10 CJEU came to the opposite conclusion on the nature of services provided by the respective platform: Airbnb was affirmed to be a pure intermediary providing information society services. In Uber case the CJEU stated that an intermediary service that, through a smartphone application, allows the transfer of information regarding the booking of a transport service between a passenger and non-professional drivers using their own vehicle, who will carry out the transport, basically corresponds to the qualification criteria of "information society service" in the sense of Article 1 point 2 of Directive 98/34 (point 35 of the judgment). However, the CJEU also stated that the intermediary service in question, as was the case in the case in which the judgment was issued, is not only an intermediary service consisting in contacting non-professional drivers using their own vehicles with persons who need to be transported within the city, through smartphone applications. He came to such an assessment based on the development of certain criteria such as: ‚the intermediation service provided by Uber was inextricably linked to the offer of urban non-public transport services created by this company, because it is based on the selection of non-professional drivers using their own vehicle, to whom the company provides an application without which (i) those drivers would not be led to provide transport services and (ii) persons who wish to make an urban journey would not use the services provided by those drivers. In addition, Uber exercises decisive influence over the conditions under which that service is provided by those drivers. On the latter point, it appears, inter alia, that Uber determines at least the maximum fare by means of the eponymous application, that the company receives that amount from the client before paying part of it to the non-professional driver of the vehicle, and that it exercises a certain control over the quality of the vehicles, the drivers, and their conduct, which can, in some circumstances, result in their exclusion ‘.33 The CJEU decided that intermediation service must thus be regarded as forming an integral part of an overall service whose main component is a transport service and, accordingly, must be classified not as ‘an information society service’ within the meaning of Article1(2) of Directive 98/34, to which Article 2(a) of Directive 2000/31 refers, but as ‘a service in the field of transport’ In Airbnb Ireland, however, the CJEU held that the services provided by Airbnb Ireland (consisting of connecting, via an online platform, potential guests with hosts offering accommodation to rent) fall within the definition of an 'information society service'. The CJEU stated that the facts mentioned by the national court do not allow to prove that Airbnb Ireland has such a decisive influence on the conditions of the provision of accommodation services, which are concerned by its intermediary service. Airbnb Ireland does not directly or indirectly set the price of the requested rent, and does not select the landlords or accommodation capacities offered for rent on its platform. For that reason, the CJEU decided that Article 2 letter a) of the E- commerce Directive should be interpreted in the sense that an intermediation service which, by means of an electronic platform, is intended to connect, for remuneration, potential guests with 33 Point 39 of the Judgment CJ EU (C-434/15).
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