Information;Order — ECLI:EU:C:2020:509
Date: 2020-06-30
Language of the case: Italian
Court formation: Ninth Chamber
Subject matter: Competition;Right of establishment;Free movement of goods;Internal market - Principles;Economic and monetary policy;Principles, objectives and tasks of the Treaties;Approximation of laws;Freedom to provide services;Customs Union;Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Italy

Summary C-723/19 — 1 
Case C-723/19 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
30 September 2019 
Referring court:  
Consiglio di Stato (Italy) 
Date of the decision to refer:  
11 July 2019 
Appellants:  
AIRBNB Ireland UC 
Airbnb Payments UK Ltd 
Respondent:  
Agenzia delle Entrate 
  
Subject matter of the main proceedings 
Appeal brought by Airbnb Ireland Unlimited Company and Airbnb Payments UK 
Limited against the judgment of the Tribunale amministrativo regionale per Lazio 
(Regional Administrative Court, Lazio) of 18 February 2019 concerning the 
operational and fiscal rules governing short-term rental agreements concluded 
online, by which that court dismissed the action brought by the appellants 
contesting the decision of the Agenzia delle Entrate (Revenue Agency, Italy) of 
12 July 2017 implementing the tax scheme for short-term rental agreements. 
Subject matter and legal basis of the reference 
Whether a national provision is compatible with EU law where, without prior 
notification to the European Commission, that provision: 
– imposes on the operator of an online property rental platform technical 
regulations for the provision of an information society service consisting in 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-723/19 
 
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information disclosure and fiscal requirements (data collection and transmission 
obligations, the obligation to act as a withholding agent or agent with liability for 
payment of the tax and the obligation to appoint a tax representative). 
Questions referred 
(a) Do the provisions and principles of EU law, including Articles 4, 5 et seq. of 
Directive 1535/2015/EU, Article 8 of Directive 98/34/EC and Article 56 TFEU, 
preclude a national provision that, without prior notification of the European 
Commission, imposes on the operator of an online property rental platform 
‘technical regulations for the provision of information society services’ consisting 
in disclosure requirements (the transmission to the Revenue Agency of data 
concerning agreements concluded on the platform) and fiscal requirements (the 
levying of a withholding tax on payments made in relation to agreements 
concluded on the platform and subsequent payment to the Treasury)?  
(b) Do the provisions and principles of EU law, including Articles 3, 18, 32, 44, 
49, 56, 101 et seq., 116, 120, 127 et seq. TFEU and Directives 2000/31/EC and 
2006/123/EC, preclude a national provision that:  
– introduces, for operators of an online property rental search platform, 
obligations for the collection and transmission of data relating to 
agreements;  
– introduces, for those operators of online platforms that handle 
payments in respect of short-term rental agreements, the obligation to 
act as a withholding agent or agent with liability for payment of the 
tax;  
– introduces, for operators of online platforms that are non-resident and 
are acknowledged as not having a permanent establishment in Italy, 
the obligation to appoint a tax representative;  
– introduces, also with regard to non-resident persons without a 
permanent establishment in Italy, the obligation to act as agents with 
liability for payment of the tax in relation to the temporary residence 
levy (imposta di soggiorno)?  
(c) Do the fundamental principles of EU law preclude, in general terms, national 
rules that have the effect of passing on to an undertaking responsibility for the 
inefficiencies in the State’s assessment and collection of taxes? 
Provisions of EU law relied upon 
Articles 3, 18, 32, 44, 49, 56, 101 et seq., 116, 120 and 127 et seq. TFEU and 
Directives 2000/31/EC and 2006/123/EC; 
AIRBNB IRELAND AND AIRBNB PAYMENTS UK 
 
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Articles 4 and 5 et seq. of Directive 1535/2015/EU and Article 8 of Directive 
98/34/EC. 
Provisions of national law cited 
Article 4(4), (5) and (5-bis) of decreto legge del 24 aprile 2017, n. 50 (Decree-
Law No 50 of 24 April 2017), converted into law by legge del 21 giugno 2017, n. 
96 (Law No 96 of 21 June 2017). 
Outline of the facts and the main proceedings 
1 The appellants, who manage the Airbnb online property rental platform, 
challenged before the Regional Administrative Court, Lazio, the measure adopted 
by the Revenue Agency on 12 July 2017 implementing the tax scheme for short-
term rental agreements (defined as ‘residential property rental agreements for a 
maximum term of 30 days’). 
2 On 18 February 2019, the Regional Administrative Court, Lazio, dismissed the 
action, ruling that the tax measure introduced by Decree-Law No 50/2017 and 
implemented by the contested measure did not amount to a ‘technical regulation’ 
or a ‘rule on services’ requiring prior notification of the European Commission 
under Directive 1535/2015/EU. It further ruled:  
– that the disclosure requirements (the transmission to the Revenue Agency of 
data relating to agreements concluded online) and fiscal requirements (the 
levying of a withholding tax on payments made in relation to agreements 
concluded online and the subsequent payment to the tax authorities) imposed 
by national legislation did not infringe the principle of freedom to provide 
services (Article 56 TFEU and Directives 2006/123/EC and 2000/31/EC) 
and the principle of free competition; 
– that the obligation for persons operating an online property rental platform 
who are not resident or established in Italy to appoint a tax representative 
was consistent with the requirements of proportionality and necessity laid 
down by the settled case-law of the Court of Justice for recognising a 
measure restricting a fundamental freedom, such as the freedom to provide 
services (the Regional Administrative Court, Lazio, refers in particular to the 
judgments of 11 March 2004, Case C-9/02, de Lasteyrie du Saillant, and of 
7 September 2006, Case C-470/04, van de Belastingdienst);  
– that the contested rules were not contrary to Italian or EU privacy laws;  
– that the contested rules did not in fact treat the rules on agents with liability 
for payment of tax in the same way as those for withholding agents. 
3 The unsuccessful companies lodged an appeal. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-723/19 
 
