Lawsuit against obligatory data collection by Holiday Rental Platforms

Since the beginning of 2019, the Spanish Treasury (Hacienda) obliges holiday rental platforms to send quarterly data about their clients both owners and rental agents

The Adigital association (Spanish Association of the Digital Economy), of which Spain-Holiday.com is a member, has requested the precautionary suspension of this legislation until the Supreme Court has ruled on it.  However, the precautionary suspension was denied in November 2018.

Supreme Court Spain

Image: Wikipedia - Supreme Court in Madrid, Spain

The lawsuit claims that the legislation to oblige the holiday rental platforms to provide data on its clients stating that some of the requirements (of the Treasury) contravenes a community norm, are not proportional and have no tax significance

Data Required

Adigital and its associate members have filed a lawsuit before the Supreme Court to repeal the legislation that obliges them to provide the following data to the Treasury: -

  • on the identity of the owner of the apartment,
  • the number of days used for tourism purposes,
  • the amount received, and
  • the date of the rental

 

The holiday rental platforms indicate that they are also asked for data that is "difficult to verify" such as if the person who made the booking is travelling with children or other companions, arrival and departure dates of the guests in the country.  

It is pointed out that no other country in the environment requires such data.

"It seems totally excessive, " says the Director-General of Adigital, which in any case highlights "the willingness to collaborate with all platforms" to which it groups, "provided that their activity is not jeopardized or the law is violated.

It also draws attention to the " traceability " of all its operations, contrary to what happened for example when renting tourist apartments by word of mouth or through local newspapers and with cash payments.

Other holiday rental platforms are also required to provide additional information on a voluntary basis that seeks to increase transparency and avoid possible information requirements according to the Tax Agency.

Privacy

The platforms consider that some of the required information is excessive and irrelevant for the Treasury, while compiling it is in violation of the European and Spanish legislation on data protection, which is the principal argument in the lawsuit.

Spain-Holiday.com, along with the associate members of Adigital Association, confirm that they are currently complying with the legislation, and have taken various measures to inform its clients and facilitate the declaration of the income obtained via rentals.

Legal Discussion

Spain-Holiday.com is among the leading holiday rental companies in the sector with a significant presence in Spain that are looking forward with anticipation to the Supreme Court ruling on the lawsuit.

It remains now to wait for the decision of the Supreme Court in Spain, which in turn waits for the Court of Justice of the European Union (CJEU) to rule on a lawsuit filed by the French platforms.  No ruling is expected on the lawsuit until the end of 2019 at the earliest.

In any case, last April the CJEU published the opinion of its General Counsel that basically pointed out that the activity of these platforms is not that of real estate agents but that of services of the information society.

The Advocate General argued that they only contact owners and tenants, "without substantially influencing the true service provider", since it does not set the prices or conditions of the rental.

"That opinion is very important and will surely determine the ruling of the CJEU, which, in turn, will be key to determining that of the Spanish Supreme Court," according to Jose Luis Zimmermann, General Director of Adigital, who insists that supervision and monitoring" tasks are being required from the platforms. of user data, something that should only be required if there is a court ruling.

 

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