DenizBank AG v Verein für Konsumenteninformation.
Date: 2020-11-11
39


Secondly, referring to the case-law of the Court, in particular paragraphs 33 and 35 of the judgment of 9 April 2014, T-Mobile Austria (Case C‑616/11, EU:C:2014:242), the referring court takes the view that the triggering of a payment order by the use of the NFC functionality of a bank card associated with a particular bank account could constitute a non-personalised ‘set of procedures’, and therefore a ‘payment instrument’, within the meaning of Article 4(14) of that directive.
59


At the same time, according to settled case‑law, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the referring court with an answer which will be of use to it and enable it to determine the case before it. In that context, the Court may extract from all the information provided by the referring court, in particular from the grounds of the order for reference, the legislation and the principles of EU law that require interpretation in view of the subject matter of the dispute in the main proceedings, even if those provisions are not expressly indicated in the questions referred (see, inter alia, judgments of 19 December 2019, Airbnb Ireland, C‑390/18, EU:C:2019:1112, paragraph 36, and of 12 March 2020, Caisse d’assurance retraite et de la santé au travail d’Alsace-Moselle, C‑769/18, EU:C:2020:203, paragraphs 39 and 40).
62


It is clear from the provisions of Directive 2015/2366, in particular in the light of recital 55 thereof, that other EU legislation relating to consumer protection, such as, inter alia, Directive 2011/83, remain applicable. Consequently, where the payment service user has the status of consumer, Directive 2015/2366 may apply in conjunction with Directive 93/13, as amended by Directive 2011/83, and therefore without prejudice to the measures taken by the Member States to transpose the latter, which, in the area it governs, achieves only minimum harmonisation and therefore allows the adoption or maintenance of stricter national measures, compatible with the Treaty, to ensure a higher level of consumer protection (see, to that effect, judgment of 2 April 2020, Condominio di Milano, via Meda, C‑329/19, EU:C:2020:263, paragraph 33).
65


In that respect, it should be borne in mind that, as regards standard terms allowing a unilateral adjustment of contracts, the Court has ruled that such terms must meet the requirements of good faith, balance and transparency laid down in Directive 93/13 (see, to that effect, judgment of 21 March 2013, RWE Vertrieb, C‑92/11, EU:C:2013:180, paragraph 47).
70


In that regard, it should be noted that, in paragraph 31 of the judgment of 9 April 2014, T-Mobile Austria (Case C‑616/11, EU:C:2014:242), concerning the interpretation of Article 4(23) of Directive 2007/64, the Court, first of all, noted that there was some divergence between the different language versions of that provision, as regards the use of the adjective ‘personalised’ to describe the phrase ‘any … device’ and/or the phrase ‘set of procedures’ according to those versions. The Court then recalled, in paragraph 32 of that judgment, the settled case-law according to which, first, the provisions of EU law must be interpreted and applied in a uniform manner, in the light of the versions drawn up in all EU languages, and, secondly, that where there is divergence between the language versions of an EU legal text, the provision in question must be interpreted by reference to the general scheme and purpose of the rules of which it forms part. Lastly, in paragraph 33 of that judgment, the Court held that, in order to be considered as ‘personalised’, within the meaning of that provision, a payment instrument must allow the payment service provider to verify that the payment order was initiated by a user authorised to do so.
82


The Court has pointed out that it follows from Article 53(1)(b) of Directive 2007/64, now Article 63(1)(b) of Directive 2015/2366, that certain payment instruments are used anonymously, in which case payment service providers are not required to provide proof of the authentication of the transaction in question in the situation referred to in Article 59 of that first directive, now Article 72 of the second directive (judgment of 9 April 2014, T-Mobile Austria, C‑616/11, EU:C:2014:242, paragraph 34).
102


As regards the objectives of Directive 2015/2366, it follows, inter alia, from recitals 6, 53 and 63 thereof that the directive aims to protect users of payment services and, in particular, to offer a high level of protection to those who are consumers (see, as regards Directive 2007/64, judgments of 25 January 2017, BAWAG, C‑375/15, EU:C:2017:38, paragraph 45, and of 2 April 2020, PrivatBank, C‑480/18, EU:C:2020:274, paragraph 66).
108


In that regard, it should be noted that, according to settled case-law, it is only quite exceptionally that the Court may, in application of the general principle of legal certainty inherent in the EU legal order, be moved to restrict, for any person concerned, the opportunity of relying on a provision which it has interpreted with a view to calling into question legal relationships established in good faith. Two essential criteria must be fulfilled before such a limitation can be imposed, namely that those concerned should have acted in good faith and that there should be a risk of serious difficulties (see, inter alia, judgments of 10 July 2019, WESTbahn Management, C‑210/18, EU:C:2019:586, paragraph 45, and of 3 October 2019, Schuch-Ghannadan, C‑274/18, EU:C:2019:828, paragraph 61 and the case-law cited).