In a long-awaited ruling, the European Court of Justice has ruled that France cannot require Airbnb to have a professional real estate agent’s card.
The case concerned the merits of a request for a preliminary ruling, under Article 267 of the Treaty on the Functioning of the European Union, submitted in the context of criminal proceedings by the investigating judge of the Tribunal de Grande Instance (TGI) of Paris.
The Association pour un hébergement et un tourisme professionnel (AHTOP) has lodged a complaint together with an application to be joined as a civil party to the proceedings for the practice of activities concerning the mediation and management of buildings and businesses without a professional licence under French Law No. 70-9 of 2 January 1970 (the Hoguet Law), for the period from 11 April 2012 to 24 January 2017.
In support of its complaint, the association argued that Airbnb does not merely connect two parties through the eponymous platform, but also offers complementary services which, in its view, amount to an intermediary activity in real estate transactions.
On 16 March 2017, following the lodging of this complaint, the public prosecutor at the Tribunal de Grande Instance of Paris had brought charges, inter alia, for handling funds for activities concerning the mediation and management of buildings and businesses by a person with no professional licence, in violation of the Hoguet Law.
Airbnb contested the exercise of the activity of real estate agent and thus raised the inapplicability of the Hoguet Law on the ground of its incompatibility with Directive 2000/31 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.
In that context, the investigating judge of the Tribunal de Grande Instance (TGI) wondered whether the service provided by Airbnb should be classified as an ‘information society service’ within the meaning of that directive and, if so, whether that directive precluded the application of the Hoguet Law to Airbnb or whether, on the contrary, that directive did not preclude criminal proceedings being brought against Airbnb on the basis of that law.
It was in those circumstances that he decided to stay proceedings and to refer the following questions to the European Court of Justice for a preliminary ruling: do the services provided in France by Airbnb by means of an electronic platform operated from Ireland benefit from the freedom to provide services provided for by Article 3 of Directive 2000/31 and are the rules on the exercise of the profession of real estate agent in France, laid down by the Hoguet Law, enforceable and therefore in practice obligatorily applicable to Airbnb?
The European Court of Justice in its judgment of 19 December 2019 replied as follows:
– An intermediation service the purpose of which is, by means of an electronic platform, to put potential tenants in contact, for consideration, with professional or non-professional lessors offering short-term accommodation, while also providing a number of services ancillary to that intermediation service, must be classified as an “information society service” covered by Directive 2000/31 on electronic commerce and, as such, must ordinarily benefit from the freedom to provide services provided for in Article 3 of that Directive;
– A person may object to the application to him, in criminal proceedings together with an application to be joined as a civil party to the proceedings, of measures of a Member State restricting the free movement of such a service, which he provides from another Member State, where those measures have not been notified in accordance with Article 3 of that directive.
By holding that France cannot require Airbnb to possess a real estate agent’s professional card because it has not notified this requirement to the Commission in accordance with the directive and irrespective of whether or not the Hoguet Act satisfies the other conditions laid down in that directive, the European Court of Justice “technically” or “officially” closed the question raised, even though, having ruled only in the context of a reference for a preliminary ruling, it was not intended to rule directly on the dispute at national level.