Provisional text

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 7 July 2022 ( )

Case C‑351/21

ZG

v

Beobank SA

(Request for a preliminary ruling from the justice de paix du canton de Forest (the Magistrate’s Court for the Canton of Forest, Belgium))

(Reference for a preliminary ruling – Harmonisation of laws – Payment services in the internal market – Information for the payer after receipt of the payment order – Single payment transactions – Provision of information relating to the payee – Obligation of the service provider)





I. Introduction

1. The present reference for a preliminary ruling originated in a dispute between an account holder and a bank concerning two payment transactions made with the account holder’s debit card, which the account holder maintains were unauthorised. In that dispute, the account holder claims, in particular, a refund of those payment transactions. The bank refuses to refund those transactions, as it considers that they were authorised or at the very least that the account holder was grossly negligent.

2. By its questions, the referring court seeks the interpretation of a provision ( ) of Directive 2007/64/EC, ( ) according to which a payer’s payment service provider is to provide the payer, ‘where appropriate’, with information relating to the payee of a payment transaction. By its questions, the referring court seeks to ascertain whether, according to the interpretation to be given to that provision, the payment service provider is required to provide such information in all cases, without exception, so that the referring court will be able to draw conclusions as to the payment service provider’s liability.

3. From the viewpoint of the preliminary ruling mechanism, which constitutes an instrument of cooperation between the national courts and the Court of Justice, we are in an unusual situation: in order to be able to provide an answer that will be of use to the referring court in the present case, it is necessary to ascertain whether the provisions of Directive 2007/64 that establish a harmonised liability regime for payment service providers preclude that court from being able, without undermining the objectives and the practical effect of that directive, to draw such conclusions. That directive establishes a regime of harmonised liability of the payment service provider and in that regard, as is apparent from Article 96 of that directive, it brings about ‘full harmonisation’.

II. Legal framework

A. European Union law

4. Article 47(1)(a) of Directive 2007/64 provides:

‘After the amount of an individual payment transaction is debited from the payer’s account or, where the payer does not use a payment account, after the receipt of the payment order, the payer’s payment service provider shall provide the payer without undue delay in the same way as laid down in Article 41(1) with the following information:

(a) a reference enabling the payer to identify each payment transaction and, where appropriate, information relating to the payee;’

5. Article 60 of that directive, entitled ‘Payment service provider’s liability for unauthorised payment transactions’, provides:

‘1. Member States shall ensure that, without prejudice to Article 58, in the case of an unauthorised payment transaction, the payer’s payment service provider refunds to the payer immediately the amount of the unauthorised payment transaction and, where applicable, restores the debited payment account to the state in which it would have been had the unauthorised payment transaction not taken place.

2. Further financial compensation may be determined in accordance with the law applicable to the contract concluded between the payer and his payment service provider.’

6. Article 86 of that directive, entitled ‘Full harmonisation’, provides in paragraph 1 that ‘without prejudice to … Article 61(3), … 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’.

B. Belgian law

7. The Belgian Code of Economic Law, in the version applicable in 2017 ( ) (‘the Code of Economic Law’), provided, in Article VII.18(1):

‘After the amount of an individual payment transaction is debited from the payer’s account or, where the payer does not use a payment account, after the receipt of the payment order, the payer’s payment service provider shall provide the payer without undue delay and in the way as laid down in Article VII.12[(1)] with the following information:

(1) a reference allowing the payer to identify each payment transaction and, where appropriate, information relating to the payee; …’

8. Article VII.35 of the Code of Economic Law stated: ( )

‘Without prejudice to the application of Article VII.33, the payer’s payment service provider must, in the event of an unauthorised payment transaction, after a prima facie check for fraud on the part of the payer, immediately refund to the payer the amount of that unauthorised payment transaction and, where appropriate, restore the debited payment account to the state in which it would have been had the unauthorised payment transaction not taken place, together, where appropriate, with interest on that amount.

In addition, the payer’s payment service provider must refund any other financial consequences, in particular the amount of the costs incurred by account holder in determining the damage to be compensated.’

