The Legal Impacts of COVID-19 in the Travel, Tourism and Hospitality Industry

12 ruling, the first of which was to analyse the legal nature of Airbnb, either as an information society service provider or as an accommodation service provider 25 . Following its analysis of the case, the Court confirms the nature of the information society service provider, on the understanding that the intermediary service provided by Airbnb cannot be regarded as an integral part of an accommodation service (57), even when it offers a range of additional services that improve its provision. The Court believes that, despite what has been said in the proceedings, “ the severable nature of the intermediary service provided by this company and, consequently, its classification as an “information society service” cannot be called into question, since it does not substantially alter the specific characteristics of that service ”. It adds that it would be paradoxical if these additional services, whose purpose is to provide added value to those offered by the platform, to differentiate it from its competitors, were to be turned against it, to change the legal nature of the platform and the legal classification of the activity it carries out (64). The Court’s response is also in line with the position already adopted years ago by the Commission, in A European agenda for the collaborative economy, when it states that “ a collaborative platform offering services in the short-term rental sector can only provide Information Society services and not the hosting service itself as well if, for example, the hosting service provider sets its prices and the platform does not own any of the assets for the provision of the service”. It also adds that “the fact that the collaborative platform can also offer insurance and rating services to its users need not alter this conclusion” 26 . The judgment is consistent with the Commission’s recommendations to discriminate when the collaborative platform provides an Information Society service and when the underlying service, which will require attention to the following elements: (i) the level of control or influence that the platform can exercise over the specific service provider; (ii) who determines the price to be paid for the provision; (iii) who sets the contractual conditions; (iv) whether the platform has assets to provide the specific hosting service; 25 The juge d’instruction du tribunal de grande instance de Paris asks the CJEU two questions for a preliminary ruling: (i) Are the benefits provided in France by Airbnb Ireland covered by the freedom to provide services provided for in Article 3 of Directive 2000/31, through an electronic platform operated from Ireland?; and (ii) Can Airbnb Ireland oppose the restrictive rules regarding the practice of the profession of real estate agent in France, established by the Hoguet Law? 26 COM (2016) 356 final, p. 7.