OPINION OF ADVOCATE GENERAL
TANCHEV
delivered on 19 June 2018(1)
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 (Supreme Court, Austria))
(Reference for a preliminary ruling — Payment services — Directive 2007/64/EC — Article 4(14) — Notion of ‘payment account’ — Online direct savings account allowing unlimited access to funds but requiring transfers to be carried out through reference account)
I. Introduction
1. The key issue raised by this reference for a preliminary ruling submitted to the Court by the Oberster Gerichtshof (Supreme Court, Austria) concerns whether a particular kind of bank account referred to as an online direct savings account, whereby the customer has unlimited access to the funds in the account but all transfers to and from that account to third parties must be carried out through another account called a reference account, falls within the notion of a ‘payment account’ under Article 4(14) of Directive 2007/64/EC on payment services in the internal market. (2)
2. This case presents the Court with the first occasion to interpret the notion of a ‘payment account’ within the meaning of Directive 2007/64. In the main proceedings, this is required in order to determine whether the bank account at issue is bound to comply with obligations set out in Directive 2007/64.
II. Legal framework
A. EU law
3. Article 4 of Directive 2007/64, entitled ‘Definitions’, provides:
‘14) “payment account” means an account held in the name of one or more payment service users which is used for the execution of payment transactions’.
B. Austrian law
4. Directive 2007/64 was transposed in Austrian law by the Bundesgesetz über die Erbringung von Zahlungsdiensten (Zahlungsdienstegesetz — ZaDiG) (Law on payment services) of 2009 (BGB1. I, 66/2009; ‘the Law on payment services’).
5. Paragraph 3 of the Law on payment services, entitled ‘Definitions’, states:
‘(13) “payment account” means an account held in the name of one or more payment service users which is used for the execution of payment transactions’.
III. The facts in the main proceedings and the question referred for a preliminary ruling
6. The Bundeskammer für Arbeiter und Angestellte (Federal Chamber of Workers and Employees; ‘the applicant’) has standing under Austrian law to bring proceedings for the purposes of protecting consumers’ interests.
7. ING-DiBa Direktbank Austria Niederlassung der ING-DiBA AG (‘the defendant’) is a bank operating throughout Austria.
8. The defendant uses a set of general terms and conditions in its relations with consumers (Allgemeine Geschäftsbedingungen; ‘the AGB’). In particular, the defendant uses the AGB in connection with a particular type of account that it offers to consumers under the term ‘Direkt-Sparen’ (‘direct-savings’) which is referred to in the order for reference as, inter alia, an online direct savings account (‘online direct savings account’). (3)
9. According to the order for reference, the online direct savings account in issue is one in which the consumer can independently make deposits and withdrawals by way of telebanking, (4) but the consumer must always carry out those transfers through another account called a reference account held in his name. The reference account must be a current account opened in Austria, but does not have to be held with the defendant. The consumer is able to decide, without any restriction or notice and thus without any negative effects on interest, if, when and in what amount the consumer transfers money between the online direct savings account and the reference account. Although transfers are only possible between the online direct savings account and the reference account, the consumer is not prevented from having access at any time — and without it being necessary to involve the payment service provider (5) — to the amount of money in the online direct savings account.
10. The applicant lodged an action against the defendant on the grounds that a large number of the clauses in the AGB used in its contracts concerning the online direct savings account in issue are inconsistent with the Law on payment services. That action has now come before the referring court on appeal.
11. The defendant contends that the Law on payment services does not apply to the online direct savings account in issue.
12. The referring court has indicated that the Law on payment services reproduces word-for-word the relevant definitions set out in Directive 2007/64. Consequently, if the online direct savings account in issue is covered by Directive 2007/64, the Law on payment services is also applicable to it.
13. The referring court considered, inter alia, that designation as a ‘savings account’ alone is no reason for the online direct savings account in issue to fall outside the scope of Directive 2007/64, since Article 3 of that directive concerning matters excluded from its scope does not provide any indication in that regard. Nevertheless, the referring court pointed out that for every transaction by which the account holder wishes to settle a liability, an intermediate step is required in which the money is transferred from the online direct savings account to the reference account. Only after receipt of the money in the reference account can it then be transferred to a third party. The referring court did not consider it to be clear, as a matter of the proper interpretation of the notion of a ‘payment account’ in Article 4(14) of Directive 2007/64, whether this intermediate step justifies the exclusion of the online direct savings account from the scope of that directive.
