Opinion of the Advocate General — ECLI:EU:C:2023:936
Date: 2023-11-30
Language of the case: Bulgarian
Subject matter: Right of establishment;Free movement of capital;Internal market - Principles
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary C-409/22 – 1 
Case C-409/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
21 June 2022  
Referring court:  
Apelativen sad Sofia (Bulgaria) 
Date of the decision to refer:  
9 June 2022  
Applicant in the proceedings at first instance:  
UA 
Defendant in the proceedings at first instance:  
EUROBANK BULGARIA AD 
  
Subject matter of the main proceedings 
Appeal brought before an appellate court against the judgment of a court of first 
instance upholding the claim against a bank for payment of (1) EUR 982 000, 
representing the total amount of the sums from unauthorised payment transactions 
made with the funds in a bank account; (2) EUR 1 182.40, representing 
compensation for the material damage suffered as a result of the culpable failure 
to fulfil a contractual obligation; and (3) EUR 74 521 in default interest at the 
statutory rate 
Subject matter and legal basis of the request 
Request for a preliminary ruling under Article 267 TFEU on the interpretation of 
Article 4(19) of Directive 2007/64/EC, in conjunction with Article 59(1) thereof, 
and of Article 4(23) thereof 
EN 
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Questions referred for a preliminary ruling 
1. Does a power of attorney by which the agent makes a disposal of assets on 
behalf of the payer by means of a payment order constitute a payment instrument 
within the meaning of Article 4(23) of [Directive 2007/64/EC of the European 
Parliament and of the Council of 13 November 2007 on payment services in the 
internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 
2006/48/EC and repealing Directive 97/5/EC]? 
2. Does the ‘apostille’ certificate placed on a document by the competent 
foreign authority in accordance with the 1961 Hague Convention Abolishing the 
Requirement of Legalisation for Foreign Public Documents form part of the 
authentication procedure for both the payment instrument and the payment 
transaction within the meaning of Article 4(19) of that directive, in conjunction 
with Article 59(1) thereof? 
3. If the payment instrument (including one authorising a third person to make 
disposals on behalf of the payer) is formally (prima facie) regular, can the national 
court assume that the payment transaction is authorised, that is to say, that the 
payer has consented to its execution? 
Provisions of international law 
Convention Abolishing the Requirement of Legalisation for Foreign Public 
Documents (done at The Hague on 5 October 1961) – Article 2. 
Provisions of European Union law and case-law 
Directive 2007/64/EC of the European Parliament and of the Council of 
13 November 2007 on payment services in the internal market amending 
Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing 
Directive 97/5/EC (‘the Directive’) – recitals 1 and 60, Article 4(19) and (23) and 
Articles 54, 59 and 86. 
Judgment of the Court of Justice of 2 September 2021, CRCAM, С-337/20, 
EU:C:2021:671. 
Provisions of national law 
Grazhdanski protsesualen kodeks (Code of Civil Procedure) – Article 591(1), 
Article 596 
Zakon za zadalzheniata i dogovorite (Law on obligations and contracts; ‘the 
ZZD’) – Articles 75, 79(1), 82 and 86. 
‘Article 75. … 
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2) The debtor shall be discharged of his or her debt where he or she has 
fulfilled, in good faith, an obligation vis-à-vis a person who, on the basis of clear 
circumstances, appears to be entitled to receive performance. ….’ 
Zakon za platezhnite uslugi i platezhnite sistemi (Law on payment services and 
payment systems) of 2009 (repealed with effect from 6 March 2018, but 
applicable in the present case) – Article 51(1) and (2), Article 56(1) and (2), 
Article 57 and Article 58 
‘Article 57. (1) In the event of an unauthorised payment transaction, the 
payment service provider shall immediately refund to the payer the amount of the 
unauthorised payment transaction and, if necessary, restore the payer’s payment 
account to the state in which it was prior to the execution of the unauthorised 
payment transaction.’ 
Targovski zakon (Law on commerce) – Article 422(3) 
Succinct presentation of the facts and procedure in the main proceedings 
1 UA (the applicant in the proceedings at first instance; ‘the applicant’), in his 
capacity as the depositor (principal) and Eurobank EFG Bulgaria AD (the 
defendant in the proceedings at first instance; ‘the bank’), in its capacity as the 
depositary (agent), concluded a current account agreement in Sofia on 
22 November 2017. By the agreement, the bank undertook to open and maintain 
an open-ended current account in euros in the applicant’s name in order to provide 
payment services for him. 
2 In connection with his investment plans, the applicant transferred a total of 
EUR 999 860 to the account. 
3 On 6 February 2018, the applicant visited the bank to make a banking transaction 
with the funds in his account, but an employee of the bank informed him that his 
account balance was only EUR 16 000. 
