Opinion of the Advocate General — ECLI:EU:C:2020:322
Date: 2020-04-30
Language of the case: German
Subject matter: Internal market - Principles;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary C-287/19 — 1 
Case C-287/19 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date of Receipt: 
5 April 2019 
Referring court: 
Oberster Gerichtshof (Austria) 
Date of the decision to refer: 
25 January 2019 
Defendant and appellant in the appeal on a point of law: 
DenizBank AG 
Applicant and defendant in the appeal on a point of law: 
Verein für Konsumenteninformation 
  
Subject matter of the main proceedings 
Consumer protection — Transparency monitoring — Effectiveness of clauses 
which contain tacit consent and by means of which the liability risk for 
unauthorised payments is shifted to the detriment of the payment service user — 
Applicability of the derogation pursuant to Article 63(1) of Directive 2015/2366 
Subject matter and legal basis of the reference 
Interpretation of Directive 2015/2366/EU (Payment Services Directive), 
Article 267 TFEU 
Questions referred 
1. Is point (6)(a) of Article 52 in conjunction with Article 54(1) of Directive 
2015/2366/EU (Payment Services Directive), pursuant to which the payment 
service user will be deemed to have accepted proposed changes in the 
conditions unless the payment service user notifies the payment service 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-287/19 
 
2  
provider before the date of their proposed date of entry into force that they 
are not accepted, to be interpreted as meaning that tacit consent can also be 
agreed with the consumer for any conceivable contractual conditions 
without any restriction? 
2.a) Is point (14) of Article 4 of the Payment Services Directive to be interpreted 
as meaning that the NFC function of a personalised multifunctional bank 
card by means of which low value payments are debited from the associated 
customer account constitutes a payment instrument? 
2.b) If Question 2.a) is answered in the affirmative: 
Is Article 63(1)(b) of the Payment Services Directive regarding the 
derogations for low value payments and electronic money to be interpreted 
as meaning that a contactless low value payment using the NFC function of 
a personalised multifunctional bank card to be regarded as anonymous use 
of the payment instrument within the meaning of the derogation? 
3. Is Article 63(1)(b) of the Payment Services Directive to be interpreted as 
meaning that a payment service provider can rely on that derogation only if 
it can be established, according to the objective state of technical 
knowledge, that the payment instrument does not allow its blocking or 
prevention of its further use? 
Provisions of EU law cited 
Directive 2015/2366/EU of the European Parliament and of the Council of 
25 November 2015 on payment services in the internal market (Payment Services 
Directive), point (14) of Article 4 and Articles 52, 54 and 63  
Directive 2002/22/EC of the European Parliament and of the Council of 7 March 
2002 on universal service and users’ rights relating to electronic communications 
networks and services (Universal Service Directive), Article 20(4) 
Provisions of national law cited 
Zahlungsdienstegesetz (Law on payment services, ‘the ZaDiG’), point (14) of 
Paragraph 4 and Paragraphs 48, 50 and 57 
Allgemeines Bürgerliches Gesetzbuch (Austrian Civil Code, ‘the ABGB’), 
Paragraph 879(3) 
Konsumentenschutzgesetz (Law on consumer protection, ‘the KSchG’), 
Paragraph 6(3) 
DENIZBANK 
 
3 
Brief summary of the facts and procedure 
1 The applicant is an association for upholding consumer interests that is entitled to 
bring an action under Austrian consumer protection law. The defendant engages in 
banking throughout Austria and uses General Terms and Conditions and standard 
forms in the course of trade with consumers, for inter alia the use of payment 
cards provided with the NFC function (Near Field Communication). 
2 With these payment cards of the defendant, consumers can pay low value sums of 
up to EUR 25 in a contactless manner without entering their PIN code at points of 
sale that are technically equipped for such payments. The payment of higher sums 
requires additional authentication via a code. The NFC function of the bank cards 
is automatically activated when the customer uses the card for the first time. 
3 The following clauses in the aforementioned General Terms and Conditions of the 
defendant are of importance in the preliminary ruling proceedings: 
Clause 14: 
‘Changes in the customer guidelines: Changes in these customer guidelines shall 
be proposed to the customer no later than two months before the planned date of 
their entry into force. The payment service user will be deemed to have accepted 
these changes and the changes will therefore be deemed as having been agreed 
unless the customer notifies DenizBank AG before the date of their proposed date 
of entry into force that they are not accepted. The proposed change referred to 
above shall be provided to the customer on paper or, provided that he agrees to 
this, on another durable medium. In its proposed change, DenizBank AG shall 
inform the customer and make him aware that his silence in the sense referred to 
above shall be deemed to constitute consent to the change. In addition, DenizBank 
AG shall publish on its website a comparison of the provisions affected by the 
change in the customer guidelines and shall also send the comparison to the 
customer. Vis-à-vis a trader, it is sufficient to make the proposal regarding the 
change available for retrieval in a manner agreed with the trader. In the case of 
such an intended change in the customer guidelines, the customer, who is a 
consumer, has the right to terminate his framework contracts for payment services 
(in particular the current account agreement) free of charge and without notice 
before the entry into force of the changes. DenizBank AG shall also inform the 
customer of this in its proposed change.’ 
Clause 15: 
‘No proof of authorisation: As the purpose of payments of low-value sums without 
entering a personal code consists in simplified processing of a payment 
transaction without the need for authorisation, DenizBank AG does not have to 
prove that the payment transaction was authorised, accurately recorded, entered 
in the accounts and not affected by a technical breakdown or some other 
deficiency.’ 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-287/19 
 