III. The dispute in the main proceedings, the questions referred and the procedure before the Court

9. ZG, a Belgian resident, is the holder of a bank account with Beobank, in Belgium, for which he has a debit card.

10. In the night of 20 to 21 April 2017, ZG, who was in Valencia (Spain), made three payments, with the same debit card and on the same terminal, in an establishment the nature of which is disputed by the parties to the main proceedings, at 12.35 a.m., 1.35 a.m. and 2.06 a.m., for the amounts of EUR 100 (a sum supposed to cover the entry fee and one drink), EUR 991 and EUR 993, respectively. A fourth transaction, for the amount of EUR 994, was initiated but declined, at 2.35 a.m.

11. ZG does not dispute the first payment, but disputes the second and third payments (‘the payments at issue’). He claimed before the referring court that he no longer remembers the events after he had consumed a drink in the establishment in question. Nor does he remember the name and address of that establishment and he claims to be the victim of fraud facilitated by the administration of a drug.

12. On 23 April 2017, ZG blocked his card and, on 29 April 2017, he filed a complaint with the police in Brussels for theft and the fraudulent use of his bank card.

13. Before the referring court, ZG claims, in addition to damages of EUR 500, a refund of the payments at issue, namely the sum of EUR 1 984, as he maintains that the transactions at issue were unauthorised, in application of Article VII.35 of the Code of Economic Law. Beobank disputes the facts as described by ZG and refuses to make a refund, contending that the transactions were authorised or, at the very least, that ZG was grossly negligent.

14. In the referring court’s view, it is important to know who the payee of the payments at issue is. It states that, as a general rule, fraud committed by a third party by means of the victim’s debit card allows the fraudster to benefit from purchases or cash withdrawals.

15. The referring court states that, following the claim submitted by ZG’s counsel, Beobank provided only the reference number and the geolocation of the terminal but did not indicate the identity of the payee of the transactions other than by the reference ‘COM SU VALENCIA ESP’. The referring court explains that the case was adjourned following the pleadings to enable Beobank to provide clarification, but that it failed to do so, stating that it had received no further information from ATOS, the manager of the payment terminal used. According to Beobank, it is the payee’s Spanish bank, Banco Sabadell, that refuses to communicate the information that would allow the trader concerned to be identified.

16. In referring to Article VII.18 of the Code of Economic Law, which transposed one of the provisions ( ) of Directive 2007/64 and provided that the payment service provider was required to provide, in particular, ‘where appropriate, information relating to the payee’, the referring court considers it necessary to know whether, under that provision, as regards the provision of that information, the bank is under a best endeavours obligation or an obligation of result. If the Court’s interpretation permitted the conclusion that Beobank failed to fulfil its obligation, it would follow, according to the referring court, that that court ‘may draw the appropriate conclusions as to [the bank’s obligation] to refund the disputed transactions and/or the damages claim for the lost opportunity to recoup the funds from the third party’.

17. Before the referring court, Beobank maintains that Article VII.18 of the Code of Economic Law merely places it under a best endeavours obligation, requiring it to supply only that information which its correspondent has provided it with, leaving it to the consumer to approach that correspondent in the event that that information is insufficient. In the present case, Beobank invites the referring court, where appropriate, to ‘issue a judicial invitation’ to Sabadell to produce the documents enabling it to identify the payee of the transaction. If no satisfactory response is received, it would be appropriate, according to Beobank, to order an investigation, under letters rogatory, to hear the bodies of Sabadell. In support of its argument, Beobank relies on the words ‘where appropriate’ used in the provision in question. ZG, on the other hand, maintains that Beobank must be held liable for Sabadell’s failure to communicate the information.

18. It was in those circumstances that the justice de paix du canton de Forest (the Magistrate’s Court for the Canton of Forest, Belgium), by decision of 13 April 2021, received at the Court on 4 June 2021, decided to stay the proceedings and to submit the following questions to the Court for a preliminary ruling:

‘(1) Under Article 38(a) of [Directive 2007/64], is the payment service provider under a best endeavours obligation or an obligation of result regarding the provision of “information relating to the payee”?

(2) Does the “information relating to the payee” referred to in that provision include information from which the natural or legal person that received the payment can be identified?’

19. Written observations were lodged by the parties to the main proceedings, the Belgian and Czech Governments and the European Commission. There was no hearing.

