DFor several years, the UFC-Que Choisir alert the public on risks of ATM attacks: criminals wait until a customer has inserted their bank card and dialed their secret code to attack them and enter a large sum on the keyboard, before swiping run away with the money. The customer who requests reimbursement of the stolen amount generally encounters a refusal from the bank.
Mr. X, who was thus robbed of 900 euros, on February 5, 2018, at an ATM of Crédit Lyonnais (LCL), has just had this refusal condemned by the courts. This victory should please the “some fifty people” who, every year, file a complaint for assault at the DAB, and who are identified by the Observatory for the Security of Payment Means… but also those who refuse to cross the doors of police stations, while expressing themselves on social networks.
On June 20, 2018, Mr. X sued Crédit Lyonnais to obtain reimbursement of his 900 euros, as well as damages.
He invokes the provisions of the monetary and financial code which require the banker to reimburse ” at once ” a ” unauthorized payment transaction” (article L133-18). And those which relieve the customer of any deductible (50 euros), when his responsibility is not “not engaged”because “the unauthorized payment transaction was carried out by misappropriating, without its knowledge, the payment instrument or the data linked to it” (article L133-19-II).
Concept of consent
Crédit Lyonnais denies that its client was the victim of such an operation: it would have ” authorized » the withdrawal, by dialing his secret code. The interbank regulations for card withdrawals in fact state that the card holder need only have typed in this code on the keyboard for him to have ” given his consent to the withdrawal operation.
The latter is then considered finished, regardless of whether a third party has, by force, made up the amount. Mr. X would therefore have been the victim of a “cash theft” (qualification which appears on the classification without follow-up to his complaint). This, like a wallet theft, does not concern the bank: thesis validated by the Paris court on May 7, 2021.
Mr. X appeals in cassation. His lawyer maintains that when the wrongdoer composed the amount of the withdrawal, the operation of the same name was, necessarily, in progress. Since the criminal has “take the lead “, she has the characteristics of a ” fraudulent withdrawal »giving right to the application of the monetary and financial code.
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