The Austrian Supreme Court of Justice requests the European Court of Justice to give preliminary ruling on Electronic Banking

The procedure in question concerns various terms and conditions. The defendant bank runs the banking business throughout Austria using terms and conditions regarding the participation on electronic banking in commercial dealings with consumers. The clause in question defines, that a consumer receives a message or a statement – which the bank has to deliver - by mail or by electronic transmission via E-Banking. In case the Bank transfers information via E-Banking, the question arises whether this counts as a message on a durable medium.

The Austrian Supreme Court of Justice therefor requests the European Court of Justice (EJC) to give preliminary ruling on this above mentioned question. The Austrian Supreme Court states the following:

The term “durable medium” was first mentioned in the distance selling directive 97/7/EU. Because of particular emphasis on the Hardware aspect CD-ROMs, DVDs or computer hard drives have been acknowledged as a durable medium. The Consumer Rights directive 2011/83/EU contains the definition of such a durable medium: It means any instrument which enables the consumer or the trader to store information addressed personally to him in a way accessible for future reference for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored. Durable media should enable the consumer to store the information for as long as it is necessary for him to protect his interests concerning his relationship with the trader. Such media should include in particular paper, USB-sticks, CD-ROMs, DVDs, memory cards or the hard disks of computers as well as E-Mails.

The Austrian High Court of Justice, however, considers an E-Mail as a durable medium only in case that the recipient supplies his/her E-Mail address, receives the sending and is able to read, save and print it without any special efforts. This must also apply, if the consumer’s E-Mail account was established by the Bank in the frameworks of E- Banking.[1]