IV. Analysis

A. The relevant provisions of EU law and their impact on the need to reformulate the questions for a preliminary ruling

1. The directive applicable ratione temporis

20. The referring court’s questions refer to one of the provisions of Directive 2007/64. However, that directive was repealed and replaced by Directive (EU) 2015/2366, ( ) with effect from 13 January 2018. ( )

21. ZG maintains that, even though the payments at issue were made before Directive 2015/2366 was transposed into Belgian law, its provisions apply in the dispute in the main proceedings, in so far as Beobank did not make inquiries of the Spanish bank Sabadell about the payee’s identity until September 2020.

22. In fact, the subject matter of the dispute in the main proceedings is, in essence, the liability of the payer’s payment service provider, as regards the payments at issue made with the payer’s debit card, linked to an account with that provider. From that aspect, the dispute in the main proceedings has its origin in the payment transactions carried out in April 2017, which were made in the context of a contractual framework that existed before 13 January 2018. Consequently, it is Directive 2007/64 that is applicable ratione temporis to the facts of the dispute in the main proceedings.

2. The relevant provision of Directive 2007/64 relating to the obligation to provide information

23. By its questions, the referring court asks the Court to interpret Article 38(a) of Directive 2007/64. That provision is in Chapter 2 (‘Single payment transactions’) of Title III (‘Transparency of conditions and information requirements for payment services’).

24. That provision is to apply, as stated in Article 35 of Directive 2007/64, to ‘single payment transactions not covered by a framework contract’. In that sense, where the payment in question is not merely a ‘single payment transaction’ but a payment covered by a ‘framework contract’, the provisions of Chapter 3 (‘Framework contracts’) of Title III of that directive, and not the provisions of Chapter 2 of that title, are to apply.

25. A ‘framework contract’ is defined, in Article 4(12) of Directive 2007/64, as a ‘payment service contract which governs the future execution of individual and successive payment transactions and which may contain the obligation and conditions for setting up a payment account’. In addition, recital 24 of that directive states that, ‘in practice, framework contracts and the payment transactions covered by them are far more common and economically important than single payment transactions. If there is a payment account or a specific payment instrument, a framework contract is required’.

26. As is apparent from the request for a preliminary ruling, ZG is the holder of an account with Beobank for which he has a debit card, whereby at least three successive payment transactions were carried out.

27. Since the payment transactions at issue in the dispute in the main proceedings are not single transactions, Article 38(a) of Directive 2007/64 does not seem to be applicable. On the contrary, as Beobank, the Czech Government and the Commission submit, Article 47(1)(a) of that directive, applicable to payments made under framework contracts, seems to be relevant for the present dispute. ( ) It should be considered that, prima facie, the legal problem which the referring court wishes to resolve requires the interpretation of the latter provision. ( )

3. The provisions relating to the liability of the payment service provider and their impact on the need to reformulate the questions for a preliminary ruling

28. The referring court seems to view the dispute in the main proceedings as a procedure relating to the liability of a payment service provider resulting from the fact that, in the absence of information relating to the payee of those payments, the user of those services cannot recuperate the amount of those payments from the payee. According to the referring court’s line of reasoning, in order for the service provider to be liable, it is necessary to establish that the service provider failed to fulfil its duty to provide information laid down in Article 47(1)(a) of Directive 2007/64, transposed into Belgian law by Article VII.18 of the Code of Economic Law. To that end, the referring court asks the Court to interpret that provision. It asks, in essence, whether or not the payment service provider is required to provide in all cases, without exception, such information relating to the payee of the payments. ( ) Those alternatives appear to correspond to what the referring court refers to – in all likelihood by reference to the concepts of civil law – as a ‘best endeavours obligation’ and an ‘obligation of result’.

29. Admittedly, the referring court states, in its request for a preliminary ruling, that the parties to the main proceedings do not dispute that Article VII.18 of the Code of Economic Law is applicable to the facts of the dispute in the main proceedings. However, it is also apparent from that request that ZG’s action for a refund of the payments at issue is based on Article VII.35 of the Code of Economic Law. ( )

30. In that regard, Beobank states, in its answer to a written question from the Court, that ZG’s action was based on Articles VII.30 to VII.36 of the Code of Economic Law and that those provisions constituted the transposition of Articles 56 to 61 of Directive 2007/64, emphasising that those provisions had been discussed before the referring court.

