Judgment;Summary — ECLI:EU:C:2022:303
Date: 2022-04-27
Language of the case: French
Court formation: Second Chamber
Subject matter: Right of establishment;Internal market - Principles;Consumer protection;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Belgium

summary of all the grounds relied on by Airbnb Ireland. Consequently, the Court is in a position to identify the precise connection established by that court, in the specific context of the main proceedings, between that provision and Article 12 of the order of 23 December 2016. The second part of the second question must therefore be held to be admissible and a reply must be given as to its substance. Substance 39 By the second part of its second question, the referring court asks, in essence, whether or not legislation such as that at issue in the main proceedings, which imposes an obligation on providers of property intermediation services, irrespective of their place of establishment and the manner in which they mediate, in respect of tourist accommodation establishments that are located in a region of the Member State concerned and for which they act as intermediary or carry on a promotion strategy, to provide the regional tax authorities, on the latter’s written request, with the particulars of the operator and the details of the tourist accommodation establishments, as well as the number of overnight stays and of accommodation units operated during the past year, contravenes the prohibition laid down in Article 56 TFEU. 40 First of all, it should be noted that Article 12 of the order of 23 December 2016 lays down an obligation to comply with a request for information from the tax authorities for all intermediaries whose activity concerns tourist accommodation establishments located in the Brussels Capital Region, irrespective of where those intermediaries are established and, consequently, regardless of the Member State in which they are established, and irrespective also of the way in which those economic operators mediate, whether by digital means or in accordance with other methods of connection. 41 Such legislation is therefore not discriminatory and does not, as such, concern the conditions for the provision of intermediation services, but merely requires service providers, once that service has been provided, to retain the particulars for the purposes of the accurate levying of the tax relating to the rental of the property in question from the owners concerned. 42 In that regard, it is apparent from settled case-law that national legislation which is applicable to all operators exercising their activity on national territory, the purpose of which is not to regulate the conditions concerning the provision of services by the undertakings concerned and any restrictive effects of which on the freedom to provide services are too uncertain and indirect for the obligation laid down to be regarded as being capable of hindering that freedom, does not contravene the prohibition laid down in Article 56 TFEU (judgment of 8 May 2014, Pelckmans Turnhout, C‑483/12, EU:C:2014:304, paragraph 25 and the case-law cited). 43 While accepting that it is not discriminatory in theory, Airbnb Ireland submits that, in practice, Article 12 of the order of 23 December 2016 specifically affects mediation services such as those which it provides. 44 It is true that the development of technological means and the current configuration of the market for the provision of property intermediation services lead to the finding that intermediaries providing their services by means of an online platform are likely, under legislation such as that at issue in the main proceedings, to be faced with an obligation to transmit data to the tax authorities which is more frequent and greater than that imposed on other intermediaries. However, that greater obligation is merely a reflection of a larger number of transactions by those intermediaries and their respective market shares. Consequently, there is no resulting discrimination. 45 Next, it should be noted that, by their very nature, tax obligations entail additional burdens for service providers. 46 The Court has had occasion to point out that measures, the only effect of which is to create additional costs in respect of the service in question and which affect in the same way the provision of services between Member States and the provision of services within one Member State, do not fall within the scope of Article 56 TFEU (see judgment of 22 November 2018, Vorarlberger Landes- und Hypothekenbank, C‑625/17, EU:C:2018:939, paragraph 32 and the case-law cited). 47 Lastly, even if the obligation imposed on all intermediaries to provide information to the tax authorities, at their request, concerning the particulars of the operator and the details of the tourist accommodation establishments, as well as the number of overnight stays and of accommodation units operated during the past year, may create additional costs, in particular in connection with the search for and storage of the data concerned, it should be noted, particularly in the case of intermediation services provided by digital means, that the data at issue are stored by intermediaries such as Airbnb Ireland, with the result that, in any event, the additional cost to those intermediaries that is created by that obligation appears to be limited. 48 It is sufficient, in that regard, to refer to the statements made by Airbnb Ireland in the case which gave rise to the judgment of 19 December 2019, Airbnb Ireland (C‑390/18, EU:C:2019:1112), according to which it stated that it offered as a service ‘a system for rating hosts and guests which is available to future hosts and guests’, which automatically entails the retention of the data relating to them. 49 The answer to the second part of the second question is therefore that legislation such as that at issue in the main proceedings, which imposes an obligation on providers of property intermediation services, irrespective of their place of establishment and the manner in which they mediate, in respect of tourist accommodation establishments that are located in a region of the Member State concerned and for which they act as intermediary or carry on a promotion strategy, to provide the regional tax authorities, on the latter’s written request, with the particulars of the operator and the details of the tourist accommodation establishments, as well as the number of overnight stays and of accommodation units operated during the past year, does not contravene the prohibition laid down in Article 56 TFEU. The third question 50 The third question referred for a preliminary ruling concerns the interpretation of Article 15(2) of Directive 2000/31 and is based on the premiss that that directive is applicable to the dispute in the main proceedings. It follows from the answer given to the first question that that is not the case. There is therefore no need to answer the third question. Costs 51 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national 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 (Second Chamber) hereby rules: 1. A provision of the tax legislation of a Member State requiring intermediaries, in respect of tourist accommodation establishments that are located in a region of that Member State and for which they act as intermediary or carry on a promotion strategy, to provide the regional tax authorities, on the latter’s written request, with the particulars of the operator and the details of the tourist accommodation establishments, as well as the number of overnight stays and of accommodation units operated during the past year, must be regarded as being indissociable, as regards its nature, from the legislation of which it forms part and, accordingly, falls within the ‘field of taxation’ which is expressly excluded from the scope 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’). 2. Legislation which imposes an obligation on providers of property intermediation services, irrespective of their place of establishment and the manner in which they mediate, in respect of tourist accommodation establishments that are located in a region of the Member State concerned and for which they act as intermediary or carry on a promotion strategy, to provide the regional tax authorities, on the latter’s written request, with the particulars of the operator and the details of the tourist accommodation establishments, as well as the number of overnight stays and of accommodation units operated during the past year, does not contravene the prohibition laid down in Article 56 TFEU. [Signatures] * Language of the case: French.