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The essential arguments of the parties to the main proceedings 
4 According to the appellants, the measure adopted by the Revenue Agency on 
12 July 2017 is unlawful because it implements legislative provisions that are at 
odds, from a procedural point of view, with secondary EU law. More specifically, 
the tax scheme for short-term rental agreements introduced by Article 4(4), (5) 
and (5-bis) of Decree-Law No 50/2017 (implemented by the contested measure) 
was adopted in breach of the requirement laid down in Articles 4 and 5 of 
Directive 1535/2015/EU to communicate in advance to the European Commission 
any draft technical regulation concerning the services provided by the information 
society, which is applicable to the present case. 
5 In the view of the appellants, given that, under Directive 1535/2015/EU, the 
concept of ‘technical regulation’ includes that of the ‘rule on services’, the 
legislative rules implemented by the contested measure impinge on the singular 
aspect of the intermediary service provided by Airbnb, since its ‘unique’ business 
model is characterised precisely by its handling of the payment transaction, 
collecting the rental payment from the tenant before releasing the property and 
transferring it to the property owner only once the rental agreement has been put 
into effect with both parties in agreement. In addition, the service provided by 
Airbnb is fully consonant with the notion of EU law of ‘information society 
service’, unlike the service provided by the company Uber, which, according to 
the judgment of the Court of Justice of 10 April 2018 in Case C-320/2016, 
constitutes a ‘service in the transport sector’. The reference to that judgment made 
at first instance in support of the decision handed down is therefore irrelevant. The 
failure to notify the Commission in advance of the new legislative measure thus 
renders it wholly inapplicable. 
6 In the alternative, a reference to the Court of Justice for a preliminary ruling is 
necessary to clarify the exact meaning of the EU law, so as to ascertain whether 
the national rules comply with it. 
7 Second, the legislation in question imposes a series of disclosure and fiscal 
requirements on the online intermediary (including the need for persons not 
resident or established in Italy to appoint a tax representative). Not only is this 
unreasonable and disproportionate, it has the effect of undermining the 
functioning of the internal market and arbitrarily discriminating against Airbnb. 
8 More specifically, the provisions concerning the levying of withholding tax on 
rental agreements and the requirement to collect the temporary residence levy 
curtails the freedom to provide the service offered (protected under Article 56 
TFEU), since operators of online platforms such as Airbnb are required to act as a 
withholding agent in the first case, or as the party responsible for payment of the 
temporary residence levy in the second, assuming burdens and responsibilities that 
are completely unrelated to the service provided. 
AIRBNB IRELAND AND AIRBNB PAYMENTS UK 
 
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9 Likewise, it cannot be said that, in the present case, overriding reasons of public 
interest exist which, in theory, could justify the introduction of restrictions at 
national level on the fundamental freedom provided for in Article 56 TFEU. The 
general need to combat tax avoidance in the property sector does not qualify as an 
overriding reason of public interest, since the present case concerns the operation 
of an online platform that offers an information service. Indeed, imposing the 
requirement to withhold tax from the sum paid by the tenant, so that it can then be 
passed on to the tax authorities, is detrimental to Airbnb by comparison with those 
operators who provide a similar service on the same property agency market using 
other methods but who, in particular, are not involved in the payment stage. 
10 Similarly, the disclosure requirements laid down in Decree-Law No 50 actually 
apply only to Airbnb, since they are not applicable to entities offering similar 
short-term accommodation services such as hotels and B&Bs. The appellants 
contend that such requirements amount to an operational and functional constraint 
for entities such as Airbnb, which unjustifiably restricts their activities in the 
market. 
11 Imposing a requirement to appoint a tax representative in the Member State in 
which the European economic operator provides its services is also at odds with 
the principle of freedom to provide services, in so far as it forces any person 
wishing to provide a service in a Member State other than that of that person’s 
residence (a) to incur the cost of appointing a representative who will comply with 
tax requirements (particularly high in the present case); (b) to revise their 
organisational system in order to supervise the work undertaken on its behalf by 
the representative, given that the represented company is jointly and severally 
liable for the correct payment of taxes by the representative. The existence of an 
additional administrative burden and risks in respect of liability ultimately makes 
it more difficult for foreign nationals to provide the intermediation service than it 
is for resident persons. 
12 The appellants also observed that the Italian Government recently tabled an 
amendment to the law converting into law decreto legge 30 aprile 2019, n. 34 
(Decree-Law No 34 of 30 April 2019), introducing, for any person renting out 
their home, a room or any other type of accommodation, the requirement to obtain 
an alphanumeric code and to register with the new accommodation database held 
by the Ministry. The identification code must be mentioned in advertisements 
placed online and with traditional letting agents, and there are penalties for failing 
to publish the code. The Revenue Agency can access the database to carry out 
checks and ascertain any anomalies when tax returns are filed. In the appellants’ 
view, this provision confirms that proportionate and reasonable alternative 
measures exist for identifying undeclared income, which fully serve the public 
interest of combating tax avoidance without, at the same time, imposing 
unjustified and excessively onerous obligations on Airbnb. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-723/19 
 
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Succinct presentation of the reasons for the reference for a preliminary 
ruling 
13 The referring court considers that the requirements are met for a reference to the 
Court of Justice for a preliminary ruling under Article 267 TFEU, given that (1) it 
is the court of last instance, (2) there is a possibility of conflict between the rules 
of national law and the rules of EU law and (3) the issue raised by the parties, 
which is of decisive importance for the settlement of the dispute, is not 
sufficiently clear to justify the direct disapplication of the national provision by 
the national court and the Court of Justice has not previously ruled on it.