1. 

Technological innovation is having an enormous impact on payment services in the internal market. Testament to this is the adoption of Directive 2007/64/EC ( 2 ) and its replacement a few years later by Directive (EU) 2015/2366. ( 3 ) That update was essential in the light of the new payment systems available, the growing volume of electronic payments and the increased security risks associated with both those developments.

2. 

One of those innovations, which has quickly become popular, is near-field communication (NFC) functionality, which is added to certain payment cards. ( 4 ) This functionality allows low-value payments to be made anonymously and without the need for strong authentication.

3. 

Banking institutions that issue NFC-enabled cards aim to speed up standard-form contracting in order to make it easier to manage, but the conditions which they attach to the use of such contracting may operate to the detriment of consumer rights. The questions raised by the referring court are underpinned by the tension between those two objectives.

4.

The recitals of the Directive include the following:

…

…

…

5.

Article 4(14) defines ‘payment instrument’ as ‘a personalised device(s) and/or set of procedures agreed between the payment service user and the payment service provider and used in order to initiate a payment order’.

6.

Title III is devoted to ‘transparency of conditions and information requirements for payment services’. Chapter 3 thereof, which governs ‘framework contracts’, includes Articles 52 and 54.

7.

Article 52 (‘Information and conditions’) provides:

‘Member States shall ensure that the following information and conditions are provided to the payment service user:

…

…’

8.

Article 54 (‘Changes in conditions of the framework contract’) provides:

‘1.   Any changes in the framework contract or in the information and conditions specified in Article 52 shall be proposed by the payment service provider in the same way as provided for in Article 51(1) and no later than 2 months before their proposed date of application. The payment service user can either accept or reject the changes before the date of their proposed date of entry into force.

Where applicable in accordance with point (6)(a) of Article 52, the payment service provider shall inform the payment service user that it is to be deemed to have accepted those changes if it does not notify the payment service provider before the proposed date of their entry into force that they are not accepted. The payment service provider shall also inform the payment service user that, in the event that the payment service user rejects those changes, the payment service user has the right to terminate the framework contract free of charge and with effect at any time until the date when the changes would have applied.

…’

9.

In Chapter 1 (‘Common provisions’) of Title IV (‘Rights and obligations in relation to the provision and use of payment services’), Article 63 (‘Derogation for low-value payment instruments and electronic money’) reads:

‘1.   In the case of payment instruments which, according to the framework contract, solely concern individual payment transactions not exceeding EUR 30 or which either have a spending limit of EUR 150, or store funds which do not exceed EUR 150 at any time, payment service providers may agree with their payment service users that:

…’

10.

Paragraph 4, point 14, defines ‘payment instrument’ in the same way as the article carrying the same heading in Directive 2015/2366.

11.

As regards changes to framework contracts, Paragraph 48(1), point 6, reiterates the content of Article 52(6) of Directive 2015/2366.

12.

In relation to changes in conditions of framework contracts, Paragraph 50(1) is framed in terms similar to those of Article 54(1) of Directive 2015/2366.

13.

The same is true of Paragraph 57(1) of the ZaDiG and Article 63(1) of Directive 2015/2366, concerning the derogation relating to low-value payment instruments and electronic money.

14.

The Verein für Konsumenteninformation (‘the VKI’) is an association with standing to bring legal proceedings under Austrian law in order to defend the interests of consumers.

15.

DenizBank AG is a banking institution active in Austria. In its dealings with customers, it employs general terms and conditions of business and standard-form contracts in connection with, inter alia, the use of NFC-enabled payment cards. NFC functionality is activated automatically when the customer uses the card for the first time.

16.

By holding their card near to the point of sale terminal in an establishment equipped with a wireless-enabled device, customers can make payments up to a value of EUR 25 without entering a personal identification number (‘PIN’). Higher-value transactions require identification by PIN.

17.

