COMMENTS ON THE WORKING DOCUMENT A NEW LEGISLATIVE FRAMEWORK FOR
THE SINGLE PAYMENT AREA IN THE INTERNAL MARKET (MARKT/208/2001) Version 1
Introduction
Revision 1 of the Working Document (dated 26/04/02) is in many ways more elaborate and more exhaustive than the previous version.
This revised version of the Working Document was presented to representatives of CB Member Institutions by Jean Allix (DG Markt), at a recent meeting held in Paris. It provided a useful platform for an open and direct dialogue between members of the French banking community and the European Commission.
The presentation and the Working Document itself which was distributed to CB Members, helps to better understand the objectives pursued by DG Markt and hopefully to better contribute to this consultative exercise.
The value of such a dialogue is clear, since the banking industry is destined to be at the forefront of a coherent and efficient area of payment / transfers within the European Union, and the Commission’s efforts to consult all interested parties in this respect is greatly appreciated.
Although Cartes Bancaires (CB) has already put forward written comments on the initial version of the Working Document in March of this year, the current paper outlines additional comments, views and some suggestions on Revision 1 of the Working Document (Rev. 1), which we would be happy to discuss further with the appropriate experts at the European Commission.
As was the case with the previous Comment Paper sent to the European Commission in March 2002, our comments will still be limited to the issues raised in the Working Document that have an impact on the card business.
Comments concerning Part I of the Working Document The objectives for the Single Payment Area
The Working Document refers to the fact that the "Internal Market" should become the
"new domestic market". From this, we understand that all borders within the Union are to be suppressed in due course.
In order to better understand the Commission's objective however, clarification is needed concerning the Commission’s perception of the structure of the current payment systems.
At this point in time, the existing Domestic networks handle the vast majority of transactions (about 90%), and are inter-connected to offer cross-border services, either at a European level, or on a world-wide scale.
Making the "Internal market the new Domestic market" could mean :
Ø either all Domestic payment systems disappear to be replaced by one (or several) pan-Union payment system (s). Such pan-Union system (s) may, at the same time, manage cross-border transactions (i.e., between the EU and the rest of the world) or,
Ø the current Domestic payment systems are allowed to remain and to inter-act within the EU to offer services at home and in all other Member States at similar conditions.
The question is not one of semantics.
On the contrary, it is the essence of the future of payment systems in Europe because it will determine the way banks can (or cannot) continue to manage their service offering to their clients.
Unlike currencies (the Euro in particular), payment systems are of a private nature, are financed by the banks, and, as with all payments and services in a free economy, have been shaped in accordance with market requirements and client needs, ranging from bilateral to multilateral agreements, and from Domestic only to European or world-wide services.
It should be remembered that card based systems were the first and almost unique illustration of the meaning "borderless", long before the introduction of the Euro, and even long before the concept was coined by public authorities.
In addition to offering cross-border services, security levels of the card-based systems have been enhanced and services to cardholders and merchants are becoming more and more sophisticated, with an observed 98% satisfaction rate with CB clients in France (cardholders and merchants).
The temptation is understandably strong to use privately owned products to serve political objectives (i.e., the creation of a European Union) because of the visibility and direct impact of such products on the general public.
This has been the case with the Regulation on Cross-border Payments, the full impact of which over the medium and long term has yet to be fully identified.
We strongly believe that the Commission should carry out a more comprehensive and complete analysis of the impact on the future of European payment systems of any new initiative, such as those described in the Working Document, that would further artificially shape the European market, and in so doing undoubtedly favour schemes operated by non-EU organisations.
The European Union is at the forefront of the core technological developments which are used in payment systems, and in the use of payment cards, and, as has been shown through past and current commitment, we are convinced that the banking community is best placed to help the Commission achieve its objectives.
The Commission should therefore support the banks by facilitating their cross-border activities, and by harmonising consumer protection rules and suppressing legal barriers.
On the other hand, the Commission must refrain at all costs from over-regulating the payment industry which, by nature, is complex and fast moving.
At the same time, the European Central Bank, together with the corresponding supervisory authorities will continue to guarantee the stability of the banking industry.
Only in this way, with all the interested parties working together, and contributing in their own specific fields, will we be able to continue to offer efficient and secure payment and transfer systems.
An unequivocal buy-in by the banks to the proposed New Legislative Framework for the Single Payment Area will be the guarantee that Europe will continue, as in the past, to lead the way in terms of payment and transfer schemes.
The following remarks are related to the each of the bullet points which are to be found in Part I Section 4 “General Considerations” of the Working Document.
• Need for a coherent legal framework
As is rightly pointed out in the Working Document, the creation, or rather, the consolidation of a Single Payment Area is a key initiative to support the Financial Services Action Plan (FSAP) which has been successfully launched by the Commission.
The Banking industry will undoubtedly be instrumental in this. The creation of the European Payments Council (ECP) to work on the SEPA (Single Euro Payment Area) project will unable customers to make payments and transfers across the EU with the same convenience as in their home country.
All these efforts will be meaningless however if they are not supported by a coherent legal framework which in turn will only exist if and when consumers can benefit from comparable, if not identical, protection rules and if and when banks and card issuers are bound by equivalent regulation within the EU. This cannot be achieved without the full commitment of all the Member States.
Again, as the Working Document rightly points out, there are a "growing number of subjects which require a common legal basis", such as consumer protection. Taking national particularities into account would be acceptable, as long as legal barriers do not penalise consumers and banks.
In that respect, we wish to stress that minimum harmonisation based on the home country principle, combined with the mutual recognition of legislative provisions, can be a source of substantial market partition within the EU.
Particular attention should be given therefore to such market partition caused by legal disparities, in order to come up with an alternative that will create the real basis of a single market.
• National versus EU legislation, and "full" harmonization versus "minimum"
harmonisation
We believe therefore (as appears to be suggested by the Working Document) that any initiative aimed at creating a single payment and transfer area within the EU must be closely linked to the current exercise of defining an appropriate legislative framework for consumers and improving EU Regulations.
This will provide the necessary level playing field on which banks can compete, and through which consumers will be able to use secure and efficient payment and transfer systems in the EU.
In line with the communication on consumer protection issued on 12th June 2002 by DG Sanco, the adoption of a coherent legal framework to address all retail financial services issues may therefore consist in the adoption of a framework directive that would cover all issues that are common to payment and transfer systems and aimed at protecting customers (such as the transparency of bank charges, regulatory supervision, irrevocability of payment orders, etc…), supplemented by directives that would be specific to certain sectors, such as transfers.
Such an approach could allow issues that are sector driven to be grouped together in separate documents, without affecting the global coherence of the legal framework.
• National and cross-border payment transactions versus cross-border payments only.
The introduction of the Euro has opened new perspectives for cardholders and retailers as well as for industrial and financial institutions. The adoption of the Regulation on cross- border payments will contribute to unifying even further the European Payment Area and opens new perspectives for Domestic systems such as the CB system.
In that respect, it would be helpful to clarify what is meant by "the need for a more expedient integration of the EU-payments markets" (4th bullet point in General Considerations).
As we have already indicated, "integration of payment markets" could cover a wide range of scenarios: from the dismantling of existing domestic networks to making such systems inter-operable, alongside international systems.
Once again, we must underline the fact that we feel it is important to be very clear on this issue.
We understand the need for consistency between the initiative described in the Working Document and the general orientation in EU-Legislation that tends to cover both domestic and cross-border issues. This is the reason why, whichever approach the Commission eventually adopts, it should take into account the need to maintain a necessary competitive environment, where the various players can offer services at a domestic level, or at cross-border level or both.
The consolidation of a Single Payment Area for all non-cash means of payment must indeed leave enough room for the creation of a European infrastructure that would be both interoperable and independent from non-European systems.
We do not believe that the market would be better off with only one or two organisations offering both cross-border and domestic payment and transfer facilities. Players in the marketplace, be they domestic or international, must be in a position to compete with each other, and customers must have the choice between different products and systems.
• The choice of the legal instrument at EU-level.
Establishing pan-European networks will require considerable effort and investment on the part of the European Banking industry. These efforts and investments will be pointless unless the appropriate public authorities provide support by creating the conditions that are necessary for success, such as :
a) removal of the current obstacles facing banks when working across borders within the Union (diverging legislation on consumer protection, on taxation, …)
b) a guarantee that the competitive environment will be maintained, so as to allow the market to find the most appropriate solution (s).
As a consequence, the best legal instrument will be the one that best harmonises Domestic legislation within the Union, whilst leaving market developments to self- regulation.
• Technical neutrality of EU provisions
As was clearly stated in our previous Comment Paper in March 2002, we believe that innovation can be seriously inhibited by legislative intervention.
We therefore agree with the idea that flexibility and technical neutrality in the Legislation are important in order to maintain the necessary creativity and protect the competitiveness of the European industry.
• Limitation to payments executed by professional providers.
We agree with the position outlined in the Working Document that the issue of interbank relationships should be excluded from the scope of the current initiative, since interbank agreements are, both at the EU and national level, under close scrutiny from the relevant competition authorities.
Comments concerning Part II of the Working Document Common points for all payments.
The following remarks are related to the General Issues : Scope and Definitions (Section 1.1.1).
In order to create a true internal market for payments (and transfers) in the EU, it is important that customers be offered products and services that are as easy and convenient to use in other member States as they are at home.
The Working Document refers to the Euro as creating the benchmark for non-cash retail payments in the Union.
There are, however, major differences between
Ø an official currency adopted by the Member States and
Ø the means to transfer and pay with this official currency, since such means have been created by banks.
Although we understand and support the political objective to create a "border-less"
European Union, it is nevertheless a fact that payment cards are of a totally different nature than national currencies : for example in terms of legal regime, ownership, and the way they are funded.
Creating a border-less payment system within the EU is one thing.
Using an official currency as the benchmark is inappropriate.
In order to clarify the scope of the initiative, we would suggest to refer to a "possible legal framework for the single payment and transfer area in the internal market" in order to cover cross-border credit transfers that are not necessarily used to make a payment.
The document should also be clear on whether or not it covers electronic and non- electronic payment and transfer systems.
• Non-banks providing payment services (Section 1.1.2).
Those organisations who so wish should be in a position to enter the market of payment and transfer systems (with the exclusion of cash that calls for a different regime, even though it is an integral part of the market), provided of course, that existing players are not discriminated against.
Any initiative should therefore guarantee a level playing field within the EU, and in this respect, it is of paramount importance to stress that the freedom to enter new markets should not be done at the cost of security and integrity of the products and services offered to the consumer.
We therefore believe that the sensitive, and therefore particular, nature of retail financial services requires that they be handled only by regulated institutions. Such supervision provides the indispensable protection to consumers and Society as a whole, and should not be undermined by allowing retail financial services to be provided by non-regulated institutions.
It is not a matter of preventing new players from entering the market, but much more importantly a question of sound management of systemic risks.
We are well aware of the fact that there are a few Member States that have flexible legislation on this matter. Nevertheless we believe that prevention is better than cure, especially in such a sensitive environment where Society as a whole could be considerably impacted by a serious failure.
This is even more critical in dematerialised environments, such as the Internet, which require even more security and guarantees than the physical world. Legislation for both banking and e-money set specific requirements that are not burdens, but guarantees for customers who need to be able to trust the institutions they are working with.
We are therefore strongly opposed to the entry of any new players into the payment and transfer market within the EU, unless they provide such guarantees, so to avoid seriously undermining the trust and confidence, and of course, the protection, of the Consumer.
• Standardisation in the payment field (Section 1.1.3).
We are not aware either at a National or European level of any formal request from the Banking industry for the creation of a supplementary standardisation body. On the contrary, Groupement des Cartes Bancaires believes that the way standards are currently set in the Union (as referred to in the Working Document) is satisfactory and should not call for any supplementary initiative or intervention.
• Value Dates (Section 1.2.2).
Value Dates are an integral part of the global service offered by a financial institution.
Provided they are displayed and communicated to the customer in a transparent and unequivocal way, value dates should remain part of the relationship between the financial institution and its customer.
For these reasons, we do not see any need for them to be regulated through legislation.
• Security of Payments (Section 1.3.1).
The Commission considers that purchases over the Internet are hindered by the absence
It may well be that B2C business over the Internet is currently limited by the perceived or psychological barriers that make the consumer prefer proximity with the vendor and with the product, rather than by the way the purchase will be paid.
Groupement des Cartes Bancaires fully supports the Commission in its efforts to criminalise the counterfeiting of non-cash means of payment. The initiative will need to be fully endorsed by the accessing countries, and on a world-wide basis.
• Legal Responsibility in case of breakdown of a payment network (Section 1.3.3).
In the CB system, the card issuer is responsible for direct losses suffered by a cardholder in the case of a system failure for which the issuer has a direct control.
However, the issuer will not be held liable in cases of technical failures when the cardholder has been made aware of such failures through a message or any other visible way.
• Identification of the originator in the payment process (Section 1.3.4).
Recent Case Law shows that the status of Banking Secrecy is somewhat unclear in France, and conditions under which it can or cannot be lifted still need to be clarified by the French Legislator.
Although it is clear that identifying the originator in a payment process is understandable when the aim is to combat money laundering, inclusion of issues related to Banking Secrecy and Data Privacy Law at the present time would detract from the main goals of the current initiative.
• Digital certification services in the payment sector (Section 1.3.5).
The legal framework established by the Directive on Electronic Signatures applies to open systems with the objective of making business secure both in terms of recognition and liability of the parties involved.
The Directive does not apply to closed systems within which all Members are linked to each other through a set of rules and contractual provisions which provide them with the necessary protection.
Most card payment systems, such as the CB system, are closed systems, with detailed rules and regulations. This is true for both Domestic and cross-border systems.
Miscellaneous (Section 1.5).
• Revocability/cancellation of a payment order (Section 1.5.2).
We agree with the Commission that the existence of diverging rules may seriously affect the functioning of cross-border payments, and believe therefore that harmonisation is indispensable, in particular with respect to irrevocability of payment orders.
In order that retail business and corporate businesses can function correctly, it is indispensable that payment orders are irrevocable.
Business requires not only the confidence of consumers, but also, the trust of merchants who must be confident that they will receive payment against the delivery of products or services.
This is true at a domestic level, and is even more critical on a cross-border basis.
Irrevocability of Payment orders has long been enshrined in National Legislation (Article 57-2 of the decree dated 30 October 1935). As a consequence, the mandate given by a cardholder to his bank to pay for goods or services is irrevocable.
The only circumstance in which the cardholder can revert this irrevocability is when the card has been stolen or used fraudulently. In any event, it should be noted that, in fact, in such a situation, no valid order has even been given by the legitimate cardholder.
There are generally three circumstances in which a customer might wish to "revoke" his payment order, but none of them require further legislation :
a) The customer changes his/her mind and revokes the payment.
In a face-to-face environment, the merchant may or may not agree to reimburse the customer against the return of the goods originally purchased (provided this is still possible).
There is however no legal obligation for a merchant to accept to do this, and merchants are indeed entitled to rely on the protection of commercial contracts, without which no business would be possible.
In a non face-to-face environment, the provisions of the Distance Selling Directive apply, and Consumers can invoke their right to withdraw from the contract so as to be protected against impulse buying.
When this right is exercised by the consumer, they must seek reimbursement directly with the merchant with whom they contracted, and return the goods to the merchant. The merchant must reimburse the totality of the sum paid to the customer, without any
One should remember, however, that the right of withdrawal and the subsequent refund in distance selling do not affect the validity of the initial payment order given by the client to the card issuer.
Any reimbursement by the merchant is a second and separate transaction between the merchant and the client, and this second subsequent transaction can be made in any mutually agreed form (cheque, bank transfer, …).
b) The purchased goods are not available
According to article 7 of Directive 97/7, in the case where the goods or services are not available, the merchant must refund any sum paid by the consumer.
This provision does not imply that the initial payment order may be invalidated, but that the merchant cannot retain the sums paid by his customer.
Making the payment order revocable in such circumstances would be of no help and, again, seriously affect sound and proper and contract management.
c) In the case of fraud
In the past, fraud has often been put forward as a reason for mitigating the principle of irrevocability of payments.
The irrevocability of the payment order related to a mandate given by a client to his/her bank is not, however, affected in the case of fraud.
Indeed, in the case of fraud, the mandate is simply not valid because it has never been given by the legitimate holder.
For this reason fraud and irrevocability are unrelated, and cannot be linked together as suggested in the Working Document.
All three of the above-mentioned examples illustrate that the irrevocability of payment orders does not in any way prevent consumers from shopping across borders.
On the contrary, it makes business in both face-to-face and non face-to-face environments more secure.
• The issue of refund (Section 1.5.4).
In a face-to-face environment, consumers can claim reimbursement from their merchants when the product or service has not been received, or when the product or the service is not consistent with the conditions agreed in the purchasing contract.
We understand from the Working Document that the Commission agrees that the payment provider has no "natural role to play" in a dispute between a merchant and his client, in line with the Communication on e-Commerce and Financial Services.
In the case where the customer uses his/her right of withdrawal (within the meaning of Article 6 of Directive 97/7), a second transaction is generated to allow for a reimbursement to take place. This second transaction does not affect or cancel the first transaction, which still remains final and valid. Banks only intervene to transfer funds from one account to another upon express instructions from their customers, and do not judge the validity of the dispute.
The Commission seems to deny this principle in the specific case of non-delivery.
In this particular case, the "payment provider" would need to intervene in, and adjudicate, the dispute by refunding the customer's account.
The Commission seems to justify this new role by the ease with which one can establish that the goods have been delivered (or not delivered), because there would be no room for interpretation, and that it would be easy to resolve because the "payment provider possesses the payment data and has a contract with both parties of the dispute".
There are three fundamental fallacies in this argument, and obstacles to the introduction of this proposal, from a contractual, factual and legal point of view :
a) An instruction to pay is, from a legal point of view, a legal act that is completely separate from the act of purchasing. These are two fundamentally different legal acts which cannot be mixed together.
As a consequence, the payment provider, i.e. the card issuer, has no legal or contractual right to intervene in the purchase transaction.
This is illustrated by the fact that Central Banks are simply payment providers, and are not required to intervene in disputes concerning non-delivery of goods which have been paid for in cash.
It is exactly the same for other payment providers (for example banks) in cases where goods or services are paid for by card, cheque, or transfer.
As the Commission is well aware, card based payment schemes are based on three sets of contracts:
Ø a contract between a card issuer and the cardholder
Ø a contract between a transaction acquirer and the merchant
Ø a contract between the card issuer and the transaction acquirer in order to manage the transaction process between their respective customers (cardholder and merchant).
As a consequence, card issuers have no relationship with merchants, and acquirers have no relationship with cardholders. In general, none of the banks has a contract with both parties to the dispute nor do they "possess" the entire set of payment data related to a given transaction.
c) At first sight, the term "non- delivery" would seem to be very simple, whereas in fact, it can be extremely complex.
Let us take the example of partial delivery, where we may face a situation where 5 CDs were ordered, but only 3 were delivered in the time-scale specified on the purchase order.
In the process proposed by the Commission, the customer would ask to be reimbursed by his card issuer for the price of the 2 missing CDs. The issuer would request the acquirer to debit the merchant’s bank account for the price of 2 CDs. In the meantime, the 2 CDs (which were by accident temporarily out of stock) could be delivered. The merchant would then ask his acquiring bank to credit his account for the value of the 2 CDs, plus interest for the period his account was not credited. The acquirer would then request an equivalent amount from the issuer who would debit the cardholder’s account for the price of the 2 CDs plus interest. The customer would, quite naturally, be most unhappy with this debit because the CDs are not of the “expected quality”, and the dispute would continue.
We believe that the proposal from the Commission on non-delivery is a steam-roller to crack a monkey nut, and would in fact create a complex and costly chain of litigation when easier solutions are at hand and can be used today.
In fact, the merchant and their client are the only ones in a position to settle their dispute, i.e. whether the goods have been delivered or not.
In the case where the goods or services have not been delivered, and where the consumer and the merchant have come to an agreement on the dispute (i.e. they agree that in fact the goods or services have not been delivered), the merchant can decide either to make a credit transfer, send a cheque to his customer, or even give cash back.
This is certainly a much simpler way of solving the issue.
In the case where a merchant and the consumer have come to an agreement further to a dispute, they could inform their respective banks that they wish the reimbursement to be made through the banking channel. In this latter case, the banks act upon instruction of their respective customers, without interfering with the legal obligations of the parties to the disputed transaction, which would unfortunately be the case with the initiative proposed by the Commission.
d) A possible solution which is put forward in the Working Document is the introduction of joint liability of the "payment provider" with the merchant, or the consumer. In the case of bank cards, we would assume that this means that acquirers would be liable for the merchants with whom they have contracted, and that the issuers would be liable for their cardholders.
If this was the case, then an acquirer would be bound to reimburse a cardholder in cases where their client, the merchant, did not deliver the goods or services purchased.
This would amount to making the banks liable for any failure in their clients’
performance, simply because they have delivered one of the ways to carry out payment in a separate contract.
If this reasoning was extended to other sectors of the economy, then Central Banks would be jointly liable for non-delivery of goods or services which were paid for in cash.
In a similar vein, does this mean that car manufacturers should be jointly liable in case of an accident caused by a taxi driver, simply because they have provided the car ?
Obviously not, but in addition to this example which has been given in lay terms, a more extensive legal analysis on the issue of joint liability is attached as an annexe to this document. This analysis is in French.
e) Requesting payment providers to reimburse consumers in the case of non-delivery is a simplistic approach to a much more difficult issue, i.e. consumer confidence in distance selling.
Even more so is the Commission’s proposal to introduce several or second-in-line joint liability of the "payment provider" and the merchant. There are much better ways to secure consumer confidence (and the corresponding proper behaviour from e-merchants).
Making issuers intervene in place of merchants will not necessarily solve the problems consumers may face when shopping over the Internet, and there is the even greater danger that this could mask the bad practices of certain merchants.
This is why we believe that the Commission must favour the adoption of “Best Practices”
or “Codes of Conduct” (such as l@belsite in France) because they represent a formidable
of codes of conduct, "payment providers" should never need to intervene in a dispute between merchants and consumers.
• Burden of Proof (Section 1.5.5).
The issue of "burden of proof" is referred to in the Working Document in cases of disputes.
We assume that the Commission is looking to provide better protection for the customer in cases where fraudulent use of the card has given rise to a dispute with the card issuer.
From a legal point of view, a mandate given by a client to his bank to pay is deemed to be valid only when it has been given by the legitimate holder of the payment instrument.
In the physical world, the PIN code or the signature is used to do this.
In the virtual world, an electronic signature or a certificate will constitute the proof of the payment order.
In all other cases, the mandate is only valid if and when it is not opposed by the cardholder.
When it is opposed by the cardholder, however, the issuer must assume that the mandate is not valid and must re-credit the client. In France, the burden of proof belongs to the professional, and never to the consumer.
The initialburden of proof lies therefore with the card issuer who, on the basis of a payment order, has transferred funds from one account to another.
A dialogue would then follow with the cardholder, who, would, for example, claim that the transaction was made without any PIN entry or written instruction on his part, or that this particular transaction could not have been done by them. The card issuer would then carry out the necessary research into the circumstances of this (these) particular transaction (s).
In other words, even though the initial burden of proof lies on the card issuer, the facts will be established on the basis of a dialogue between the card issuer and the card holder.
Clearly the initial burden of proof lies with the payment provider.
In fact, this principle which is included in the Directive for Unfair Terms in Consumer Contracts 93/13/CEE April 5 1993 became law in France in 1995.
In addition, it must also be made clear however that in the ensuing dialogue (whose purpose is to be constructive in establishing the veracity of a given transaction), the cardholder has a responsibility, and indeed the obligation, to respond to requests for information concerning the disputed transaction from the payment providers.
This obligation for the cardholder to respond is not only necessary to establish the facts related to a given transaction, but is also essential if the payment providers or card issuers are to remain vigilant to, and keep abreast of, new types of fraud.
• Consequential damage (Section 1.5.6).
The provisions of EU legislation on electronic payment instrument have been gradually and fully implemented in the French Legislative framework, where the so-called “Loi sur la Sécurité Quotidienne” has recently been adopted to offer optimal protection to the cardholder both in terms of transparency and liability, and separates the responsibilities of the cardholder and the card issuer.
There have been no cases in European legislation whereby the provider of services has been held liable for consequential damages as propsed in the Working Document.
Annexe : Responsabilité solidaire entre la banque et le commerçant
Introduction
Nous comprenons le souci de la Commission d'assurer une plus grande protection du consommateur au sein de l'Union.
La question est de savoir s'il est opportun d'introduire un principe de solidarité entre la banque (qu'elle soit émettrice ou acquéreur) et le vendeur ou prestataire de services et si ce problème trouve une réponse positive dans une analyse de la nature juridique des droits et obligations de chacune des parties.
A. Analyse juridique des liens existant entre la banque et le vendeur.
En cas de défaillance du vendeur, le consommateur est habilité à se retourner contre le vendeur qui a failli à ses obligations contractuelles. Afin de fonder ce droit de recours, le consommateur doit établir la faute du débiteur tels que la non livraison des produits, ou une prestation partielle des services ayant fait l'objet du contrat.
De même, en cas de défaillance de la banque, le porteur va pouvoir se retourner contre le prêteur afin que celui-ci verse les sommes prévues au contrat.
I. Deux actes juridiques distincts.
L'ordre de paiement et le contrat d'achat sont deux actes économiques différents et donc deux actes juridiques distincts, auxquels sont parties des entités juridiques distinctes et dont l'objet et les modalités d'exécution sont complètement différentes:
ê D'un côté, le vendeur s'engage à livrer à un consommateur un bien ou à livrer un service à un prix donné. Le consommateur s'engage à prendre livraison du bien ou du service et à en acquitter le prix. Ce premier faisceau de droits et d'obligations est distinct du second.
ê Dans l'ordre de paiement, le porteur donne un ordre irrévocable de paiement à sa banque afin que le vendeur soit payé par sa banque acquéreur.
Le contrat de paiement et le contrat d'achat sont liés, mais ne peuvent pour autant être considérées comme un seul et même contrat.
Introduire une solidarité entre la banque et le vendeur suppose l'existence d'une même obligation dans le chef de deux personnes différentes. Il faudrait donc considérer que les deux contrats contiennent une obligation commune pour la banque et le vendeur de réparer la faute de l'un ou de l'autre. Dans ce cas, le consommateur serait habilité à se retourner indifféremment contre l'un ou l'autre en cas de défaillance de l'un ou de l'autre.
II. Responsabilité du fait d'autrui.
Permettre au consommateur de se retourner contre la banque en cas de défaillance du vendeur revient à considérer que la banque est responsable du fait du vendeur.
Non content d'être des plus curieux, ce postulat ne trouve aucun fondement juridique.
D'un point de vue juridique en effet, la responsabilité du fait d'autrui suppose qu'une personne soit tenue de réparer le dommage commis par autrui1. Cette responsabilité trouve son fondement dans un rapport de subordination (parents/enfants, instituteurs et élèves ou commettants/préposés) et permettra à la victime de se retourner contre celui qui exerce une autorité sur l'auteur du dommage.
Il n'existe cependant aucun lien de subordination entre le vendeur ou prestataire de
services, et la banque. La banque (qu'elle soit émettrice ou acquéreur) n'est pas en mesure de contrôler la façon dont le vendeur remplit ses obligations, ni de lui donner la moindre instruction à ce sujet.
La responsabilité du fait d'autrui implique nécessairement que la banque puisse contrôler la qualité du travail fourni par le vendeur, et ait la possibilité de le sanctionner ou de lui enjoindre de l'exercer différemment. Dans ce cas seulement, la banque devient co- responsable et pourrait être poursuivi pour des manquements de son vendeur, agissant dans un mandat de subordination par rapport à sa banque.
Le consommateur ne peut se retourner contre le vendeur en cas de défaillance de la banque, pas plus qu'il ne pourrait se retourner contre la banque en cas de défaillance du vendeur.
B. L'opportunité d'introduire une solidarité généralisée entre la banque et le vendeur.
En terme de protection du consommateur, l'inexécution du contrat principal de livraison de biens ou de prestation de services affecte nécessairement l'autre en ce que ce dernier est directement fonction du premier. Il est essentiel de reconnaître le lien existant entre ces deux contrats.
Il ne faut pourtant pas que ce lien étroit emporte un transfert des droits et obligations du vendeur de biens au prestataire de services ou vice versa.
Le Document de Travail n'envisage d'ailleurs pas qu'en cas de défaillance de la banque, le consommateur puisse se retourner contre le vendeur ou prestataire de services.
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Le vendeur/prestataire de services exerce un métier différent de celui exercé par l'institution financière et vice-versa. La banque n'est dès lors matériellement pas en mesure de réparer la faute du vendeur, car elle n'est pas débitrice de l'obligation principale de livrer des biens ou de prester certains services.
Il est dans l'intérêt du consommateur de laisser à la relation commerciale toutes ses chances et de permettre au vendeur, même à l'issue d'une procédure judiciaire, de réparer sa faute et de remplir ses obligations.
Demander à la banque d'intervenir aux lieux et place induit nécessairement des effets pervers car cela permettrait aux vendeurs et prestataires de services de ne plus s'exposer à des poursuites judiciaires, même en cas de défaillance. Dans ce cas en effet, le
consommateur sera incité à se retourner rapidement contre l'établissement financier pour obtenir remboursement, sachant ce dernier est davantage solvable que le vendeur.
La solidarité, en droit civil, n'est pas présumée. Elle ressort soit de la loi, soit elle est conventionnelle et résulte d'un écrit, c'est à dire, que les parties l'ont explicitement voulu.
Or il est difficile de penser que les banques pourraient être, soit par la loi, soit conventionnellement, dans une situation où elles seraient contraintes de pallier les manquements du secteur commercial sans être elles-mêmes parties aux transactions.
Il n'y a pas de "solidarité" entre le vendeur et la banque. Le vendeur ne peut être tenu responsable de la bonne exécution de l'ordre de paiement, pas plus que la banque ne peut être tenue responsable d'une bonne fourniture de biens ou de services.
Introduire une solidarité entre la banque et le fournisseur de biens ou services est un non- sens économique, comme juridique. Ceci est vrai quel que soit le moyen de paiement utilisé.
A titre d'exemple, la mise à disposition d'un chéquier implique nécessairement l'existence d'un contrat de compte courant entre la banque et son client. Il ne vient cependant à l'esprit de personne de considérer que la banque émettrice du carnet de chèque est solidairement responsable du fournisseur de biens ou de services au seul motif que la transaction a été réglée par chèque. De même, la Banque Centrale Européenne ne pourrait être poursuivie en justice au motif que la conclusion du contrat de fourniture de biens ou de services est conditionnée par l'existence de l'Euro utilisé en espèces.
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