14. It was in these circumstances that the Oberster Gerichtshof (Supreme Court) decided to stay the main proceedings and refer the following question to the Court for a preliminary ruling:
‘May Article 4(14) of Directive 2007/64/EC on payment services in the internal market (the Payment Services Directive) be interpreted as meaning that an online savings account with which a customer (without notice and without any particular involvement of the bank) may by way of telebanking make deposits into and withdrawals from a reference account (a current account in Austria) held in his name is also to be included within the term “payment account” (Article 4(14) of that directive) and thus falls within the scope of that directive?’
15. Written observations were submitted to the Court by the applicant, the defendant, the German Government and the Commission. Pursuant to Article 76(2) of the Court’s Rules of Procedure, no hearing was held.
IV. Observations of the parties
16. The applicant and the Commission consider that the online direct savings account in issue falls within the definition of a ‘payment account’ under Article 4(14) of Directive 2007/64, whereas the defendant and the German Government take the opposite view.
17. The applicant contends, inter alia, on the basis of certain other definitions set out in Directive 2007/64, that the notion of a ‘payment account’ does not require interaction between the account holder and third parties. Rather, in its view, the key condition for classification as a ‘payment account’ is the account holder’s ability to undertake transactions on his own initiative at any time without having to engage the payment service provider. Moreover, the applicant submits that certain responses set out in the Commission’s questions and answers document on Directive 2007/64 (‘the Commission guidance document’) (6) support its position, and refutes the relevance of the information contained in a preceding guidance document on Directive 2007/64 issued by the European Banking Industry Payment Services Directive Expert Group (‘the Expert Group guidance document’). (7)
18. The defendant asserts that the classification of an account as a ‘payment account’ must be considered in light of that account’s functionality and objectives, and that the notion of a ‘payment account’ involves the possibility of interacting directly with third parties as part of undertaking payment transactions. On that basis, the defendant submits that in the case of the online direct savings account in issue, its use for payment transactions with third parties is excluded both contractually and technically, and thus it cannot be considered as being a ‘payment account’. In that regard, the defendant points out that the defining characteristic of the online direct savings account in issue is that all transfers to and from such an account must occur through a reference account, the latter of which is a ‘payment account’ within the meaning of Directive 2007/64.
19. In support of its position, the defendant relies, inter alia, on the Commission and Expert Group guidance documents, two other measures in the EU payment services sector — Directive 2014/92/EU (the so-called Payment Accounts Directive) (8) and Regulation (EU) No 260/2012 (the so-called Single Euro Payments Area (SEPA) Regulation) (9) — along with the approach taken by several Member States on the matter. (10) The defendant also emphasises that there would be considerable negative practical consequences for qualifying the online direct savings account in issue as a ‘payment account’, such as discrimination between online savings accounts and traditional savings accounts which are not so classified by virtue of Article 31(1) of the Bankwesengesetz (Law on banking), (11) significant overheads for banks without corresponding advantages for clients, divergence within EU payments services law and the erosion of the distinction between deposit accounts and current accounts which structures banking activity.
20. The German Government underscores that there are certain kinds of accounts that are not subject to Directive 2007/64. On that basis, the German Government contends that savings accounts primarily have a savings function and are not generally used for payment transactions, as is the case of the online direct savings account in issue. The German Government argues that this conception of savings account is further supported by the wording of certain provisions of Directive 2014/92 on payment accounts, and points out that certain responses contained in the Commission guidance document are unclear, stating that in any event that document is non-binding.
21. The Commission submits that there is nothing in the wording of Directive 2007/64 to indicate that the notion of a ‘payment account’ would not cover the online direct savings account in issue. The Commission also stresses that the purpose of Directive 2007/64 is to confer protection on the users of payment services: as mentioned in recital 46 and in the articles of Title IV of Directive 2007/64, the accounts covered by that directive benefit from certain minimum regulatory requirements for the proper execution and processing of payment transactions. The Commission considers that such protection would be denied to consumers in the event of a restrictive interpretation of the notion of a ‘payment account’ within the meaning of Directive 2007/64.
V. Assessment
22. According to the Court’s settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording, but also its context and the objectives pursued by the rules of which it is part. (12)
23. It is on this basis that I have come to the conclusion that the online direct savings account in issue cannot be considered to fall within the notion of a ‘payment account’ under Article 4(14) of Directive 2007/64.
