Case C‑191/17

Bundeskammer für Arbeiter und Angestellte

v

ING-DiBa Direktbank Austria Niederlassung der ING-DiBa AG

(Request for a preliminary ruling from the Oberster Gerichtshof)

(Directive 2007/64/EC — Payment services in the internal market — Concept of ‘payment account’ — Potential inclusion of a savings account enabling its user to make payments and withdrawals by way of a current account opened in his name)

Summary — Judgment of the Court (Fifth Chamber), 4 October 2018

Approximation of laws — Payment services in the internal market — Directive 2007/64 — Payment account — Meaning — Savings account which allows for sums deposited without notice — Payment and withdrawal transactions having to be made by way of a current account — Not included

(European Parliament and Council Directives 2007/64, Art. 4(14) and 2014/92, Art. 1(6) and 2(3))

Article 4(14) 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 must be interpreted as meaning that a savings account which allows for sums deposited without notice and from which payment and withdrawal transactions may be made solely by means of a current account does not come within the concept of ‘payment account’.

As regards the concept of ‘payment account’, it must first be pointed out that the definition provided for in Article 2(3) of the Payment Accounts Directive is almost identical to that set out in Article 4(14) of the Payment Services Directive.

It should, next, be noted that recital 12 of the Payment Accounts Directive states, inter alia, that savings accounts are excluded from the scope of that directive in that they do not constitute payment accounts, unless they can be used for day-to-day payment transactions.

Accordingly, while savings accounts do not, in principle, fall within the definition of the concept of ‘payment account’, such an exclusion is not absolute. It follows, in fact, from recital 12, first, that the mere name of an account as a ‘savings account’ is not sufficient in itself to exclude the categorisation of ‘payment account’ and, second, that the determining criterion for the purposes of that categorisation lies in the ability to perform daily payment transactions from such an account.

In that respect, it is important to take account of Article 1(6) of the Payment Accounts Directive, which provides that it applies to payment accounts through which consumers are able at least to place funds in a payment account, withdraw cash from a payment account, and execute and receive payment transactions, including credit transfers, to and from a third party.

As a result, the possibility of making payment transactions to a third party from an account or of benefiting from such transactions carried out by a third party is a defining feature of the concept of ‘payment account’.

An account from which such payment transactions cannot be made directly, but for which use of an intermediary account is necessary, cannot therefore be regarded as being a ‘payment account’ within the meaning of the Payment Accounts Directive and, consequently, within the meaning of the Payment Services Directive.

(see paras 27-33. Operative part)