31. In answer to the same question from the Court, the Belgian Government confirmed that Article VII.35 of the Belgian Code of Economic Law constituted the transposition of Article 60 of that directive, while observing that Articles 58 to 61 of Directive 2007/64 may be relevant in the dispute in the main proceedings.

32. When questioned about the provisions of Directive 2007/64 that are relevant for the dispute in the main proceedings, the Commission stated that the national provisions that transpose Articles 58 to 61 of that directive apply to that dispute and that, consequently, in the Commission’s submission, the referring court’s questions are not directly relevant for the purpose of determining the service provider’s liability in the event of unauthorised payment transactions.

33. In principle, it is not for the Court to rule on whether, in the context of civil proceedings, a national court is permitted, under its procedural law, to reclassify and/or re-contextualise of its own motion an action brought before it. In addition, neither that question, ( ) nor the question of the impact of the fact that the parties to the main proceedings do not dispute the applicability of a transposition provision other than that on which ZG’s action is expressly based, ( ) seems to be central to the present case. In any event, the present request for a preliminary ruling does not contain details that would allow me to address those two questions.

34. In order to be able to provide an answer that will be of use to the referring court as regards the interpretation of EU law which it seeks, it is appropriate first to examine whether the provisions of Directive 2007/64 which establish a harmonised liability regime for payment transactions preclude the referring court from being able – as it proposes to do – to draw from the interpretation to be given of a provision of that directive which relates to the obligation to provide information as to whether Beobank should be ordered to pay ZG the sum corresponding to the payments at issue. As I mentioned in the introduction to this Opinion, the title of Article 86 of that directive suggests that it brings about full harmonisation as regards that harmonised liability regime. Therefore, although the referring court does not directly formulate its questions from that aspect, it does in any event need an interpretation by the Court in that regard in order to adjudicate on the dispute concerning the refund of payment transactions which fall within the scope of that directive. ( )

35. I therefore propose to examine the two questions together and to reformulate them in such a way that, by its questions, the referring court is asking, in essence, whether Article 60(1) of Directive 2007/64, read in conjunction with Article 86(1) of that directive, is to be interpreted as meaning that it does not preclude a user of payment services being able to trigger the liability of the provider of those services, on the ground that the service provider failed to fulfil its obligation to provide information laid down in Article 47(1)(a) of that directive, in so far as that liability relates to the refund of payment transactions.

36. As regards that proposal to reformulate the questions for a preliminary ruling, I would observe, in the interest of clarity, that while the referring court states, in the grounds of the reference for a preliminary ruling, that, ‘in addition to damages (EUR 500)’, ZG is claiming a refund of the payments at issue, amounting to EUR 1 984, only the claim for a refund of the latter amount seems to form the subject matter of the reference for a preliminary ruling.

37. First, the referring court states that it is seeking the interpretation of one of the provisions of Title III of Directive 2007/64 in order to be able to draw conclusions as to Beobank’s obligation to refund the disputed transactions ‘and/or’ the damages claim for the lost opportunity to recoup the funds from the third party. How the two parts of that explanatory sentence, separated by the coordinating conjunctions ‘and/or’, interrelate is by no means clear. Second, it is unclear whether the amount of EUR 500 corresponds to compensation for the lost opportunity or whether, rather, it relates to a claim unconnected with that compensation, of which there is no mention at all in the questions referred to the Court.

38. Most importantly, the referring court states, in the grounds of the reference for a preliminary ruling, that ZG’s claim seeks an order that Beobank pay the sum of EUR 1 984, which represents two ‘unauthorised’ transactions made on his debit card. From that perspective, the fact that the referring court states that ZG is claiming a refund of the payment transactions, ‘in addition to’ the sum of EUR 500, also suggests that the questions are not submitted from the aspect of the claim for a refund of that amount. No clarification of that claim is to be found in the reference for a preliminary ruling. Nor, when questioned about the basis, in national law, of the action brought by ZG in the main proceedings, did the parties to the main proceedings, the Belgian Government or the Commission provide clarification of that claim by ZG.

