Wnioski prawne dotyczące funkcjonowania platform internetowych związanych z usługami transportowymi na podstawie sprawy Airbnb C-390/18

OPINIA RZECZNIKA GENERALNEGO SZPUNARA

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)

Sprawa 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 In that regard, it should be noted that, with effect from 7 October 2015, Directive (EU) 2015/1535 (5) repealed and replaced Directive 98/34/EC.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) "usługa" oznacza każdą usługę społeczeństwa informacyjnego, to znaczy każdą usługę normalnie świadczoną za wynagrodzeniem, na odległość, drogą elektroniczną i na indywidualne żądanie odbiorcy usług.

Dla celów niniejszej definicji:

(i) "na odległość" oznacza, że usługa jest świadczona bez jednoczesnej obecności stron;

(ii) "drogą elektroniczną" oznacza, że usługa jest wysyłana początkowo i odbierana w miejscu przeznaczenia za pomocą sprzętu elektronicznego do przetwarzania (w tym kompresji cyfrowej) i przechowywania danych oraz w całości przesyłana, przenoszona i odbierana za pomocą kabla, radia, środków optycznych lub innych środków elektromagnetycznych;

(iii) "na indywidualne żądanie odbiorcy usług" oznacza, że usługa jest świadczona poprzez przekazywanie danych na indywidualne żądanie.

Orientacyjny wykaz usług nieobjętych tą definicją znajduje się w załączniku 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:

"Do celów niniejszej dyrektywy poniższe terminy mają następujące znaczenie:

...

(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. Państwa członkowskie mogą podjąć środki w celu odstąpienia od ust. 2 w odniesieniu do danej usługi społeczeństwa informacyjnego, jeżeli spełnione są następujące warunki:

(a) środki są następujące:

(i) konieczne z jednego z następujących powodów:

- porządek publiczny, w szczególności zapobieganie, dochodzenie, wykrywanie i ściganie przestępstw, w tym ochrona nieletnich i zwalczanie wszelkiego podżegania do nienawiści ze względu na rasę, płeć, religię lub narodowość oraz naruszeń godności ludzkiej dotyczących poszczególnych osób,

- ochrona zdrowia publicznego,

- bezpieczeństwa publicznego, w tym ochrony bezpieczeństwa narodowego i obronności,

- ochrona konsumentów, w tym inwestorów;

(ii) podjętych przeciwko danej usłudze społeczeństwa informacyjnego, które naruszają cele, o których mowa w ppkt (i), lub które stwarzają poważne i groźne ryzyko naruszenia tych celów;

(iii) proporcjonalne do tych celów;

(b) przed podjęciem przedmiotowych środków i bez uszczerbku dla postępowania sądowego, w tym postępowania przygotowawczego i czynności przeprowadzanych w ramach dochodzenia karnego, państwo członkowskie

- zwróciło się do państwa członkowskiego, o którym mowa w ust. 1, o podjęcie środków, a państwo to nie podjęło takich środków lub były one nieodpowiednie,

– 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 whether the service provided by AIRBNB Ireland may be regarded as an information society service.
36. AIRBNB Ireland’s activities by reference to the definition in Directive 2000/31
37. An information society service is defined by Directive 2015/1535 as a service provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.
38. In that regard, it is true that, prima facie and taken separately, the service allowing users of an electronic platform to be connected corresponds to the definition of an information society service. That, moreover, is the conclusion reached by the Court in the judgment in L’Oréal and Others. (13) It follows from that judgment that the operation of an online marketplace, that is to say, an internet service consisting in facilitating relations between sellers and buyers of goods, may, in principle, constitute an ‘information society service’ within the meaning of Directive 2000/31.
39. However, as I observed in my Opinion in Asociación Profesional Elite Taxi, (14) concerning electronic platforms, while the test as to whether a service is for remuneration and is provided upon individual request does not appear to be problematic, the same cannot be said of the test as to whether a service is provided at a distance by electronic means. In fact, the line between the component of the services that is provided by electronic means and that which is not so provided is sometimes blurred.
40. More specifically, as regards the question whether the service provided by AIRBNB Ireland is normally for remuneration, it is apparent from the order for reference that the amount of the rent paid by the guest includes the charges and remuneration for the service provided by AIRBNB Ireland. It must therefore be stated that there are two categories of recipients as regards the services provided by AIRBNB Ireland: hosts and guests, those categories not being distinct. However, as is apparent from the judgment in Papasavvas, (15) the remuneration for a service provided by a service provider in the context of his economic activity is not necessarily paid by the persons who benefit from that service. A fortiori, as regards services consisting in connecting their recipients, who are divided into two categories, it is sufficient that one of those categories pays the remuneration to the provider of an information society service.
41. As regards the condition relating to the provision of a service at the individual request of its recipient, it should be noted that, in the judgment in Google France and Google, (16) the Court held that a paid referencing service, used in the context of an internet search engine, whereby an economic operator may make an advertising link to its site appear to users of that search engine, satisfies the condition relating to the individual request of that economic operator. As regards AIRBNB Ireland’s services, a host must approach the platform managed by that company in order for his accommodation to appear on that platform. Furthermore, it is with the assistance of AIRBNB Ireland’s platform that a guest must carry out a search in order to be able to rent accommodation published on that platform.
42. Conversely, the answer to the question whether the service provided by AIRBNB Ireland satisfies the third and fourth conditions, set out in point 35 of the present Opinion, that is to say, whether that service is provided at a distance and by electronic means, depends largely, as the discussion between the parties illustrates, on the viewpoint adopted when the extent of the service in question is determined.
43. To illustrate my point, AIRBNB Ireland does not physically meet the recipients of its services: neither the hosts nor the guests. As is apparent from the preliminary observations concerning AIRBNB Ireland’s activities, the host is not required to approach AIRBNB Ireland in person in order to publish his accommodation on the platform. Furthermore, a user of the platform managed by AIRBNB Ireland may rent an accommodation at a distance, without having to be physically in contact with that service provider. However, it is clear that the connection of users of the platform managed by AIRBNB Ireland results in the use of an accommodation, which may be regarded as a non-electronic component of the service provided by that company.
44. In those circumstances, can the service provided by AIRBNB Ireland be considered to be a service provided at a distance, in the sense that, as required by Article 1(1)(b)(i) of Directive 2015/1535, that service is provided without the parties being simultaneously present?
45. Likewise, can the service consisting in the connection of hosts and guests and having as its result the use of an accommodation be considered to be entirely provided by the use of electronic equipment, as required by Article 1(1)(b)(ii) of Directive 2015/1535, and to have no relation to the services referred to in the indicative list set out in Annex I to that directive, that is to say, to services having material content even though they are provided via electronic means?
46. In order to answer those two questions, I shall turn to the case-law of the Court, which has already been requested to rule on the classification of mixed services, that is to say, of services consisting of an element provided by electronic means and another that is not provided by electronic means. (17)
47. The mixed services in the light of Directive 2000/31
48. In the judgment in Ker-Optika, (18) the Court considered whether the fact that the sale or supply of contact lenses might be subject to the requirement that the patient first obtain medical advice, involving a physical examination of the patient, is capable of preventing the sale of lenses via the internet from being classified as an ‘information society service’ within the meaning of Directive 2000/31. In that regard, the Court held that such obtaining of medical advice is not inseparable from the selling of contact lenses, on the ground that it can be carried out independently of the act of sale.
49. I infer from that finding that services that are not inseparably linked with the service provided by electronic means, in the sense that the former may be provided independently of the latter, are not capable of affecting the nature of that service. The service provided by electronic means does not lose its economic interest and continues to be independent of the services having material content.
50. On the other hand, the classification of a service provided by electronic means requires a detailed examination where that service forms an inseparable whole with a service having material content. (19)
51. In that vein, the Court held, in the judgment in Asociación Profesional Elite Taxi, (20) that an intermediation service consisting in connecting a non-professional driver using his own vehicle with a person who wishes to make an urban journey may, taken separately and a priori, be classified as an ‘information society service’. (21) However, having taken into account all the characteristics of Uber’s activities, the Court held that its intermediation service must be considered to be inseparably linked with a transport service and thus excluded from the scope of Directive 2000/31.
52. In that regard, the Court stated, first of all, that a service such as that provided by Uber was more than an intermediation service consisting in connecting, by means of a smartphone application, a non-professional driver using his own vehicle with a person wishing to make an urban journey. The provider of ‘that intermediation service simultaneously offers urban transport services, which it renders accessible, in particular, through software tools … and whose general operation it organises for the benefit of persons who wish to accept that offer in order to make an urban journey.’ (22)
53. The Court then provided clarification permitting an assessment of whether those two criteria were satisfied.
54. More specifically, the Court stated that, without the application provided by Uber, (i) the drivers would not be led to provide transport services and (ii) persons wishing to make an urban journey would not use the services provided by those drivers. (23) To my mind, that clarification refers to the criterion relating to the fact that Uber offers services having material content.
55. Furthermore, the Court stated that Uber exercised decisive influence over the conditions under which that service was provided by the drivers by determining, by means of its application, at least the maximum fare for the journey and by exercising a certain control over the quality of the vehicles and their drivers. (24) To my mind, that clarification was intended to determine that Uber organised the general operation of the services that were not provided by electronic means.
56. Thus, in the judgments in Asociación Profesional Elite Taxi (25) and Uber France, (26) the Court established two criteria to be applied in order to determine whether a service provided by electronic means that, taken separately, prima facie meets the definition of an ‘information society service’ is separable from other services having material content, namely the criteria relating to the fact that the service provider offers services having a material content and to the fact that the service provider exercises decisive influence on the conditions under which such services are provided.
57. It must therefore be determined whether those two criteria are satisfied in the circumstances of the main proceedings.
58. The criterion relating to the offer of services

(a) Application in the present case

55. Has AIRBNB Ireland, in the context of its activities, created an offer within the meaning of the judgments in Asociación Profesional Elite Taxi (27) and Uber France? (28)
56. In my view, that question must be answered in the negative, for the following reasons.
57. Uber’s offer, which was a new phenomenon, at least in the case of the UberPop service, was based on non-professional drivers, and it was for that reason that the Court considered that, without the application provided by Uber, that on-demand transport service, provided by non-professional drivers, could not be provided. A non-professional driver could, admittedly, have himself attempted to provide an on-demand transport service; however, without Uber’s application, that driver would have been unable to guarantee a match between his offer and demand.
58. Unlike Uber’s platform, AIRBNB Ireland’s platform is open to professional hosts and non-professional hosts. The short-term accommodation market, whether professional or not, existed long before the activity of AIRBNB Ireland’s service began. As the Luxembourg Government observes, professional and non-professional hosts can offer their assets via more traditional channels. Nor is it unusual for a host to create a website devoted solely to his accommodation that can be found with the help of search engines.
59. Thus, the accommodation services are not inseparably linked to the service provided by AIRBNB Ireland by electronic means, in the sense that they can be provided independently of that service. Those services retain their economic interest and remain independent of AIRBNB Ireland’s electronic service.
60. Since the criterion relating to the creation of an offer of services within the meaning of the judgment in Asociación Profesional Elite Taxi (29) is not satisfied in the present case, the question arises as to the relationship between that criterion and the criterion relating to the exercise of control over the provision of those services. That question did not arise with respect to Uber’s activity, since those two criteria were satisfied in that case. (30)