24. I am inclined to agree that the mere labelling of an account as, for example, a ‘savings account’ is not in itself determinative as to whether such an account constitutes a ‘payment account’ within the meaning of Directive 2007/64, but rather the particular characteristics relating to the account in question, which include its functions and objectives, must be taken into account. Nevertheless, a decisive criterion in the determination of an account as a ‘payment account’ within the meaning of Directive 2007/64 is whether such an account involves direct participation in payment transactions with third parties. Therefore, I consider that the online direct savings account in issue does not fall within the notion of a ‘payment account’ under Directive 2007/64.
A. Wording
25. As can be seen from point 3 of my Opinion above, Article 4(14) of Directive 2007/64 defines a ‘payment account’ as ‘an account held in the name of one or more payment service users which is used for the execution of payment transactions’. That definition does not by itself indicate the specific characteristics or types of accounts that may be considered to fall within that notion.
26. That definition in fact resorts to terms — ‘payment service user’ and ‘payment transaction’ — that are themselves defined in other paragraphs of Article 4 of Directive 2007/64. Consequently, the definition of ‘payment account’ should be read in the light of the other definitions set out in that provision as well as Articles 2 and 3 of that directive concerning its scope of application generally.
27. In particular, Article 4(10) of Directive 2007/64 defines the term ‘payment service user’ as ‘a natural or legal person making use of a payment service in the capacity of either payer, payee or both’. (13)
28. The definition of ‘payment service user’ laid down in Article 4(10) of Directive 2007/64 is ambiguous because it specifies that the person making use of the payment service may be either the payer or the payee or both. Indeed, taken in isolation, this wording may be read as implying that the payer (the sender of funds) and the payee (the recipient of funds) can be identical and a person who executes transactions with himself can be a ‘payment service user’. (14)
29. Article 4(5) of Directive 2007/64 defines the term ‘payment transaction’ as ‘an act, initiated by the payer or by the payee, of placing, transferring or withdrawing funds, irrespective of any underlying obligations between the payer and the payee’.
30. The definition of ‘payment transaction’ in Article 4(5) of Directive 2007/64 is also ambiguous when taken in isolation. On the one hand, it could be read as implying that there must be two persons, a ‘payer’ and a ‘payee’; in contrast with Article 14(10) of Directive 2007/64, Article 4(5) of Directive 2007/64 does not provide expressly that one person can be both. On the other hand, it might be contended that what is merely required is an act initiated by the payer or payee of ‘placing, transferring or withdrawing funds’, (15) without specifying whether such a transfer may be made between two accounts of the same person, as in the case of the intermediate step involving the transfer of funds between the online direct savings account and the reference account in question in the main proceedings.
31. Further, Article 2 of Directive 2007/64, entitled ‘Scope’, states that that directive applies ‘to payment services provided within the [Union]’. (16) According to Article 4(3) of that directive, ‘payment service’ is defined as ‘any business activity listed in the Annex’.
32. In particular, point 2 of that Annex enumerates ‘services enabling cash withdrawals from a payment account’. (17) The wording of that provision appears to presume transfers directly from the payment account.
33. Moreover, point 3 of the Annex to Directive 2007/64 refers to:
‘Execution of payment transactions, including transfers of funds on a payment account with the user’s payment service provider or with another payment service provider:
– execution of direct debits, including one-off direct debits,
– execution of payment transactions through a payment card or a similar device,
– execution of credit transfers, including standing orders.’ (18)
34. Taken in isolation, the italicised wording in point 3 of the Annex may be read to imply that payment transactions need not necessarily involve third parties for the purposes of the notion of a ‘payment account’ set out in Article 4(14) of Directive 2007/64. Yet, this wording is followed by three indents, each of which in principle involves direct interaction with a third party for the purposes of transferring funds to or from the payment account (direct debits involve ‘debiting a payer’s payment account’, (19) using payment cards or undertaking credit transfers such as standing orders (20)).
35. However, I acknowledge that Article 3 of Directive 2007/64, entitled ‘Negative scope’, indicates that that directive does not apply to 15 categories of payment transactions and services listed therein, and that the online direct savings account in issue does not fall expressly within any of them. Nevertheless, I do not consider this provision to be exhaustive in respect of accounts that may fall outside the scope of that directive. This is supported by recital 6 of Directive 2007/64 which states that ‘it is not appropriate for that legal framework [for payment services] to be fully comprehensive. Its application should be confined to payment service providers whose main activity consists in the provision of payment services to payment service users’. (21)
36. Thus, the wording of Article 4(14) of Directive 2007/64 does not provide an unequivocal answer as to the question whether the online direct savings account in issue may be considered as being a ‘payment account’ within the meaning of that provision.
