The Third Section of the Contentious-Administrative Chamber of the Supreme Court (TS) has annulled an order of the Generalitat, of January 2015, which forced Airbnb to stop advertising on its portal the flats that do not have a registration number in the Registry of Catalonia, which proves their legality as tourist housing.
In the ruling, the magistrates explained that on January 30, 2015, the Generalitat ordered Airbnb to “definitely block, delete or suspend” from the website the content related to the advertising of tourist accommodation companies or establishments located in Catalonia, in the that the registration number in the Registry of Catalonia did not appear.
The court has also upheld the appeal filed by Airbnb against a judgment of the Superior Court of Justice of Catalonia (TSJC) of December 13, 2019, and which it now annuls, in which it was determined that the platform had to stop advertising on its portal the flats that do not have a registration number in the Registry of Catalonia.
The Chamber has explained that the requirements that an information society service provider must meet to consider that it is established in Spain is that its residence or registered office be in Spanish territory and coincide with the place where the management is centralized. administrative and business management. They have also explained that the advertisements on the platform are the responsibility of the provider of the final tourist service and not of the platform where it is advertised, stating that Airbnb “is not directly subject to sectoral regulations.”
neutral intermediary
They have maintained that Airbnb is a “neutral intermediary” of Information Society Services, and that it should not be considered a real estate provider or provider of tourist services, and that the Electronic Commerce Directive and Spanish law apply to it as an intermediary. that implements it in Spain.
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The magistrates have argued that the obligation to register tourist accommodation in the Regional Registry and mention the registration number in the advertising of tourist accommodation, “falls on tourism companies.” It also adds that the web not only accommodates advertisements for tourist accommodation that, by virtue of the provisions of Catalan Law 13/2002, would be required to include the registration number, but also other types of accommodation that would not be subject to said obligation.
“This circumstance and the nature of the brokerage services, whose benefits are merely ancillary to the underlying activity –in the terms already set out by the Court of Justice of the European Union– make it impossible to consider that the omission of a number of administrative requirements is flagrant illegality,” they said. Thus, the Supreme Court has estimated the resources of Airbnb against the Generalitat and against the subsequent resolutions of the Secretary of Business and Competitiveness.
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