The European Court of Justice (ECJ) recently responded to the Supreme Court's request for a preliminary ruling and issued a decision with respect to a dispute concerning the standard terms and conditions of Deniz Bank. The ECJ also addressed an additional issue relating to the relationship between Article 52(6)(a) of the EU Payment Services Directive on tacit consent and the EU Unfair Consumer Contract Terms Directive.
The outbreak of COVID-19 triggered various response measures across the globe. Among other measures, the Austrian legislature, similar to other European countries, has implemented a moratorium on payments of credit obligations to support operational and liquidity challenges faced by borrowers due to the pandemic. Contrary to, for example, Germany, the Austrian legislature has included, in addition to consumers, micro-enterprises in the scope of the moratorium.
A significant part of Austria's COVID-19 subsidy programme was structured as government guarantees for bridging loans to be granted by banks to provide the economy with liquidity. Now, less than three months after the start of the programme, small and medium-sized enterprises regard this approach as disastrous, with many complaining that the granting of loans has been slow and cumbersome, despite the state guarantee, if a loan has been granted at all.
An insolvency proceeding was recently opened for the assets of Anglo Austrian AAB AG. This was the last step in a long-lasting dispute between the bank and Austrian and EU regulators, leading to the revocation of the bank's licence. This case is notable because it is the first application of the newly enacted deposit guarantee scheme and was expected to be the first application of the insolvency provisions under the Federal Act on the Recovery and Resolution of Banks.
Considering the obvious conflict with European Court of Justice case law, the Austrian legislature's aim to fully implement the EU Consumer Credit Directive and the Austrian Consumer Credit Act's intended (but directive-breaching) effects consumers, legal advisers and the courts are now confronted with the delicate question of how consumer requests for repayment should be dealt with.
The Federal Administrative Court recently confirmed that a credit institution had violated its obligations under the EU Data Protection Regulation by refusing to provide its customer access to information – at no cost – on specific payment transactions effected in the previous five years. Consumer protection organisations and the Austrian press celebrated the decision, but on closer inspection, those cheers seem to have been uttered a little too early and the celebrants' expectations appear to have been a little too high.
Following the recent agreement reached by the European Banking Authority, the Austrian Financial Markets Authority extended the deadline for implementing strong customer authentication for card payments in e-commerce transactions. The extension applies only to card payments in e-commerce transactions; all other types of transaction require full compliance with the strong customer authentication standards.
The Supreme Court recently extended to credit insurers its established jurisprudence that banking secrecy may prevent a statutory transfer of credit claims on fulfilment of such claims by a third party. Further, the court affirmed its view that the purpose of making a credit claim recoverable does not constitute an overriding interest that could breach banking secrecy.
The Supreme Court recently dismissed an insolvency administrator's complaint challenging the enforcement of an account pledge provided to a bank as security for a notional cash pool arrangement. The court's guidance on the advantages of cash pooling arrangements and on contractual minimum requirements must be considered when structuring new or reviewing existing cash pool arrangements of any kind.