4  
Clause 16: 
‘No liability for unauthorised payments: Since, when the payment card is used to 
make low value payments without entering a personal code, DenizBank AG is 
unable to prove that the payment transaction was authorised by the cardholder, 
DenizBank AG is not obliged, in the event of an unauthorised payment 
transaction, to refund the sum of the unauthorised payment transaction and to 
restore the debited account to the state in which it would have been had the 
unauthorised payment transaction not taken place. Any further claims against 
DenizBank AG — insofar as they are based on slight negligence on the part of 
DenizBank AG — are also excluded.’ 
Clause 17: 
‘Warning notice: The risk of misuse of the payment card for low value payments 
without entering a personal code shall be borne by the account holder.’ 
Clause 18: 
‘Block on low value payments in the case of disappearance of the payment card 
not possible: It is technically impossible for the payment card for low value 
payments to be blocked. In the event of disappearance (e.g. loss, theft) of the 
payment card, it shall continue to be possible for low value payments up to the 
amount of EUR 75 to be made without entering a personal code even after a block 
pursuant to point 2.7. These sums shall not be refunded. As low value payments 
within the meaning of Paragraph 33 ZaDiG (Zahlungsdienstegesetz [Law on 
payment services]) are involved, only individual payment transactions of up to a 
maximum of EUR 25 are possible and it is not possible to block the payment card 
for low value payments without entering a personal code, Paragraph 44(3) 
ZaDiG is not applicable.’ 
Clause 19: 
‘Unless point 3 expressly contains special provisions for low value payments, the 
provisions of point 2 (Card services) also apply to such payments.’ 
4 The court of first instance allowed the action in relation to Clauses 14 to 19. It 
stated that Clause 14 was grossly prejudicial. The requirements for the application 
of the derogation for low value payment instruments were not met, because the 
payment card could also be used for other payments. Under no circumstances 
could the additional function of contactless payment without authentication be 
regarded as a payment instrument. 
5 The court dealing with the appeal on the merits (Berufungsgericht) shared this 
legal view. It stated that if one were to focus solely on the contactless payment 
function, there was no use of a payment instrument, but rather the transaction 
should be treated in the same way as MOTO credit card transactions. The fact 
that, unlike ‘electronic purses’, the NFC payment function for low value sums, 
DENIZBANK 
 
5 
which could be performed without entering a PIN, was automatically activated 
militated in favour of this. Moreover, the ATM card used for NFC transactions 
was not anonymous, but rather both personalised and secured by means of a code. 
Main submissions of the parties to the main proceedings 
6 The applicant argued that the clauses were ineffective. Clause 14 could also 
encompass core services and was grossly prejudicial and non-transparent. The 
NFC payment function associated with an ATM card was not covered by the 
derogation for low value payment instruments and electronic money. 
7 The defendant contended that Clause 14 met the legal requirements. The 
individual payment functions of the card had to be assessed separately. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
8 In its appeal on a point of law, the defendant argued that Clause 14 met the 
requirements of the directive and the law on the basis of their literal wording, and 
therefore did not need to be subjected to further scrutiny with regard to 
proportionality and transparency. The possibility of also agreeing such tacit 
consent with consumers was indispensable to legal certainty in practice in the 
context of mass transactions, because it was not feasible to obtain express 
declarations of consent from the vast majority of customers. A restriction of this 
possibility to certain contractual conditions, or the requirement to describe in 
advance the changes that are possible via tacit consent in such a detailed way that 
the clauses satisfied the strict requirement of transparency, was excessive and 
imposed impracticable requirements on the wording of permissible General Terms 
and Conditions. 
9 However, the Oberster Gerichtshof (Supreme Court) has previously ruled on 
several occasions that a tacit consent clause is not automatically permissible 
simply because it meets the formal requirements, but rather contractual 
amendment clauses enabled in that manner are, in addition, subject to control 
within the meaning of Council Directive 93/13/EEC of 5 April 1993 on unfair 
terms in consumer contracts and the national transposition of that directive 
(Paragraph 879(3) ABGB and Paragraph 6(3) KSchG). 
10 According to this view, particularly extensive contractual amendments that relate 
to the bases of the legal relations between the parties cannot come about by way 
of tacit consent; if a clause allows practically unrestricted amendments in favour 
of the undertaking and to the detriment of the consumer by way of mere tacit 
consent, it is to be regarded as grossly prejudicial. Furthermore, the case-law 
regards a clause as being non-transparent if there is a complete lack of clarity as to 
not only which services the payment service provider could restrict by way of 
assumed consent, but also the extent to which the fee paid by the consumer can be 
changed. However, it could indeed be permissible if the authority to make changes 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-287/19 
 
