Brussels, 10/04/2014 (Agence Europe) - Payees may be generally prohibited from levying charges on the payer whatever the payment instrument selected if the national legislation, as a whole, takes into account the need to encourage competition and the use of efficient payment instruments.
This decision by the European Court of Justice was made on Wednesday 9 April (C-616/11) and rules against the mobile telephone provider, T-Mobile Austria, which opposed the ban imposed on it by the Austrian courts, to impose a service charge on its customers where payment was made through online banking or by means of a paper transfer order (when no charges are demanded for automatic deductions or bank card debits). T-Mobile indicated that neither the European directive on payment services (2007/64/EEC) nor the Austrian law transposing it apply to it because it is not a “payment services provider” as stipulated in the directive but a mobile telephone operator. The other arguments given were: the Austrian courts failed to provide a reason for its ban, in violation of the directive and the fact that the transfer order form did not constitute a payment instrument in the sense of the directive. As final court of appeal, the Austrian Supreme Court asked the European Court of Justice to interpret the directive in this context.
In its decision, the Court says that the directive expressly gives member states the power to forbid or limit the right of the payee to request a charge from the payer for the use of a given payment instrument. That power is applicable to the use of a payment instrument in the course of the contractual relationship between a mobile phone operator (payee) and that operator's customer (payer). The Court finds that that power of member states concerns the relationship between a “payee” and “payer” and that a mobile telephone operator and that operator's customer may, when they receive or make a payment, be considered to be “payee” and “payer”. It also permits member states to prohibit generally payees from levying charges on the payer whatever the payment instrument selected, if the national legislation, as a whole, takes into account the need to encourage competition and the use of efficient payment instruments. Although exercise of that power requires the national legislation, as a whole, to take into account that need, member states nevertheless have broad discretion in its application. It is for the Oberster Gerichtshof to ascertain whether the Austrian legislation is consistent with that condition. On the previous point, the Court explains that paper transfer orders and those online are “payment instruments” in the sense of the directive and that this notion also covers “a non-personalised set of procedures, agreed between the user and the payment service provider, and used by the user in order to initiate a payment order”. (FG)