Last week, the EU Court of Justice (CJEU) published its judgement in BAWAG PSK Bank für Arbeit and others v Verein für Konsumenteninformation following the September 2016 preliminary ruling from the Austrian Supreme Court, concerning the interpretation of articles 36(1) and 41(1) of the Payment Services Directive (PSD). The Court considered whether prescribed PSD information being communicated to customers via a secure online banking inbox had been "provided" to them in a "durable medium".
This case has been very closely followed in the UK and the BBA intervened to ensure that concerns raised by some of the banking industry were considered as part of the case.
The CJEU held that changes to the information and conditions as detailed under Article 42 PSD (for example, changes to method of communication, interest and exchange rates) that are transmitted to customers via this channel will satisfy the durable medium requirement so long as the following condition is met: the website or online banking platform allows customers to store information addressed to them personally in such a way that they can access it and reproduce it unchanged for an adequate period of time, assured that the content will not be altered by the website or platform provider or any other professional.
When is information "provided"?
The CJEU also clarified what was meant by “provided” under the PSD. It found that if customers are obliged to consult the website or online banking platform to become aware of that information, the transmission of that information must be accompanied by active behaviour on the part of the bank aimed at drawing customers' attention to the existence and availability of that information.
This means alerting customers to the existence of the information which is available via the online banking platform.
If the information is posted online without any type of customer alert, and customers must consult the website or log into their online banking account to become aware of the information, then it has only been "made available". The Court distinguished between an online banking mailbox that a customer did not expect to be checking regularly for information and more typical email boxes that a customer would use for day to day mail.
What does this mean for firms?
The decision had the potential to be very difficult for the industry. However, it does not seem to move the debate on substantially and does not give the clarity to the industry that was perhaps hoped for in relation to some of the concepts.
In particular, the findings of the Court in relation to when material can be said to be durable says little more than the legislation itself – there is, for example, no guidance for what an adequate period is likely to be for the information to be made accessible – this is problematic for firms because what is adequate will depend on the information being communicated and how customers are expected to rely on it or exercise their rights.
Whilst many online banking sites may provide banks with the technical ability to remove or amend information that is contained on the site, the case has also not clarified whether internal bank policies which restricted the ability of the bank to alter such information might satisfy that test. In the absence of something clearly indicating that it would not, it seems to us that it is still open to firms to argue such sites satisfy the durable medium test.
Notwithstanding, the judgement has attracted significant attention, and will be relevant to other areas of law where there are requirements to give customers prescribed information in a durable medium, such as the Distance Marketing and CCA requirements to provide pre-contractual information.