(b) The relationship between the creation of an offer of services and the exercise of control over those services

61. New technologies such as the internet make it possible to meet, on a hitherto unknown scale, any demand with an appropriate supply. Likewise, each offer is capable of finding a demand. That is possible, in particular, because of the innovations introduced by economic operators wishing to increase their competitiveness. Those innovations thus intensify economic trade and play an important role in the development of a market without frontiers. They may also lead to the creation of a supply — or even of a demand — that did not previously exist.
62. That is all in keeping with the logic of the internal market, which, as the EU legislature points out in recital 3 of Directive 98/48, enables providers of such services to develop their cross-border activities and consumers to have new forms of access to goods and services.
63. In those circumstances, it would be contrary to the logic of the internal market and to the liberalisation of information society services, which is the objective of Directive 2000/31, (31) if, solely because of the creation of a new supply, the innovations of economic operators that enable consumers to have new forms of access to goods or services led to those economic operators being excluded from the scope of Directive 2000/31.
64. However, an innovation that leads to the provision of services having material content by or under the control of an economic operator cannot ensure the applicability of Directive 2000/31 because, on the basis of providing an information society service, that economic operator would compete with other market players who do not benefit from that liberalisation.
65. For those reasons, the criterion relating to the creation of a supply of services constitutes only, to my mind, an indication that a service provided by electronic means forms an inseparable whole with a service having material content. It is not sufficient that a service provider creates a new supply of services that are not provided by electronic means in the sense that I have just explained in points 49 to 51 of this Opinion: the creation of those services must be followed by the maintenance, under the control of that provider, of the conditions under which they are provided.
66. In that regard, it should be noted that a provider of services provided by electronic means may organise his activity in such a way as to allow him to exercise control over the provision of the services having material content, even if those services form part of the pre-existing supply. Must it then be considered, in those circumstances, that that supplier provides an information society service and thus benefits from the liberalisation aimed at by Directive 2000/31? For the reasons I have just stated in point 64 of this Opinion, that question must, in my view, be answered in the negative.
67. It follows from the foregoing that the criterion relating to the creation of a supply of services that are not provided by electronic means is not decisive as regards the question whether those services form an inseparable whole with a service provided by electronic means. It is the decisive influence exercised by the service provider over the conditions of the supply of the services having material content that is capable of rendering those services inseparable from the service that that provider provides by electronic means.
68. For those reasons, and following the Court’s reasoning concerning Uber’s activity, it is now necessary to determine whether AIRBNB Ireland exercises control over the conditions governing the provision of the short-term accommodation services.
69. The control exercised over the conditions of the provision of the services
70. As a reminder, in the judgments in Asociación Profesional Elite Taxi (32) and Uber France, (33) the Court considered that Uber exercised decisive influence over the conditions under which transport was provided, in particular by determining the maximum fare, by collecting that price from the customer before paying part of it to the non-professional driver of the vehicle and by exercising a certain control over the quality of the vehicles and their drivers and over the drivers’ conduct, which could, in some circumstances, result in their exclusion. (34) A reading of those judgments clearly shows that that list is indicative in nature.
71. For that reason, I consider it appropriate to point out that, in my Opinions in those cases, I had drawn the Court’s attention to the fact that Uber exercised control over other relevant aspects of an urban transport service, namely over the minimum safety conditions, by means of prior requirements concerning drivers and vehicles, and over the accessibility of the transport supply, by encouraging drivers to work when and where demand was high. (35)
72. Those circumstances, taken as a whole, had led me to conclude that Uber exercised control over the economically significant aspects of the transport service offered through its platform. As regards on-demand urban transport services, the price, the immediate availability of the means of transport, ensured by the size of the supply, the minimum quality acceptable for the passengers of those means of transport, and the safety of those passengers, constitute the most significant factors for the recipients of those services. Conversely, in the present case I do not consider that AIRBNB Ireland exercises control over all the economically significant aspects of the short-term accommodation service, such as the location and standards of the accommodations, which are of major significance in the case of such a service. On the other hand, the price does not seem to play as significant a role in the context of accommodation services as in the context of on-demand urban transport services. In any event, as my analysis reveals, AIRBNB Ireland does not control the price of the accommodation services.
73. Admittedly, it is true that, as the Spanish Government, in particular, observed at the hearing, AIRBNB Ireland’s electronic service has an impact on the short-term accommodation market and, in reality, on the accommodation market in general. That said, AIRBNB Ireland does not seem to act as either a power that regulates the economic aspects of that market or as a provider exercising decisive control over the conditions under which the accommodation services are provided. All the social and economic implications of the operation of its platform are the result of the actions of the users of that platform and of the logic of supply and demand.
74. In that regard, I consider that, while AIRBNB Ireland provides optional assistance in determining the price, it does not set that price, which is determined by a host. In addition, unlike the situation in Uber, (36) hosts using AIRBNB Ireland’s platform are not discouraged from setting the price themselves, the only factor that might discourage them from doing so being the logic of supply and demand.
75. Next, as regards the procedures for the provision of the accommodation services, it should be noted that it is the hosts that determine the letting conditions. Admittedly, AIRBNB Ireland pre-defines the options of the conditions for cancellation. However, it is always the host who deliberately chooses one of the options proposed and, accordingly, the final decision on the cancellation conditions is a matter for the host.
76. In addition, it appears that, on the basis of the information available from the ratings and from users’ comments, AIRBNB Ireland may, in certain cases, temporarily suspend a listing, cancel a reservation, or indeed prohibit access to its platform. In that regard, the administrator of an electronic platform may confer on itself a power of administrative control, in particular in order to ensure that the conditions of the contracts that it enters into with the users of that platform are observed. In addition, those contractual conditions may impose obligations on users so that the operating standards of an electronic platform are observed. As regards the classification of the information society services, the question arises, however, of the intensity of that power, which is reflected in the influence over the provision of the services provided by the users of that platform.
77. It should be noted, in that regard, that Uber exercised control over the quality of the vehicles and their drivers and also over the drivers’ conduct by reference to the standards that Uber itself had determined. On the other hand, as is apparent from points 27 and 29 of this Opinion, the control exercised by AIRBNB Ireland concerns users’ compliance with standards defined or, at the very least, chosen by those users. In any event, as regards Uber’s activity, the exercise of the power of administrative control was only one of the factors that led to the assertion that that provider exercised decisive influence over the conditions under which the transport services were provided.
78. Last, as regards the fact, raised by AHTOP, that, like Uber, AIRBNB Ireland collects the amount corresponding to the rental price and subsequently transfers it to the host, it should again be noted that, in the case of Uber’s activity, the fact that the service provider collected the price was one of the factors taken into account for the purpose of deciding that its service did not come within the concept of ‘information society service’. It should be noted that that element of the service provided by AIRBNB Ireland, supplied by AIRBNB Payments UK, is typical of the great majority of information society services, including for platforms that allow a hotel to be reserved or airline tickets to be purchased. (37) The mere fact that a service provided by electronic means includes facilities for payment for the services that are not provided by electronic means does not permit the conclusion that all of those services are inseparable.
79. For all of the foregoing reasons, I consider that it cannot be concluded that AIRBNB Ireland’s electronic service satisfies the criterion relating to the exercise of control over the services having material content, namely the short-term accommodation services.
80. It is now appropriate to examine a final point, namely AHTOP’s argument that, as AIRBNB Ireland offers other services to its users, the classification of information society service cannot be applied in the present case.
81. The other services offered by AIRBNB Ireland
82. It appears that AIRBNB Ireland also offers other services, namely a photography service, civil liability insurance and a guarantee for damage.
83. It should be borne in mind that, in the judgment in Ker-Optika, (38) the Court concluded that services that are not inseparably linked to the service provided by electronic means, in the sense that the former may be provided independently of the latter, are not capable of affecting the nature of that service. The service provided by electronic means does not lose its economic interest and remains independent of the services having material content.
84. If that conclusion is transposed to the present case, it should be noted that the other services offered by AIRBNB Ireland are optional and, accordingly, are ancillary in nature by comparison with the service provided by electronic means. Those services are therefore separable from the service provided by electronic means. In fact, a host may, in advance and by his own means, obtain photographs, insurance or guarantees from third parties.
85. Admittedly, those other services offered by AIRBNB Ireland are provided by AIRBNB Ireland itself, while the Court’s analysis in the judgment in Ker-Optika (39) concerned not the advice given and checks carried out by the seller of contact lenses, but those given and carried out by ophthalmologists.
86. However, I doubt that the answer given by the Court in that judgment would have been different if such services had been provided by the provider of the service provided by electronic means. It seems logical to me that, in order to make their offer more competitive, providers should extend the range of services that they provide, in particular by offering services that are not provided by electronic means. Provided that such services are separable from the information society service, the former services do not alter the nature of the latter service. If an interpretation a contrario were applied, that could lead providers of the information society services to limit the attractiveness of their offer or to outsource, even in an artificial manner, the services having a material content.
87. To summarise, the fact that the provider of an information society service offers the recipients of that service other services having a material content does not prevent that service from being classified as an ‘information society service’, provided that those other services are not inseparable from the service provided by electronic means, in the sense that the latter service does not lose its economic interest and remains independent of the services having a material content.
88. Conclusions relating to the first question
89. Following the analysis that I have just carried out, I consider that the services having a material content, which are not inseparably linked to the service provided by electronic means, are not capable of affecting the nature of that service. The service provided by electronic means does not lose its economic interest and remains independent of the services having a material content.
90. The two criteria laid down in that regard by the Court in its case-law, namely the criterion relating to the creation of a supply of services and the criterion relating to the exercise of control over the conditions under which those services are provided, make it possible to answer the question whether a service provided by electronic means that, taken separately, prima facie meets the definition of ‘information society service’, is or is not separable from other services having a material content.
91. However, the criterion relating to the creation of a supply is merely an indication of whether a service provided by electronic means forms an inseparable whole with a service having a material content. It is not sufficient that a provider has created a new supply of services that are not provided by electronic means in the sense explained above. The creation of such a supply should be followed by the maintenance of control, by that provider, over the conditions under which those services are provided.
92. In the light of those considerations, I therefore propose that the answer to the first question should be that Article 2(a) of Directive 2000/31, read in conjunction with Article 1(1)(b) of Directive 2015/1535, must be interpreted as meaning that a service consisting in connecting, via an electronic platform, potential guests with hosts offering short-term accommodation, in a situation where the provider of that service does not exercise control over the essential procedures of the provision of those services, constitutes an information society service within the meaning of those provisions. The fact that that service provider also offers other services having a material content does not prevent the service provided by electronic means from being classified as an information society service, provided that the latter service does not form an inseparable whole with those services.
93. It should be noted that the conditions of renting the accommodations, that is to say, of the services provided by the hosts, do not come within the scope of Directive 2000/31 and must be assessed in the light of other provisions of EU law. (40)
94. Since the first question calls for an affirmative answer and, consequently, the service provided by AIRBNB Ireland must be considered to be an ‘information society service’ within the meaning of Directive 2000/31, it is necessary to answer the second question.

