Planning and Environment Law Briefing - May 2019

Airbnb portal constitutes an 'information society service' - AG Szpunar

On Tuesday 30 April 2019, the ECJ released the opinion of Advocate General Spuznar in Case C-390/18 which pertained to a complaint lodged in January 2017 by an association of French hoteliers, Association pour Hébergement et Tourisme, which claimed that the short-term letting services offered by Airbnb contravened French national law.

Jurisdictional issues arose as Airbnb is operated from Dublin and the shared-economy specialists were not made aware of the fact that French law was to be applied to them. It was alleged that Airbnb were in breach of France's 'Houget law', in particular Article 3's requirement to have an official card from the Paris-based chamber of industry and commerce prior to operating in France. 

The investigating judge of the Paris Regional Court decided to refer to the ECJ for a preliminary ruling on whether the services, provided in France by Airbnb Ireland, benefitted from the freedom to provide services laid down by the directive on information society services - ie, a digital services provider. Moreover, clarification was also sought as to whether the restrictive real estate rules laid out in the Houget law were applicable.

The criteria laid down in Art 1(b) of the directive are as follows:

'... "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.'

Following a thorough examination of the services offered, AG Spuznar concluded that Airbnb, in connecting potential guests with hosts offering short-term accommodation via an electronic portal, does indeed fit the criteria laid out in the directive and as such, should be considered an information society service. He then concluded by noting that the directive 'precludes a Member State from being able to restrict, in such circumstances and in such a manner, the free movement of information society services from another Member State'.

It should be noted that the opinions of Advocate General's are not binding and the Court of Justice may opt to interpret the law in a different manner. We will report on this judgment in future Planning and Environment Briefings. 



Fitzpatrick & Anor v An Bord Pleanála & Ors [2019] IESC 23

On 11 April 2019, Justice Finlay Geoghegan delivered jugdment on behalf of the Supreme Court in respect of an appeal made by two Co. Galway residents against the dismissal of a previous application to the High Court for judicial review of An Bord Pleanála's decision to grant planning permission for the construction of an Apple data centre in Athenry.

It should be noted the intervening years, Apple have decided not to proceed with the project. The Supreme Court agreed to hear this appeal on the basis that its decision might help to shape future planning proceedings - particularly in the context of the ever-increasing importance of Environmental Impact Assessments.

In the High Court, the primary contention of the appellants was that An Bord Pleanála had failed in their obligation to carry out an EIA as per s 172 of the Planning and Development Act 2000 and as such, they sought orders of certiorari quashing the decision to grant planning permission.

The applicants contended that while the board-appointed inspector had considered the environmental impact of the proposals put before him, he did not consider the potential future impact of further developments which were indicated in Apple's masterplan for the development - which would eventually have seen the site increase in size by 800%.

Dismissing the appeal, Finlay Geoghegan J noted that An Bord Pleanála is obligated to consider the merits of the of the particular application which arises at the time, and that requiring the consideration of potential future developments would constitute too much of an administrative burden, given that those developments may never even come to fruition. She concluded as follows:

'1. The Board was not obliged to carry out an EIA of the masterplan before deciding on the appeal in relation to the data centre application or the planning application in relation to the substation. The obligation pursuant to the EIA Directive, as implemented by Part X of the Planning and Development Act 2000, as amended, and the Regulations made thereunder, is to carry out an environmental impact assessment of the proposed development, or in this case developments, for which planning permissions were sought.

2. The Board, in carrying out the environmental impact assessments of the proposed developments which were the subject of the current planning applications and phase one of the masterplan, was, however, obliged to take account as far as practically possible, of potential later phases of the masterplan. 

3. The Board, through the reports of the Inspector which it expressly adopted, complied with the above obligation.

4. The Court does not consider it necessary nor that it is obliged to make a reference to the Court of Justice of the European Union to enable it decide this appeal.'



The Paris Agreement and the paramountcy of averting a 4-degree climate hike

The Paris Agreement, which was opened for signature on 21 April 2016 and came into effect in November of that year, has now been adopted by over 190 nations. 

The Paris Agreement aims to establish a grassroots-led plan for global climate change mitigation, with the overall goal of reducing emissions as a means of containing temperature growth to the current level of roughly 1.5 degrees above pre-industrial levels. 

At the Katowice Climate Change Conference in December 2018, a UN-backed report stressed the importance of maintaining this current temperature, as even a 0.5-degree rise on current levels could drastically impact natural ecosystems, human health and even cause complete coral reef die off. It is submitted that a 4-degree spike, which some climatologists believe to be a distinct possibility by 2080, would have irreversible consequences.

Following on from the 'Extinction Rebellion' protests in Dublin, it appears as though the Irish government is sounding out the feasibility of increasing the carbon tax as a means of reaching our targets. Ireland has agreed to an 80% reduction in C02 by the year 2050. At present we emit 7.31 metric tonnes of carbon per person, largely comparable to the UK's 6.50. 

For further reading on this issue, see Ediboglu, E., 'The Paris Agreement: Effectiveness Analysis of the New UN Climate Change Regime', University College Dublin Law Review, Vol 17.




Note: This is not intended to be relied upon as legal advice. Any errors should be notified to the editor and will be dealt with accordingly.

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