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Paris is also battling the housing shortage and thus restricting short-term rentals through Airbnb. That is legal, the ECJ decided, a ruling that could have consequences far beyond France.
By Claudia Kornmeier, ARD Legal Editor
In the dispute over the rental of apartments to tourists through platforms such as Airbnb, the Court of Justice of the European Union (ECJ) has sent a clear signal: EU countries can intervene to regulate as long as they do not act disproportionately . The fight against the housing shortage is “an overriding reason of general interest”, says the Luxembourg ruling.
The background is a case from France. Two owners had regularly rented their one-bedroom apartments in Paris to tourists for short periods of time through Airbnb. They did not have permission for this. However, according to French law, this is mandatory in municipalities with more than 200,000 inhabitants and in the vicinity of Paris.
Therefore, the two owners received fines. They were also tasked with offering the two apartments on the regular rental market. They defended themselves against this in court. They saw EU rules on the general freedom to provide services violated.
ECJ: ex post control would be less effective
The ECJ disagreed with this. France wants to do something systematically against the housing shortage in tense housing markets by demanding approval for short-term rentals. That is in the general interest. The authorization requirement is also proportionate because it is limited to a “very special rental activity.” Main residences are not affected. Subsequent controls, such as a penalty reporting system, would be less effective.
Nor did the ECJ have anything to complain about the fact that the law does not expressly stipulate as of when a “regular short-term rent” should be assumed. It is enough that the authorities clearly determine it and are guided by the objectives of the law.
Importance of German prohibitions on misappropriation
The Airbnb platform, founded in the US in 2008, and similar offers are not only popular with tourists from Paris. Also in Germany, travelers are looking for an alternative to hotel rooms. For owners, renting for a few nights is often more lucrative than long-term leases.
The affected cities reacted with so-called misappropriation bans, for example in Berlin, but also in smaller cities such as Freiburg or Heidelberg. If you want to rent your apartment to tourists on a regular basis, you also need a permit there. Anyone who does not comply runs the risk of being fined.
BVerfG decides on the Berlin ban
In Berlin, as in France, there is also the option of relinquishing the owners so that the rooms are available again as living space. When in doubt, someone else can be used to enforce this.
In Germany too, landlords sometimes resist these prohibitions on misappropriation. The Federal Constitutional Court must rule on the Berlin law. There are 41 lawsuits from owners who had rented their apartments to vacationers before the law took effect, and who want to continue to do so. However, after the ECJ ruling, it should be clear: misappropriation bans are generally possible to ease a tense housing market.
Refs. C-724/18 and C-727/18