B. The second question

92. By its second question, which it submits in case the answer to the first question should be in the affirmative, the referring court seeks, in essence, to ascertain whether the requirements laid down by the Hoguet law can be applied to AIRBNB Ireland as a provider of information society services.
93. Admissibility
94. The French Government maintains, primarily, that the Court manifestly lacks jurisdiction to answer this question. According to that Government, the second question entails determining whether AIRBNB Ireland falls within the scope ratione materiae of the Hoguet law, which is a matter of interpretation of national law and, accordingly, within the exclusive jurisdiction of the referring court.
95. In the alternative, the French Government submits that the second question would still be manifestly inadmissible in that it does not satisfy the requirements laid down in Article 94 of the Rules of Procedure of the Court of Justice, since it does specify whether AIRBNB Ireland falls within the scope ratione materiae of the Hoguet law. (41)
96. I do not share the reservations expressed by the French Government as regards the admissibility of the second question.
97. In that context, it should be noted that, within the framework of its alternative argument, the French Government acknowledges that it could be considered that the referring court implicitly indicates that AIRBNB Ireland falls within the scope of the Hoguet law. In fact, the second question relates not to whether that law is applicable to AIRBNB Ireland but to whether restrictive rules of the Hoguet law are opposable to that undertaking.
98. Furthermore, a request for a preliminary ruling benefits from a presumption of relevance and it is therefore only in rare and extreme cases that the Court will refuse to answer such a request, in particular if it is obvious that EU law cannot be applied to the circumstances of the dispute in the main proceedings, (42) which is not the case here. In fact, I understand the second question to mean that the referring court is wondering whether a Member State other than that in whose territory a provider of an information society service is established (the Member State of origin) may, by means of rules such as those laid down in the Hoguet law, actually impose certain requirements on that service provider. As the discussion between the parties illustrates, that question may be covered by several instruments of EU law.
99. Without prejudice to the foregoing considerations, it should be noted that at the hearing the French Government stated that the requirements laid down in the Hoguet law did not apply to service providers such as AIRBNB Ireland.
100. In any event, it is for the national court to determine the precise scope of the national law. It is therefore appropriate to answer the second question, while leaving it to the referring court to address the question of the scope of the Hoguet law.
101. Substance

(a) The applicability of Directive 2005/36/EC

100. AHTOP claims that the enforceability of the Hoguet law against AIRBNB Ireland should be assessed in the light of Directive 2005/36/EC, (43) which authorises the Member States to apply professional and ethical standards, and standards concerning liability, to certain professions.
101. On the other hand, AIRBNB Ireland contends, in the first place, that Directive 2000/31 contains no exclusion implying that the provisions of Directive 2005/36 would prevail over those of the former directive.
102. In the second place, AIRBNB Ireland submits that it follows from Article 5(2) of Directive 2005/36 and from the judgment in X-Steuerberatungsgesellschaft (44) that that directive does not apply to the situation in the present case on the ground that AIRBNB Ireland does not move to French territory in order to pursue its profession.
103. It should be noted, first of all, that, according to Article 5(2) of Directive 2005/36, the principle of the free provision of services, in so far as it concerns the restrictions relating to professional qualifications, is to apply only where the service provider moves to the territory of the host Member State to pursue, on a temporary and occasional basis, his profession. There is nothing to indicate that AIRBNB Ireland is in such a situation. It therefore does not benefit from the principle of free provision of services guaranteed by Article 5 of Directive 2005/36.
104. In the judgment in X-Steuerberatungsgesellschaft, (45) on which AIRBNB Ireland relies, the Court held that in such a situation the service provider was also unable to rely on the principle of the freedom to provide services guaranteed by Directive 2006/123/EC (46) and that, accordingly, it was necessary to appraise the conditions of access to a profession by reference to the FEU Treaty. (47)
105. In the present case, the question thus arises of the relationship between, on the one hand, Directive 2000/31 and the principle of the free movement of information society services and, on the other hand, the Member States’ power to regulate the conditions of access to a profession.
106. It has been suggested in the literature that the conditions of access to a profession cannot be applied to a provider who offers services with the assistance of the internet. (48) In fact, the coordinated field encompasses, in particular, the requirements relating to access to the activity of an information society service, such as those concerning qualifications, authorisation or notification, even if those requirements are general in nature. (49) Furthermore, unlike Directive 2006/123, (50) Directive 2000/31 contains no exclusion providing that the free movement of information society services does not affect requirements relating to access to a regulated profession.
107. Consequently, at least as regards the requirements relating to access to a regulated profession, a service provider who provides an information society service in a Member State of origin may rely on the free movement of services guaranteed by Directive 2000/31. (51) As that question is covered by Directive 2000/31, there is no need to assess it in the light of primary law. (52)

(b) The applicability of Directive 2007/64/EC

108. The Commission submits that the services provided by AIRBNB Payments UK are potentially subject to Directive 2007/64/EC. (53)
109. Since the second question is put in case the Court should answer the first question in the affirmative, which means that AIRBNB Ireland benefits from the principle of freedom to provide information society services guaranteed by Directive 2000/31, I shall confine my analysis of the second question to that directive.
110. In addition, as the request for a preliminary ruling does not mention Directive 2007/64 and as AIRBNB Payments UK is not a party to the main proceedings, I do not consider it appropriate, in the absence of clarification from the referring court and observations from the parties other than the Commission, to address the questions that might arise under that directive. In fact, the Court does not have sufficient information to analyse them of its own motion.

(c) The free movement of information society services and its scope

111. It should be noted at the outset that, according 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, as defined in Article 2(h) of that directive. Conversely, with the exception of the cases referred to in Article 3(4) of Directive 2000/31, Article 3(2) of that directive prohibits other Member States, for reasons falling within the coordinated field, from restricting the free movement of information society services.
112. Information society services benefit from the free movement guaranteed by Directive 2000/31 only as regards the fields that fall within the scope of that directive. Article 1(5) of Directive 2000/31 sets out the fields and questions to which that directive is not to apply, but the present case concerns none of them. (54)
113. Nor, according to Article 3(3) of Directive 2000/31, are information society services to benefit from free movement as regards the fields referred to in the annex to that directive. The requirements laid down in the Hoguet law do not fall within one of those fields. (55)
114. The requirements relating to information society services, which fall within the coordinated field, may issue from the Member State of origin or — within the limits imposed by Directive 2000/31, in Article 3(4) — from other Member States.
115. The present case is concerned with the latter situation, in which the legislation of a Member State other than the Member State of origin is liable to restrict the information society services and, accordingly, falls prima facie within the scope of Article 3(2) of Directive 2000/31. (56)
116. The coordinated field, as defined in Article 2(h) of Directive 2000/31, read in the light of recital 21 of that directive, encompasses the requirements relating to access to the activity of an information society service and the exercise of such an activity, whether they are general in nature or whether they were specifically conceived for those services or their providers. (57) The requirements laid down by the Hoguet law therefore seem to fall within the coordinated field.
117. In order for a requirement laid down by a Member State other than that in which the provider of the information society services is established to be enforceable against that provider and lead to the restriction of the free movement of those services, that requirement must be a measure that satisfies the substantive and procedural conditions laid down in Article 3(4)(a) and (b), respectively, of Directive 2000/31.

(d) The measures derogating from Directive 2000/31

118. It should be noted at the outset that the Hoguet law, adopted in 1970, predates Directive 2000/31. It is thus obvious that the requirements laid down in that law were not formulated ab initio as measures provided for in Article 3(4) of that directive. Furthermore, Directive 2000/31 does not contain a clause authorising Member States to maintain earlier measures that might restrict the free movement of information society services.
119. Nonetheless, I cannot exclude outright the possibility that a measure that predates Directive 200/31 or was adopted on the basis of legislation that predates it, provided that it satisfies the conditions laid down in Article 3(4) of that directive, might restrict the free movement of information society services.
120. Furthermore, the wording of Article 3(4)(b) of Directive 2000/31 shows that a Member State may derogate from Article 3(2) of that directive by two types of measures: those subject to the procedural conditions laid down in Article 3(4)(b) of that directive and those not subject to those conditions, that is to say, at least in certain cases, measures adopted in judicial proceedings. (58)
121. It should be noted that, in the circumstances of the present case, whether AIRBNB Ireland will be found to be criminally liable at the end of the main proceedings depends on the answer to the preliminary question whether that service provider was obliged to satisfy the requirements laid down in the provisions of the Hoguet law. That, to my mind, is the reason why the referring court wonders whether the rules on the exercise of the profession of real estate agent can be enforced against that service provider.
122. Having made that clear, I shall now proceed to analyse the conditions laid down in Article 3(4)(a) and (b) of Directive 2000/31.

(e) Substantive conditions

123. First of all, it follows from Article 3(4)(a)(i) of Directive 2000/31 that derogations from the free movement of information society services are permitted, in particular, when they are necessary for reasons relating to public policy, the protection of public health, public security or the protection of consumers. The requirements laid down by the Hoguet law seem to be aimed at the protection of consumers.
124. Next, in the words of Article 3(4)(a)(ii) of Directive 2000/31, those derogations may be applied when an information society service affected by a measure taken by a Member State other than the State of origin prejudices that objective or presents a serious and grave risk of prejudice to it.
125. Last, according to Article 3(4)(a)(iii) of Directive 2000/31, such derogations are to be proportionate.
126. There is nothing in the order for reference on the basis of which it might be determined whether legislation such as that at issue in the main proceedings satisfies those requirements.
127. That being so, it is for a Member State that seeks, for reasons falling within the coordinated field, to restrict the free movement of information society services to show that the substantive conditions laid down in Article 3(4)(a) of Directive 2000/31 are fulfilled.
128. In fact, in the absence of clarification concerning the need to adopt the measure at issue and the possibility that AIRBNB Ireland’s service prejudices one of the objectives specified in Article 3(4)(a)(i), of Directive 2000/31, the second question cannot be understood otherwise than as seeking to ascertain whether a Member State other than the Member State of origin may be allowed to impose, on its own initiative and without examining the substantive conditions, the requirements relating to the practice of the profession of real estate agent on providers of a category of information society services.
129. I think that Directive 2000/31 precludes a Member State from being able to restrict, in such circumstances and in such a way, the free movement of information society services from another Member State.
130. In the first place, Article 3(1) of Directive 2000/31 imposes on the Member States of origin the obligation to ensure that the information society services provided by a service provider established in their territories comply with the national provisions applicable in those Member States that fall within the coordinated field. (59) In contrast with that general obligation, in order not to ‘dilute’ the principle laid down in Article 3(1) of Directive 2000/31, Article 3(4) of that directive might be understood as authorising Member States other than the Member State of origin to derogate from the free movement of services only in an indirect manner.
131. In the second place, Article 3 of Directive 2000/31 must be interpreted in such a way as to guarantee the free movement of information society services between the Member States. (60) If Member States other than the Member State of origin were also competent to apply on their own initiative, to all providers of a category of information society services, measures of a general and abstract nature, the principle of the free movement of such services would be significantly weakened. In fact, Article 3(2) of Directive 2000/31 guarantees a provider of information society services a certain degree of legal certainty: subject to the derogations authorised under Article 3(4) of Directive 2000/31, that service provider cannot be subject to stricter requirements than those laid down in the material law in force in the Member State in which it is established.
132. In the third place, the measures adopted on the basis of Article 3(4) of Directive 2000/31 do not concern the information society services or their providers, but a given service.
133. In the fourth place, in order to determine whether an information society service prejudices a given objective or presents a serious and grave risk of prejudice to that objective, it is appropriate, in my view, in every instance, to examine the circumstances of the case.
134. Last, in the fifth place, the foregoing considerations are supported by the procedural conditions to be fulfilled by a Member State that seeks to restrict the free movement of the services, and to which I shall return later. (61) It should be noted that, according to Article 3(4)(b) of Directive 2000/31, a Member State that envisages adopting measures to derogate from Article 3(2) of that directive must first notify the Commission of its intention to do so and ask the Member State of origin to take measures with regard to the information society services. That Member State may, in the absence of an appropriate response from the Member State of origin, adopt the measures envisaged. Those procedural conditions clearly confirm that the measures referred to in Article 3(4) of Directive 2000/31 can be adopted only on an ad hoc basis.
135. For those reasons, I consider that a Member State other than the Member State of origin can derogate from the free movement of information society services only by measures taken on a ‘case-by-case’ basis. (62)
136. In addition, I consider that the requirements laid down by the Hoguet law may raise doubts as to their proportionality. I infer from the discussion between the parties at the hearing that it is not certain that, on the basis of the Hoguet law, AIRBNB Ireland might become the holder of a professional licence. However, on the basis of the information supplied by the referring court in its request, the Court is unable to rule on that point.
137. In any event, it is for the referring court to determine whether, having regard to all of the factors brought to its attention, the measures at issue are necessary in order to ensure the protection of consumers and do not go beyond what is required to attain the objective pursued.

