On the admissibility of the challenge to the transfer of €32,800

It is recalled, by the decision of the Court of Appeal, that, according to article L. 133-24 of the Monetary and Financial Code , the user of payment services must inform, without delay, his provider of payment services an unauthorized or incorrectly executed payment transaction and at the latest within 13 months following the date of debit under penalty of foreclosure "unless the payment service provider has not provided or at its disposal the information relating to this payment transaction in accordance with Chapter IV of Title 1 of Book III”.

Therefore, was such information given in this case? It resulted from the archival research produced by bank X that it had published monthly account statements concerning the PEL and the current account opened in the name of Miss I.  , and that it had entered into account, on the statements the months of November 2011, on the one hand the transfer of the PEL balance of €32,689.39 closed on November 7, 2011, which had been credited to the current account on the same date, and, on the other hand, the transfer €32,800 debited from the current account and in favor of GCS, dated November 8, 2011.

In addition, in her letter of January 8, 2015 requesting the closure of her PEL, Miss I.  indicated that she had not received any bank statements since January 2012, which indicates that she had received some before that date. date.

In addition, in a letter of March 11, 2015, the applicant indicated that she had received no response from the bank since her letter of January 8, 2015, and expressly asked Bank X to close the PEL and send her by check “ the sums due, i.e. €32,800”. However, the Messing judges observe that the sum of €32,800 did not correspond to the amount that Miss I.  held in PEL, but to the amount of the transfer debited from her current account and for the benefit of the company GCS on 8 November 2011. Consequently, the person concerned “could only have known of this amount by consulting a copy of the transfer order concerned held by her parents, or by consulting her current account statement for the month of November 2011”.

The magistrates conclude, therefore, that it emerged from all of these serious and concordant elements that bank X had provided without delay to Miss I.  , then represented by her parents, the information relating to the disputed transactions which occurred at the beginning of November 2011 on the ELP and on the bank account in his name. It is therefore justified in relying on the foreclosure period provided for in Article L. 133-24 of the Monetary and Financial Code . The disputed transfer of €32,800 having been debited from the Appellant's account on November 8, 2011, the 13-month foreclosure period expired on December 8, 2012. However, it was common ground that Ms. I. had only summoned the bank on November 9, 2015, well after the expiry of the foreclosure period.

What about the common law of prescription? Isn't it likely to supplement the prescription thus raised? A negative answer is necessary. The Court of Justice of the European Union recently had occasion to declare that a user of payment services cannot engage the liability of the payment service provider on the basis of a liability regime other than that provided for by the provisions of the directive of November 13, 2007 concerning payment services in the internal market ( DSP 1), i.e. articles L. 133-18 et seq. of the Monetary and Financial Code concerning unauthorized payment6. This solution is logically shared, today, by the Court of Cassation7.

However, the decision under consideration addresses this issue. It thus indicates that it is apparent from Article L. 133-1 of the Monetary and Financial Code that only the liability regime provided for by the following articles of the same code, concerning payment transactions that the account holder claims not to have permitted, are applicable to the dispute. Consequently, Miss I.  , who had not complied with the 13-month foreclosure period, cannot avail herself of the contractual liability regime with regard to the transfer of €32,800 debited from her current account.

The judgment is therefore confirmed in that it had declared the request for payment of the sum of €32,800 from Miss I.  inadmissible. This solution, fully motivated, and in accordance with the applicable law, escapes, in our opinion, any criticism. This is not the only interest of the stop.