CJEU Case on Durable Medium

The Court of Justice of the EU (“CJEU”) has delivered its judgment in a case concerning the interpretation of articles 36(1) and 41(1) of the Payment Services Directive 2007/64/EC (BAWAG PSK Bank v. Verein Fur Konsumenteninformation (Case C-375/15)). The issue was whether prescribed Directive information (e.g. interest rate changes) transmitted by the bank to customers’ secure online banking inboxes was “provided” on a “durable medium”. The ruling will also have relevance to other legislation requiring the provision of information on a “durable medium” (e.g. requirements to provide pre-contractual information for regulated credit agreements and in distance marketing).

The CJEU ruled that information transmitted via this channel was in a “durable medium”, provided that (i) the website or e-banking platform enables the customer to store information in a way which is accessible for future reference and (ii) it permits the unchanged reproduction of this information for an “adequate period” (undefined by the Court), without any unilateral modification by the service provider.

On the interpretation of “provided”, the CJEU ruled that if the customer is obliged to visit a website or e-banking platform to become aware of the information, there must be active behaviour by the bank aimed at drawing the customer’s attention to the existence and availability of that information. If there is no such customer alert, then the information has merely been “made available”. The CJEU also 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.