(f) Procedural conditions

138. As a reminder, it follows from Article 3(4)(b) of Directive 2000/31 that a Member State that proposes to adopt measures that restrict the free movement of information society services from another Member State must first notify the Commission of its intention and ask the Member State of origin to take measures in respect of information society services.
139. There is no indication that the French Republic asked Ireland to take measures in respect of information society services.
140. Nor is it apparent that the condition relating to notification of the Commission was fulfilled, whether during or after the period of the transposition of Directive 2000/31.
141. It follows from the Court’s settled case-law that failure to notify technical regulations, as provided for in Directive 2015/1535, means that those technical regulations are inapplicable and cannot therefore be enforced against individuals. (63) Is the legal consequence the same in the case of failure to notify the Commission as provided for in Article 3(4) of Directive 2000/31? (64)
142. It should be observed in that context that, in his Opinion in Enichem Base and Others, (65) Advocate General Jacobs drew a distinction between, on the one hand, obligations to inform the Commission that were accompanied by specific provisions enabling the Commission and the various Member States to make comments on the notified drafts and requiring Member States in certain circumstances to postpone the adoption of those drafts for certain periods and, on the other hand, obligations to notify the Commission that are not circumscribed by such procedures. Advocate General Jacobs then stated that, in the absence of any prescribed procedure for suspension of introduction of the measure concerned, or for Community control, it could not be maintained that a failure to inform the Commission had the effect of rendering the measures unlawful. (66)
143. In its judgment, the Court held that, in the absence of any procedure for Community monitoring of draft rules and where the implementation of the planned rules was not made conditional upon agreement by the Commission or its failure to object, a rule requiring the Member States to inform the Commission of such draft rules and such rules does not give individuals any right that they may enforce before national courts on the ground that the rules were adopted without having been previously communicated to the Commission. (67)
144. Likewise, in subsequent case-law relating to failure to notify measures as provided for in the directives that preceded Directive 2015/1535, the Court noted that legal instruments entailing the sanction of inapplicability owing to that failure provide a procedure of Union control of draft regulations and make the date of their entry into force subject to the Commission’s agreement or lack of opposition. (68)
145. It is in the light of those considerations in the case-law that the effects of the failure to notify as provided for in Directive 2000/31 must be determined.
146. It is true that Article 3(4) of Directive 2000/31 does not authorise the Commission to annul or cancel the effects of a national measure. On the other hand, according to Article 3(6) of that directive the Commission may ask the Member State concerned to refrain from taking the proposed measures or urgently to put an end to the measures in question. In addition, the Commission may bring infringement proceedings against the Member State where it has not complied with its obligation to refrain from adopting or to put an end to a measure. (69)
147. Furthermore, in urgent cases, Article 3(5) of Directive 2000/31 authorises Member States to adopt measures restricting the free movement of information society services. In urgent cases, the measures are to be notified in the shortest possible time to the Commission. I infer that, prima facie, a measure may produce its effects without it being subject, before the date of its entry into force, to the Commission’s agreement or lack of opposition.
148. Neither does Directive 2015/1535 empower the Commission to annul or suspend the entry into force of national regulations. Conversely, that directive requires that Member States comply with the Commission’s instructions.
149. Furthermore, under Directive 2015/1535, a Member State may also have recourse to the urgent procedure where it considers it necessary to prepare technical regulations in a very short time.
150. For those reasons, having regard to the analogy between the control procedure concerning technical regulations provided for in Directive 2015/1535 and that concerning measures that restrict the free movement of information society services, I consider that, under Directive 2000/31, failure to notify entails the sanction of non-enforceability of a measure against the provider of those services.
151. In the light of those considerations, I propose that the answer to the second question should be that Article 3(4) of Directive 2000/31 must be interpreted as meaning that a Member State other than that in whose territory a provider of an information society service is established cannot, for reasons falling within the coordinated field, restrict the free movement of those services by relying, as against a provider of information society services, on its own initiative and without an examination of the substantive conditions being necessary, on requirements such as those relating to the practice of the profession of real estate agent, laid down in the Hoguet law.

VI. Conclusions

152. In the light of all of the foregoing considerations, I propose that the Court answer the questions for a preliminary ruling submitted by the investigating judge of the Tribunal de grande instance de Paris (Regional Court, Paris) (France) as follows:

(1) Article 2(a) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), read in conjunction with Article 1(b) of Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services, must be interpreted as meaning that a service consisting in connecting, via an electronic platform, potential guests with hosts offering short-term accommodation, in a situation where the provider of that service does not exercise control over the essential procedures of the provision of those services, constitutes an information society service within the meaning of those provisions.

(2) Article 3(4) of Directive 2000/31 must be interpreted as meaning that a Member State other than that in whose territory a provider of an information society service is established cannot, for reasons falling within the coordinated field, restrict the free movement of those services by relying, as against a provider of information society services, on its own initiative and without an examination of the substantive conditions being necessary, on requirements such as those relating to the practice of the profession of real estate agent, laid down in 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.

1 Język oryginału: Francuski.

2 Judgment of 20 December 2017 (C‑434/15, EU:C:2017:981, paragraph 48).

3 Judgment of 10 April 2018 (C‑320/16, EU:C:2018:221, paragraph 27).

4 Directive of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1).

5 Directive of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ 2015 L 241, p. 1). See Article 10 of that directive.

6 Directive of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1998 L 204, p. 37), as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 (OJ 1998 L 217, p. 18) (‘Directive 98/34’).

7 See Article 10 of Directive 2015/1535.

8 JORF of 4 January 1970, p. 142.

9 Judgment of 20 December 2017 (C‑434/15, EU:C:2017:981).

10 Judgment of 10 April 2018 (C‑320/16, EU:C:2018:221).

11 Judgment of 20 December 2017 (C‑434/15, EU:C:2017:981).

12 See https://www.airbnb.co.uk/terms#eusec7.

13 Judgment of 12 July 2011 (C‑324/09, EU:C:2011:474, paragraph 109).

14 C‑434/15, EU:C:2017:364, point 27.

15 Judgment of 11 September 2014 (C‑291/13, EU:C:2014:2209, paragraphs 28 and 29).

16 Judgment of 23 March 2010 (C‑236/08 to C‑238/08, EU:C:2010:159, paragraphs 23 and 110).

17 See my Opinion in Asociación Profesional Elite Taxi (C‑434/15, EU:C:2017:364, point 33).

18 Judgment of 2 December 2010 (C‑108/09, EU:C:2010:725, paragraphs 32 to 38).

19 See my Opinion in Asociación Profesional Elite Taxi (C‑434/15, EU:C:2017:364, point 35).

20 Judgment of 20 December 2017 (C‑434/15, EU:C:2017:981, paragraph 34).

21 See judgment of 20 December 2017, Asociación Profesional Elite Taxi (C‑434/15, EU:C:2017:981, paragraph 35).

22 See judgment of 20 December 2017, Asociación Profesional Elite Taxi (C‑434/15, EU:C:2017:981, paragraph 38). (Emphasis added).

23 See judgment of 20 December 2017, Asociación Profesional Elite Taxi (C‑434/15, EU:C:2017:981, paragraph 39).

24 See judgment of 20 December 2017, Asociación Profesional Elite Taxi (C‑434/15, EU:C:2017:981, paragraph 39).

25 Wyrok z dnia 20 grudnia 2017 r. (C-434/15, EU:C:2017:981).

26 Judgment of 10 April 2018 (C‑320/16, EU:C:2018:221).

27 Judgment of 20 December 2017 (C‑434/15, EU:C:2017:981).

28 Judgment of 10 April 2018 (C‑320/16, EU:C:2018:221).

29 See judgment of 20 December 2017 (C‑434/15, EU:C:2017:981, paragraph 38).

30 See also my Opinion in Asociación Profesional Elite Taxi (C‑434/15, EU:C:2017:364, point 43). In that regard, see also Van Cleynenbreuel, P., ‘Le droit de l’Union européenne ne se prête-t-il pas (encore) à l’ubérisation des services?’, Revue de la Faculté de droit de l’Université de Liège, No 1, 2018, p. 114.

31 See my Opinion in Asociación Profesional Elite Taxi (C‑434/15, EU:C:2017:364, point 31).

32 Judgment of 20 December 2017 (C‑434/15, EU:C:2017:981).

33 Judgment of 10 April 2018 (C‑320/16, EU:C:2018:221).

34 See judgments of 20 December 2017, Asociación Profesional Elite Taxi (C‑434/15, EU:C:2017:981, paragraph 39), and of 10 April 2018, Uber France (C‑320/16, EU:C:2018:221, paragraph 21).

35 See my Opinions in Asociación Profesional Elite Taxi (C‑434/15, EU:C:2017:364, point 51) and in Uber France (C‑320/16, EU:C:2017:511, points 15, 16 and 20).

36 See my Opinion in Asociación Profesional Elite Taxi (C‑434/15, EU:C:2017:364, point 50).

37 See my Opinion in Asociación Profesional Elite Taxi (C‑434/15, EU:C:2017:364, point 34).

38 Judgment of 2 December 2010 (C‑108/09, EU:C:2010:725).

39 Judgment of 2 December 2010 (C‑108/09, EU:C:2010:725).

40 See, by analogy, judgment of 2 December 2010, Ker-Optika (C‑108/09, EU:C:2010:725, paragraph 41).

41 In the further alternative, the French Government claims in its written observations that criminal proceedings initiated following the lodgement of a complaint together with an application to join in the proceedings as civil party must be regarded as a dispute between individuals. Directive 2003/31 therefore cannot be relied on in the dispute at issue in the main proceedings and, consequently, the second question is hypothetical in nature. At the hearing, however, the French Government seemed to withdraw its argument relating to the hypothetical nature of the second question. In any event, there is nothing to indicate that the dispute before the referring court is a dispute between two individuals. Furthermore, it is apparent from the explicit legal framework of the order for reference that criminal proceedings initiated following the lodgement of a complaint together with an application to join the proceedings as civil party might result in the imposition of criminal penalties.

