# C_2021019EN.01000501.xml

| 18.1.2021 | EN | Official Journal of the European Union | C 19/5 |
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18.1.2021

EN

Official Journal of the European Union

C 19/5

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Judgment of the Court (First Chamber) of 11 November 2020 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — DenizBank AG v Verein für Konsumenteninformation

(Case C-287/19) (1)

(Reference for a preliminary ruling - Consumer protection - Directive (EU) 2015/2366 - Payment services in the internal market - Article 4(14) - Concept of ‘payment instrument’ - Personalised multifunctional bank cards - Near-field communication (NFC) functionality - Article 52(6)(a) and Article 54(1) - Information to be provided to users - Change in the conditions of a framework contract - Tacit consent - Article 63(1)(a) and (b) - Rights and obligations related to payment services - Derogation for low-value payment instruments - Conditions under which applicable - Payment instrument that does not allow its blocking - Payment instrument used anonymously - Limitation of the temporal effects of the judgment)

(2021/C 19/05)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: DenizBank AG

Defendant: Verein für Konsumenteninformation

Operative part of the judgment

| 1. | Article 52(6)(a) of 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, read in conjunction with Article 54(1) thereof, must be interpreted to the effect that it governs the information and conditions to be provided by a payment service provider wishing to agree, with a user of its services, on tacit consent with regard to changes, in accordance with the detailed rules laid down in those provisions, of the framework contract that they have concluded, but does not lay down restrictions regarding the status of the user or the type of contractual terms that may be the subject of such tacit consent, without prejudice, however, where the user is a consumer, to a possible review of the unfairness of those terms in the light of the provisions of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts; |
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1.

Article 52(6)(a) of 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, read in conjunction with Article 54(1) thereof, must be interpreted to the effect that it governs the information and conditions to be provided by a payment service provider wishing to agree, with a user of its services, on tacit consent with regard to changes, in accordance with the detailed rules laid down in those provisions, of the framework contract that they have concluded, but does not lay down restrictions regarding the status of the user or the type of contractual terms that may be the subject of such tacit consent, without prejudice, however, where the user is a consumer, to a possible review of the unfairness of those terms in the light of the provisions of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts;

| 2. | Article 4(14) of Directive 2015/2366 must be interpreted as meaning that the near-field communication (NFC) functionality of a personalised multifunctional bank card, by means of which low-value payments are debited from the associated bank account, constitutes a ‘payment instrument’, as defined in that provision; |
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2.

Article 4(14) of Directive 2015/2366 must be interpreted as meaning that the near-field communication (NFC) functionality of a personalised multifunctional bank card, by means of which low-value payments are debited from the associated bank account, constitutes a ‘payment instrument’, as defined in that provision;

| 3. | Article 63(1)(b) of Directive 2015/2366 must be interpreted as meaning that a contactless low-value payment using the near-field communication (NFC) functionality of a personalised multifunctional bank card constitutes ‘anonymous’ use of the payment instrument in question, within the meaning of that derogation provision; |
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3.

Article 63(1)(b) of Directive 2015/2366 must be interpreted as meaning that a contactless low-value payment using the near-field communication (NFC) functionality of a personalised multifunctional bank card constitutes ‘anonymous’ use of the payment instrument in question, within the meaning of that derogation provision;

| 4. | Article 63(1)(a) of Directive 2015/2366 must be interpreted as meaning that a payment service provider who intends to rely on the derogation provided for in that provision may not simply assert that it is impossible to block the payment instrument concerned or to prevent its continued use, where, in the light of the objective state of available technical knowledge, that impossibility cannot be established. |
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4.

Article 63(1)(a) of Directive 2015/2366 must be interpreted as meaning that a payment service provider who intends to rely on the derogation provided for in that provision may not simply assert that it is impossible to block the payment instrument concerned or to prevent its continued use, where, in the light of the objective state of available technical knowledge, that impossibility cannot be established.

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(1)  OJ C 246, 22.7.2019.

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