The general terms and conditions employed by Denizbank in its contracts include the following:

‘Clause 14:

Changes to the terms of use for customers: Changes to these terms of use for customers shall be proposed to the customer no later than two months before the planned date of their entry into force. The payment service user shall be deemed to have accepted these changes and the changes shall therefore be deemed to have been agreed unless the customer notifies DenizBank AG before the date of their proposed date of entry into force that they are not accepted. The aforementioned change proposal shall be communicated to the customer on paper or, subject to his consent, on another durable medium. In its change proposal, DenizBank AG shall advise and point out to the customer that his silence, within the meaning indicated above, shall be deemed to constitute consent to the change. In addition, DenizBank AG shall publish a comparison of the provisions affected by the change to the terms of use for customers on its website, and shall also send a copy thereof to the customer. So far as businesses are concerned, it shall be sufficient for the change proposal to be made available for consultation in a manner agreed with the business concerned. In the event of such an intended change to the terms of use for customers, customers who are consumers shall have the right to terminate their framework contracts for payment services (in particular the current account contract) free of charge and without notice before the entry into force of the changes. DenizBank AG shall draw the customer’s attention to this point too in its change proposal.

Clause 15:

No proof of authorisation: Since the purpose of enabling low-value payments to be made without a PIN is to provide a simplified, authorisation-free payment process, DenizBank AG shall not have to prove that the payment transaction was authorised, duly recorded, accounted for and unaffected by any technical failure or other deficiency.

Clause 16:

No liability for unauthorised payments: Since, when the debit card is used to make low-value payments without entering a PIN, DenizBank AG is unable to prove that the payment transaction was authorised by the cardholder, DenizBank AG is under no obligation, in the event of an unauthorised payment transaction, to refund the amount of the unauthorised payment transaction and to restore the debited account to the state in which it would have been had the unauthorised payment transaction not taken place. Any more extensive claims against DenizBank AG — in so far as they are based on slight negligence on the part of DenizBank AG — shall also be excluded.

Clause 17:

Caution: Any risk of misuse of the payment card for low-value payments not requiring a PIN shall be borne by the account holder.

Clause 18:

Unblockability of low-value payments in the event that the debit card is mislaid: It is technically impossible for the debit card to be blocked when used for low-value transactions. Should the debit card be mislaid (through loss or theft, for example), it shall still be open to use for low-value payments not requiring a PIN up to a value of EUR 75, even after a block has been placed on the card in accordance with point 2.7. Such sums shall be non-refundable. Since these are low-value payments within the meaning of Paragraph 33 of the ZaDiG (Zahlungsdienstegesetz (Law on payment services)), payments may not exceed EUR 25 per individual transaction and the debit card cannot be blocked for low-value payments made without entering a PIN, Paragraph 44(3) ZaDiG is not applicable.

Clause 19:

Unless point 3 expressly makes special provision for low-value payments, these too shall be governed by the provisions of point 2 (card service)’.

18.

On 9 August 2016, VKI brought an action for a prohibitory injunction against DenizBank before the Handelsgericht Wien (Commercial Court, Vienna, Austria).

19.

In the judgment of 28 April 2017, that court upheld the action in relation to clauses 14 to 19. In its view, clause 14 was manifestly unfair and the conditions governing the application of the exceptional regime for low-value payment instruments were not met because the card in question could be used to make other payments too. The additional functionality of unauthorised contactless payment could not even be classified as a payment instrument.

20.

That judgment having been appealed to the Oberlandesgericht (Higher Regional Court, Vienna, Austria), that court, by judgment of 20 November 2017, confirmed in part the interpretation adopted by the court of first instance.

21.

In the opinion of the appeal court, if regard is had to the contactless payment functionality alone, there is no use of a payment instrument, that process being, rather, a MOTO (mail-order telephone order) credit card transaction. That is demonstrated by the fact that NFC functionality, which does not require the entry of a PIN, is activated automatically in the case of low-value purchases, unlike what occurs with an ‘electronic purse’. Moreover, the debit card used for NFC transactions is not anonymous but, rather, personalised and protected by a personal PIN.

22.

VKI and Denizbank each appealed the judgment of 20 November 2017 to the Oberster Gerichtshof (Supreme Court, Austria), which has referred the following questions to the Court of Justice for a preliminary ruling:

23.

Although the legislation applicable ratione temporis to the facts is Directive 2007/64, the Oberster Gerichtshof (Supreme Court) has explained, at the request of the Court of Justice, that, when hearing and determining actions for a prohibitory injunction in relation to the validity of contractual terms (‘Klauselprozess’), it must also apply Directive 2015/2366, as the legislation in force at the time when judgment is given. Given that, as far as this dispute is concerned, the content of the provisions of both directives is practically identical, ( 7 ) I shall refer to the provisions of Directive 2015/2366, in respect of which the referring court raises its questions.