39. In order to provide an answer that will be of use to the referring court, and having regard to my proposal to reformulate the questions for a preliminary ruling, I shall first of all make a number of observations concerning the liability regime of payment service providers established by Directive 2007/64 (Section B), and then ascertain whether that directive precludes a payment service user from being able to trigger the liability of the provider of those services on the ground that it failed to fulfil its obligation to provide information laid down in Article 47(1)(a) of that directive (Section C).

B. The harmonised liability regime of payment service providers

40. Directive 2007/64, in addition to establishing the right to a refund applicable to authorised payment transactions where they are initiated by or through a payee (Article 62 of that directive), ( ) provides for the right to a refund for unauthorised payment transactions (Article 60 of that directive). ( ) Since there is no indication that the dispute in the main proceedings relates to the fact that the payments at issue constitute, even potentially, transactions initiated by or through the payee within the meaning of Article 62 of that directive, I shall focus on liability in respect of the refund of the amount of other payment transactions.

41. In that regard, in the first place, as the Court has pointed out, ( ) first of all, Article 58 of Directive 2007/64 relates to the notification of unauthorised or incorrectly executed payment transactions. According to that provision, such notification is to be made ‘no later than 13 months after the debit date, unless, where applicable, the payment service provider has failed to provide or make available the information on that payment transaction in accordance with Title III’. Next, Article 59 of that directive relates, in essence, to the allocation of the burden of proof where a payment service user denies having authorised an executed payment transaction. ( ) Last, Articles 60 and 61 of that directive deal with the respective liability of the payment service provider and of the payer for unauthorised payment transactions. In essence, the provider is required to refund the amount of such a transaction, unless the payer acted fraudulently or failed to fulfil one or more of his obligations under that directive with intent or gross negligence. ( )

42. In the second place, it follows from Article 86 of Directive 2007/64, entitled ‘Full harmonisation’, ( ) that, without prejudice to the exceptions provided for in that directive, in so far as that directive ‘contains harmonised provisions, Member States shall not maintain or introduce provisions other than those laid down in this Directive’. Although Article 61(3) of that directive is among those exceptions, ( ) the other provisions which constitute the hard core of the liability regime for unauthorised transactions are not excluded from the full harmonisation brought about by Directive 2007/64. So far as Articles 58 to 60 of that directive are concerned, none of them is among the provisions in respect of which Article 86 of that directive affords the Member States a margin of discretion when they implement them.

43. In the third place, by reason of the full harmonisation which, pursuant to Directive 2007/64, also applies with regard to the liability regime for unauthorised transactions, the Court made clear, in the judgment in CRCAM, ( ) that, at least in principle, the Member States cannot maintain a parallel liability regime in respect of the same operative event. ( ) The Court further stated that the harmonised regime could be placed in competition with an alternative liability regime laid down in 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 the directive are not undermined. ( )

44. It is now appropriate to examine whether the Court’s reasoning relating to the nature of Directive 2007/64 and the harmonisation brought about by that directive, set out in the judgment in CRCAM, can be transposed to the circumstances of the present case, and to determine whether that directive precludes ZG from being able, according to the line of reasoning envisaged by the referring court, to obtain a refund of the payments at issue.

C. The impact of the harmonised liability regime as regards the possibility of triggering the liability of the payment service provider on the ground that it failed to fulfil its obligation to provide information

45. The referring court seeks the interpretation of Directive 2007/64 in order to ascertain whether it may be able to order Beobank to pay the amount of the payments at issue, in essence, because Beobank did not correctly fulfil its obligation under that directive to provide information and not because it made those payments in spite of the fact that they were unauthorised, within the meaning of Article 60(1) of that directive, read in conjunction with Article 54(1) and Article 59(2) of that directive, and/or not because of the refusal to refund those payments.

46. At first sight, the operative event that would permit the referring court to order such payment does not seem to correspond with the operative event that would trigger the payment service provider’s liability under Article 60(1) of Directive 2007/64. Thus, at first sight at least, it might virtually be asserted that it is not a matter of triggering Beobank’s liability under a liability regime which is in competition with the regime provided for in Articles 58 to 61 of that directive.

