Advisor to the EU Court: Airbnb is not a real estate agent but an information service

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In an opinion to the Court of Justice, the Advocate General says that Airbnb cannot be regarded as a real estate brokerage company, but as an information service. This means it falls under EU rules and a Member State cannot simply impose restrictions.

Advocate General Maciej Szpunar concludes that Airbnb can be considered as an information service because it is a service that connects potential guests with hosts via an electronic portal, in a situation where the provider of this service cannot control the essential procedures and matters necessary for this service. Airbnb cannot therefore be regarded as a real estate broker.

This means that a specific French law on real estate transactions cannot be applied just like that. This is because this is a service, Airbnb, which is legally established in another Member State, in this case Ireland. An EU Member State may not simply intervene with its own national legislation at an information service of another Member State, because this could affect the European freedom to provide services. If this restricts the free movement of a service from another EU Member State, this should only be done on a case-by-case basis and the European Commission must be informed. In addition, the French measure should only be applied if it is necessary in the light of consumer protection and should not go beyond what is necessary to achieve the objective.

This concerns an opinion of the Advocate General of the Court of Justice. This has been initiated because a French judge in this case has raised questions about how this issue should be assessed legally in light of French and EU rules. The Court is due to consider this issue later this year. In doing so, the judges can disregard Szpunar’s advice and rule differently, but the Advocate General’s conclusions are authoritative and are often followed by the Court.

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