1. Origins
37. According to the Court’s case-law, the origins of an EU measure or provision thereof may be helpful for discerning the Union legislature’s intent underlying the measure or particular provision thereof. (22)
38. In that regard, the travauxpréparatoires for Directive 2007/64 do not provide a definitive answer for discerning the legislative intent underlying the notion of a ‘payment account’ in Article 4(14) of Directive 2007/64. (23) However, they lend some support to the view that certain kinds of savings accounts are not within the scope of that directive.
39. In the Commission’s proposal, ‘payment account’ was defined as ‘an account held in the name of a payment service user which is used exclusively for payment transactions’. (24) Moreover, the term ‘savings account’ was mentioned in connection with rules laid down therein concerning the availability of funds on a payment account, to the effect that such rules would be ‘without prejudice to debits effected on savings accounts covered by explicit agreements regarding the use of funds in savings arrangements’. (25)
40. In its opinion on the proposal, the European Central Bank indicated that the definition of ‘payment account’ and the reference to ‘savings account’ merited clarification. (26)
41. In its first reading of the proposal, the European Parliament proposed deleting the provision containing the reference to ‘savings account’ on the grounds that: ‘[a]s savings accounts are in any case not classified as payment accounts, there is no need for regulation’. (27) The Parliament also proposed amending the definition of ‘payment account’ to ‘an account held in the name of one or morepayment service users which is used for payment transactions’. (28)
42. In the final version of the text, the word ‘execution’ was added to the definition of ‘payment account’, and the provision regarding ‘savings account’ was deleted. Yet, no further proposals were taken up.
2. Guidance documents
43. The Commission and the Expert Group guidance documents mentioned in the parties’ observations in this case are also, in my view, not conclusive as regards the question referred in this case. (29) They may be considered to support the view that each type of account should be assessed on its own merits and thus certain types of savings accounts fall within the notion of a ‘payment account’ within the meaning of Article 4(14) of Directive 2007/64, but they do not expressly deal with online direct savings accounts of the kind in issue in the main proceedings. (30)
44. In particular, in its guidance document, the Commission indicates in its response to certain questions that a ‘savings account’ where the holder can place and withdraw funds without any restriction should be considered as being a ‘payment account’ for the purposes of Directive 2007/64, whereas a ‘fixed-term deposit’ should not be, since the holder cannot make any withdrawals from the account until maturity without incurring loss of interest or penalties. (31) In consequence, on that basis, it is not clear whether the requirement placed on the online direct savings account in issue to the effect that transfers may only be made from that account to the reference account and not to third parties would constitute a restriction barring its classification as a ‘payment account’.
B. Context
45. According to the Court’s case-law, the assessment of the general scheme and context of a provision of EU law encompasses, inter alia, the examination of the context of the provision at issue in relation to other provisions of the same EU measure as well as other EU measures that are related or linked in some substantive way to the EU measure in question. (32) In my view, certain related provisions of Directive 2007/64 as well as those of other measures within the EU legislative framework on payment services provide determinative indications that the online direct savings account in issue does not fall within the notion of a ‘payment account’ under Directive 2007/64.
1. Related provisions of Directive 2007/64
46. The examination of related provisions of Directive 2007/64 evidences that payment to a third party is essential for an account to constitute a ‘payment account’ within the meaning of Directive 2007/64.
47. Certain definitions set out in Article 4 of Directive 2007/64 presume that money will be transferred into or from the payment account to third parties. This is illustrated by the definition of ‘payer’ in Article 4(7) of Directive 2007/64 as mentioned above (‘allows a payment order from that payment account’) (33) and of ‘value date’ in Article 4(17) of Directive 2007/64, meaning ‘a reference time used by a payment service provider for the calculation of interest on the funds debited from or credited to a payment account’. (34)
48. Some provisions of Directive 2007/64 relating to payment accounts further evidence that a payment account presumes the possibility for money to be debited from or credited to the payment account directly with third parties. (35) This is also reflected in certain provisions of Directive 2007/64 to ensure the security of the payment account as a consequence of engaging in payment transactions directly with third parties, such as refunding amounts to the payment account in the case of unauthorised, non-executed or defective payment transactions. (36)
49. Consequently, the classification as a ‘payment account’ of the online direct savings account in issue in which no money may be transferred into or from that account by way of direct payment to a third party would make the operation of these provisions illogical.