47. In order to clarify what may constitute a liability regime ‘based on the same facts and the same basis’ and/or ‘in respect of the same operative event’, within the meaning of the judgment in CRCAM, I note that, in the case that gave rise to that judgment, the Court addressed the question whether Article 58 and Article 60(1) of Directive 2007/64 must be interpreted as precluding a payment service user from being able to trigger the liability of the provider of those services on the basis of a liability regime other than that provided for by those provisions where that user has failed to fulfil his or her obligation to notify laid down in Article 58 of that directive. ( ) In that case, the point at issue was whether that provider could incur liability where, in the words used by the referring court in its first question, it had acted in ‘breach … of the obligations imposed on [it] by national law’ – and, as submitted by the applicant in the main proceedings in that case, whether, more specifically, it had ‘breached its duty of care’ – ( ) on the basis of a provision of the general law. ( )

48. For the Court, in so far as, in that case, it was a question of a refund of the amount of a payment transaction, neither the fact that a payment service provider’s liability might be triggered by reason of a breach of a specific obligation placed on it, nor the fact that that liability was based on a provision other than Article 60 of Directive 2007/64, seemed to make it possible to call into question the fact that the liability concerned was ‘based on the same facts and the same basis’ and/or incurred ‘in respect of the same operative event’. In fact, according to the logic of the judgment in CRCAM, such circumstances are not capable of calling into question the fact that that liability relates to the refund of the amount of payment transactions, in a situation liable to come within the scope of Article 60 of that directive. That fact is in itself sufficient to support the conclusion that it is a matter of a competing liability regime which, in principle, is not compatible with the harmonised liability regime provided for in that directive.

49. Following that logic, neither the fact that the referring court in the present case envisages that Beobank’s liability may be triggered on the ground that it failed to fulfil its obligation to provide information under Article 47(1)(a) of Directive 2007/64, nor the fact that that liability is triggered under a provision other than Article 60 of that directive, ( ) is sufficient to support the conclusion that that court might, without failing to have regard to the harmonised liability regime, order Beobank to refund the amount of the payments at issue. In fact, such an order would result from the application of a liability regime that is in competition with the regime established by that directive.

50. That being the case, the Court also set out, in the judgment in CRCAM, the conditions on which the regime established by Directive 2007/64 may be placed in competition with a parallel liability regime, namely that the latter regime does not adversely affect the harmonised regime or undermine the objectives and effectiveness of that directive. ( ) To my mind, those conditions are not satisfied in the present case.

51. In the first place, the harmonised regime laid down in Directive 2007/64 provides for specific consequences in the case of unauthorised payment transactions. In principle, if the payment service user has notified an unauthorised transaction ( ) and has not been grossly negligent, ( ) that directive requires the payment service provider to refund such a transaction. On the other hand, authorised payment transactions are refunded only where they are initiated by or through the payee and, subject to contractual amendments, where specific conditions are satisfied. ( )

52. It is not apparent upon reading the request for a preliminary ruling whether the referring court regards the payments at issue as authorised payment transactions within the meaning of Directive 2007/64. It merely observes that ZG maintains that the payments at issue are unauthorised transactions, while Beobank claims that they were authorised transactions or, if they must be classified as ‘unauthorised transactions’, that ZG was grossly negligent. It cannot be precluded that the referring court wishes to resolve the dispute in the main proceedings solely from the aspect of a breach of the obligation to provide information laid down in Article 47(1)(a) of that directive, without ruling on whether the payments at issue were authorised or on whether ZG was grossly negligent, although the right to a refund of those payments falls, a priori, within the scope of Article 60 or Article 62 of that directive.

53. And yet Directive 2007/64 governs uniformly, at the level of EU law, certain consequences that flow both from unauthorised payment transactions ( ) and, subject to contractual amendments, from authorised payment transactions. ( ) In doing so, it provides for the allocation of risks in the event of unauthorised transactions. ( ) As regards a right to a refund which, a priori, comes within the scope of Article 60 of that directive (unauthorised payment transactions) or of Article 62 of that directive (authorised payment transactions), a national court cannot therefore disregard the dichotomy recognised by that directive as concerns payment transactions, depending on whether or not they are authorised, and rule on the right to a refund without first classifying a transaction as ‘authorised’ or ‘unauthorised’. It must be stated that, under that directive, that classification determines the consequences of such transactions as regards refunds.

