PSD2 and Immediate : The Tukowiecka Judgment and Its Operational Impact on Banks

Context: The Tukowiecka Judgment

On 15 October 2026, the Court of Justice of the European Union delivered its judgment in Tukowiecka (C-70/25).

The Court held that, in principle, a payment service provider must reimburse the payer for an unauthorised payment transaction immediately, even where the payer is alleged to have acted with gross negligence.

While the judgment is important, it was not entirely unexpected in light of the wording and structure of the PSD2 directive.

The PSD2 Framework

PSD2 seeks to ensure trust in electronic payments by combining strong customer protection with clear allocation of losses.

Articles 73 and 74 distinguish between, first, the immediate reimbursement obligation and, second, the possibility of ultimately allocating losses to the payer in cases of intentional conduct or gross negligence.

What Did the Court Clarify?

What remained contested in practice was whether a bank could invoke alleged gross negligence at the outset in order to refuse reimbursement, or whether it had to reimburse first and address liability afterwards.

In Tukowiecka, the Court clarified that the immediate reimbursement obligation is not subject to a prior assessment of gross negligence by the payer.

What Are the Implications for Banks?

For banks, the judgment does not necessarily eliminate the possibility of ultimately shifting losses to a grossly negligent payer.

However, it alters the chronology and procedural dynamics. Institutions may face short-term liquidity implications, operational adjustments in claims handling, evidentiary challenges and more frequent recovery actions against customers.

What About Luxembourg Banks?

For Luxembourg banks, which frequently serve corporate and institutional clients, the judgment raises a further question concerning the contractual allocation of liability.

Article 61(1) PSD2 expressly permits certain contractual derogations from Article 74 for non-consumer payment service users, whereas Article 73 is not expressly included among the provisions from which the parties may derogate.

What Remains Legally Uncertain?

This textual distinction does not, however, settle how the immediate reimbursement obligation operates where the parties have contractually modified the allocation of losses under Article 74.

Tukowiecka should therefore not be read as definitively resolving that issue for corporate customers; the precise interaction between these provisions warrants further examination.

Our team advises financial institutions on the interpretation of this judgment and its practical implications for restitution, litigation strategy and risk management.

➡️ For any questions, please contact Nicolas Thieltgen or Anne-Marie Ka.