The First Chamber of the Court of Justice of the EU (CJEU) has made a preliminary ruling in the case of Denizbank AG v Verein fur Konsumenteninformation (Case C-287/19) [ECLI:EU:C:2020:897]. It has clarified the position on a number of points following the opinion of the Advocate General in April 2020 on the application of the revised Payment Services Directive (Directive (EU) 2015/2366) (PSD2).
It has confirmed the following:
- Article 52(6)(a) of PSD2, read in conjunction with Article 54(1), must be interpreted that it governs the information and conditions provided by a Payment Services Provider (PSP) to a user of its services with regards to tacit consent to changes, but it does not lay down restrictions, where the user is a consumer, to the unfairness of the amended terms being reviewed under the provisions of Directive 93/13/EEC 5/4/93 on unfair terms in consumer contracts;
- NFC functionality is legally separable from other functions of a bank card and therefore, taken in isolation, it constitutes a payment instrument within the meaning of Article 4(14) of PSD2;
- The use of NFC functionality for low-value payments constitutes “anonymous use” within the meaning of Article 63(1)(b); and
- A PSP cannot, without evidence, rely on the derogation under Article 63(1)(a) to relieve itself from its obligation to protect users of payments services against loss caused by fraud. The burden of proof remains with the PSP to establish that the payment instrument in no way allows its blocking or prevention of its further use.
A more detailed analysis of the decision will follow shortly.