Thursday, 15 September 2016

Provision of information on a durable medium: AG Bobek on Case C‑375/15

Today, an interesting opinion by AG Michal Bobek has been published. It concerns more directly the field of e-banking, but also touches on a question of more general relevance to consumer law, namely when information can be said to have been "provided" to consumers and what constitutes a "durable medium" allowing prolonged accessibility of the information. 

In the case under review, a bank was using its e-banking mailbox as a tool to communicate changes in its terms and conditions to its customers. The question before the court of justice boiled down to whether this practice complied with the Payment Services Directive (Directive 2007/64/EC), which requires information on contractual changes to be timely provided to consumers on a durable medium. 

The AG starts with pointing out that, in his opinion, "providing" the information is a separate requirement than the "durable medium". 

The "durable medium" requirement has been the object of some discussion; the AG concludes that the most reasonable understanding of this requirement- not only in the context of this directive- is that it does not entail that information should be provided on a physical or "hardware" support, but that only two main characteristics should be guaranteed: 
1) accessibility for an appropriate amount of time; 
2) unaltered "reproducibility", which entails both the possibility to store the information for the consumer and the impossibility for the service provider to alter the contents of said information.

According to Bobek, it will be difficult for internal mailboxes to fulfill these requirements on their own merits- in other words, the mailbox can hardly be the "support" or durable medium on which information is provided. However, they can more easily be a transmission mechanism for the transmission of information on a durable medium- such as, we understand, a PDF file. 

On the other hand, even in case reasons would exist for the national court to consider the information as given on a durable medium, in itself the transmission via internal mailbox cannot be considered as "provision" of information. The information can, under the directive, only be considered to have been "made available" to the consumer. 

Provision of information, according to the AG, can be said to have been accomplished if a further alert is sent to the consumer through an instrument that he would more easily have regular access to- such as a personal email address or home mail. 

Although this seems to set the bar pretty high, the solution presented could still be seen as more lenient to service providers than the Court's precedent in Content Services, which had considered an email containing a link to a webpage not to represent "giving" of information under the Consumer Credit Directive (2008/48/EC). While the AG seems tempted to suggest that Content Services should be overturned or at least delimited, he mostly directs his efforts at distinguishing the two cases, by pointing out that the two directives (Payment Services and Consumer Credit) employ different language and also pursue different goals. Additionally, the AG observes that in a framework service contracts as the one at hand in the present case, the parties can agree that in general communication will take place via internal emails, thus in this case, once a consumer is alerted, "clicking several times or even typing a user name and passwords" are not actions which is unreasonable to require from a consumer to "receive" information sent to them (see para 82).
The opinion addresses several potentially contentious issues- which is confirmed by the fact that several governments (including the Italian and Polish governments) and the Commission intervened in the procedure. 

PS On a side, the opinion also touches on the question of whether the right to be provided information (in a certain way) can be waived by means of consent to standard terms. In this case, the question is not addressed by means of the Unfair Terms Directive- however, the court case stemmed from an injunction by a consumer association which sought to prevent the bank's continued use of a term by which the consumers agreed to information concerning contractual changes being provided in the way discussed. The Commission claimed this was a valid term, the AG disagrees.

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