42 See, in particular, judgment of 7 July 2011, Agafiţei and Others (C‑310/10, EU:C:2011:467, paragraph 28).

43 Directive of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ 2005, L 255, p. 22).

44 Judgment of 17 December 2015 (C‑342/14, EU:C:2015:827, paragraph 35).

45 Judgment of 17 December 2015 (C‑342/14, EU:C:2015:827).

46 Directive of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006, L 376, p. 36).

47 According to Article 17(6) of Directive 2006/123, the principle of freedom to provide services laid down in Article 16 of that directive is not to apply to matters covered by Title II of Directive 2005/36 or to requirements in the Member State where the service is provided which reserve an activity to a particular profession. See judgment of 17 December 2015, X-Steuerberatungsgesellschaft (C‑342/14, EU:C:2015:827, paragraph 35).

48 See, in particular, Hatzopoulos, V., The Collaborative Economy and EU Law, Hart Publishing, Oxford-Portland, 2018, p. 41.

49 See Article 2(h) of Directive 2000/31. See also Lodder, A.R., & Murray, A.D. (Eds.), EU Regulation of E-Commerce: A Commentary, Edward Elgar Publishing, Cheltenham-Northampton, 2017, p. 29.

50 See footnote 47.

51 See, to that effect, User guide — Directive 2005/36/EC — Everything you need to know about the recognition of professional qualifications, https://ec.europa.eu, p. 15.

52 See, to that effect, judgment of 23 February 2016, Commission v Hungary (C‑179/14, EU:C:2016:108, paragraph 118). See also my Opinion in joined cases X and Visser (C‑360/15 and C‑31/16, EU:C:2017:397, point 152).

53 Directive of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC (OJ 2007, L 319, p. 1).

54 It follows from Article 1(5) of Directive 2000/31 that that directive is not to apply to the field of taxation, questions relating to the processing of personal data and those relating to agreements or practices governed by cartel law or to certain activities of information society services, set out in Article 1(5)(d) of that directive.

55 See the Annex to Directive 2000/31. On the functioning of Article 3(3) of that directive, see judgment of 29 November 2017, VCAST (C‑265/16, EU:C:2017:913, paragraphs 24 and 25). See also my Opinion in VCAST (C‑265/16, EU:C:2017:649, point 19).

56 See, a contrario, judgment of 11 September 2014, Papasavvas (C‑291/13, EU:C:2014:2209, paragraph 35).

57 Conversely, requirements not coming within the coordinated area that are also not harmonised at EU level must be assessed where necessary in the light of primary law. See, to that effect, judgment of 14 February 2008, Dynamic Medien (C‑244/06, EU:C:2008:85, paragraph 23). See also Lodder, A.R., ‘Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce, in the internal market’, in Lodder, A.R., & Murray, A.D. (Eds.), EU Regulation of E-Commerce: A Commentary, Edward Elgar Publishing, Cheltenham-Northampton, 2017, p. 31.

58 See also recital 25 of Directive 2000/31, which states that national courts, including civil courts, dealing with private law disputes can take measures to derogate from the freedom to provide information society services in conformity with conditions established in that directive. In addition, according to recital 26 of Directive 2000/31, Member States, in conformity with conditions established in that directive, may apply their national rules on criminal law and criminal proceedings with a view to taking all investigative and other measures necessary for the detection and prosecution of criminal offences, without there being a need to notify such measures to the Commission.

59 See judgment of 25 October 2011, eDate Advertising and Others (C‑509/09 and C‑161/10, EU:C:2011:685, paragraph 61). See also D’Acunto, S., ‘La directive 98/48 prévoyant un mécanisme de transparence règlementaire pour les information society services: un premier bilan après douze mois de fonctionnement’, Revue du droit de l’Union européenne, No 3, 2000, p. 628.

60 See judgment of 25 October 2011, eDate Advertising and Others (C‑509/09 and C‑161/10, EU:C:2011:685, paragraph 64).

61 See points 138 to 150 of this Opinion.

62 See Communication from the Commission to the Council, the European Parliament and the European Central Bank — Application to financial services of Article 3(4) to (6) of the electronic commerce directive (COM/2003/0259 final, points 1 and 2.1.2); Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee — First Report from the Commission on the application of Directive [2000/31] of 21 November 2003 (COM(2003) 702 final, point 4.1). See also Crabit, E., ‘La directive sur le commerce électronique. Le projet “Méditerranée”’, Revue du Droit de l’Union Européenne, No 4, 2000, pp. 762 and 792; Gkoutzinis, A., Internet Banking and the Law in Europe: Regulation, Financial Integration and Electronic Commerce, Cambridge University Press, Cambridge-New York, 2006, p. 283.

63 See, recently, judgment of 7 August 2018, Smith (C‑122/17, EU:C:2018:631, paragraphs 52 and 53). See also my Opinion in Uber France (C‑320/16, EU:C:2017:511, point 37).

64 It should be noted that, if the requirements laid down by the Hoguet law were considered to be measures within the meaning of Article 3(4) of Directive 2000/31, the question of the connection between the obligation to notify laid down in Directive 2000/31 and that laid down in Directive 2015/1535 would not arise. In order to be classified as a ‘technical regulation’, subject to the obligation to notify under the latter directive, a requirement laid down by national law must have the specific aim and object of regulating information society services in an explicit and targeted manner (see my Opinion in Uber France, C‑320/16, EU:C:2017:511, points 24 to 33). That is not the position in the present case, however. Nor, as is apparent from the Court’s case-law, do national provisions that make the exercise of a business activity subject to prior authorisation constitute technical regulations (see judgment of 20 December 2017, Falbert and Others (C‑255/16, EU:C:2017:983, paragraph 16). In essence, the Hoguet law makes the exercise of the activity of real estate agent subject to obtaining a professional licence.

65 380/87, not published, EU:C:1989:135.

66 See Opinion of Advocate General Jacobs in Enichem Base and Others (380/87, not published, EU:C:1989:135, point 14).

67 See judgment of 13 July 1989, Enichem Base and Others (380/87, EU:C:1989:318, paragraphs 20 and 24).

68 See judgment of 26 September 2000, Unilever (C-443/98, EU:C:2000:496, paragraph 43).

69 See Crabit, E., ‘La directive sur le commerce électronique. Le projet “Méditerranée”’, Revue du droit de l’Union européenne, No 4, 2000, p. 791, and Kightlinger, M.F., ‘A Solution to the Yahoo! Problem? The EC E-Commerce Directive as a Model for International Cooperation on Internet Choice of Law’, Michigan Journal of International Law, vol. 24, No 3, 2003, p. 737.

JUDGMENT OF THE COURT (Grand Chamber)

https://curia.europa.eu/juris/document/document.jsf?text=&docid=221791&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=27786348

19 December 2019 (*)

(Reference for a preliminary ruling — Directive 2000/31/EC — Information society services — Directive 2006/123/EC — Services — Connection of hosts, whether businesses or individuals, with accommodation to rent with persons seeking that type of accommodation — Qualification — National legislation imposing certain restrictions on the exercise of the profession of real estate agent — Directive 2000/31/EC — Article 3(4)(b), second indent — Obligation to give notification of measures restricting the freedom to provide information society services — Failure to give notification — Enforceability — Criminal proceedings with an ancillary civil action)

In Case C‑390/18,

REQUEST for a preliminary ruling under Article 267 TFEU from the investigating judge of the tribunal de grande instance de Paris (Regional Court, Paris, France), made by decision of 7 June 2018, received at the Court on 13 June 2018, in the criminal proceedings against

X,

interveners:

YA,

Airbnb Ireland UC,

Hôtelière Turenne SAS,

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

Valhotel,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, A. Arabadjiev, E. Regan, P.G. Xuereb and L.S. Rossi, Presidents of Chambers, E. Juhász, M. Ilešič, J. Malenovský, D. Šváby (Rapporteur) and N. Piçarra, Judges,

Rzecznik Generalny: M. Szpunar,

Registrar: V. Giacobbo-Peyronnel, Administrator,

having regard to the written procedure and further to the hearing on 14 January 2019,

after considering the observations submitted on behalf of:

– Airbnb Ireland UC, by D. Van Liedekerke, O.W. Brouwer and A.A.J. Pliego Selie, advocaten,

– the Association pour un hébergement et un tourisme professionnels (AHTOP), by B. Quentin, G. Navarro and M. Robert, avocats,

– the French Government, by E. de Moustier and R. Coesme, acting as Agents,

– the Czech Government, by M. Smolek, J. Vláčil and T. Müller, acting as Agents,

– the Spanish Government, by M.J. García-Valdecasas Dorrego, acting as Agent,

– the Luxembourg Government, initially by D. Holderer, and subsequently by T. Uri, acting as Agents,

– the European Commission, by L. Malferrari, É. Gippini Fournier and S.L. Kalėda, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 30 April 2019,

daje następujące wyniki

Wyrok

1 This request for a preliminary ruling concerns the interpretation of Article 3 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1).

2 The request has been made in criminal proceedings against X, inter alia, for handling monies for activities concerning the mediation and management of buildings and businesses by a person without a professional licence.

Legal context

Prawo UE

Dyrektywa 98/34

3 Point 2 of the first paragraph of Article 1 of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services (OJ 1998 L 204, p. 37), as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 (OJ 1998 L 217, p. 18) (‘Directive 98/34’), provides the following:

‘For the purposes of this Directive, the following meanings shall apply:

...

2. “service”, 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.

Dla celów niniejszej definicji:

– “at a distance” means that the service is provided without the parties being simultaneously present,

– “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,

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

...'

Directive (EU) 2015/1535

4 Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ 2015 L 241, p. 1) repealed and replaced Directive 98/34 as of 7 October 2015.

5 Article 1(1)(b) of Directive 2015/1535 states:

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

...

(b) "usługa" oznacza każdą usługę społeczeństwa informacyjnego, to znaczy każdą usługę normalnie świadczoną za wynagrodzeniem, na odległość, drogą elektroniczną i na indywidualne żądanie odbiorcy usług.

Dla celów niniejszej definicji:

(i) "na odległość" oznacza, że usługa jest świadczona bez jednoczesnej obecności stron;

(ii) "drogą elektroniczną" oznacza, że usługa jest wysyłana początkowo i odbierana w miejscu przeznaczenia za pomocą sprzętu elektronicznego do przetwarzania (w tym kompresji cyfrowej) i przechowywania danych oraz w całości przesyłana, przenoszona i odbierana za pomocą kabla, radia, środków optycznych lub innych środków elektromagnetycznych;

(iii) "na indywidualne żądanie odbiorcy usług" oznacza, że usługa jest świadczona poprzez przekazywanie danych na indywidualne żądanie.

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

6 Article 5(1) of that directive provides:

‘Subject to Article 7, Member States shall immediately communicate to the Commission any draft technical regulation, except where it merely transposes the full text of an international or European standard, in which case information regarding the relevant standard shall suffice; they shall also let the Commission have a statement of the grounds which make the enactment of such a technical regulation necessary, where those grounds have not already been made clear in the draft.

...'

7 Under the second paragraph of Article 10 of Directive 2015/1535, references to Directive 98/34 are henceforth to be construed as references to Directive 2015/1535.

Dyrektywa 2000/31

8 Recital 8 of Directive 2000/31 states:

‘The objective of this Directive is to create a legal framework to ensure the freedom of information society services between Member States and not to harmonise the field of criminal law as such.’

