The criteria of a durable medium (BAWAG PSK Bank für Arbeit und Wirtschaft und Österreichische Postsparkasse AG v Verein für Konsumenteninformation)

The criteria of a durable medium (BAWAG PSK Bank für Arbeit und Wirtschaft und Österreichische Postsparkasse AG v Verein für Konsumenteninformation)

Do messages sent to an e-banking customer’s mailbox on the bank’s website meet the requirement that information be communicated on a durable medium? David Bowden, consumer credit solicitor and principal of David Bowden Law, comments on what lessons financial services practitioners can learn from the ruling of the Court of Justice of the European Union (CJEU) in BAWAG PSK Bank v Verein für Konsumenteninformation.

Original news

BAWAG PSK Bank für Arbeit und Wirtschaft und Österreichische Postsparkasse AG v Verein für Konsumenteninformation, Case C-347/15

The CJEU ruled that information transmitted by a bank to its e-banking customers’ mailboxes on its website had been provided on a durable medium only if the website allowed the customers to store the information so they could access and reproduce it unchanged for an adequate period without the bank being able to unilaterally change it, and the bank drew the customers’ attention to the existence of the information if they had to consult the website to acquire it.

What is the significance of the case?

The CJEU’s judgment is only half-good news for financial services providers. While the CJEU ruled that a bank’s secure messaging system could amount to a durable medium, it went on to rule that changes to product terms and conditions could not simply be deposited on the messaging system and that active steps had to be taken by a bank to draw these changes to a customer’s attention.

What was the background to the case?

BAWAG is an Austrian bank operating throughout Austria. It offers internet e-banking to its customers. As part of the general terms in such e-banking contracts, the bank includes a contractual term stating that notices of changes will be communicated to the customer through the internal mailbox of its internet e-banking system. Verein für Konsumenteninformation, an Austrian consumer association, considered that such a contractual term did not comply with the duty of providing information in a

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About the author:
Paul Estlin has over 15 years’ experience in the financial services regulatory arena and has worked in private practice, in house and at the regulator- at Addleshaw Goddard, Eversheds, Shoosmiths and Rosenblatt Solicitors, where Paul headed up the firm’s Financial Services Regulatory practice; in legal and compliance roles at Standard Bank and Barclays Wealth; and at the Financial Services Authority and, before that, the Personal Investment Authority.