EU Judge Pooh-Poohs French Crackdown on Airbnb

(CN) – An EU magistrate recommended defeat Tuesday for an attempt by Paris prosecutors to regulate Airbnb with strict rules meant to govern real estate agents.

Citing recent cases involving Uber, another app-based service that has taken the world by storm, Advocate General Maciej Szupunar determined that Airbnb qualifies as an “information society service” and thus benefits from the free-movement directive.

Airbnb Ireland, a subsidiary of the U.S.-based travel company, initiated the proceedings here after it was hit with a 2017 complaint by the AHTOP, a division of the Paris Prosecutor’s Office whose initials stand for Association pour un hébergement et un tourisme professionnel.

The prosecutors accused Airbnb of managing of real property without a professional license, but Airbnb denied that the French real estate statute, known as the Hoguet law, was applicable to it.

Though the case was pending in Paris before the Tribunal de grande instance, an investigating judge opted to refer the matter to the European Court of Justice.

Those proceedings will begin in earnest now following the recommendation of Advocate General Szpunar, whose opinion is not binding on the Luxembourg-based court. 

Szpunar emphasized that “the short-term accommodation market, whether professional or not, existed long before the activity of Airbnb Ireland’s service began.”

“As the Luxembourg Government observes, professional and non-professional hosts can offer their assets via more traditional channels,” the opinion states. “Nor is it unusual for a host to create a website devoted solely to his accommodation that can be found with the help of search engines.”

Szpunar also said that the classification of Airbnb is not altered by its offering of other services apart from short-term lodging, “namely a photography service, civil liability insurance and a guarantee for damage.”

“The fact that the provider of an information society service offers the recipients of that service other services having a material content does not prevent that service from being classified as an ‘information society service’, provided that those other services are not inseparable from the service provided by electronic means, in the sense that the latter service does not lose its economic interest and remains independent of the services having a material content,” the opinion states.

Szpunar concluded that Airbnb qualifies as an information society service and is not obliged to satisfy the requirements of the Hoguet law. 

“A member state other than that in whose territory a provider of an information society service is established cannot … restrict the free movement of those services by relying … on requirements such as those relating to the practice of the profession of real estate agent, laid down in the Hoguet law,” the opinion states.

A spokesman for Airbnb did not immediately respond to an email seeking comment.

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