The digitization of our economy sometimes encourages banks to concentrate communication with their customers in the virtual space they create for them, in particular by means of dedicated and secure mailboxes. Questions are sometimes raised whether this communication method is enforceable to the customer, since actual knowledge implies that he actively takes steps (log-in).
In a recent case, an Austrian court sought the European Court of Justice (ECJ) to rule on whether an e-mail sent by a bank to a dedicated mailbox made available by the bank and accessible via its website, was "provided" to the customer via a durable medium or simply "made available".
This question stems from the existence of a dual system of communication, set up by the European legislator, which distinguishes between information "provided" to the customer and that which is "made available" (Directive 2007/64 of 13 November 2007, now replaced by Directive 2015/2366 of 25 November 2015). In very practical terms, making available implies that the customers takes an active role, and must connect to their dedicated area to view their account statements, whereas providing implies a more passive role for the customer, who then receives statements without having to connect.
The Court considers that where the bank limits itself to making contractual amendments available, the information is not provided to the customer; it is only made accessible (ECJ, 25 January 2017, C-375/15). The Court therefore aligns with the position of the Advocate General, who considered that an e-mail box of an online bank is analogous to a personal safe located at the bank's premises: in the absence of any notification or alert, information placed in such a box intended for the customer cannot be considered to have been "provided" to the customer.
In so ruling, the ECJ retained a slightly more liberal interpretation than in its previous decision of 5 July 2012 (ECJ, 5 July 2012, C-49/11) - which is crucial on designation of a website as a durable medium - where it found that the information due to the consumer was not received or provided when it was made accessible via a hypertext link.
In the changing environment of implementation of the new payment services Directive, the decision invites e-banking banks to distinguish between information that must be provided from information that may only be made available and, when they have to provide it, to double availability electronically by sending an e-mail to the customer's private email inbox.
