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ECJ backs tax authorities obliging Airbnb to share transaction data

The Court of Justice of the European Union rules Belgian regional legislator may demand home rental transaction data from Airbnb

The ECJ has ruled Airbnb Ireland (C-674/2) must provide transaction-level data to regional tax authorities following hearing brought by Belgium.  The regional legislator had required Airbnb as an operator of an electronic platform for tourist accommodation to submit details of transactions in 2017. The ECJ has ruled (Airbnb Ireland UC vs Région de Bruxelles-Capitale) this is not country to EU law.

Brussels tax authorities seeking income and tourist accommodation taxes info

Airbnb had been requested in 2017 to provide  the details of the tourist accommodation establishments, and the number of overnight stays and of accommodation units operated, with the aim of identifying persons liable for a regional tax on tourist accommodation establishments and their taxable income.

Airbnb had attempted to argue that under the Directive on Electronic Commerce this was prohibited.  It brought an action against the Brussels Capital Region which had imposed the tax information requirement on the basis that it contravenes EU law on the freedom of services and that fiscal data requests are prohibited  from the scope of Directive 2000/31 on e-commerce.  However, the ECJ has now held that fiscal requests fall outside of this e-commerce Directive and so are not prohibited.

The Constitutional Court of Belgium referred this to the ECJ in March 2021 for a preliminary ruling on the interpretation of EU law.

Fiscal requests not barred since not part of e-commerce Directive

Key points from the Court ruling:

  • Even though property intermediation services such as those provided by Airbnb Ireland are information society services under the Directive on electronic commerce, the relevant provision of the contested order as applicable to operators of an electronic platform which is intended to provide such services is indissociable as regards its content from that order which in itself constitutes tax legislation. Consequently, the relevant provision falls within the ‘field of taxation’ which is expressly excluded from the scope of the Directive on electronic commerce.
  • The compatibility of the relevant provision of the contested order with the prohibition against restricting the freedom to provide services within the European Union, the Court holds that the obligation to provide certain information on tourist accommodation transactions concerns all providers of property intermediation services irrespective of the place of establishment of those providers and irrespective of the way in which they provide those services.

According to the Court, to the extent that it covers all providers of property intermediation services, irrespective of their place of establishment and the manner in which they mediate, the relevant provision of the contested order is not contrary to the freedom to provide services in the European Union.

A reference for a preliminary ruling allows the courts and tribunals of the Member States, in disputes which have been brought before them, to refer questions to the Court of Justice about the interpretation of European Union law or the validity of a European Union act. The Court of Justice does not decide the dispute itself. It is for the national court or tribunal to dispose of the case in accordance with the Court’s decision, which is similarly binding on other national courts or tribunals before which a similar issue is raised.

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