More legal certainty for online banking and online trading

It has to date been legally unclear for banks in particular, but also for online traders, whether and to what extent consumer law information requirements can be met by using an electronic mailbox provided to a consumer on a website. The ECJ has eliminated this legal uncertainty with its judgment of 25 January 2017. For the full text of the ECJ judgment click here.

In view of the fact that a large number of information requirements have to be met in text form in accordance with Sec. 126 of the German Civil Code (Bürgerliches Gesetzbuch – BGB), the following questions have to date required answers:

Is it possible to organise an electronic mailbox such that

1. the requirement of text form as defined by Sec. 126 of the German Civil Code can be met with it and
2. declarations of intent or information provided by the undertaking which are placed in the customer’s electronic mailbox reach the customer as defined by Sec. 130 of the German Civil Code (or the information is “transmitted” or “provided” to the customer, depending on which the specific legal regulation requires based on its wording and interpretation in line with European directives)?

If one disregards a decision of the EFTA Court given on 27 January 2010, which does not have binding effect for the national courts and the ECJ, these questions have up to now remained unanswered. In its judgment on the “BAWAG PSK” case the ECJ has now created certainty regarding important points. Ultimately, the decision of the EFTA Court and the Opinion of the Advocate General Bobek of 15 September 2016 have been followed.

The key statements of the ECJ judgment can be summarised as follows:

• An electronic mailbox on an online banking website is a suitable medium for meeting the requirement of “providing information on a durable medium” (i.e. the requirement of text form). Two conditions have to be met for this. These are as follows:
  
  
  • The website must permit the user to store the information addressed personally to him in a way accessible for future reference for an adequate period of time and which allows the unchanged reproduction of the information stored, without it being possible for the provider of the information or an administrator to change the content unilaterally (concerns the characteristic “durable medium”) and
  • the provider of the information must actively draw the user’s attention to the existence and availability of the information on the website (concerns the characteristic “provision of information”). Drawing the user’s attention to the availability of the information can, for example, take place by sending a letter or an e-mail to an address regularly used by the user for communication with third parties if the parties have agreed to use the address for this purpose.
    
    
• If the provider of the information does not actively draw the user’s attention to the existence and availability of the information on the website, the criterion of “making information available” can still be met by placing information in an electronic mailbox. This is because it is acceptable for merely making information available that the user himself has to take active steps to obtain the information by – as in the examples provided by the ECJ – expressly requiring the information, logging into a bank account or inserting his bank card in a printer for account statements.

With respect to details, there are still plenty of issues which companies have to consider when using electronic mailboxes. One question for example is what an “appropriate period” for the provision of the information is in the individual case. Special attention is also to be paid to the question of what specific (minimum) content the information which is to be sent to the user that new information is available on the website is required to have. Regardless of this, the ECJ judgment creates legal certainty to the extent that it has been clarified that information required by law can be provided to the customer in text form if the electronic mailbox and the communication process with the customer are organised appropriately.