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Under Article 3(4) of Directive
2000/31, Member States may, in
respect of a given information
society service falling within the
coordinated field, take measures
that derogate from the principle of
the freedom to provide information
society services, subject to two
cumulative conditions.
First, under Article 3(4)(a) of
Directive 2000/31, the restrictive
measure concerned must be
necessary in the interests of public
policy, the protection of public
health, public security or the
protection of consumers; it must
be taken against an information
society service which actually
undermines those objectives or
constitutes a serious and grave
risk to those objectives and, finally,
it must be proportionate to those
objectives.
Secondly, under the second indent
of Article 3(4)(b) of that directive,
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 concerned must notify the
Commission and the Member State
on whose territory the service
provider in question is established
of its intention to adopt the
restrictive measures concerned.
Which clarifies the legal position: that
member states may take action against
(ie restrict or even ban) an “information
society service” like Airbnb where
it “undermines… the interests of public
health, public security or the protection
of consumers”.
So EU member states specifically have
the powers to “restrict” (ie regulate)
platforms like Airbnb where the
member state believes it is necessary
and proportionate to do so to protect
consumers and public health.
The wording of the judgement
also allows measures to restrict
platforms “in the interests of public
policy” - which could include, for
instance, measures in the interests of
protecting householders from nuisance,
maintaining a sufficient stock of
affordable rentals for residents, and/
or curbing the damaging effects of
“overtourism”, for example in cities.