As we have previously reported (Provision of information on a durable medium...), the BAWAG case (C-375/15) presented interesting questions for the CJEU to answer, namely, as to the notion of a 'durable medium' and the scope of the payment service providers' obligation to provide consumers with information. This week, on January 25, the CJEU issued the judgment in this case, following the reasoning presented by AG Bobek previously. This means that the 'durable medium' could only be considered as such when it allows users access to and a possibility of reproduction of the information it stores, during an adequate period of time. During this time the service provider may not be able to unilaterally modify this information. Moreover, 'active behaviour on the part of the provider' is required to draw 'the user's attention to the existence and availability of that information' if this information has been placed online (on a website).
The final part of the conclusions of the CJEU is interesting, as it states that when there is no active behaviour on the part of the provider, the information is merely 'made available' instead of being 'provided' or 'given' to consumers. The Court by making this crucial distinction may have made it easier for online traders to provide information to consumers concluding distance selling contracts under the Consumer Rights Directive, which allows traders to just make the information available to consumers (deviating from the previous language of the Distance Selling Directive and its interpretation in Content Services judgment). We could expect the Court to uphold this understanding of the traders' and service providers' obligation to 'make information available' to consumers beyond the area of payment services, i.e. in distance selling contracts, even though in the area of payment services this interpretation is based on recital 27 to the Payment Services Directive:
"(...) it should be noted that, as stated in recital
27 to that directive, two methods of transmitting information by the
payment service user should be distinguished: either the information
concerned should be provided, i.e. actively communicated by the payment
service provider without further prompting by the payment service user,
or the information should be made available to the payment service user,
taking into account any request he may have for further information. In
the latter case, the payment service user should take some active steps
to obtain the information, such as requesting it explicitly from the
payment service provider, logging into a bank account online or
inserting a bank card into a printer for account statements." (para. 47)
Another interesting tidbit is the CJEU's shared opinion with the AG Bobek that it cannot be expected of payment service users "to regularly consult all e-communication services that they are signed up to" (para. 49). If this observation would apply to other areas of consumer protection, it could feasibly broaden the scope of protection offered so far to average consumers online, potentially also requiring more active behaviour on the side of the professional party to the transaction.