9 In the version before the entry into force of Directive 2015/1535, Article 2(a) of Directive 2000/31 defined ‘information society services’ as services within the meaning of point 2 of the first paragraph of Article 1 of Directive 98/34. Since that directive entered into force, that reference must be understood as being made to Article 1(1)(b) of Directive 2015/1535.

10 Article 2(h) of Directive 2000/31 provides:

‘(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.’

11 Article 3(2) and (4) to (6) of that directive states the following:

'2. Państwa członkowskie nie mogą, z przyczyn wchodzących w zakres skoordynowanej dziedziny, ograniczać swobody świadczenia usług społeczeństwa informacyjnego z innego państwa członkowskiego.

...

4. Państwa członkowskie mogą podjąć środki w celu odstąpienia od ust. 2 w odniesieniu do danej usługi społeczeństwa informacyjnego, jeżeli spełnione są następujące warunki:

(a) środki są następujące:

(i) konieczne z jednego z następujących powodów:

- porządek publiczny, w szczególności zapobieganie, dochodzenie, wykrywanie i ściganie przestępstw, w tym ochrona nieletnich i zwalczanie wszelkiego podżegania do nienawiści ze względu na rasę, płeć, religię lub narodowość oraz naruszeń godności ludzkiej dotyczących poszczególnych osób,

- ochrona zdrowia publicznego,

- bezpieczeństwa publicznego, w tym ochrony bezpieczeństwa narodowego i obronności,

- ochrona konsumentów, w tym inwestorów;

(ii) podjętych przeciwko danej usłudze społeczeństwa informacyjnego, które naruszają cele, o których mowa w ppkt (i), lub które stwarzają poważne i groźne ryzyko naruszenia tych celów;

(iii) proporcjonalne do tych celów;

(b) przed podjęciem przedmiotowych środków i bez uszczerbku dla postępowania sądowego, w tym postępowania przygotowawczego i czynności przeprowadzanych w ramach dochodzenia karnego, państwo członkowskie

- zwróciło się do państwa członkowskiego, o którym mowa w ust. 1, o podjęcie środków, a państwo to nie podjęło takich środków lub były one nieodpowiednie,

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

5. Member States may, in the case of urgency, 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.’ Directive 2006/123/EC

12 Article 3(1) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36) provides:

‘If the provisions of this Directive conflict with a provision of another Community act governing specific aspects of access to or exercise of a service activity in specific sectors or for specific professions, the provision of the other Community act shall prevail and shall apply to those specific sectors or professions. …’

French law

13 Article 1 of Law No 70-9 of 2 January 1970 regulating the conditions for the exercise of activities relating to certain transactions concerning real property and financial goodwill (JORF of 4 January 1970, p. 142), in the version applicable to the facts in the main proceedings (‘the Hoguet Law’), provides:

‘The provisions of the present law apply to all natural or legal persons who lend themselves to or give their assistance on a regular basis, even in an ancillary capacity, to any transaction affecting the goods of others and relative to:

1. the purchase, sale, search for, exchange, leasing or sub-leasing, seasonal or otherwise, furnished or unfurnished, of existing buildings or those under construction;

...'

14 Article 3 of that law provides:

‘The activities listed in Article 1 may be practised only by natural persons or legal entities holding a professional licence that has been issued, for a period and in accordance with rules laid down by a decree of the Council of State, by the President of the Regional Chamber of Commerce and Industry or by the President of the Île-de-France Regional Chamber of Commerce and Industry, listing the transactions which those persons may carry out. …

That licence may be issued only to natural persons on condition that they:

1. provide proof of their professional credentials;
2. provide proof of a financial guarantee permitting the reimbursement of funds …;
3. take out insurance against the financial consequences of their civil and professional liability;
4. are not caught by one of the validation or disqualification conditions …

...'

15 Article 5 of that law provides:

‘The persons referred to in Article 1 who receive or possess sums of money … must respect the conditions laid down by the decree of the Council of State, in particular the formalities of record keeping and the delivery of receipts, as well as other obligations arising from that mandate.’

16 Article 14 of that law is worded as follows:

‘The following acts are punishable by 6 months’ imprisonment and a fine of EUR 7 500:

(a) lending oneself to or providing assistance on a regular basis, even in an ancillary capacity, to the transactions listed in Article 1 without holding a valid licence issued in accordance with Article 3, or after such a licence has been restored, or if the aforesaid licence has not been restored after a declaration of non-competence from the appropriate administrative body;

...'

17 Article 16 of the Hoguet Law provides:

‘The following acts are punishable by 2 years’ imprisonment and a fine of EUR 30 000:

1. receiving or possessing at the time of the transactions listed in Article 1, in whatever capacity or manner, sums of money, goods, or stocks and bonds that are:

(a) in breach of Article 3;

(b) in breach of the conditions laid down in Article 5 regarding the keeping of records and the delivery of receipts when such documents and receipts are legally required;

...'

The dispute in the main proceedings and the questions referred for a preliminary ruling

18 Airbnb Ireland UC, a company established in Dublin (Ireland) under Irish law, is part of the Airbnb Group, made up of a number of companies directly or indirectly owned by Airbnb Inc., which is established in the United States. Airbnb Ireland offers an electronic platform the purpose of which is, on payment of a commission, to establish contact, in particular in France, between, on the one hand, hosts, whether professionals or private individuals, with accommodation to rent and, on the other, people looking for such accommodation. Airbnb Payments UK Ltd, a company established in London (United Kingdom) under the law of the United Kingdom, provides online payment services as part of that contact service and manages the payment activities of the Group in the European Union. In addition, Airbnb France SARL, a company established under French law and a supplier to Airbnb Ireland, is responsible for promoting that platform among users in the French market by organising, inter alia, advertising campaigns for target audiences.

19 Apart from the service of connecting hosts and guests using its electronic platform which centralises offers, Airbnb Ireland offers the hosts a certain number of other services, such as a format for setting out the content of their offer, with an option for a photography service, and also with an option for civil liability insurance and a guarantee against damages for up to EUR 800 000. Furthermore, it provides them with an optional tool for estimating the rental price having regard to the market averages taken from that platform. In addition, if a host accepts a guest, the guest will transfer to Airbnb Payments UK the rental price to which is added 6% to 12% of that amount in respect of charges and the service provided by Airbnb Ireland. Airbnb Payments UK holds the money on behalf of the guest and then, 24 hours after the guest checks in, sends the money to the host by transfer, thus giving the guest assurance that the property exists and the host a guarantee of payment. Finally, Airbnb Ireland has put in place a system whereby the host and the guest can leave an evaluation on a scale of zero to five stars, and that evaluation is available on the electronic platform at issue.

20 In practice, as is apparent from the explanations provided by Airbnb Ireland, internet users looking for rental accommodation connect to its electronic platform, identify the place where they wish to go to and the period and number of persons of their choice. On that basis, Airbnb Ireland provides them with the list of available accommodation matching those criteria so that the users can select the accommodation of their choice and proceed to reserve it online.

21 In that context, users of the electronic platform at issue, both hosts and guests, conclude a contract with Airbnb Ireland for the use of that platform and with Airbnb Payments UK for the payments made via that platform.

22 On 24 January 2017, the Association pour un hébergement et un tourisme professionnels (Association for professional tourism and accommodation, AHTOP) lodged a complaint together with an application to be joined as a civil party to the proceedings, inter alia, for the practice of activities concerning the mediation and management of buildings and businesses without a professional licence, under the Hoguet Law, between 11 April 2012 and 24 January 2017.

23 In support of its complaint, AHTOP claims that Airbnb Ireland does not merely connect two parties through its platform; it also offers additional services which amount to an intermediary activity in property transactions.

24 On 16 March 2017, after that complaint was lodged, the Public Prosecutor attached to the Tribunal de grande instance de Paris (Regional Court, Paris, France) brought charges, inter alia, for handling monies for activities concerning the mediation and management of buildings and businesses by a person with no professional licence, contrary to the Hoguet Law, for the period between 11 April 2012 and 24 January 2017.

25 Airbnb Ireland denies acting as a real estate agent and argues that the Hoguet Law is inapplicable on the ground that it is incompatible with Directive 2000/31.

26 In that context, the investigating judge of the tribunal de grande instance de Paris (Regional Court, Paris) is uncertain whether the service provided by Airbnb Ireland should be classified as an ‘information society service’ within the meaning of that directive and, if so, whether it precludes the Hoguet Law from being applied to that company in the main proceedings or whether, on the contrary, that directive does not preclude criminal proceedings being brought against Airbnb Ireland on the basis of that law.

27 In those circumstances the investigating judge of the tribunal de grande instance de Paris (Regional Court, Paris) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Do the services provided in France by … Airbnb Ireland via an electronic platform managed from Ireland benefit from the freedom to provide services established 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 Airbnb Ireland?’

Consideration of the questions referred

Admissibility of the request for a preliminary ruling

28 Airbnb Ireland claims that the referring court is wrong to take the view that the activities of Airbnb Ireland come within the scope of the Hoguet Law. The French Government expressed the same view at the hearing.

29 In that regard, according to settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 22 June 2010, Melki and Abdeli, C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 27).

30 In the present case, as the French Government acknowledges, in essence, the referring court raises the issue of the enforceability of the provisions of the Hoguet Law against Airbnb Ireland because it implicitly considers that the intermediation service provided by that company falls within the material scope of that law.

31 However, it is not manifestly apparent that the referring court’s interpretation of the Hoguet Law is clearly precluded in the light of the wording of the provisions of national law contained in the order for reference (see, by analogy, judgment of 22 June 2010, Melki and Abdeli, C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 28).

32 Airbnb Ireland further submits that the order for reference contains a summary of French national legislation and that it should have taken into consideration other provisions of that legislation. For its part, the Commission argues that that decision is vitiated by a lack of factual details.

33 In the present case, the order for reference sets out briefly but precisely the relevant national legal context and the origin and nature of the dispute. It follows that the referring court has defined the factual and legal context of its request for an interpretation of EU law sufficiently and that it has provided the Court with all the information necessary to enable it to reply usefully to that request (judgment of 23 March 2006, Enirisorse, C‑237/04, EU:C:2006:197, paragraph 19).

34 In those circumstances, this request for a preliminary ruling cannot be considered to be inadmissible in its entirety.

Preliminary observations

35 In their observations, AHTOP and the Commission respectively argue that the legislation at issue in the main proceedings must be assessed having regard, not only to Directive 2000/31, but also to Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ 2005 L 255, p. 22) and Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC (OJ 2007 L 319, p. 1).

36 In that regard, it should be pointed out that, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to rule on the case before it. In that context, the Court may extract from all the information provided by the national court, in particular from the grounds of the order for reference, the legislation and the principles of EU law that require interpretation in view of the subject matter of the dispute in the main proceedings in order to reformulate the questions referred to it and to interpret all provisions of EU law which national courts require in order to decide the actions pending before them, even if those provisions are not expressly indicated in those questions (see, to that effect, judgment of 16 July 2015, Abcur, C‑544/13 and C‑545/13, EU:C:2015:481, paragraphs 33 and 34 and the case-law cited).

