# C_2021452EN.01000801.xml

| 8.11.2021 | EN | Official Journal of the European Union | C 452/8 |
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8.11.2021

EN

Official Journal of the European Union

C 452/8

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Request for a preliminary ruling from the Tribunal Judicial da Comarca do Porto — Juízo Central Cível (Portugal) lodged on 21 July 2021 — Portugália — Administração de Patrimónios, SGPS, S.A. v Banco BPI

(Case C-448/21)

(2021/C 452/08)

Language of the case: Portuguese

Referring court

Tribunal Judicial da Comarca do Porto — Juízo Central Cível

Parties to the main proceedings

Applicant: Portugália — Administração de Patrimónios, SGPS, S.A.

Defendant: Banco BPI

Questions referred

For the purposes of Directive (EU) 2015/2366 (1) of the European Parliament and of the Council of 25 November 2015 (‘the Directive’):

| I. | Does the execution, involving human intervention on the part of the payment service provider, of a payment order which is set down on paper, scanned and sent to the payment service provider by email from an email account created by the user, constitute a ‘payment transaction’ for the purposes of Article 73(1) of the Directive? |
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I.

Does the execution, involving human intervention on the part of the payment service provider, of a payment order which is set down on paper, scanned and sent to the payment service provider by email from an email account created by the user, constitute a ‘payment transaction’ for the purposes of Article 73(1) of the Directive?

| II. | Must Article 73(1) of the Directive be interpreted as meaning that:






  II.I. | Without prejudice to the provisions of Article 71 or to duly notified reasonable suspicion of fraud, is a mere notification that a payment transaction was not authorised, without any supporting evidence, sufficient to give rise to an obligation (on the part of the payment service provider) to provide a refund (to the payer)? |
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II.

Must Article 73(1) of the Directive be interpreted as meaning that:

II.I.

Without prejudice to the provisions of Article 71 or to duly notified reasonable suspicion of fraud, is a mere notification that a payment transaction was not authorised, without any supporting evidence, sufficient to give rise to an obligation (on the part of the payment service provider) to provide a refund (to the payer)?

| II.II. | If the answer to the preceding question is in the affirmative, is it possible to exclude the rule that a mere notification by the payer is sufficient by disapplying the rules on the burden of proof contained in Article 72 of the Directive by agreement between the parties (payer and service provider), as permitted by Article 61(1) of the Directive? |
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II.II.

If the answer to the preceding question is in the affirmative, is it possible to exclude the rule that a mere notification by the payer is sufficient by disapplying the rules on the burden of proof contained in Article 72 of the Directive by agreement between the parties (payer and service provider), as permitted by Article 61(1) of the Directive?

| II.III. | If the answer to the preceding question is in the affirmative, is the payment service provider under an obligation to reimburse the payer immediately only if the latter demonstrates that the transaction was not authorised in a situation where, following the exclusion of the application of Article 72 of the Directive, the applicable legislative or contractual rules require the payer to provide such evidence? |
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II.III.

If the answer to the preceding question is in the affirmative, is the payment service provider under an obligation to reimburse the payer immediately only if the latter demonstrates that the transaction was not authorised in a situation where, following the exclusion of the application of Article 72 of the Directive, the applicable legislative or contractual rules require the payer to provide such evidence?

| III. | Does Article 61(1) of the Directive not only permit the disapplication of the provisions in Article 74 of the Directive but also, by agreement between the user (who is not a consumer) and the payment service provider, permit the rules that have been excluded to be replaced by ones that place a greater burden of liability on the payer, in particular as an exception to the provisions of Article 73 of the Directive? |
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III.

Does Article 61(1) of the Directive not only permit the disapplication of the provisions in Article 74 of the Directive but also, by agreement between the user (who is not a consumer) and the payment service provider, permit the rules that have been excluded to be replaced by ones that place a greater burden of liability on the payer, in particular as an exception to the provisions of Article 73 of the Directive?

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(1)  Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC (OJ 2015 L 337, p. 35).

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