Court of Justice 19 December 2019: regulating Airbnb

The service offered by Airbnb is covered by the e-Commerce Directive. One of the implications of this is that it is not necessarily up to local authorities to regulate these services. This was the outcome of a case brought by French hoteliers (‘AHTOP’) against Airbnb. It should be pointed out that Airbnb was assured of support from various quarters, including the European Commission.

These proceedings hinged on whether the mediation service provided by Airbnb should be classed as an ‘information society service’ within the meaning of Directive 2015/1535. Pursuant to art. 1, paragraph 1b of this Directive, this definition applies to any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services. If this qualification is met, a service can be deemed to be a ‘service’ within the meaning of the e-Commerce Directive (2000/31/EC).

‘Sharing economy services’ such as Uber and Airbnb are difficult to pin down, as although intermediation per se can be deemed a service, the agreement that is established as a result of that intermediation evidently cannot. In the case of Airbnb, this is a rental agreement. At Uber, it was a transport agreement. In its judgment of 20 December 2017 (C‑434/15) the ECJ found that the intermediation service provided by Uber is inherently linked with the transport agreement that is concluded as a result of its intermediation, to the extent that the transport agreement could be called the dominant feature. Therefore, the integrated intermediation/transport service cannot be qualified as a ‘service’, and the e-Commerce Directive does not apply. Consequently, services by Uber can be regulated by local authorities.

AHTOP argued that the intermediation service provided by Airbnb is part of a package of services which chiefly entail the provision of accommodation to the customer. This is essentially the same argument as in the Uber case.

In its judgment of 19 December 2019 the ECJ rejected AHTOP’s arguments, and found in favour of Airbnb. The ECJ holds that Airbnb’s intermediation service cannot be considered to be inherent in the letting of accommodation. Therefore, it qualifies as a ‘service’ within the meaning of the e-Commerce Directive (2000/31/EC).

This judgment is a shot in the arm for disruptive sharing economy services. The lesson is clear: if you want to avoid your service being regulated, the intermediation aspect must not be inherent in the resulting agreement.