24.

Written observations have been lodged by VKI, DenizBank, the Commission and the Governments of Portugal and the Czech Republic. A hearing held on 13 February 2020 was attended by VKI, DenizBank and the Commission.

25.

The referring court’s four questions can be analysed by changing the order in which they appear and grouping some of them together. Thus:

26.

Although DenizBank has argued that the effects of any judgment unfavourable to its case should be limited in time, such a measure, which neither the referring court nor the other participating parties has even asked for, would not be appropriate in my view. What is more, DenizBank confines itself in this regard to citing general arguments based on the potential financial impact of the judgment but does not adduce any specific evidence to show, as a basis for its exceptional claim, that those concerned acted in good faith and that there is a risk of serious difficulties, as required by the case-law of the Court of Justice. ( 8 )

27.

The referring court wishes to ascertain whether ‘the NFC function of a personalised multifunctional bank card … constitutes a payment instrument’ within the meaning of Article 4(14) of Directive 2015/2366.

28.

According to that provision, a payment instrument is ‘a personalised device(s) and/or set of procedures agreed between the payment service user and the payment service provider and used in order to initiate a payment order’.

29.

As the Court of Justice held in the judgment in T-Mobile Austria, ( 9 ) payment instruments may be:

30.

The existence of non-personalised payment instruments means that the concept [of payment instrument] defined in Article 4(14) of Directive 2015/2366 is capable of covering a non-personalised set of procedures, agreed between the user and the payment service provider, and used by the user in order to initiate a payment order. ( 10 )

31.

In that same judgment, the Court clarified the doubts prompted by the discrepancy in the use of the adjective ‘personalised’ as between the various language versions of Article 4(23) of Directive 2007/64, ( 11 ) the content of which is practically identical to that of the current Article 4(14) of Directive 2015/2366.

32.

It is only the German version that defines payment instrument by using the term ‘personalised’ as a descriptor for both a device and a set of procedures. ( 12 ) In the light of the other versions and the objectives of Directive 2015/2366, it must be agreed that the definition of payment instruments allows for personalised and depersonalised or anonymous varieties. ( 13 )

33.

It is true, as the Portuguese Government notes, that bank cards are not expressly classified as payment instruments by Directive 2015/2366. Nonetheless, Annex I(3)(b) thereto defines a payment service as the ‘execution of payment transactions through a payment card or similar device’.

34.

Furthermore, Article 2(15) of Regulation (EU) 2015/751 ( 14 ) defines ‘payment card’ as a ‘category of payment instrument that enables the payer to initiate a debit or credit card transaction’.

35.

Article 2(7) of that same regulation defines ‘card-based payment transaction’ as ‘a service based on a payment card scheme’s infrastructure and business rules to make a payment transaction by means of any card, telecommunication, digital or IT device or software if this results in a debit or a credit card transaction. Card-based payment transactions exclude transactions based on other kinds of payment services’.

36.

Those provisions of Directive 2015/2366 and Regulation 2015/751 (which are closely linked legislative texts) support the inference that payment cards are payment instruments within the meaning of that directive. It follows that a multifunctional bank card such as that issued by Denizbank may be regarded as a payment instrument that is subject to Directive 2015/2366.

37.

Cards of this kind have a twofold nature or functionality:

38.

The NFC functionality of a personalised multifunctional bank card falls within the category of a non-personalised set of procedures agreed between the payment service provider and the user, who uses them to initiate a payment order, within the meaning of Article 4(14) of Directive 2015/2366.

39.

The ability to make a payment is subject only, as I have already said, to possession of an NFC-enabled card. Such a card could therefore be used by any third party, even an unauthorised one. That significant risk explains why the NFC functionality embedded in the card works only for small payments up to a low-value threshold (in this case, EUR 25).

40.

As I have just noted, anonymous payment instruments take the form of a non-personalised set of procedures‘agreed’ between the payment service provider and the user. It falls to the referring court to verify whether such an agreement existed in this case, since, according to VKI, Denizbank activates the personalised multifunctional bank card’s NFC functionality automatically, even without the user’s consent. ( 16 )

41.

