Case C-83/21: Judgment of the Court (Second Chamber) of 22 December 2022 (request for a preliminary ruling from the Consiglio di Stato — Italy) — Airbnb Ireland UC plc, Airbnb Payments UK Ltd v Agenzia delle Entrate (Reference for a preliminary ruling — Internal market — Article 114(2) TFEU — Exclusion of fiscal provisions — Directive 2000/31/EC — Information society services — Electronic commerce — Online property intermediation platform — Article 1(5)(a) — Exclusion of the ‘field of taxation’ — Directive 2006/123/EC — Services in the internal market — Article 2(3) — Exclusion of the ‘field of taxation’ — Directive (EU) 2015/1535 — Article 1(1)(e) and (f) — Concepts of ‘rule on services’ and ‘technical regulation’ — Obligation on providers of property intermediation services to collect and transmit to the tax authorities data on rental contracts and to withhold tax at source on the payments made — Obligation on service providers that do not have a permanent establishment in Italy to appoint a tax representative — Article 56 TFEU — Restrictive nature — Legitimate objective — Disproportionate nature of the obligation to appoint a tax representative — Third paragraph of Article 267 TFEU — Prerogatives of a national court or tribunal against whose decisions there is no judicial remedy under national law)
Date: 2022-12-22
Institutions: Court of Justice
Subjects: Italy, direct tax, electronic commerce, establishment, exchange of information, freedom to provide services, property leasing, provision of services, tax collection, technical regulations, trade intermediary








C_2023054EN.01000701.xml










13.2.2023   


EN


Official Journal of the European Union


C 54/7






Judgment of the Court (Second Chamber) of 22 December 2022 (request for a preliminary ruling from the Consiglio di Stato — Italy) — Airbnb Ireland UC plc, Airbnb Payments UK Ltd v Agenzia delle Entrate
(Case C-83/21) (1)

(Reference for a preliminary ruling - Internal market - Article 114(2) TFEU - Exclusion of fiscal provisions - Directive 2000/31/EC - Information society services - Electronic commerce - Online property intermediation platform - Article 1(5)(a) - Exclusion of the ‘field of taxation’ - Directive 2006/123/EC - Services in the internal market - Article 2(3) - Exclusion of the ‘field of taxation’ - Directive (EU) 2015/1535 - Article 1(1)(e) and (f) - Concepts of ‘rule on services’ and ‘technical regulation’ - Obligation on providers of property intermediation services to collect and transmit to the tax authorities data on rental contracts and to withhold tax at source on the payments made - Obligation on service providers that do not have a permanent establishment in Italy to appoint a tax representative - Article 56 TFEU - Restrictive nature - Legitimate objective - Disproportionate nature of the obligation to appoint a tax representative - Third paragraph of Article 267 TFEU - Prerogatives of a national court or tribunal against whose decisions there is no judicial remedy under national law)
(2023/C 54/07)
Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings


Applicants: Airbnb Ireland UC plc, Airbnb Payments UK Ltd

Defendant: Agenzia delle Entrate

Intervening parties: Presidenza del Consiglio dei Ministri, Ministero dell’Economia e delle Finanze, Federazione delle Associazioni Italiane Alberghi e Turismo (Federalberghi), Renting Services Group Srls, Coordinamento delle Associazioni e dei Comitati di tutela dell’ambiente e dei diritti degli utenti e dei consumatori (Codacons)

Operative part of the judgment







1.


Article 56 TFEU must be interpreted as meaning that:






—


first, as regards rentals of a maximum duration of 30 days in respect of immovable property situated in the territory of a Member State, it does not preclude legislation of that Member State requiring providers of property intermediation services — irrespective of their place of establishment and the manner in which they intervene — to collect and then transmit to the national tax authority the data relating to the rental contracts concluded following their intermediation, and, where those service providers have received the corresponding rents or consideration or intervened in their collection, to withhold at source the amount of tax due on the sums paid by the lessees to the lessors and to pay it to the Treasury of that Member State;










—


second, as regards rentals of a maximum duration of 30 days in respect of immovable property situated in the territory of a Member State, it precludes legislation of that Member State requiring providers of property intermediation services, where those providers have received the corresponding rents or consideration or have intervened in their collection and where they reside or are established in the territory of a Member State other than the State of taxation, to appoint a tax representative which resides or is established in the territory of the Member State of taxation.














2.


Article 267 TFEU must be interpreted as meaning that, where a question concerning the interpretation of EU law is raised by one of the parties to the main proceedings, the determination and formulation of the questions to be referred to the Court is a matter for the national court alone and those parties may not impose or alter their wording.






(1)  OJ C 182, 10.5.2021.