4 The applicant states that he was astonished by this. He submits that, after 
requesting an explanation from the employee, the latter provided him with a bank 
statement showing the movements on the account for the period from the opening 
of the account on 22 November 2017 to 6 February 2018. 
5 On the basis of the bank statement, the applicant established that a person not 
known to him, named MK, without valid authorisation from the account holder, 
since the latter had not issued him with any power of attorney whatsoever, had 
made disposals with the funds in the account by means of six individual transfer 
orders having a total value of EUR 982 000. 
6 According to the applicant, the employee of the bank explained to him that those 
unilateral dispositive transactions were carried out by MK, who had presented 
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himself to the bank as the applicant’s agent and submitted a power of attorney 
dated 1 December 2017, which had been certified by an Italian notary (‘the 
notary’). 
7 The applicant states that the ‘power of attorney’ presented to him did not contain 
any signature of the principal, for which reason he (1) reported the unlawful 
disposal of his funds to the bank on 6 March 2018 and requested that the amount 
be reimbursed; (2) sent a copy of the report to the Central Bank of the Republic of 
Bulgaria on 8 March 2018; and (3) sent a written enquiry to the notary. 
8 The notary replied to him by stating that he had neither drawn up nor certified a 
power of attorney by which the applicant had authorised MK, that the power of 
attorney was certainly ‘a forgery’ and that he had informed the bank of this in 
response to its enquiry of 20 February 2018. 
9 On 4 February 2019, the applicant brought an action against the bank before the 
Sofiyski gradski sad (Sofia City Court), which, by judgment of 13 May 2021, 
upheld the action and ordered the bank to reimburse the applicant EUR 982 000 
for the unauthorised payment transactions and to pay him EUR 1 182.40 in 
compensation for material damage and EUR 74 521 in interest. 
10 One of the grounds on which the Sofia City Court based its decision was that, due 
to the existing special provisions governing the bank’s liability for unauthorised 
payment transactions, the general rule of Article 75(2) of the ZZD is not 
applicable, with the result that it is irrelevant for the bank’s liability whether it 
made the payments (executed the orders) on the basis of clear circumstances 
confirming the entitlement of the principal. That court stated that liability for the 
unauthorised payment transactions in question is usually borne by the bank 
(Article 57 of the repealed Law on payment services and payment systems of 
2009), unless the execution of such transactions is based on wilful misconduct or 
gross negligence on the part of the account holder, in which case the payment 
transaction, irrespective of its amount, is not reimbursed to him or her. The 
referring court takes the view that the bank did not allege or prove any such 
conduct on the part of the applicant that was causally linked to the transactions at 
issue. 
11 The bank brought an appeal against the judgment of the Sofia City Court before 
the referring court. 
The essential arguments of the parties in the main proceedings 
12 The applicant submits that the bank’s employees acted imprudently and with gross 
negligence by allowing a person without power of representation to dispose of the 
funds in the bank account. According to the applicant, the bank was presented 
with a power of attorney which was prima facie irregular and should not have 
been accepted as regular authorisation, since an essential requirement, namely the 
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‘signature’ of the ‘principal’, was not met, with the result that the bank should 
have refused to execute the six bank transactions in question. 
13 The bank concedes that the applicant visited its branch on 22 November 2017. It 
submits that, during the conversation, the employee of the bank understood that 
the applicant intended to use an agent to operate the current account to be opened. 
In view of the international transactions expected to be made on the account, and 
in order to enable the applicant to access and control movements on the account 
remotely, he was offered online banking, SMS notifications and a bank card, but 
he declined all three. 
14 The bank does not dispute the submission regarding the banking operations 
carried out on the applicant’s account and submits that his agent MK visited its 
branch for the first time on 15 December 2017. During that visit, MK presented 
the employee of the bank with the original of a copy, notarised by the Italian 
notary on 5 December 2017, of the power of attorney dated 1 December 2017. 
According to the bank, the authenticity of that copy had been certified by means 
of an ‘apostille’ and all documents had been translated from Italian into Bulgarian 
by a sworn translator. The power of attorney was specific (express) and authorised 
the agent to dispose of the funds in the applicant’s account held with the bank. 
15 The bank states that, in the case of each transfer order, MK presented the original 
of that notarised copy of the power of attorney to the respective employees of the 
bank. 
16 The bank contests the applicant’s submission that he was astonished when he was 
informed on 6 February 2018 that the money transfers at issue had been made by 
an agent. Rather, upon being presented with a statement of his bank account, the 
applicant replied to the bank employee’s question as to who had ordered the 
transfers from his account by stating that they had been made by his agent, MK. 