Classifying a personalised multifunctional bank card’s NFC functionality as an anonymous payment instrument is the solution most consistent with a purposive interpretation ( 17 ) of Article 4(14) of Directive 2015/2366 and coincides with the objectives of that directive as described in recitals 5 and 6 thereof.

42.

After all, enhanced protection for consumers (users of NFC-enabled cards) and the promotion of fair and transparent competition between the financial institutions that issue such cards plead in favour of their classification as payment instruments subject to Directive 2015/2366. As such, they would benefit from the guarantees which the directive itself lays down in order to increase the level of consumer confidence in a harmonised payments market.

43.

The same assessment can also be inferred from Article 11 of Delegated Regulation (EU) 2018/389, ( 18 ) which governs ‘contactless payments at point of sale’ as a means of facilitating the development of user-friendly and low-risk payment services. ( 19 )

44.

According to that provision, payment service providers are to be allowed not to apply strong customer authentication ( 20 ) where the payer initiates a contactless electronic payment, provided that the following conditions are met:

45.

Owing to their very nature, payments made through the use of an anonymous payment instrument (such as an NFC-enabled payment card) are not subject to the obligation of strong customer authentication, ( 21 ) an exemption ( 22 ) from which other instruments also benefit. ( 23 )

46.

The Czech Government, however, submits that the payment instrument is the personalised multifunctional payment card itself, and takes the view that NFC functionality is merely one of the ways in which such a card can be used. That card is not an anonymous payment instrument but can simply be used, less securely, for low-value payments authenticated through NFC technology (that is to say, without the need for the card holder to employ a security element such as his signature or PIN).

47.

I do not share that view. In my opinion, as I have already explained, cards of the type issued by DenizBank feature two different payment instruments, namely:

48.

The principle of technological neutrality, which informs various provisions of Directive 2015/2366 and to which recital 21 thereof refers, ( 24 ) suggests that two functionalities possessed by a single bank card in this way should be regarded as two separate payment instruments.

49.

This is the case because the traditional instrument (the classic personalised payment card) ( 25 ) has here recently been supplemented with another, NFC functionality, which is a different payment instrument subject to a distinct legal regime. The physical medium is identical (the card issued by the banking institution) but that medium now features two different payment instruments.

50.

This, as I have already said, is the interpretation most in keeping with the principle of technological neutrality underpinning Directive 2015/2366, the provisions of which must not hamper the development of new payment instruments and services as and when advances in technology make this possible. Nothing must stand in the way of cards being equipped in future with other payment instruments additional to the personalised and NFC functionalities which they are already able to feature.

51.

In short, a personalised multifunctional payment card’s NFC functionality must be classified as a payment instrument within the meaning of Article 4(14) of Directive 2015/2366.

52.

The referring court asks whether, in the case where a contactless low-value payment is made using an NFC-enabled card, ‘the payment instrument is used anonymously’ for the purposes of the derogation provided for in Article 63(1)(b) of Directive 2015/2366.

53.

By its third question, it wishes to ascertain further whether those circumstances are covered by Article 63(1)(a) of that directive, which provides for another derogation similar (but not identical) to the one mentioned above, in the case where ‘the payment instrument does not allow its blocking or prevention of its further use’.

54.

Article 63 of Directive 2015/2366 establishes a number of derogations for low-value payment instruments (and for electronic money, although this is not relevant here), whereby certain ‘rights and obligations in relation to the provision and use of payment services’, as provided for in Title IV, do not apply.

55.

Article 63(1) focuses on certain very specific payment instruments: those ‘which, according to the framework contract, solely concern individual payment transactions not exceeding EUR 30 or which either have a spending limit of EUR 150, or store funds which do not exceed EUR 150 at any time’.

56.

In those cases, payment service providers may agree with their users not to apply certain rights or certain obligations to which other provisions of Directive 2015/2366 refer:

57.

The first derogation (Article 63(1)(a)) introduces a system of ‘attenuated’ liability on the part of the banking institution issuing the payment card.

58.

If that card is not amenable to blocking or prevention of its ‘further use’ (for example, in cases of abnormal use through loss, theft, misappropriation or unauthorised use), the banking institution may agree with its customers that it is not to bear the general obligations laid down in the Directive to enable the card to be blocked and its further use prevented in the event of abnormal use.

59.

