ZG v Beobank SA.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2023:215
• Docket Number: C-351/21
• Celex Number: 62021CJ0351
• Date: 16 March 2023

Provisional text

JUDGMENT OF THE COURT (Fifth Chamber)

16 March 2023 (*)

(Reference for a preliminary ruling – Harmonisation of laws – Payment services in the internal market – Directive 2007/64/EC – Article 47(1)(a) – Information for the payer after receipt of the payment order – Articles 58, 60 and 61 – Payment service provider’s liability for unauthorised transactions – Obligation of that service provider to refund unauthorised transactions to the payer – Framework contracts – Obligation of that service provider to provide that payer with information relating to the payee concerned)

In Case C‑351/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the justice de paix du canton de Forest (the Magistrate’s Court for the Canton of Forest, Belgium), made by decision of 13 April 2021, received at the Court on 4 June 2021, in the proceedings

ZG

v

Beobank SA,

THE COURT (Fifth Chamber),

composed of E. Regan, President of the Chamber, D. Gratsias, M. Ilešič, I. Jarukaitis and Z. Csehi (Rapporteur), Judges,

Advocate General: M. Szpunar,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– ZG, by C. Sarli, avocate,

– Beobank SA, by D. Bracke, advocaat,

– the Belgian Government, by M. Jacobs, C. Pochet and L. Van den Broeck, acting as Agents,

– the Czech Government, by J. Očková, M. Smolek and J. Vláčil, acting as Agents,

– the European Commission, by T. Scharf and H. Tserepa-Lacombe, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 7 July 2022,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 38(a) of Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC (OJ 2007 L 319, p. 1).

2 The request has been made in proceedings between ZG and Beobank SA, a Belgian banking institution, with which the applicant in the main proceedings holds a bank account, concerning two payment transactions carried out using that applicant’s debit card, which the latter considers to be unauthorised transactions.

Legal context

European Union law

3 Recitals 1, 21, 23, 27, 40, 43 and 46 of Directive 2007/64 stated:

‘(1) It is essential for the establishment of the internal market that all internal frontiers in the [European Union] be dismantled so as to enable the free movement of goods, persons, services and capital. The proper operation of the single market in payment services is therefore vital. …

…

(21) This Directive should specify the obligations on payment service providers as regards the provision of information to the payment service users who should receive the same high level of clear information about payment services in order to make well-informed choices and be able to shop around within the EU. In the interest of transparency this Directive should lay down the harmonised requirements needed to ensure that necessary and sufficient information is given to the payment service users with regard to the payment service contract and the payment transactions. In order to promote smooth functioning of the single market in payment services, Member States should be able to adopt only those information provisions laid down in this Directive.

…

(23) The information required should be proportionate to the needs of users and communicated in a standard manner. However, the information requirements for a single payment transaction should be different from those of a framework contract which provides for the series of payment transactions.

…

(27) The way in which the required information is to be given by the payment service provider to the payment service user should take into account the needs of the latter as well as practical technical aspects and cost-efficiency depending on the situation with regard to the agreement in the respective payment service contract. …

…

(40) It is essential, for the fully integrated straight-through processing of payments and for legal certainty with respect to the fulfilment of any underlying obligation between payment service users, that the full amount transferred by the payer should be credited to the account of the payee. …

…

(43) In order to improve the efficiency of payments throughout the [European Union], all payment orders initiated by the payer and denominated in euro or the currency of a Member State outside the euro area, including credit transfers and money remittances, should be subject to a maximum one-day execution time. … In view of the fact that national payment infrastructures are often highly efficient and in order to prevent any deterioration in current service levels, Member States should be allowed to maintain or set rules specifying an execution time shorter than one business day, where appropriate.

…

(46) The smooth and efficient functioning of the payment system depends on the user being able to rely on the payment service provider executing the payment transaction correctly and within the agreed time. Usually, the provider is in the position to assess the risks involved in the payment transaction. It is the provider that provides the payments system, makes arrangements to recall misplaced or wrongly allocated funds and decides in most cases on the intermediaries involved in the execution of a payment transaction. In view of all those considerations, it is entirely appropriate, except under abnormal and unforeseeable circumstances, to impose liability on the payment service provider in respect of execution of a payment transaction accepted from the user, except for the payee’s payment service provider’s acts and omissions for whose selection solely the payee is responsible. However, in order not to leave the payer unprotected in unlikely constellations where it may remain open (non liquet) whether the payment amount was duly received by the payees payment service provider or not, the corresponding burden of proof should lie upon the payer’s payment service provider. As a rule, it can be expected that the intermediary institution, usually a ‘neutral’ body like a central bank or a clearing house, transferring the payment amount from the sending to the receiving payment service provider will store the account data and be able to furnish the latter whenever this may be necessary. Whenever the payment amount has been credited to the receiving payment service provider’s account, the payee should immediately have a claim against his payment service provider for credit to his account.’

4 Under Article 4 of that directive, entitled ‘Definitions’:

‘For the purposes of this Directive, the following definitions shall apply:

…

4. “payment institution” means a legal person that has been granted authorisation in accordance with Article 10 to provide and execute payment services throughout the [European] Community;

5. “payment transaction” means an act, initiated by the payer or by the payee, of placing, transferring or withdrawing funds, irrespective of any underlying obligations between the payer and the payee;

…

7. “payer” means a natural or legal person who holds a payment account and allows a payment order from that payment account, or, where there is no payment account, a natural or legal person who gives a payment order;

8. “payee” means a natural or legal person who is the intended recipient of funds which have been the subject of a payment transaction;

9. “payment service provider” means bodies referred to in Article 1(1) and legal and natural persons benefiting from the waiver under Article 26;

10. “payment service user” means a natural or legal person making use of a payment service in the capacity of either payer or payee, or both;

11. “consumer” means a natural person who, in payment service contracts covered by this Directive, is acting for purposes other than his trade, business or profession;

12. “framework contract” means a payment service contract which governs the future execution of individual and successive payment transactions and which may contain the obligation and conditions for setting up a payment account;

…’

5 Under the heading ‘Transparency of conditions and information requirements for payment services’, Title III of that directive included Chapter 2, itself entitled ‘Single payment transactions’.

6 Article 38 of that directive, entitled ‘Information for the payer after receipt of the payment order’, provided, in point (a) thereof:

‘Immediately after receipt of the payment order, the payer’s payment service provider shall provide or make available to the payer, in the same way as provided for in Article 36(1), the following information:

(a) a reference enabling the payer to identify the payment transaction and, where appropriate, information relating to the payee;’

7 In Chapter 3 of Title III of Directive 2007/64, entitled ‘Framework contracts’, Article 41 thereof, entitled ‘Prior general information’, provided in paragraph 1:

‘… The information and conditions shall be given in easily understandable words and in a clear and comprehensible form, in an official language of the Member State where the payment service is offered or in any other language agreed between the parties.’

8 Article 47 of that directive, entitled ‘Information for the payer on individual payment transactions’, provided, in paragraphs 1 and 2 thereof:

‘1. After the amount of an individual payment transaction is debited from the payer’s account or, where the payer does not use a payment account, after the receipt of the payment order, the payer’s payment service provider shall provide the payer without undue delay in the same way as laid down in Article 41(1) with the following information:

(a) a reference enabling the payer to identify each payment transaction and, where appropriate, information relating to the payee;

(b) the...