37 However, it is for the national court alone to determine the subject matter of the questions which it wishes to refer to the Court. Thus, where the request itself does not reveal a need to reformulate those questions, the Court cannot, at the request of one of the interested parties referred to in Article 23 of the Statute of the Court of Justice of the European Union, examine questions which have not been submitted to it by the national court. If, in view of developments during the proceedings, the national court were to consider it necessary to obtain further interpretations of EU law, it would be for it to make a fresh reference to the Court (see, to that effect, judgment of 11 June 2015, Berlington Hungary and Others, C‑98/14, EU:C:2015:386, paragraph 48 and the case-law cited).

38 In the present case, and in the absence of any mention of Directives 2005/36 and 2007/64 in the questions referred or indeed of any other explanations in the order for reference that require the Court to consider the interpretation of those directives in order to provide a useful reply to the referring court, there is no reason for the Court to examine the arguments relating to those directives, which would effectively result in the Court modifying the substance of the questions referred to it.

Pierwsze pytanie

39 By its first question, the referring court asks, in essence, whether Article 2(a) of Directive 2000/31 must be interpreted as meaning that an intermediation service which, by means of an electronic platform, is intended to connect, for remuneration, potential guests with professional or non-professional hosts offering short-term accommodation services, while also providing a certain number of other services, such as a format for setting out the content of their offer, a photography service, civil liability insurance and a guarantee against damages, a tool for estimating the rental price or payment services for those accommodation services, must be classified as an ‘information society service’ under Directive 2000/31.

40 As a preliminary point, it should be stated, first — and this is not disputed by any of the parties or by the other interested parties involved in the present proceedings — that the activity of intermediation at issue in the main proceedings comes under the notion of ‘service’ within the meaning of Article 56 TFEU and Directive 2006/123.

41 Secondly, it must nevertheless be recalled that, under Article 3(1) of Directive 2006/123, that directive does not apply if its provisions conflict with a provision of another EU act governing specific aspects of access to, or the exercise of, a service activity in specific services or for specific professions.

42 Therefore, in order to determine whether a service such as the one at issue in the main proceedings comes under Directive 2006/123, as is claimed by AHTOP and the French Government, or by contrast, under Directive 2000/31, as is maintained by Airbnb Ireland, the Czech and Luxembourg Governments and the Commission, it is necessary to determine whether such a service must be qualified as an ‘information society service’, within the meaning of Article 2(a) of Directive 2000/31.

43 In that regard, and bearing in mind the period covered by the facts referred to in the complaint lodged by AHTOP and the criminal proceedings with an ancillary civil action pending before the referring court, the definition of the notion of ‘information society service’ under Article 2(a) of Directive 2000/31, was successively referred to in point 2 of the first paragraph of Article 1 of Directive 98/34 and then, as of 7 October 2015, in Article 1(1)(b) of Directive 2015/1535. That definition was not, however, amended on the entry into force, on 7 October 2015, of Directive 2015/1535, for which reason only that directive will be referred to in this judgment.

44 Under Article 1(1)(b) of Directive 2015/1535, the concept of an ‘information society service’ covers ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services’.

45 In the present case, the referring court states, as is clear from paragraph 18 above, that the service at issue in the main proceedings, by means of an electronic platform, is intended to connect, for remuneration, potential guests with professional or non-professional hosts offering short-term accommodation services so as to enable the former to reserve accommodation.

46 It follows, first of all, that that service is provided for remuneration, even though the remuneration received by Airbnb Payments UK is only collected from the guest and not also from the host.

47 Next, in so far as the host and the guest are connected by means of an electronic platform without the intermediation service provider, on the one hand, or the host or guest, on the other, being present at the same time, that service constitutes a service which is provided electronically and at a distance. Indeed, at no point during the process of concluding the contracts between, on the one hand, Airbnb Ireland or Airbnb Payments UK and, on the other, the host or the guest, do the parties come into contact other than by means of the Airbnb Ireland electronic platform.

48 Finally, the service in question is provided at the individual request of the recipients of the service, since it involves both the placing online of an advertisement by the host and an individual request from the guest who is interested in that advertisement.

49 Therefore, such a service meets the four cumulative conditions laid down in Article 1(1)(b) of Directive 2015/1535 and therefore, in principle, constitutes an ‘information society service’ within the meaning of Directive 2000/31.

50 However, as the parties and the other interested parties involved in the present proceedings submit, the Court has held that, although an intermediation service which satisfies all of those conditions, in principle, constitutes a service distinct from the subsequent service to which it relates and must therefore be classified as an ‘information society service’, that cannot be the case if it appears that that intermediation service forms an integral part of an overall service whose main component is a service coming under another legal classification (see, to that effect, judgment of 20 December 2017, Asociación Profesional Elite Taxi, C‑434/15, EU:C:2017:981, paragraph 40).

51 In the present case, AHTOP essentially claims that the service provided by Airbnb Ireland forms an integral part of an overall service, whose main component is the provision of an accommodation service. To that end, it submits that Airbnb Ireland does not just connect two parties through its electronic platform of the same name, but also offers additional services which are characteristic of an intermediary activity in property transactions.

52 However, although it is true that the purpose of the intermediation service provided by Airbnb Ireland is to enable the renting of accommodation — and it is common ground that that comes under Directive 2006/123 — the nature of the links between those services does not justify departing from the classification of that intermediation service as an ‘information society service’ and therefore the application of Directive 2000/31 to it.

53 Such an intermediation service cannot be separated from the property transaction itself, in that it is intended not only to provide an immediate accommodation service, but also, on the basis of a structured list of the places of accommodation available on the electronic platform of the same name and corresponding to the criteria selected by the persons looking for short-term accommodation, to provide a tool to facilitate the conclusion of contracts concerning future interactions. It is the creation of such a list for the benefit both of the hosts who have accommodation to rent and persons looking for that type of accommodation which constitutes the essential feature of the electronic platform managed by Airbnb Ireland.

54 In that regard, because of its importance, the compiling of offers using a harmonised format, coupled with tools for searching for, locating and comparing those offers, constitutes a service which cannot be regarded as merely ancillary to an overall service coming under a different legal classification, namely provision of an accommodation service.

55 In addition, a service such as the one provided by Airbnb Ireland is in no way indispensable to the provision of accommodation services, both from the point of view of the guests and the hosts who use it, since both have a number of other, sometimes long-standing, channels at their disposal, such as estate agents, classified advertisements, whether in paper or electronic format, or even property lettings websites. In that regard, the mere fact that Airbnb Ireland is in direct competition with those other channels by providing its users, both hosts and guests, with an innovative service based on the particular features of commercial activity in the information society does not permit the inference that it is indispensable to the provision of an accommodation service.

56 Finally, it is not apparent, either from the order for reference or from the information in the file before the Court, that Airbnb Ireland sets or caps the amount of the rents charged by the hosts using that platform. At most, it provides them with an optional tool for estimating their rental price having regard to the market averages taken from that platform, leaving responsibility for setting the rent to the host alone.

57 As such, it follows that an intermediation service such as the one provided by Airbnb Ireland cannot be regarded as forming an integral part of an overall service, the main component of which is the provision of accommodation.

58 None of the other services mentioned in paragraph 19 above, taken together or in isolation, call into question that finding. On the contrary, such services are ancillary in nature, given that, for the hosts, they do not constitute an end in themselves, but rather a means of benefiting from the intermediation service provided by Airbnb Ireland or of offering accommodation services in the best conditions (see, by analogy, judgments of 21 February 2008, Part Service, C‑425/06, EU:C:2008:108, paragraph 52; of 10 November 2016, Baštová, C‑432/15, EU:C:2016:855, paragraph 71; and of 4 September 2019, KPC Herning, C‑71/18, EU:C:2019:660, paragraph 38).

59 First of all, that is the case as regards the fact that, in addition to its activity of connecting hosts and guests via the electronic platform of the same name, Airbnb Ireland provides 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.

60 Such tools form part of the collaborative model inherent in intermediation platforms, which makes it possible, first, for those seeking accommodation to make a fully informed choice from among the accommodation offerings proposed by the hosts on the platform and, secondly, for hosts to be fully informed of the reliability of the guests with whom they might engage.

61 Next, that is the case with regard to the fact that Airbnb Payments UK, a company within the Airbnb Group, is responsible for collecting the rents from the guests and then transferring those rents to the hosts, in accordance with the conditions set out in paragraph 19 above.

62 Such payment conditions, which are common to a large number of electronic platforms, are a tool for securing transactions between hosts and guests, and their presence alone cannot modify the nature of the intermediation service, especially where such payment conditions are not accompanied, directly or indirectly, by price controls for the provision of accommodation, as was pointed out in paragraph 56 above.

63 Finally, nor is the fact that Airbnb Ireland offers hosts a guarantee against damage and, as an option, civil liability insurance capable of modifying the legal classification of the intermediation service provided by that platform.

64 Even taken together, the services, optional or otherwise, provided by Airbnb Ireland and referred to in paragraphs 59 to 63 above, do not call into question the separate nature of the intermediation service provided by that company and therefore its classification as an ‘information society service’, since they do not substantially modify the specific characteristics of that service. In that regard, it is also paradoxical that such added-value ancillary services provided by an electronic platform to its customers, in particular to distinguish itself from its competitors, may, in the absence of additional elements, result in the nature and therefore the legal classification of that platform’s activity being modified, as was observed by the Advocate General in point 46 of his Opinion.

65 Furthermore, and contrary to what AHTOP and the French Government maintain, the rules for the functioning of an intermediation service such as the one provided by Airbnb cannot be equated to those of the intermediation service which gave rise to the judgments of 20 December 2017, Asociación Profesional Elite Taxi (C‑434/15, EU:C:2017:981, paragraph 39), and of 10 April 2018, Uber France (C‑320/16, EU:C:2018:221, paragraph 21).

66 Apart from the fact that those judgments were given in the specific context of urban passenger transport to which Article 58(1) TFEU applies and that the services provided by Airbnb Ireland are not comparable to those that were at issue in the cases giving rise to the judgments referred to in the previous paragraph, the ancillary services referred to in paragraphs 59 to 63 above do not provide evidence for the same level of control found by the Court in those judgments.

67 Thus, the Court stated in those judgments that Uber exercised decisive influence over the conditions under which transport services were provided by the non-professional drivers using the application made available to them by that company (judgments of 20 December 2017, Asociación Profesional Elite Taxi, C‑434/15, EU:C:2017:981, paragraph 39, and of 10 April 2018, Uber France, C‑320/16, EU:C:2018:221, paragraph 21).

68 The matters mentioned by the referring court and recalled in paragraph 19 above do not establish that Airbnb Ireland exercises such a decisive influence over the conditions for the provision of the accommodation services to which its intermediation service relates, particularly since Airbnb Ireland does not determine, directly or indirectly, the rental price charged, as was established in paragraphs 56 and 62 above, still less does it select the hosts or the accommodation put up for rent on its platform.

69 In the light of the foregoing, the answer to the first question is that Article 2(a) of Directive 2000/31, which refers to Article 1(1)(b) of Directive 2015/1535, must be interpreted as meaning that an intermediation service which, by means of an electronic platform, is intended to connect, for remuneration, potential guests with professional or non-professional hosts offering short-term accommodation services, while also providing a certain number of services ancillary to that intermediation service, must be classified as an ‘information society service’ under Directive 2000/31.

The second question

Jurisdiction

70 The French Government submits that the Court manifestly lacks jurisdiction to answer the second question, inasmuch as the referring court is asking the Court of Justice to decide whether the activities of Airbnb Ireland fall within the material scope of the Hoguet Law and therefore to interpret French law.

