European Court of Justice guarantees that Airbnb must transfer its customer data for tax purposes

European Court of Justice guarantees that Airbnb must provide the tax administration with certain data related to tourist accommodation transactions. In other words, because the regulations of the Brussels region, which oblige the operator to provide certain data on tourist accommodation establishments, are of a fiscal nature, they are excluded from the scope of the e-Commerce Directive and therefore do not contradict the Union law.

According to the Court of Justice, insofar as this applies to all providers of real estate brokerage services, regardless of where they are established and how they conduct brokerage, the disputed regional law does not preclude free provision. Services in connection.

In accordance with the law of the Brussels Capital Region (Belgium), which relates to taxes on tourist accommodation facilities, Airbnb Ireland was required to notify the regional tax authority of information on tourist transactions in 2017.

However, in view of the fact that the transmission of such information is contrary to Union law and, in particular, to the principle of freedom to provide services, Airbnb Ireland has brought an action before the Belgian Constitutional Court seeking annulment of a provision in the disputed regional law.

Following this appeal, the Constitutional Court asks the Court of Justice of the European Union whether this provision constitutes a fiscal provision which is directly excluded from the scope of Directive 2000/31 on e-Commerce.

The Constitutional Court also asks the Court of Justice if the above provision, insofar as it imposes an obligation on the tax administration to transmit data on tourist accommodation transactions, may impede the free circulation of services.

The EU Court of Justice first states that “the e-Commerce Directive excludes tax rules from its scope. The Court of Justice also notes that the provisions of the e-Commerce Directive directly 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 subject to the scope of the e-Commerce Directive, the impugned provision may not differ from the above regional law, which constitutes . “Thus, it is part of the ‘tax issue’, which is directly excluded from the scope of the e-Commerce Directive.”

Regarding the compatibility of the Union services with the free movement, the Court of Justice notes that “the obligation to provide certain information on tourist accommodation transactions applies to all real estate brokerage providers, regardless of the location and the way in which they provide these services.

The Court of Justice concludes that “the provision of the regional law in question is not discriminatory, but is limited to obliging the affected providers to keep records of tourist accommodation transactions and to transfer them at the request of the tax administration. Regional, for the purpose of accurate collection of relevant taxes on the rent of goods to the latter.

As for the allegation that real estate brokerage services such as those provided by Airbnb Ireland are at risk of further impact on the disputed provision, the court notes that “the fact of greater impact only reflects the large number of those transactions. These intermediaries carry out their respective market share. ” He recalls that “measures whose sole effect is to incur additional costs for a given service and which affect the provision of the service in the same way, regardless of which Member State in which the provider is established, do not impede the free movement of services.”

Source: El Diario

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