FML Timeline: BAWAG PSK Bank fur Arbeit und Wirtschaft v Osterreichische Postsparkasse AG and Verein fur Konsumenteninformation
The electronic inbox of an online banking website is not, generally speaking, a “durable medium”.
| Parties |
Request for preliminary ruling from European Court of Justice re: -v- Verein fur Konsumenteninformation |
| Date | 25 January 2017 |
| Citation number | Case C-375.15, [2017] Bus. L.R. 616 |
| Court | European Court of Justice (ECJ) |
| Category | Interpretation of Payment Services Directive |
The Austrian Supreme Court requested a preliminary ruling from the ECJ regarding the interpretation of what can be considered a durable medium for the purposes of the Payment Services Directive (Directive 2007/64/EC), (the Directive). The Directive requires any changes in framework contracts by a payment services provider to be provided to the user/customer on paper or on another durable medium.
BAWAG, as part of the general terms in their e-banking contracts, had a contractual term by which "notices of changes” could be communicated to the customer through the internal customer mailbox of its internet e-banking system (by way of comparison, this would be like Facebook notifying users of changes to user contract by way of Facebook Messenger).
However, the Austrian Consumer Association considered that this contractual term did not comply with the duty that payment service providers, such as BAWAG, had to provide information on a durable medium as required by the Directive. The Austrian Court, as the referring court, therefore asked the ECJ whether: (1) information given through an e-banking mailbox could be considered to be a durable medium and (2) whether information communicated by a website could be considered to be provided (rather than just “made available”) for the purposes of the Directive.
Decision:
The ECJ gave a preliminary ruling in January 2017.
Durable medium?
The ECJ ruled that changes to terms and conditions, changes to a framework contract, or information communicated by the payment service provider to the customer through an electronic mailbox of an online banking website would not be considered to have been provided on a durable medium unless:
That website allowed the customer to store personally addressed information in such a way that:
- the customer can access it for future reference, and
- reproduce it unchanged, for an adequate period of time, without any unilateral modification of its content by the service provider (ie there is version control).
“Provided” or “made available”?
The ECJ found that in circumstances where customer has to go on the website in order to become aware of the information/change of contractual terms, the service provider has to take some proactive steps/active behaviour aimed at drawing the customer’s attention to the existence of the information/notice of change on the website.
Without such steps the information/changes would be considered to be made available rather than actually provided.
Noteworthy and Novel points
The ECJ has clarified when an online inbox could be considered to be considered to be a durable medium for the purposes of communicating to a customer. Payment service providers may need to review their practices regarding the provision of mandatory information to customers via a website or online inbox to ensure that the method is considered to be a durable medium for the purposes of Directive 2007/64. Further, where the payment service providers use a website inbox to update their customers, they need to ensure that they take specific steps to draw a customer’s attention to the message regarding the update/changes.