54. In the second place, if it is accepted that a payment service user may claim a refund of a payment transaction because the service provider failed to fulfil its obligation to provide information laid down in Article 47(1)(a) of Directive 2007/64, the consequence would be that that service provider’s liability would also be triggered and it would be required to refund that payment transaction in cases where Articles 60 and 62 of that directive do not require it to do so.

55. In that regard, it follows from the judgment in CRCAM ( ) that Directive 2007/64 precludes a payment service provider’s liability to refund an unauthorised payment transaction from being triggered where the user of those services has failed to fulfil his or her obligation to provide notification. A fortiori, that directive also precludes the payment service provider’s liability to refund a payment obligation from being triggered in situations where Articles 60 and 62 of that directive do not require it to make such a refund.

56. In fact, under Directive 2007/64, the notification provided for in Article 58 of that directive and the circumstances referred to in Articles 60 and 62 thereof constitute the entire set of conditions on which a payment service provider’s liability may be triggered, at least in so far as that liability relates to the refund of a payment transaction. ( ) Subject to the margin of discretion afforded to Member States ( ) and the contractual amendments permitted by Directive 2007/64, ( ) those conditions cannot be ignored without the harmonised regime and the effectiveness of that directive, and its objective of harmonising national provisions in that respect, being adversely affected.

57. In the third place, as the Court has already made clear in the judgment in CRCAM, ( ) the liability regime laid down in Article 60(1) of Directive 2007/64 is based on a balance between the obligation to provide information, which is borne by the payment service provider, and the obligation to notify any unauthorised transaction within a period of 13 months, which is imposed on the payment service user, which makes it possible to trigger the strict liability of that service provider, with no requirement for that user to prove fault or negligence.

58. In a similar vein, Article 58 and Article 60(1) of Directive 2007/64 establish a link between, on the one hand, the payment service provider’s liability based on those provisions and, on the other hand, the obligation to provide information laid down in Article 47(1)(a) of that directive. Article 58(1) of that directive provides for a specific penalty for a service provider which has failed to fulfil its duty to provide information. Thus, in accordance with that provision, the liability of the payment service provider may also be triggered where the payment service user did not, within 13 months of the debit, inform the payment service provider that a payment transaction had not been authorised where the payment service provider ‘has failed to provide or make available the information on that payment transaction in accordance with Title III’ of that directive. If the referring court’s line of reasoning were followed, that would result in the application of a penalty other than – and going further than – that established by the harmonised liability regime of the payment service provider laid down in Article 60(1) of that directive, and the balance established by that regime, to which the Court referred in the judgment in CRCAM, ( ) would thus be upset.

59. Thus, according to the referring court’s line of reasoning, first, it is under a regime parallel to the harmonised liability regime established by Directive 2007/64 that the liability of the payment service provider might be triggered, in the dispute in the main proceedings, because of the failure to fulfil the obligation to provide information laid down in Article 47(1)(a) of that directive. ( ) Second, that parallel regime would undermine the harmonised regime and would adversely affect the objectives and the effectiveness of that directive. ( )

60. I therefore propose that the Court consider that Article 60(1) of Directive 2007/64, read in conjunction with Article 86(1) of that directive, must be interpreted as meaning that it precludes a payment service user from also being able to trigger the liability of the provider of those services on the ground that that service provider failed to fulfil its obligation to provide information laid down in Article 47(1)(a) of that directive, in so far as that liability relates to the refund of payment transactions.

V. Conclusion

61. In the light of the foregoing considerations, I propose that the Court answer the questions for a preliminary ruling referred by the justice de paix du canton de Forest (the Magistrate’s Court for the Canton of Forest, Belgium), as reformulated, as follows:

Article 60(1) 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, read in conjunction with Article 86(1) of that directive, must be interpreted as meaning that it precludes a payment service user from also being able to trigger the liability of the provider of those services on the ground that that service provider failed to fulfil its obligation to provide information laid down in Article 47(1)(a) of that directive, in so far as that liability relates to the refund of payment transactions.