On January 26, 2017, the Court of Justice of the EU (“ECJ“) published its judgment in BAWAG PSK Bank für Arbeit and others v. Verein für Konsumenteninformation (Case C-375/15) [2017] ECLI:EU:C:2017:38.

The judgment responds to a request for a preliminary ruling from the Oberster Gerichtshof (Austrian Supreme Court) concerning the interpretation of articles 36(1) and 41(1) of the Payment Services Directive (Directive 2007/64/EC) (“PSD“). The request was made during the proceedings relating to a clause included in the contracts of BAWAG PSK Bank für Arbeit (the “Bank“) entered into with consumers for the provision of e-banking services.

The ECJ was required to consider whether the information given by the Bank to its customers through an e-banking mailbox is “provided,” as opposed to being “made available,” through a “durable medium” for the purposes of the PSD.

The ECJ’s conclusion was that articles 41(1) and 44(1) of the PSD should be read in conjunction with article 4(25), meaning that the changes to the information and conditions as well as changes to the framework contract that are transmitted by the Bank to the customer through the electronic mailbox of an online banking website may not be considered to have been provided on a durable medium unless the following two conditions are met:

1. The website must allow the user to store information addressed to them personally in such a way that they may access and reproduce it unchanged for an adequate period, without any unilateral alteration of its content by the user or any other professional being possible; and
2. If the user is obliged to consult the website to become aware of that information, the transmission of that information must be accompanied by active behavior on the part of the user, aimed at drawing attention to the existence and availability of the information on the website.

If the user is obliged to consult a website to become aware of the relevant information, that information is merely made available to the user when the transmission of that information is not accompanied by such active behavior on the part of the user. The Austrian Supreme Court must now determine whether, in the case of the main proceeding, the two specified conditions have been met and whether the changes to the information and conditions, and the relevant framework contract, can be regarded as having been actively communicated by the Bank to the user of those services.