The applicant calmly accepted the information provided to him and calmly 
reviewed the copy of the original notarised copy of the power of attorney by 
which MK had identified himself. 
17 Some time later on the same day, the applicant returned to the bank branch, but 
still did not inform the employees of the bank of any irregularities in the payment 
transactions ordered by MK; instead, he only wanted to revoke the power of 
attorney, for which purpose he completed an application in his own hand. 
18 It was not until 20 February 2018 that the applicant verbally notified an employee 
of the bank of a problem with the transfers of funds from his current account, and, 
on 6 March 2018, he submitted a written report to the bank. 
19 The bank concedes that, on 20 February 2018, it made an enquiry to the Italian 
notary, asking whether the power of attorney of 1 December 2017 had been duly 
filed and entered in his register, whether the notarised copy of the power of 
attorney had the same legal effect as the power of attorney itself and whether the 
making of such copies was in line with standard practice, sending him a scanned 
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copy thereof. The notary replied only with the following: ‘The attached document 
is A FORGERY. Do not use it’. 
20 The bank submits that, on 27 February 2018, it sent a written enquiry to the 
Deputy Prosecutor of the Republic of Italy, who, with his signature, had certified 
the notarised copy of the power of attorney at issue by means of an ‘apostille’. 
The Public Prosecutor’s Office in Monza confirmed that the ‘apostille’ in question 
had been issued on 12 December 2017, that is to say, it officially confirmed that 
the ‘“apostille” placed on the copy of the power of attorney is valid’. 
21 The bank concludes the following: (1) the document submitted is a copy of the 
power of attorney and not the power of attorney itself, and it therefore does not 
contain the signature of the principal; (2) the competent Italian authority 
confirmed the authenticity of the signatures and stamps on the documents by 
means of the ‘apostille’, confirming the notarisation of the copy of the power of 
attorney, that is to say, the authenticity of the document, for which reason the 
copy of the power of attorney can be used in Bulgaria; (3) the six payment 
transactions in question were executed in favour of a ‘putative creditor’, and, in 
accordance with a clause of the General Terms and Conditions of the agreement, 
in conjunction with Article 75(2) of the ZZD, ‘the bank shall not be liable … for 
the sums paid and disposals made under a power of attorney where it has not been 
notified in writing of the revocation of the power of attorney and where, before 
receiving such notification, it has in good faith paid a sum to a person who, on the 
basis of clear circumstances, appears to be entitled to receive it’. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
22 The referring court considers that the Directive is applicable in the dispute in the 
main proceedings. Its regulatory objective is to establish a single market in 
payment services. In accordance with recitals 1 and 60 of the Directive, in order to 
dismantle internal frontiers in the Community while promoting the free movement 
of goods, persons, services and capital, it is necessary to harmonise the operation 
of that market. 
23 According to the findings regarding the correct application of EU law – which are 
binding on national courts – in paragraph 31 of the judgment of the Court of 
Justice of 2 September 2021 in Case С-337/20, ‘in interpreting a provision of EU 
law, it is necessary to consider not only its wording, but also the context in which 
it occurs and the objectives pursued by the rules of which it is part. The origins of 
a provision of EU law may also provide information relevant to its interpretation.’ 
24 The referring court states that paragraph 41 of that judgment makes clear that 
Article 86 of Directive 2007/64, under the heading ‘Full harmonisation’, provides 
that ‘without prejudice to [several provisions of that directive which it sets out] in 
so far as this Directive contains harmonised provisions, Member States shall not 
maintain or introduce provisions other than those laid down in this Directive’. It is 
stated in the same paragraph that ‘none of Articles 58, 59 and 60 of that directive 
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is among the provisions in respect of which Article 86 grants Member States 
freedom of action in their implementation.’ 
25 It is stated in paragraph 45 of the judgment that ‘the harmonised liability regime 
for unauthorised or incorrectly executed operations established by [the] 
Directive … could be placed in competition with an alternative liability regime 
laid down under national law, based on the same facts and the same basis, only on 
condition that the regime thus harmonised is not adversely affected and the 
objectives and effectiveness of that directive are not undermined.’ 
26 According to paragraph 67 of the judgment cited, ‘if the applicable national law so 
provides, the payment service provider may be held liable for his or her 
negligence in the execution of a payment transaction, in particular if he or she has 
failed to verify that that transaction has in fact been authorised by the payment 
service user, in so far as such negligence has caused loss to a third party …’. 
27 Article 75(2) of the ZZD regulates the legal institution of performance vis-à-vis a 
presumed creditor, whereby the debtor is discharged of his or her debt where he or 
she has fulfilled, in good faith, an obligation vis-à-vis a person who, on the basis 
of clear circumstances, appears to be entitled to receive performance. 
