Friday, 10 May 2019

AG Szpunar: No residency-based discrimination for direct debit payments

On the 2nd of May, AG Szpunar published his Opinion on Case C-28/18 Verein für Konsumenteninformation v Deutsche Bahn AG. This is a case concerning payments within the SEPA area, so not on consumer protection legislation. Nevertheless, if the Court follows the AG opinion, this case can have a significant impact on the interests of consumers.

The opinion starts with setting the scene around residency requirements pointing out that while residency requirements are usually seen as discriminatory within the context of the internal market that view is limited to the relationship between public and private entities. In contrast to that, the position on residency requirements in the context of private relationships is a lot less clear. The nature of conditions placed in private relationships is at the centre of this case. 

The Verein für Konsumenteninformation is an Austrian Consumer organisation which brought an action against Deutsche Bahn, the German train company. Deutsche Bahn in its website offer customers 2 different modes of payment, namely credit card, instant bank transfer or under the single euro payments area (SEPA) direct debit scheme, the latter being limited to those customers with a residence in Germany.

The Verein für Konsumenteninformation argued in its action in front of Austrian courts that Deutsch Bahn breached article 9(2) of Regulation No 260/2012 on direct debit payments in euro by requiring that only German residents are able to participate in the scheme.

This case went up to the Oberster Gerichtohof, the Supreme Court of Austria, which referred the following question:

Must Article 9(2) of Regulation No 260/2012 be interpreted to mean that the payee is prohibited from making payment under the SEPA direct debit scheme dependent on the payer’s place of residence being in the Member State in which the payee also has his establishment (residence), if payment in a different way, for example with a credit card, is also allowed?'

Article 9(2) of Regulation No 260/2012 states that  ‘a payee accepting a credit transfer or using a direct debit to collect funds from a payer holding a payment account located within the Union is not to specify the Member State in which that payment account is to be located, provided that the payment account is reachable in accordance with Article 3 [of that regulation’.

The main objective of regulation No 260/2012 is to establish a Single European Payment Area (SEPA), yet in some parts of it, such as notably the article in question, it is concerned also with the relationship between payees and payers and offers protection to payers (para 29).

As the AG notes, the fact that most persons in the EU hold a bank account in the country where they reside is undisputed. Therefore, requiring a payer to be resident in a certain Member State is therefore tantamount to specifying in which Member State a payment account must be located (para 30)Pursuant to this, the AG found that Deutsche Bahn’s requirement breached art. 9(2) (para 31).

The AG continues to address whether the breach of art. 9(2), and the subsequent restriction to the freedom of payment can be justified. The AG rejects the argument put forward by Deutsch Bahn that there is a danger of abuse associated with direct debit payments, thus making credit checks and their practice necessary and justified. He states that while the reasoning of Deutsche Bahn may be sensible from a commercial point of view, there is no provision of justification in art. 9(2) or in any other part of the Regulation and the introduction of such a justification would be a matter for the legislator rather than the court (paras 45-46).

As the AG points out, the regulation does not require traders to offer direct debit payments. However, he argues, when they do, they should be non-discriminatory (para 49). However, attention should be paid to not make it more favourable for traders to offer fewer modes of payment in order to avoid adhering to additional requirements. 

Overall, this is a welcome and well-written opinion that, if followed in the judgement, can produce tangible benefits for consumers in the EU, facilitating cross-border payments in the internal market. Still the views expressed in the Opinion can have an impact going beyond payments and beyond consumers to further a broader debate on the role and indeed the obligations of private actors in respecting the fundamental freedoms of the EU.