As the referring court rightly notes, a banking institution issuing an NFC-enabled card will be able to avail itself of that derogation only if it can demonstrate that it is not technically feasible to block that card or prevent its further use in the abovementioned circumstances. The burden of proving that these measures are impossible therefore lies with the banking institution, since the derogation must be interpreted strictly.

60.

The referring court is also right to make the further point that, if the banking institution were not required to show that the card is unblockable, it would only have to market a technically mediocre card (which cannot be blocked at all) in order to adversely affect the interests of consumers by making them bear the risk arising from any unauthorised payments.

61.

I concur with those assessments, since the exemption from liability would otherwise be contrary to recital 91 ( 32 ) and Article 73 of Directive 2015/2366, which impose on the payment service provider the obligation to guarantee the security of payments and assume liability (albeit subject to a minor limitation) for unauthorised payment operations.

62.

While it is for the referring court to verify that this is the case, everything would indicate that the state of technical knowledge is such that a banking institution can block a personalised multifunctional payment card. ( 33 ) Certain provisions of the Directive (Articles 69, 70 and 74, among others) take that capability as read. The addition of NFC functionality to such cards does not therefore appear to preclude their amenability to blocking.

63.

If that is the case, a clause in a framework contract which, like that pre-inserted by DenizBank (clause 18), states that ‘it is technically impossible for the debit card to be blocked when used for low-value transactions’ (and provides that certain amounts unduly paid in the event of the loss or theft of that card are non-refundable) would be contrary to Article 63(1)(a) of Directive 2015/2366.

64.

The referring court wishes to ascertain whether the use of a personalised multifunctional payment card’s NFC functionality is an instance of such a card being used ‘anonymously’ within the meaning of the derogation provided for in Article 63(1)(b) of Directive 2015/2366.

65.

That provision, as I have said, establishes a system of attenuated liability on the part of the service provider in the case where the payment instrument is used anonymously or where ‘the payment service provider is not in a position for other reasons which are intrinsic to the payment instrument to prove that a payment transaction was authorised’.

66.

As the referring court and the Commission note, the feature common to both scenarios is the inability to demonstrate who actually authorised the payment transaction. That may explain why, in the judgment in T-Mobile Austria, the Court of Justice treated the derogation provided for in Article 53(1)(b) of Directive 2007/64 generically and without distinguishing between the aforementioned two situations. ( 34 )

67.

The arguments I set out above ( 35 ) led me to the view that a personalised multifunctional bank card’s NFC functionality falls within the category of an anonymous payment instrument. I would add to those arguments the point that a distinction must be drawn between identification of the card holder (which is always possible because the card is personalised) and authorisation of the payment by the person in possession of the card (who may not be the true card holder in cases of loss, theft, cloning or misappropriation).

68.

Payment authorisations using a personalised payment card’s NFC functionality require only simple authentication (as demonstrated by mere possession of the card) rather than strong authentication (as would be the case if a PIN had to be entered or a signature provided). Such payment authorisations must therefore be regarded as anonymous, since the issuing institution cannot demonstrate that the payment was indeed authorised by the card holder rather than by a third party having stolen, cloned or misused it.

69.

The anonymity of a personalised payment card’s NFC functionality has advantages and disadvantages:

70.

The balance which Directive 2015/2366 strikes between those margins is to say that, if the holder of a personalised payment card consents to having NFC functionality added to that card, the derogation provided for in Article 63(1)(b) of Directive 2015/2366 will apply. Consequently, any contractual terms that contain that derogation, as clauses 15, 16 and 17 of the DenizBank framework contract appear to do, will be compatible with that directive.

71.

In short, a low-value contactless payment using NFC functionality may be classified as an instance of a personalised multifunctional payment card being used ‘anonymously’ within the meaning of Article 63(1)(b) of Directive 2015/2366.

72.

The referring court wishes to ascertain whether it follows from Article 52(6)(a) in conjunction with 54(1) of Directive 2015/2366 that a user consents to a change of contractual obligations proposed by the payment service provider simply by not rejecting it.

73.

If that interpretation were accepted, the referring court goes on to say, the banking institution could ‘[agree] [tacit consent] with the consumer for any conceivable contractual conditions without any restriction’.

74.

Article 52(6)(a) of Directive 2015/2366 provides that, ‘if agreed, … the payment service user will be deemed to have accepted changes in the conditions in accordance with Article 54, unless [he] notifies the payment service provider before the date of their proposed date of entry into force that they are not accepted’. ( 37 )

75.

