Criminal proceedings against.

• Jurisdiction: European Union
• Celex Number: 62018CJ0390
• ECLI: ECLI:EU:C:2019:1112
• Date: 19 December 2019
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-390/18
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Grand Chamber)

19 December 2019 (*)

(Reference for a preliminary ruling — Directive 2000/31/EC — Information society services — Directive 2006/123/EC — Services — Connection of hosts, whether businesses or individuals, with accommodation to rent with persons seeking that type of accommodation — Qualification — National legislation imposing certain restrictions on the exercise of the profession of real estate agent — Directive 2000/31/EC — Article 3(4)(b), second indent — Obligation to give notification of measures restricting the freedom to provide information society services — Failure to give notification — Enforceability — Criminal proceedings with an ancillary civil action)

In Case C‑390/18,

REQUEST for a preliminary ruling under Article 267 TFEU from the investigating judge of the tribunal de grande instance de Paris (Regional Court, Paris, France), made by decision of 7 June 2018, received at the Court on 13 June 2018, in the criminal proceedings against

X,

interveners:

YA,

Airbnb Ireland UC,

Hôtelière Turenne SAS,

Association pour un hébergement et un tourisme professionnels (AHTOP),

Valhotel,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, A. Arabadjiev, E. Regan, P.G. Xuereb and L.S. Rossi, Presidents of Chambers, E. Juhász, M. Ilešič, J. Malenovský, D. Šváby (Rapporteur) and N. Piçarra, Judges,

Advocate General: M. Szpunar,

Registrar: V. Giacobbo-Peyronnel, Administrator,

having regard to the written procedure and further to the hearing on 14 January 2019,

after considering the observations submitted on behalf of:

– Airbnb Ireland UC, by D. Van Liedekerke, O.W. Brouwer and A.A.J. Pliego Selie, advocaten,

– the Association pour un hébergement et un tourisme professionnels (AHTOP), by B. Quentin, G. Navarro and M. Robert, avocats,

– the French Government, by E. de Moustier and R. Coesme, acting as Agents,

– the Czech Government, by M. Smolek, J. Vláčil and T. Müller, acting as Agents,

– the Spanish Government, by M.J. García-Valdecasas Dorrego, acting as Agent,

– the Luxembourg Government, initially by D. Holderer, and subsequently by T. Uri, acting as Agents,

– the European Commission, by L. Malferrari, É. Gippini Fournier and S.L. Kalėda, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 30 April 2019,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 3 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1).

2 The request has been made in criminal proceedings against X, inter alia, for handling monies for activities concerning the mediation and management of buildings and businesses by a person without a professional licence.

Legal context

EU law

Directive 98/34

3 Point 2 of the first paragraph of Article 1 of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services (OJ 1998 L 204, p. 37), as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 (OJ 1998 L 217, p. 18) (‘Directive 98/34’), provides the following:

‘For the purposes of this Directive, the following meanings shall apply:

…

2. “service”, any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.

For the purposes of this definition:

– “at a distance” means that the service is provided without the parties being simultaneously present,

– “by electronic means” means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means,

– “at the individual request of a recipient of services” means that the service is provided through the transmission of data on individual request.

…’

Directive (EU) 2015/1535

4Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ 2015 L 241, p. 1) repealed and replaced Directive 98/34 as of 7 October 2015.

5Article 1(1)(b) of Directive 2015/1535 states:

‘For the purposes of this Directive, the following definitions apply:

…

(b) “service” means any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.

For the purposes of this definition:

(i) “at a distance” means that the service is provided without the parties being simultaneously present;

(ii) “by electronic means” means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means;

(iii) “at the individual request of a recipient of services” means that the service is provided through the transmission of data on individual request.

An indicative list of services not covered by this definition is set out in Annex I’.

6 Article 5(1) of that directive provides:

‘Subject to Article 7, Member States shall immediately communicate to the Commission any draft technical regulation, except where it merely transposes the full text of an international or European standard, in which case information regarding the relevant standard shall suffice; they shall also let the Commission have a statement of the grounds which make the enactment of such a technical regulation necessary, where those grounds have not already been made clear in the draft.

…’

7 Under the second paragraph of Article 10 of Directive 2015/1535, references to Directive 98/34 are henceforth to be construed as references to Directive 2015/1535.

Directive 2000/31

8 Recital 8 of Directive 2000/31 states:

‘The objective of this Directive is to create a legal framework to ensure the freedom of information society services between Member States and not to harmonise the field of criminal law as such.’

9 In the version before the entry into force of Directive 2015/1535, Article 2(a) of Directive 2000/31 defined ‘information society services’ as services within the meaning of point 2 of the first paragraph of Article 1 of Directive 98/34. Since that directive entered into force, that reference must be understood as being made to Article 1(1)(b) of Directive 2015/1535.

10Article 2(h) of Directive 2000/31 provides:

‘(h) “coordinated field”: requirements laid down in Member States’ legal systems applicable to information society service providers or information society services, regardless of whether they are of a general nature or specifically designed for them.

(i) The coordinated field concerns requirements with which the service provider has to comply in respect of:

– the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification,

– the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider;

(ii) The coordinated field does not cover requirements such as:

– requirements applicable to goods as such,

– requirements applicable to the delivery of goods,

– requirements applicable to services not provided by electronic means.’

11 Article 3(2) and (4) to (6) of that directive states the following:

‘2. Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State.

…

4. Member States may take measures to derogate from paragraph 2 in respect of a given information society service if the following conditions are fulfilled:

(a) the measures shall be:

(i) necessary for one of the following reasons:

– public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons,

– the protection of public health,

– public security, including the safeguarding of national security and defence,

– the protection of consumers, including investors;

(ii) taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives;

(iii) proportionate to those objectives;

(b) before taking the measures in question and without prejudice to court proceedings, including preliminary proceedings and acts carried out in the framework of a criminal investigation, the Member State has:

– asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate,

– notified the Commission and the Member State referred to in paragraph 1 of its intention to take such measures.

5. Member States may, in the case of urgency, derogate from the conditions stipulated in paragraph 4(b). Where this is the case, the measures shall be...