The European Justice guarantees that Airbnb has to transmit data of its clients for tax purposes

The European Justice guarantees that Airbnb has to transmit data of its clients for tax purposes



The European Justice guarantees that Airbnb has to transmit to the Tax Administration certain data related to tourist accommodation transactions. In other words, as the regulations of the Brussels region that oblige an operator to communicate certain data relating to tourist accommodation establishments are of a fiscal nature, it is excluded from the scope of application of the directive on electronic commerce and, therefore, does not is contrary to Union law.

According to the Court of Justice, to the extent that it affects all providers of real estate brokerage services, regardless of their place of establishment and the way in which they carry out the brokerage, the disputed regional law is not contrary to the free provision of services in the Union.

Pursuant to an obligation under a law of the Brussels-Capital Region (Belgium) relating to the tax on tourist accommodation establishments, Airbnb Ireland was required to report to the regional tax authority information on tourism transactions carried out in 2017.

However, considering that the transmission of such information is contrary to Union law and, in particular, to the principle of freedom to provide services, Airbnb Ireland brought an action before the Belgian Constitutional Court, requesting the annulment of the provision that it is about the controversial regional Law that imposed that communication obligation.

As a result of this complaint, the Constitutional Court asks the Court of Justice of the EU if that provision constitutes a fiscal provision expressly excluded from the scope of application of Directive 2000/31 on electronic commerce.

Likewise, the Constitutional Court asks the Court of Justice if the aforementioned provision, to the extent that it provides for an obligation to transmit data relating to tourist accommodation transactions to the Tax Administration, may hinder the free circulation of services.

In its ruling this Wednesday, the EU Court of Justice recalls, first of all, that “the directive on electronic commerce excludes tax rules from its scope of application. The Court of Justice also observes that the recitals of the directive on electronic commerce expressly provide for the exclusion of taxation from its scope of application”.

According to the Court of Justice, "although real estate brokerage services such as those provided by Airbnb Ireland are information society services falling within the scope of application of the directive on electronic commerce, the contested provision cannot be dissociated from the aforementioned regional law that constitutes in itself a fiscal regulation. Therefore, it is part of the 'taxation matter' that is expressly excluded from the scope of application of the directive on electronic commerce”.

With regard to compatibility with the free movement of services in the Union, the Court of Justice observes that "the obligation to provide certain information on tourist accommodation transactions concerns all providers of real estate brokerage services, regardless of the place of establishment of these providers and the way in which they provide these services.

The Court of Justice deduces from this that “the provision of the regional Law at issue is not discriminatory, but is limited to obliging the affected providers to keep the data relating to tourist accommodation transactions and to transmit them, upon request from the Tax Administration. regional, to the latter for the purposes of the exact collection of the taxes corresponding to the rental of the goods in question”.

As regards the allegation that real estate brokerage services such as those provided by Airbnb Ireland are at risk of being more affected by the contested provision, the Court observes that "the fact of being more affected is only the reflection of the greater number of transactions that these intermediaries carry out and of their respective market share”. And it recalls that "measures whose sole effect is to generate additional costs for a given service and which affect the provision of services in the same way regardless of the Member State in which the provider is established do not hinder the free movement of services".



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