On 15 October 2026, the Court of Justice ruled in Tukowiecka that a bank may not refuse the immediate refund of an unauthorised payment transaction on the ground that the payer made that transaction possible through gross negligence. The Court thereby follows the opinion delivered by Advocate General Rantos on 5 March 2026.
Jorne Geenens and Stijn De Meulenaer
What the case was about
A customer of a Polish bank offered an item for sale on an online marketplace. A so-called buyer sent her a link that imitated her bank’s website, and she entered her login details there. Using those details, the fraudster transferred 3,000 Polish zloty, roughly 705 euros, to his own account, confirmed with a text-message code that he had also obtained from her. The customer reported the fraud to her bank and to the police the next day. The bank refused to refund her: by disclosing her security credentials, she had been grossly negligent. The Polish court asked the Court of Justice whether that reasoning holds.
Refund first, then the liability debate
The Court held that it does not. The second Payment Services Directive, transposed in Belgium in Book VII of the Code of Economic Law, allows a single exception to the obligation to refund an unauthorised transaction immediately: the bank has reasonable grounds for suspecting fraud by the payer himself and communicates those grounds in writing to the competent authority, which in Belgium is the FPS Economy. Gross negligence does not appear in that text, and the Court therefore held that it is no exception to the immediate refund obligation. According to the Court, the refund obligation and the allocation of liability govern two distinct stages of the same procedure: the bank refunds first, and who ultimately bears the loss is decided only afterwards.
For the bank, that is not yet the end of the matter, and this deserves just as much attention. The refund is provisional, not final. If the bank later shows that the payer was grossly negligent, the payer will still have to bear the losses. The burden of proving gross negligence lies with the bank.
What risks being lost in the debate: the transaction must first be unauthorised
In the press and in many discussions, the judgment is summarised as: from now on, the bank must always refund a fraud victim at once. That is not what it says, and the difference is no detail.
The obligation to refund immediately arises only where the transaction is unauthorised. That is not an exception to the refund obligation but a condition of application, which must be met before there can be any question of a provisional refund obligation on the bank. In Tukowiecka, the unauthorised nature of the transaction was established from the outset and disputed by no one. The judgment therefore says nothing about when a transaction is authorised. Yet in Belgian practice that very question decides more cases than gross negligence does.
A payment transaction is authorised when the payer has consented to its execution in the form and according to the procedure agreed with his bank. The case law applies that test objectively: what matters is whether the payer himself went through the payment procedure. What the payer thought or hoped to achieve with the payment is irrelevant. Someone who discloses his codes to a fraudster, who then initiates the payment himself, as in Tukowiecka, has not consented. By contrast, someone whom a fraudster persuades to execute and confirm the transfer himself, as in invoice fraud, investment fraud or the so-called safe account scam, carries out an authorised transaction, however thoroughly he was deceived about where the money was going. That deception does not make the transaction unauthorised. The judgment does not move that line.
First qualification: on the merits, everything is assessed together
The judgment settles the order, not the outcome. Article VII.43 of the Code of Economic Law (CEL) requires a provisional refund, but it is not a self-standing basis of liability that determines who bears the loss in the end. That is the role of Article VII.44 CEL.
When the payer brings a claim on the merits under Article VII.43 CEL, the courts generally assess that claim together with Article VII.44 CEL and decide on the final allocation in one go. At that point, the immediate refund is no longer assessed on its own: if the bank proves gross negligence, the payer bears the loss.
Second qualification: the provisional refund must go through procedural law
The second qualification is procedural, and in practice it weighs the most. EU law says that the bank must refund immediately, but it does not lay down the procedural route by which the refund can be obtained. That route is a matter of national procedural law. The two routes available, summary proceedings (kort geding) and an interim measure ordered by the court hearing the merits, each have their own conditions, which must also be met.
Summary proceedings first require urgency. Urgency does not follow from the statutory refund deadline itself: the payer must show in concreto that he cannot await the outcome of ordinary proceedings, and the burden of proof is his. An interim measure ordered by the court hearing the merits under Article 19, third paragraph, of the Judicial Code has no such urgency threshold, but presupposes that the case on the merits has already been brought.
Both routes are, moreover, subject to the same limit: the court only orders a provisional measure and may not finally determine the dispute on the merits. It therefore reviews the claim prima facie: the payer must show that he is likely to succeed on the merits, and for a measure that in effect anticipates the final outcome, such as the payment of a sum of money, the bar is often set higher. In that prima facie review, the qualification of the transaction and a seriously substantiated allegation of gross negligence do come into play: not as an exception to Article VII.43 CEL, since that reading is off the table as of today, but as a factor in the payer’s prospects of winning on the merits. A bank that makes gross negligence seriously plausible can thus still avoid a provisional order.
It therefore remains to be seen how the Belgian courts will apply the judgment within that procedural framework.
The EU legislator is already adjusting course
Finally, anyone assessing how durable the judgment is would do well to look at the compromise text of the new Payment Services Regulation, published by the Council in April 2026. Under that forthcoming legislation, the bank will be given the option of suspending the immediate refund where it has objectively justified grounds for suspecting intent or gross negligence on the part of the payer and communicates those grounds to the payer in writing. It will then have fifteen working days either to refund or to give reasons for its refusal. That is precisely the exception the Court rejects today under the current directive, and it is therefore likely to arrive after all, albeit subject to strict formal and time requirements. The judgment thus settles a debate whose outcome the EU legislator is already rewriting.
Conclusion
The Court of Justice confirms the following interpretation of the directive: where a transaction is unauthorised, the bank refunds first, and the debate on gross negligence takes place afterwards. The practical scope of that rule should not, however, be overestimated. Access to the refund still depends on the objectively assessed qualification of the transaction. In proceedings on the merits, the court generally assesses the provisional refund obligation and liability together, so that a grossly negligent payer ultimately bears the loss himself. Anyone seeking to enforce the refund pending the proceedings must clear the procedural thresholds, where the gross negligence debate resurfaces. And the EU legislator stands ready to give banks the power of suspension that the Court denies them today.