The obligation to provide consumers with precontractual information is one of the key elements of EU consumer protection law. In the context of standard-form contracting, where there is an obvious asymmetry between the payment service provider and consumers, precontractual information helps consumers to make well-founded decisions. It also protects their contractual autonomy, enables them to compare the offers available on the market and promotes transparency in the execution of contracts. ( 38 )

76.

Directive 2015/2366 reflects that position both in its recitals (in particular recital 59) ( 39 ) and in Articles 51 to 54. ( 40 )

77.

Article 51 governs the form and procedure for providing precontractual information to payment service users. Article 52 sets out the content of the detailed and precise information that the provider must make available to the user. ( 41 )

78.

One component of that information is that relating to changes to the framework contract, as provided for in Article 52(6)(a) of the Directive, which I reproduced earlier. The provider and the user of the payment service may, exceptionally, agree on tacit consent to changes to the contractual conditions (‘if agreed’).

79.

Clause 14 of DenizBank’s framework contract with its customers provides for that possibility. It allows for the tacit acceptance of changes proposed (and communicated) by the bank, on the understanding that customers will be deemed to have consented to such changes if they have not objected to them. ( 42 )

80.

According to DenizBank, tacit acceptance, which is permitted by Article 52(6)(a) of Directive 2015/2366, extends to any type of contractual change. In its opinion, it is unrealistic to expect, and difficult to persuade, payment service users to give express consent to changes to a contract such as that governing the legal rules applicable to a personalised multifunctional bank card.

81.

According to DenizBank, tacit acceptance of changes is an indispensable mechanism of the banking business model. It should not operate to the detriment of consumers, since it makes it easier and quicker for them to access improvements to its payment instruments and to benefit from new advances in technology, such as the addition of NFC functionality to its cards.

82.

In my opinion, the possibility of providing for the tacit acceptance of changes to contractual conditions, as allowed for in Article 52(6)(a) of Directive 2015/2366 if agreed between the user and the provider of the payment service, should be interpreted restrictively in the case where the content of such changes is unfavourable to the customer.

83.

That possibility remains an exception to the general principle that, in common with the original conditions, changes to the framework contract require the user’s express acceptance.

84.

That strict interpretation is borne out by the objectives of Directive 2015/2366 (prominent among which is consumer protection) and the schematic location of Article 52(6)(a) among the provisions on the precontractual information which the payment service provider must provide to users in any event in order to offset the disadvantageous position in which the latter find themselves. The asymmetry of information to which I have referred is present both when users give their initial consent to the conclusion of the framework contract and when they accept subsequent changes to it.

85.

I agree with the referring court and the Commission that any tacit acceptance cannot be extended to all of the framework contract’s conditions. That would have the effect, in practice, of giving the payment service provider the absolute and, to all intents and purposes, unilateral power to change that contract: experience shows that most consumers carry out no critical analysis of proposed changes to the conditions of their contracts, in particular if those changes are in any way technically or legally complex.

86.

At the hearing, DenizBank acknowledged that the use of tacit acceptance for substantial changes to contractual conditions does not form part of its banking practice. It did not, however, convincingly explain why it does not bring clause 14 of the framework contract into line with that practice and limit the use of tacit acceptance to the least significant changes to the contractual relationship.

87.

The possibility of providing for the tacit acceptance of changes could, in my opinion, be available only for non-essential changes to the clauses of a framework contract, provided that the safeguards established in Directive 2015/2366 are respected. ( 43 )

88.

As I have already explained, giving a personalised multifunctional payment card NFC functionality for the purposes of low-value contactless payments adds a new payment instrument to that card. To the same extent, therefore, such functionality is either a new service, which should be the subject of a new added contract, or an essential change to the conditions of the previous framework contract ( 44 ) (which governed relations between the card-issuing institution and the consumer).

89.

In both cases (new contract or objective novation of an essential element of the previous contract), the consumer, once informed of the advantages and risks associated with his card’s NFC functionality, must unequivocally give his explicit consent to that payment instrument, a requirement which is not compatible with tacit acceptance.

90.

In the light of the foregoing, I propose that the Court’s answer to the Oberster Gerichtshof (Supreme Court, Austria) should be as follows: