Haku

PKL 16/16

Tulosta

Asianumero: PKL 16/16 (2016)

Asiaryhmä: Tilinkäyttö ja maksaminen

Ratkaisu annettu: 25.10.2016

What is the Bank’s liability in a situation where, due to the Bank’s neglect, the customers have not been able to use their debit card issued by the Bank? Customer identification. Debit card validity. Notification obligation. Amount of compensation.

Information about the event

The customers reside in Italy.

They opened an account with the Bank in 2003, assisted by a Bank employee working in Poland. The Bank changed its card brand and the customers’ cards expired in February 2016. The customers tried to use their card in Italy after this but the ATM told that the card had expired. One card had expired in 04/15 while the other would expire, as per the marking on the card, in 04/17.

The Bank has paid a 150 euro compensation for the expenses incurred by the Customers for the case.

Customers’ complaint

In their complaint, the Customers told that they were not informed about the expiry of their cards prior to the unsuccessful attempt to use the card. The validity of the card of one of the spouses ended in April 2015 after which date he had continue to pay unfounded monthly 3 euro fees for the use of the card. His spouse had continued to pay unfounded fees as of February 2016. Moreover, they had been charged unjustified payments for an account they were unable to use, as well as for transfer of money abroad.

Bank’s reply

In its reply, the Bank affirmed that it had decided to discontinue the brand of cards held by the Customers, following its Terms and Conditions related to the specific card type. However, when sending new cards in replacement, the Bank noticed that it did not have the information on the Customers required under the current legislation. The Bank does not have any information on identification and confirmation of identity, or any explanation on why the persons in question hold an account in Finland. Based on the information held by the Bank, the Customers have not been in Finland and besides their banking account, they have no other connection to Finland. It is possible that at the establishing of the customer relationship, the Bank did not request the Customers to provide all the necessary customer recognition data because the current customer recognition regulations were not yet in force, or there was no need for all such data. However, the Bank is liable to keep all customer recognition data updated and to request additional information whenever necessary.

The Bank had asked the Customers to visit any Bank branch office, presenting their valid passports, in order for the Bank to verify their identity. Moreover, the Bank has requested that the Customers give the reasons for them to hold an account in Finland, giving an explanation of their payment transactions passing through Finland.

The Bank had apologised for noticing this too late but found that it could not deliver the new cards to the Customers before receiving the required information. According to the Bank, the Customers did not suffer any financial damage because they could eventually avail of the funds.

Further clarifications acquired

In addition to the briefs of the Parties in this complaint case, the Complaint Board has been provided with the following documents:

- The Customers’ card agreements, with relevant Terms and Conditions

- Photocopies of the Customers’ cards.

- Letter of 3 March 2016 sent by the Bank to the Customers. In its letter, the Bank asks the Customers for further information on the basis of their customer relationship with the Bank. The Bank also asks the Customers to fill in the customer identification questionnaire attached to the letter and to visit a Bank branch office to show a valid passport.

- The Bank’s information sent in May 2016 to the Customer regarding the introduction of the service fee for the use of e-banking passwords and codes.

Recommended Solution

Formulation of question

In order to solve the dispute between the Customers and the Bank, the Banking Complaints Board must assess whether the Customers have suffered other compensable damage in excess of the compensation already paid by the Bank.

Sections of applicable Law and terms of Agreement

Under Chapter 3 Section 30 of the Payment Services Act, the service provider proposing changes in the framework contract must send the proposal to the payment service user in writing or in another permanent manner, no later than two months prior to the proposed entry into force of the changes. If the framework contract includes a clause whereby the payment service user is deemed to have accepted the changes to the Terms and Conditions proposed by the service provider if they have not, by the proposed date of entry into force of the changes, expressed their opposition, then the payment service user must be reminded of their right to not accept the change.

Under Section 69 of the same Act, the service provider is obliged to compensate for the damage caused to the payment service user by any action contrary to the Act or the contract in question.

Evaluation of the case

In the case at hand, the Bank has asked the Customers to provide identification and identity verification data, and information of their need to hold an account in Finland. The Customers have not shown that they would have provided the Bank with this information. The Bank has admitted that the Customers were never asked to provide the required information before the old cards expired and that the Customers could not withdraw money from the account with the card. However, the money in the account has been transferred, as per a request made by the Customers, to their account in Italy.

The criterion for the obligation to pay damages is that an error or shortcoming resulting from negligence can be identified in the conduct of the service provider, causing losses to the customer.

According to the Bank, no damage has been caused to the Customers but nevertheless, the Bank has paid them a compensation of 150 euro. The Customers find that the compensation paid is insufficient. As the grounds for the claim for compensation, the Customers have listed, among other issues, the unjustified card user fees, the time spent on clarifications in the case as well as the expenses incurred for the change of banks. Moreover, the Customers include their phone call to FINE as one ground for compensation. The respective cost was 31.50 euro.

The Banking Complaints Board points out that the damaging party’s liability to pay damages only covers economic losses. For example, displeasure does not constitute compensable damage in a case like the one at hand. Based on the Regulations of the Board, FINE does not examine the question of reimbursement of expenses incurred for the complaints addressed to them. Therefore, the claim for the cost of the phone call made to FINE will not be examined.

The Banking Complaints Board finds that the Customer has incurred expenses for the clarifications in the case. The Customers have not provided any specified account of the costs incurred. In the absence of a more detailed clarification, the Board finds that the 150 euro already paid by the Bank as compensation will cover the costs incurred by the Customers.

Final outcome

The Banking Complaints Board finds that the Bank has already paid a sufficient compensation for the damages caused.

The Board does not recommend compensation.

The Banking Complaints Board’s decision was unanimous.

 

BANKING COMPLAINTS BOARD

 

Chairman Sillanpää

Secretary Heino

 

Members:

Atrila

Kallio

Lehtonen

Pulkkinen

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