6  
were to be defined in such a way that, for instance, it encompasses changes made 
necessary by statutory amendments or administrative or judicial requirements, or 
changes in favour of the user, or sets out their objective for specific areas. 
11 This case-law is based on the reasoning that, despite the formal right to object, 
tacit contractual consent in practice amounts to nothing more than unilateral 
authority to make changes on the part of the trader, because experience shows 
that, generally speaking, consumers do not even look into proposed changes. 
12 Point (6)(a) of Paragraph 48(1) and Paragraph 50(1) ZaDiG 2018 govern, in 
accordance with the wording of the Payment Services Directive, which 
information must be provided by the trader and to what he must refer in the event 
of planned changes if an agreement on tacit consent has been entered into. The 
Oberster Gerichtshof takes the view that this wording requires the existence of 
such an agreement without actually governing its content. Therefore — unlike 
providers of telecommunications services pursuant to Article 20(4) of Directive 
2002/22/EC (Universal Service Directive) — payment service providers are not 
permitted directly by the directive to agree a unilateral possibility of amendment 
for any conceivable general terms and conditions by way of tacit consent. 
13 By means of unrestricted tacit consent agreed on a single occasion, it would be 
possible at any time to place customers into contractual models that are 
unfavourable for them without any restriction and thus rely on their tendency not 
to look into extensive contractual texts, their lack of understanding of the effects 
or the fact that they feel that they are left with no alternative but to accept the 
changes because termination appears to be the only other possibility. 
14 The Oberster Gerichtshof believes that this view is confirmed by recital 63 of the 
Payment Services Directive, which reads as follows: ‘In order to ensure a high 
level of consumer protection, Member States should, in the interests of the 
consumer, be able to maintain or introduce restrictions or prohibitions on 
unilateral changes in the conditions of a framework contract, for instance if there 
is no justified reason for such a change’. 
15 Pursuant to Article 63(1)(b) of the Payment Services Directive, in the case of 
payment instruments which, according to the framework contract, solely concern 
individual payment transactions not exceeding EUR 30 or which either have a 
spending limit of EUR 150, or store funds which do not exceed EUR 150 at any 
time, payment service providers may agree with their payment service users that 
Articles 72 and 73, and Article 74(1) and (3), do not apply if the payment 
instrument is used anonymously or the payment service provider is not in a 
position for other reasons which are intrinsic to the payment instrument to prove 
that a payment transaction was authorised. 
16 In the main proceedings, the preliminary question arises as to whether the NFC 
payment function of a personalised card is a payment instrument within the 
DENIZBANK 
 
7 
meaning of point (14) of Article 4 of the Payment Services Directive in the first 
place. The Oberster Gerichtshof answers this in the affirmative. 
17 Moreover, clarification is required as to when a payment instrument is used 
anonymously.  
18 According to the wording of Article 63(1)(b) of the Payment Services Directive, it 
can be assumed that ‘anonymous’ use and ‘other reasons which are intrinsic to the 
payment instrument’ have in common the fact that the payment service provider is 
not in a position to prove that a payment transaction was unauthorised. 
19 It is not unambiguously clear whether, within the meaning of the directive, such 
proof cannot actually be provided in the case of the use of a personalised bank 
card without a PIN. In this connection, it is questionable how the possession of the 
card indicates authority to make transactions. 
20 In the main proceedings, the contractual clauses at issue also contain derogations 
based on Article 63(1)(a) of the Payment Services Directive. In this respect, it is 
questionable whether it is technically possible to block bank cards for low value 
payments or whether it is even a case of technical possibility. In other words, 
clarification is required as to whether payment service providers are authorised 
not to exhaust the technical possibilities and thus shift the liability risk for 
unauthorised payments onto the user of the payment services.