CJEU on the difference between making information available and providing it on a durable medium
The Court of Justice of the European Union in its judgement of 25 January 2017 in case C-375/15 ruled that providing a payment service user with information on changes of a terms of the contract through the dedicated electronic mailbox of an online banking website may not be considered to have been provided on a durable medium. In the event of the payment service user being obliged to consult such a website in order to become aware of the relevant information, that information is merely made available to that user.
The judgement of the Court was issued at the request for a preliminary ruling from the Supreme Court of Austria in the proceedings BAWAG PSK Bank für Arbeit und Wirtschaft und Österreichische Postsparkasse AG vs. Verein für Konsumenteninformation (the Association). The court dispute concerned the term provided in the contracts concluded by the bank with consumers, on the use of the online banking website "e-banking".
The standard terms and conditions relating to the online banking website “e-banking” contain a term stating that ‘notices and statements (in particular account information, account statements, credit card statements, notices of changes, etc.) which the bank has to transmit to the customer or make available to him, shall, where a customer has agreed to e-banking, be received by him by post or electronically by making them retrievable or transmitting them by means of [BAWAG] e-banking. Access to that site is provided in accordance with a contract which is ancillary to the contract relating to the opening and operation of a bank account and which also forms part of a framework contract. It is clear from the order for reference that messages sent to the electronic mailboxes assigned to the consumers, which are on the online banking website e-banking, remain there without change and are not deleted during a period of time adequate for the purposes of informing those consumers, so that they may be viewed and reproduced unchanged by electronic or printed means. Those messages may be managed by the consumers and, where appropriate, deleted by the consumers.
The Association applied to the Commercial Court, Vienna, Austria to force BAWAG PSK to cease using the abovementioned term or any other equivalent term in its standard terms and conditions. According to the Association, those clauses were contrary to the provisions of Austrian Law on payment services, as well as the Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market, which provides that in good time before the payment service user is bound by any framework contract or offer, the payment service provider must provide the payment service user on paper or on another durable medium with the information and conditions specified in Article 42 of this directive. The durable medium shall be defined as any instrument which enables the payment service user to store information addressed personally to him in a way accessible for future reference for a period of time adequate to the purposes of the information and which allows the unchanged reproduction of the information stored.
The Supreme Court of Austria, while recognizing the appeal of the Bank against the judgement of the Commercial Court in Vienna granting the Association’s application, began to entertain doubts and decided to ask the Court of Justice of the EU whether information (in electronic format) transmitted by the bank to the electronic mailbox of the customer as part of the [online banking website e-banking], so that the customer can retrieve this information by clicking on it after logging into the online banking website e-banking, has been provided on a durable medium.
As indicated earlier by the Advocate General, and subsequently by the Court, it cannot reasonably be expected of payment service users, that they should regularly consult all electronic communication services that they are signed up to, a fortiori because, under the Directive 2007/64 those users are deemed to have accepted the changes to the framework contract proposed by those providers.
The Court ruled, under Directive 2007/64/EC, that changes to the information and conditions, provided for under Article 42 of that directive, including the ones on changes in and termination of framework contracts, and changes to the framework contract as well, which are transmitted by the payment service provider to the user of those services through the electronic mailbox of an online banking website, may not be considered to have been provided on a durable medium within the meaning of those provisions, unless the following two conditions are met: (1) that the website allows the user to store information addressed to him personally in such a way that he may access it and reproduce it unchanged for an adequate period, without any unilateral modification of its content by that service provider or by another professional being possible; and (2) if the payment service user is obliged to consult that internet website in order to become aware of that information, the transmission of that information is accompanied by active behavior on the part of the provider aimed at drawing the user’s attention to the existence and availability of that information on that website.
In the event of the payment service user being obliged to consult such a website in order to become aware of the relevant information, that information is merely made available to that user, when the transmission of that information is not accompanied by such active behavior on the part of the payment service provider.
The judgement is available on the following website: