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Can a website be considered a durable medium in respect of the EU Payment Services Directive?

February 13, 2017 On 25 January 2017, the Court of Justice of the European Union (CJEU) gave a ruling in the BAWAG Bank Case (Case C-375/15). The Court was responding to a request by the Austrian Supreme Court for a preliminary ruling on the interpretation of the [Payment Services Directive 2007/64/EC] (http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:319:0001:0036:en:PDF)

According to the Directive, the payment service provider must provide the payment service user with information and conditions relative to the transaction on paper or another durable medium.

The CJEU was asked to rule on whether information sent to its customers by the Bawag Bank via electronic mailboxes on its website amounted to “providing” the customers with the information through a “durable medium” for the purposes of the Directive.

The case provided the Court with questions to answer on the definition of a “durable medium” and the scope of the payment service provider’s obligation to provide the user with information.

The Court ruled that an electronic mailbox on a banking website could only be considered a “durable medium” if it enabled the user to store information addressed to him personally and to access and reproduce the information unchanged for an appropriate period of time. The payment service provider must not have the possibility of making unilateral amendments to the information. The Court also ruled that active behaviour is required of the service provider to draw the user’s attention to the existence and availability of information placed on the website. If the user is obliged to consult the website to find the information without active behaviour on the part of the service provider, then the user has not been provided with the information for the purposes of the Directive. The information has merely been made available to him.

The ruling also means that payment service users cannot be expected to regularly consult all e-communication services to which they have adhered. If the ruling is extended to other areas of consumer protection, it could broaden the scope of protection offered to consumers in online transactions by requiring active behaviour by the professional party to the transaction.

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