2. Related measures within the EU legislative framework on payment services
50. Directive 2007/64 — and its successor, Directive 2015/2366 (37) — is part of the EU legislative framework on payment services. (38)
51. As indicated in recital 4 of Directive 2007/64, ‘[i]t is vital … to establish at [Union] level a modern and coherent legal framework for payment services’. As the Court has already noted, it is also mentioned in recital 6 of Directive 2015/2366 that the intention of the Union legislature is that the consistent application across the European Union of the legislative framework on payment services should be guaranteed. (39)
52. Several measures within the EU legislative framework on payment services contain a definition of ‘payment account’ which tracks that set out in Article 4(14) of Directive 2007/64. This includes Regulation No 260/2012 (the so-called Single European Payments Area (SEPA) Regulation), (40) Regulation (EU) 2015/751 on interchange fees for card-based payment transactions (41) and Commission Recommendation 2011/442/EU on access to a basic payment account (42) which applies in conjunction with Directive 2007/64. (43) In fact, certain measures contain cross-references to the definition of ‘payment account’ set forth in Article 4(14) of Directive 2007/64 (or what is now Article 4(12) of Directive 2015/2366). (44)
53. In particular, a key measure within the EU legislative framework on payment services is Directive 2014/92 (the so-called Payment Accounts Directive). (45)
54. According to Article 2(3) of Directive 2014/92, a ‘payment account’ is ‘an account held in the name of one or more consumers which is used for the execution of payment transactions’. This is virtually identical to the definition of ‘payment account’ set out in Article 4(14) of Directive 2007/64, save for the substitution of the wording ‘consumers’ in the former for ‘payment service users’ in the latter which does not alter the substantive content of the definition, but rather seems to reflect the subject matter covered by the respective directives.
55. Recital 12 of Directive 2014/92 states: ‘… All provisions of this Directive should concern payment accounts through which consumers are able to carry out the following transactions: place funds, withdraw cash and execute and receive payment transactions to and from third parties, including the execution of credit transfers. As a consequence,accounts with more limited functions should be excluded. For example, accounts such assavings accounts, credit card accounts where funds are usually paid in for the sole purpose of repaying a credit card debt, current account mortgages or e-money accounts should in principle be excluded from the scope of this Directive. However, should those accounts be used for day-to-day payment transactions and should they comprise all the functions listed above, they will fall within the scope of this Directive. …’ (46)
56. This is carried through in Article 1(6) of Directive 2014/92, which explicitly indicates that the three minimum requirements for payment accounts within the scope of that directive comprise the ability to place funds in a payment account, withdraw cash from such an account and to ‘execute and receive payment transactions, including credit transfers, to and from a third party’. (47)
57. Moreover, recital 14 of Directive 2014/92 states: ‘The definitions contained in this Directive should be aligned as far as possible with those contained in other Union legislative acts, and in particular with those contained in Directive 2007/64/EC and in Regulation (EU) No 260/2012 …’ (48)
58. Consequently, the requirements set out in Directive 2014/92 for the notion of a ‘payment account’ should be taken into account for the interpretation of that notion in Article 4(14) of Directive 2007/64. On that basis, I take the view that the online direct savings account in issue is not to be considered as falling within the scope of that provision in view of its ‘more limited functions’, namely that it does not allow the account holder to execute and receive payment transactions to and from third parties.
C. Objectives
59. The overall objective of Directive 2007/64 is, according to recital 60, the establishment of a single market in payment services. Further, as the Court has acknowledged, there are various recitals in Directive 2007/64 which espouse the aim of protecting consumers as recipients of payment services. (49)
60. Against that backdrop, I take the view that the interpretation of the notion of a ‘payment account’ in Article 4(14) of Directive 2007/64 as not covering the online direct savings account in issue would not contravene the objectives pursued by that directive. Seeing as the reference account would necessarily qualify as a ‘payment account’, there does not seem to be the need for ‘double protection’ for consumers in connection with the online direct savings account in issue when all payments to third parties must occur through the reference account. (50)
VI. Conclusion
61. In the light of the foregoing considerations, I propose that the Court should answer the question referred by the Oberster Gerichtshof (Supreme Court, Austria) as follows:
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 is to be interpreted as meaning that an online savings account with which a customer (without notice and without any particular involvement of the bank) may by way of telebanking make deposits into and withdrawals from a reference account (a current account in Austria) held in his name is not included within the term ‘payment account’ under Article 4(14) of that directive and thus does not fall within the scope of that directive.