Case C‑351/21

ZG

v

Beobank SA

(Request for a preliminary ruling from the Justice de paix du canton de Forest (Belgium))

Judgment of the Court (Fifth Chamber), 16 March 2023

(Reference for a preliminary ruling – Approximation 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)

1. Approximation of laws – Payment services in the internal market – Directive 2007/64 – Payment service provider’s liability for unauthorised payment transactions – Action for liability brought by a payment service user – Action for the refund of payment transactions – Action brought because of the failure, on the part of the service provider concerned, to comply with its information obligation – Not permissible

   (European Parliament and Council Directive 2007/64, Arts 47(1)(a), 58, 59, 60(1) and 86(1))

   (see paragraphs 37-40)

2. Approximation of laws – Payment services in the internal market – Directive 2007/64 – Framework contracts – Information for the payer on individual payment transactions – Information relating to the payee – Obligations of the payer’s payment service provider – Obligation to provide information enabling the payer to identify the natural or legal person who benefited from a payment transaction debited from that payer’s account

   (European Parliament and Council Directive 2007/64, Art. 47(1)(a))

   (see paragraphs 53, 56-60, 64, operative part)

Résumé

ZG, a Belgian resident, is the holder of a bank account with Beobank, in Belgium, for which he has a debit card. On the night of 20 to 21 April 2017, he made a payment for EUR 100 by means of that card, in an establishment located in Valencia (Spain). Thereafter, two further payments were made with that card on the same mobile payment terminal for the amounts of EUR 991 and EUR 993 respectively.

Before the referring court, ZG seeks, in particular, the refund of the latter two payments which he maintains were ‘unauthorised’. He explains that he no longer remembers the name and address of the establishment nor what happened after having a drink in the establishment concerned and claims to have been the victim of fraud facilitated by the administration of a drug. Beobank refuses, however, to refund those payments contending that ZG authorised them or at the very least that ZG was ‘grossly negligent’.

Thereafter, Beobank provided only the digital reference and the geolocation of the payment terminal used without stating the identity of the payee of the contested payments other than by the following entry: ‘COM SU VALENCIA ESP’ That payee’s bank, for its part, refuses to pass on the information identifying the payee to Beobank.

In that context, the referring court raises the question as to the extent of the obligation of the payment service provider, provided for in a provision of Directive 2007/64, ( 1 ) to provide ‘where appropriate’ the payer with the information relating to the payee of a payment transaction. The response to that question by the Court of Justice will enable the referring court to draw the appropriate conclusions as to Beobank’s obligation to refund the disputed payments.

By its judgment, the Court ruled that the payer’s payment service provider is required, under that provision, to provide that payer with information enabling the natural or legal person who benefited from a payment transaction debited from that payer’s account to be identified and not only the information which that provider, after making its best efforts, has available with regard to that payment transaction.

Findings of the Court

As a preliminary point, the Court recalls that the payment service provider’s liability for unauthorised payment transactions, provided for in Article 60(1) of Directive 2007/64 has been the subject of full harmonisation. Therefore, a parallel liability regime in respect of the same operative event is incompatible with that directive, as is a competing liability regime, allowing the payment service user to trigger that liability on the basis of other operative events.

A national court cannot ignore the distinction made in that directive as regards payment transactions, depending on whether or not they are authorised. Therefore, such a court cannot rule on a claim for reimbursement of payments such as the payments at issue in the main proceedings without first classifying those payments as authorised or unauthorised. Article 60(1), cited above, read in conjunction with Article 86(1) of Directive 2007/64, ( 2 ) precludes a payment service user from being able to hold the provider of those services liable because that service provider has failed to fulfil its obligation to provide information laid down in Article 47(1)(a) of that directive, in so far as that liability concerns the refund of payment transactions.

However, in so far as the referring court considers it necessary, in its assessment of whether or not the payments at issue in the main proceedings are authorised, to know the nature and extent of the information which the payer’s payment service provider concerned must provide to the payer, pursuant to Article 47(1)(a) of Directive 2007/64, the relevance of the questions referred for the resolution of the dispute in the main proceedings cannot be called into question.

As regards specifically the nature and extent of the information obligations provided for in that provision, the Court considers that, in light of the fact that Directive 2007/64 carries out a full harmonisation, those obligations are necessarily obligations which the Member States must implement without being able to derogate from them and without even being able to mitigate them by categorising them as obligations to use best endeavours and not as obligations as to the result to be achieved. There is nothing in the scheme of Article 47 that leads to the conclusion that, by providing for obligations which indicate precisely the action to be taken, the EU legislature sought only to ensure that efforts were made in that regard.

Moreover, the phrase ‘where appropriate’ in Article 47(1) must be understood as meaning that the information relating to the payee of a payment transaction which the payment service provider must provide to the payer concerned, after the amount of a payment transaction has been debited from that payer’s account or at the time agreed in accordance with Article 47(2) of that directive, includes information which that payment service provider has or should have at its disposal in accordance with EU law. That interpretation is supported by the objective pursued by Directive 2007/64, which consists, inter alia, in ensuring that the users of those services can easily identify payment transactions by having ‘the same high level of clear’ information. In order to guarantee the fully integrated and straight-through processing of the operations concerned and to improve the efficiency and speed of payments, that information must be both necessary and sufficient with regard to the payment service contract and the payment transactions themselves, and proportionate to the needs of those users.

In the present case, in order to meet those requirements, the information which the payment service provider had to provide to the payer concerned, pursuant to Article 47(1)(a) of Directive 2007/64, had to be sufficiently accurate and meaningful. In the absence of such a description, the payer would not be able, with the help of that information, to identify with certainty the payment transaction concerned. The ‘reference enabling the payer to identify each payment transaction’, referred to in the first part of the sentence in Article 47(1)(a) of Directive 2007/64, does not put the payer concerned in a position to link that reference to a specific payment transaction. It is therefore necessarily in the context of the additional element referred to in the second limb of Article 47(1)(a), namely the ‘information relating to the payee’, that the payment service provider of the payer concerned had to provide to the payer the information necessary to meet fully the requirements stemming from that provision.

( 1 ) That obligation is provided for by Article 47(1)(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 ) That provision governs, for the Member States, the consequences of full harmonisation carried out by that directive.