference to average market prices taken from the platform.
33. Within the AIRBNB group, AIRBNB Payments UK Ltd, a company governed by the laws of England and Wales and established in London, provides online payment services to users of AIRBNB Ireland’s electronic platform and administers the group’s payment activities within the European Union. Thus, when the host accepts a guest, the guest makes payment to AIRBNB Payments UK, the amount of which corresponds to the rental price plus 6 to 12% for the charges and the service provided by AIRBNB Ireland. AIRBNB Payments UK retains the funds on behalf of the host, then, 24 hours after the guest has entered the premises, transfers them to the host by bank transfer, thus providing the guest with a guarantee that the property exists and the host with a guarantee of payment.
34. Thus, French internet users enter into a contract with AIRBNB Ireland for the use of the site (placing of a listing, reservations), on the one hand, and with AIRBNB Payments UK for payments made through that site, on the other hand.
35. That being said, it is appropriate to return to the question wheth

    Can I use Uber legally for airport transfers in Paris?

    Yes, Uber is legal in Paris for airport transfers, but drivers must have proper taxi licenses under French law. Fines up to €1,500 apply for unlicensed rides, so check the app for verified drivers. Expect fares from €50 to €70 for a trip from Charles de Gaulle to the city center, depending on traffic.

    What happens if a ride-sharing app facilitates illegal taxi services in Europe?

    European courts, like in the 2019 CJEU case C-390/18, ruled that platforms can face criminal liability if they knowingly enable unlicensed operations. Travelers should stick to licensed services to avoid fines or service disruptions. In France, this means using VTC-approved apps with fares starting at €35 for short airport runs.

    How do EU laws affect booking taxis through online platforms?

    EU rulings from 2019 require platforms to verify compliance with local transport laws, preventing illegal bookings. For airport transfers, always confirm the service has permits to avoid cancellations. Prices remain standard, like €40-€60 from Orly Airport to Paris via approved apps.