Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 9 February 2021 – Airbnb Ireland UC, Airbnb Payments UK Ltd v Agenzia delle Entrate

(Case C-83/21)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Appellants: Airbnb Ireland UC, Airbnb Payments UK Ltd

Respondent: Agenzia delle Entrate

Questions referred

How are the terms ‘technical regulation’ for information society services and ‘rule on services’ in respect of the information society, referred to in Directive 2015/1535/EU 1 to be interpreted and, in particular, are those terms to be interpreted as including tax measures not directly aimed at regulating the specific information society service, but which affect the way in which it is provided in practice in the Member State, in particular by imposing on all property intermediation service providers – including, therefore, operators not established in that State which provide their services online – ancillary obligations for the effective collection of taxes payable by landlords, such as:

the collection and subsequent transmission to the tax authorities in the Member State of information relating to short-term rental agreements entered into as a result of the intermediary’s activity;

the deduction of the portion due to the tax authorities from the amounts paid by tenants to landlords and subsequent payment of those amounts to the Treasury.

2.    (a)    Do the principle of freedom to provide services set out in Article 56 TFEU, and, if deemed applicable in the present case, the similar principles which may be inferred from Directives 2006/123/EC 2 and 2000/31/EC, 3 preclude a national measure that imposes, on property intermediaries operating in Italy – including, therefore, operators not established in Italy which provide their services online – obligations to collect information relating to the short-term rental agreements concluded through them and subsequent transmission of that information to the tax authority, for the purpose of the collection of direct taxes payable by users of the service?

(b)    Do the principle of the freedom to provide services under Article 56 TFEU, and, if deemed applicable in the present case, the similar principles which may be inferred from Directives 2006/123/EC and 2000/31/EC, preclude a national measure that imposes, on property intermediaries operating in Italy – including, therefore, operators not established in Italy which provide their services online – and involved at the payment stage of the short-term rental agreements entered into through them, the obligation to levy, for the purpose of collecting direct taxes payable by users of the service, a withholding tax on those payments, with subsequent payment to the Treasury?

(c)    May the principle of the freedom to provide services under Article 56 TFEU, and, if deemed applicable in the present case, the similar principles which may be inferred from Directives 2006/123/EC and 2000/31/EC – where the above questions are answered in the affirmative – however be limited in accordance with [EU] law by national measures such as those described above under (a) and (b), in view of the fact that the tax levy relating to direct taxes payable by service users is otherwise ineffective?

(d)    May the principle of the freedom to provide services referred to in Article 56 TFEU and, if deemed applicable in the present case, the similar principles which may be inferred from Directives 2006/123/EC and 2000/31/EC, be limited in accordance with [EU] law by a national measure that imposes, on property intermediaries not established in Italy, the obligation to appoint a tax representative required to comply, in the name and on behalf of the intermediary not established in Italy, with the national measures described above under (b), in view of the fact that the tax levy relating to direct taxes payable by users of the service is otherwise ineffective?

Must Article 267(3) TFEU be interpreted as meaning that, where a question of the interpretation of (primary or secondary) [EU] law is raised by one of the parties and accompanied by a precise indication of the wording of the question, the court is still entitled rephrase that question, by identifying, at its discretion, to the best of its knowledge and belief, the relevant provisions of [EU] law, the national provisions potentially in conflict with them, and the lexical content of the reference, provided that it is within the bounds of the subject matter of the dispute, or is the court obliged to refer the question as worded by the applicant?

____________

1     Directive (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).

2     Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36).

3     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).