28 If the national court were to adopt a purely grammatical, literal interpretation and 
not a teleological, logical and systematic interpretation of the grounds provided 
for in the Directive for exempting the payment service provider from liability in 
the case of an unauthorised payment transaction – that is to say, the payer must 
have incurred the losses relating to any unauthorised payment transactions by 
acting fraudulently or by failing to fulfil one or more of his or her obligations 
under Article 56 with intent or gross negligence – situations would arise where the 
payment service provider, although acting in good faith (with due commercial 
care), would be fully liable for the unauthorised payment transaction made. 
29 In this case, in order to be exempt from liability, the payment service provider 
must prove a qualified form of fault on the part of the payer, who must have acted 
with intent (including fraudulent intent) or gross negligence. 
30 However, there have been cases in the case-law in which the payment service 
provider acted in good faith (acted with due commercial care, for the exercise of 
which he or she created all the necessary conditions in line with scientific, 
technical and commercial standards and good commercial practice in order to 
prevent a loss), but the payer incurred losses even though he or she did not act 
with a qualified form of fault (with intent, gross negligence or fraudulent intent). 
31 It is precisely in such cases that the payment service provider would be liable in 
the event of an unauthorised payment transaction if it fails to prove a wrongful, 
unlawful act on the part of the payer. 
32 Consequently, the payment service provider would run the risk of incurring 
significant pecuniary losses, even if it had acted in good faith, that is to say, had 
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taken all necessary measures to comply with the legal requirements and good 
commercial practice. 
33 In that context, payment service providers acting in good faith would be extremely 
cautious in their commercial activities when providing payment services, even in 
the most ordinary situations. This would lead to delays in the payment procedure 
or refusals to execute direct debits or payment orders in the case of formally 
(prima facie) regular payment instruments, which would run counter to the 
purpose of the Directive to promote the free movement of services and capital. 
34 In view of the requirements of Article 86 of the Directive, the question that arises 
for the referring court is whether national law, specifically the provision of 
Article 75(2) of the ZZD, may be applied where the payment service provider has 
acted in good faith and the payment instrument presented to it is formally (prima 
facie) regular. 
35 The referring court’s international letters rogatory established that, under Italian 
law, notaries may certify copies of powers of attorney, whereby the copies must 
be certified by the notary by signature, stamp and a statement, including an 
official certification statement (which has substantive evidentiary effect before the 
courts) confirming that the content of the copies corresponds to that of the original 
(‘true and faithful to the original’). Bulgarian law also provides for such 
notarisation. 
36 The bank submits that the document submitted in the main proceedings (power of 
attorney) is a copy of the original power of attorney, notarising the signature of 
the principal – the applicant – and issued by the competent Italian notary, who 
confirmed that the copy corresponds to the original. 
37 The authenticity of that copy of the original notarised power of attorney was 
confirmed by the competent authority of the Republic of Italy, namely the Deputy 
Public Prosecutor, by the placing of an ‘apostille’ on it in accordance with the 
rules of the 1961 Hague Convention Abolishing the Requirement of Legalisation 
for Foreign Public Documents. 
38 In accordance with the second sentence of Article 2 of that convention, 
certification of the authenticity of the document by means of an ‘apostille’ covers 
the authenticity of the signature and the capacity in which the person signing the 
document has acted. 
39 It was precisely through the use of that document (original of a notarised copy of 
the power of attorney with an ‘apostille’) that the person claiming to be the 
applicant’s agent made disposals on behalf of the account holder in favour of third 
parties. 
40 Since that power of attorney authorises the agent to make disposals on behalf of 
the payer, that document could be classified as a ‘payment instrument’ under 
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Article 4(23) of the Directive, as it forms part of the procedure used by the 
payment service user to issue a payment order. 
41 Under Article 54(1) of the Directive, in order to be authorised, the payment 
transaction must be executed on the basis of the payer’s consent, which requires 
proof of the authorship of the declaration of intent contained in the payment order 
(‘formal evidentiary effect’ of the document). This is linked to the establishment 
of the authentication of the payment transaction (the procedure which allows the 
payment service provider to verify the use of a specific payment instrument, 
including its personalised security features). Under Article 59 of the Directive, the 
procedural obligation to prove (the burden of proof) that the payment transaction 
was authenticated lies with the payment service provider. 
42 In that context, if the payment service provider authenticated the payment 
instrument (the regularity of the power of attorney at issue, on the basis of which 
the disposals of the funds in the applicant’s account were made), the consent of 
the payer (on whose behalf the agent makes the disposals which have a direct 
effect on the legal rights of the current account holder) would be proven and the 
payment transactions executed would be authorised within the meaning of 
Article 54 of the Directive.