71 It is, however, clear from the wording of the second question that the referring court is not thereby asking the Court whether the Hoguet Law applies to the activities of Airbnb Ireland, but whether that law, which it finds to be restrictive of the freedom to provide information society services, is enforceable against that company.

72 That question which is closely linked to the power given in Article 3(4)(a) of Directive 2000/31 to Member States to derogate from the principle of the freedom to provide information society services and to the obligation for those Member States to give the Commission and the relevant Member State notification of the measures adversely affecting that principle, as provided for in Article 3(4)(b) of that directive, is a question concerning the interpretation of EU law.

73 Therefore, the Court has jurisdiction to answer that question.

Admissibility

74 In the alternative, the French Government submits that, since the referring court has failed to establish that the activities of Airbnb Ireland fall within the material scope of the Hoguet Law, its second question does not set out the reasons why it is unsure as to the interpretation of Directive 2000/31 and does not identify the link which that court establishes between that directive and the Hoguet Law. It does not therefore satisfy the requirements laid down in Article 94 of the Rules of Procedure of the Court of Justice and is accordingly inadmissible.

75 In that regard, as was set out in paragraph 30 above, it is clear from the second question that, according to the referring court, the intermediation service provided by Airbnb Ireland through the electronic platform of the same name falls within the material scope of that law.

76 In addition, by referring to the restrictive nature of that law as regards services such as the intermediation service at issue in the main proceedings and the principle of the freedom to provide information society services, recognised in Articles 1 and 3 of Directive 2000/31, while setting out the difficulties of interpreting that directive with regard to the question whether national legislation such as the Hoguet Law may be enforced against Airbnb Ireland, the referring court satisfies the minimum requirements laid down by Article 94 of the Rules of Procedure.

77 Accordingly, the second question is admissible.

Substance

78 By its second question, the referring court asks the Court of Justice whether the legislation at issue in the main proceedings is enforceable against Airbnb Ireland.

79 That question is prompted by the argument advanced by Airbnb Ireland concerning the incompatibility of the provisions of the Hoguet Law at issue in the main proceedings with Directive 2000/31 and, more particularly, by the fact that the French Republic has not satisfied the conditions laid down in Article 3(4) of that directive allowing Member States to adopt measures restricting the freedom to provide information society services.

80 The second question should therefore be construed as asking whether Article 3(4) of Directive 2000/31 must be interpreted as meaning that, in criminal proceedings with an ancillary civil action, an individual may oppose the application to him or her of measures of a Member State restricting the freedom to provide an information society service which that individual provides from another Member State, where those measures do not satisfy all the conditions laid down by that provision.

81 As a preliminary point, it should be noted that the legislation at issue in the main proceedings, as the referring court points out, is restrictive of the freedom to provide information society services.

82 First, the requirements of the Hoguet Law mentioned by the referring court, principally the obligation to hold a professional licence, concern access to the activity of connecting hosts who have places of accommodation and persons seeking that type of accommodation within the meaning of Article 2(h)(i) of Directive 2000/31 and do not come under any of the excluded categories referred to in Article 2(h)(ii) of that directive. Secondly, they apply inter alia to service providers established in Member States other than the French Republic, thereby making the provision of their services in France more difficult.

83 Under Article 3(4) of Directive 2000/31, Member States may, in respect of a given information society service falling within the coordinated field, take measures that derogate from the principle of the freedom to provide information society services, subject to two cumulative conditions.

84 First, under Article 3(4)(a) of Directive 2000/31, the restrictive measure concerned must be necessary in the interests of public policy, the protection of public health, public security or the protection of consumers; it must be taken against an information society service which actually undermines those objectives or constitutes a serious and grave risk to those objectives and, finally, it must be proportionate to those objectives.

85 Secondly, under the second indent of Article 3(4)(b) of that directive, 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 concerned must notify the Commission and the Member State on whose territory the service provider in question is established of its intention to adopt the restrictive measures concerned.

86 With regard to the second condition, the French Government accepts that the Hoguet Law did not give rise to a notification by the French Republic either to the Commission or to the Member State of establishment of Airbnb Ireland, that is to say, Ireland.

87 It must be stated at the outset that the fact that that law predates the entry into force of Directive 2000/31 cannot have had the consequence of freeing the French Republic of its notification obligation. As the Advocate General stated in point 118 of his Opinion, the EU legislature did not make provision for a derogation authorising Member States to maintain measures predating that directive and which could restrict the freedom to provide information society services without complying with the conditions laid down for that purpose by that directive.

88 It is therefore necessary to determine whether a Member State’s failure to fulfil its obligation to give prior notification of the measures restricting the freedom to provide information society services coming from another Member State, laid down in the second indent of Article 3(4)(b) of Directive 2000/31, renders the legislation concerned unenforceable against individuals, in the same way as a Member State’s failure to fulfil its obligation to give prior notification of the technical rules, laid down in Article 5(1) of Directive 2015/1535, has that consequence (see, to that effect, judgment of 30 April 1996, CIA Security International, C‑194/94, EU:C:1996:172, paragraph 54).

89 In that regard, it should, first, be pointed out that the second indent of Article 3(4)(b) of Directive 2000/31 imposes a specific obligation for Member States to notify the Commission and the Member State on whose territory the service provider in question is established of their intention to adopt measures restricting the freedom to provide information society services.

90 From the point of view of its content, the obligation laid down in that provision is therefore sufficiently clear, precise and unconditional to confer on it direct effect and, therefore, it may be invoked by individuals before the national courts (see, by analogy, judgment of 30 April 1996, CIA Security International, C‑194/94, EU:C:1996:172, paragraph 44).

91 Secondly, it is common ground that, as is apparent from Article 3(2) of Directive 2000/31, read in conjunction with recital 8 of that directive, the objective of that directive is to ensure the freedom to provide information society services between Member States. That objective is pursued by way of a mechanism for monitoring measures capable of undermining it, which makes it possible for both the Commission and the Member State on whose territory the service provider in question is established to ensure that those measures are necessary in furtherance of overriding reasons in the general interest.

92 In addition, and as is apparent from Article 3(6) of that directive, the Commission, which is responsible for examining without delay the compatibility with EU law of the notified measures, is required, when it reaches the conclusion that the proposed measures are incompatible with EU law, to ask the Member State concerned to refrain from adopting those measures or to put an end to the measures in question as a matter of urgency. Thus, under that procedure, the Commission can avoid the adoption or at least the maintenance of obstacles to trade contrary to the TFEU, in particular by proposing amendments to be made to the national measures concerned (see, by analogy, judgment of 30 April 1996, CIA Security International, C‑194/94, EU:C:1996:172, paragraph 41).

93 It is true, as the Spanish Government, in particular, submits and as is apparent from Article 3(6) of Directive 2000/31, that the second indent of Article 3(4)(b) of that directive, unlike Article 5(1) of Directive 2015/1535, does not formally impose any standstill obligation on a Member State which intends to adopt a measure restricting the freedom to provide an information society service. However, as was pointed out in paragraph 89 above, except in duly justified urgent cases, the Member State concerned must give prior notification to the Commission and the Member State on whose territory the service provider in question is established of its intention to adopt such a measure.

94 In view of the matters raised in paragraphs 89 to 92 above, the prior notification obligation established by the second indent of Article 3(4)(b) of Directive 2000/31 is not simply a requirement to provide information, comparable to the one at issue in the case which gave rise to the judgment of 13 July 1989, Enichem Base and Others (380/87, EU:C:1989:318, paragraphs 19 to 24), but rather an essential procedural requirement which justifies the unenforceability of non-notified measures restricting the freedom to provide an information society service against individuals (see, by analogy, judgment of 30 April 1996, CIA Security International, C‑194/94, EU:C:1996:172, paragraphs 49 and 50).

95 Thirdly, the extension to Directive 2000/31 of the solution adopted by the Court in the judgment of 30 April 1996, CIA Security International (C‑194/94, EU:C:1996:172), in relation to Directive 2015/1535, is all the more justified, as was correctly pointed out by the Commission at the hearing, by the fact that the notification obligation under the second indent of Article 3(4)(b) of Directive 2000/31, like the measure at issue in the case which gave rise to that judgment, is not intended to prevent a Member State from adopting measures falling within its own field of competence and which could affect the freedom to provide services, but to prevent a Member State from impinging on the competence, as a matter of principle, of the Member State where the provider of the information society service concerned is established.

96 It follows from the foregoing that a Member State’s failure to fulfil its obligation to give notification of a measure restricting the freedom to provide an information society service provided by an operator established on the territory of another Member State, laid down in the second indent of Article 3(4)(b) of Directive 2000/31, renders the measure unenforceable against individuals (see, by analogy, judgment of 30 April 1996, CIA Security International, C‑194/94, EU:C:1996:172, paragraph 54).

97 In that regard, it must also be pointed out that, as was the case in relation to the technical rules of which the Member State did not give notification in accordance with Article 5(1) of Directive 2015/1535, the fact that a non-notified measure restricting the freedom to provide information society services is unenforceable may be relied on, not only in criminal proceedings (see, by analogy, judgment of 4 February 2016, Ince, C‑336/14, EU:C:2016:72, paragraph 84), but also in a dispute between individuals (see, by analogy, judgment of 27 October 2016, James Elliott Construction, C‑613/14, EU:C:2016:821, paragraph 64 and the case-law cited).

98 Therefore, in proceedings such as those at issue in the main proceedings, in which, in the course of an action before a criminal court, an individual seeks compensation from another individual for harm originating in the offence being prosecuted, a Member State’s failure to fulfil its obligation to give notification of that offence under the second indent of Article 3(4)(b) of Directive 2000/31 makes the national provision laying down that offence unenforceable against the individual being prosecuted and enables that person to rely on that failure to fulfil an obligation, not only in criminal proceedings brought against that individual, but also in the claim for damages brought by the individual who has been joined as a civil party.

99 Bearing in mind that the French Republic did not give notification of the Hoguet Law and given the cumulative nature of the conditions laid down in Article 3(4) of Directive 2000/31, recalled in paragraphs 84 and 85 above, the view must be taken that that law cannot, on any view, be applied to an individual in a situation like that of Airbnb Ireland in the main proceedings, regardless of whether that law satisfies the other conditions laid down in that provision.

100 In the light of the foregoing, the answer to the second question is that the second indent of Article 3(4)(b) of Directive 2000/31 must be interpreted as meaning that, in criminal proceedings with an ancillary civil action, an individual may oppose the application to him or her of measures of a Member State restricting the freedom to provide an information society service which that individual provides from another Member State, where those measures were not notified in accordance with that provision.

Koszty

101 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Grand Chamber) hereby rules:

1. Article 2(a) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), which refers to Article 1(1)(b) of Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services, must be interpreted as meaning that an intermediation service which, by means of an electronic platform, is intended to connect, for remuneration, potential guests with professional or non-professional hosts offering short-term accommodation, while also providing a certain number of services ancillary to that intermediation service, must be classified as an ‘information society service’ under Directive 2000/31.
2. The second indent of Article 3(4)(b) of Directive 2000/31 must be interpreted as meaning that, in criminal proceedings with an ancillary civil action, an individual may oppose the application to him or her of measures of a Member State restricting the freedom to provide an information society service which that individual provides from another Member State, where those measures were not notified in accordance with that provision.