Brussels, 28/10/2013 (Agence Europe) - The member states may ban, generally and without drawing any distinction between different payment instruments, the levying of handling charges by a payment beneficiary, even if the beneficiary is a mobile telephony operator.
In conclusions returned on Thursday 24 October (case C-616/11), Advocate General Melchior Wathelet advised the Court of Justice of the EU to reply to the Austrian Supreme Court to that effect. The Austrian Court had asked it about the compatibility with the directive on payment services (2007/64/EEC), which allows member states to ban or limit surcharging (companies imposing additional charges on their customers for using a given payment instrument), of the Austrian legislation, which bans payment beneficiaries, generally without any distinction between the various payment instruments, from applying handling charges. In this context, the Austrian court wants to know the following in particular: - whether the surcharge ban laid down by the directive applies only to payment service providers or also to mobile telephone companies (in this case, when the customer pays the bill by paper transfer or by bank transfer); - whether the payment transfer constitutes a payment instrument in the sense of the directive.
The Advocate General has replied to these three questions in the affirmative. He explains: - the Austrian general ban on surcharges without any distinction between means of payment does comply with the directive. Indeed, the directive gives the member states considerable margin to decide whether and how to ban or limit surcharges. The Austrian legislator appears to have respected the limits of this margin, pursuing considerations of general interest and, in particular, the objective of preventing abusive charges. It is precisely in order to avoid this type of abuse and the enormous difficulty in establishing with any precision the relationship between real costs and claimed costs that the member states are given the opportunity by the directive to simply ban surcharges. On these bases: - the surcharge ban provided for by the directive also applies to the contractual relationship between a mobile telephone operator as payment beneficiary and its customer (the consumer) as payer; - a paper or electronic transfer of funds should be considered as a “payment instrument within the meaning of the directive”. (FG/transl.fl)