Joris DeeneNo. On September 1, 2026, the presiding judge of the Commercial Court of Antwerp, Antwerp Division, ruled in summary proceedings that Article VII.43 of the Code of Economic Law requires the bank to provisionally and immediately refund the amount of an unauthorized payment transaction, and that neither the ongoing criminal investigation, nor a set-off clause, nor a deposit into escrow may delay that refund. The case involved a retired couple, aged 80 and 87, who on January 19, 2026, fell victim to bank help desk fraud and saw 49,050 euros disappear to Portugal. The bank refused to intervene on April 9, 2026, and has now been ordered to credit the account with a value date of January 19, 2026.
In short:
- The presiding judge ordered the bank, pursuant to Article VII.43 of the Economic Law Code, to reimburse 49,050 euros by crediting the accounts with a value date of January 19, 2026, and ruled out the possibility of a deposit into escrow.
- According to the chairman, the provision in the bank’s general terms and conditions that allows for conventional set-off against claims “whether due or not” is contrary to the law if it blocks provisional repayment.
- According to the chairperson, someone who first waits 90 days for a response from Ombudsfin and then files a lawsuit a month and a half after receiving the bank’s response does not lose the right to expedited proceedings.
The facts
On January 19, 2026, an 80-year-old woman was browsing the Booking reservation platform when she received a call on her cell phone from someone posing as an employee of her bank. The caller referred to her activity on Booking, knew the name of her regular bank representative, and the bank’s logo and name appeared on the screen during the call. She and her 87-year-old husband said they were convinced that the bank was helping them stop and reverse suspicious transactions.
Later that day, they discovered that two transfers totaling 49,050 euros had been made from their accounts to unknown accounts in Portugal. They called the bank’s fraud hotline and Card Stop that same day, filed a complaint with the police in Spain, and on January 30, 2026, also filed a complaint in Belgium.
A long silence followed. It was not until April 9, 2026, that the bank notified them by email that it would not intervene. The couple filed a complaint with Ombudsfin, which confirmed receipt on April 20, 2026, and waited for the 90-day processing period to elapse. Their attorney served the bank with a notice of default on May 7, 2026; the bank responded on June 16, 2026. On August 4, 2026, a summons for summary proceedings was filed, with a preliminary hearing on August 7 and a hearing on August 21, 2026.
The plaintiffs sought reimbursement of 49,050 euros pursuant to Article VII.43 of the Code of Economic Law (WER), with default interest accruing as of January 19, 2026. The bank moved to have the claim dismissed as meritless. As a secondary request, it asked that provisional enforcement be made contingent upon security, in the form of a deposit or other personal or real security. According to the bank, there was still 61,536.50 euros in the couple’s accounts.
The ruling
The chairperson addressed five separate questions and answered them all in the couple's favor. .
Why the claim for provisional reimbursement was urgent
An application for preliminary relief is a proceeding before the presiding judge of the court who, in cases he deems urgent, issues a provisional ruling without definitively determining the rights of the parties (Article 584 of the Judicial Code (Ger.W.)). The bank disputed the urgency of the matter: the plaintiffs did not submit any documents demonstrating their financial distress; they still had well over 61,000 euros in their accounts; and they had delayed filing the summons for nearly three months.
The chairperson followed a two-part line of reasoning. First, in his view, the urgency stems from the nature of the measure itself. The legislature mandated that the refund be made “immediately” and “no later than the end of the next business day,” precisely because it assumed that the failure to make such a refund would cause serious inconvenience. A request to restore the bank account is therefore, by its very nature, urgent.
Second, the chairperson also found that the urgency had been concretely demonstrated. People aged 80 and 87 who lose half of their savings can plausibly demonstrate that they no longer have the means to pay for their housing and care. The fact that the fraudsters had not completely emptied the accounts did not change that.
The allegation of delay was dismissed. The plaintiffs had not created the urgency themselves: the bank had not responded until April 9, 2026, and the couple was then required to wait for Ombudsfin to intervene. Since the law places the burden of initiating legal proceedings on the bank, the presiding judge ruled that the elderly plaintiffs could not be blamed for first seeking redress from the ombudsman’s office and only going to court after the 90-day period had elapsed. A summons issued one and a half months after the bank’s response of June 16, 2026, was not late.
Why the transfers were unauthorized payment transactions
A payment transaction is authorized when the payer has consented to the execution of the payment order; without such consent, it is not authorized (Article VII.32, § 1 and § 2 of the WER). The bank argued that there was no near-certain probability that the transactions were unauthorized, because the full extent of the fraud had not yet come to light and because the plaintiffs had validated the transactions using their debit card, card reader, and PIN.
The chairperson turned that argument on its head. The fact that the bank itself admits that the fraudsters’ modus operandi remains unclear means that it has not demonstrated that the transactions were apparently authorized. And authentication is not consent: proof that a payment instrument with its associated code was used does not prove that the payer personally used the instrument and therefore does not prove that the payer consented (Article VII.42 of the WER). The plaintiffs had never given instructions to transfer a specific amount to a specific account; their information was obtained under false pretenses during their communications with the fraudster.
The chair drew a clear line in this regard. Anyone who is the victim of phishing and discloses personal security information to a fraudster, who then uses that information to initiate a payment on their own, has not given consent. On the other hand, anyone who is tricked into issuing the payment order themselves—as in the case of invoice fraud—is, in fact, carrying out an authorized transaction. According to the chairperson, this case fell prima facie into the first category.
Why the gross negligence on the part of the payers was not taken into account here
The bank argued that the plaintiffs had failed to fulfill their obligations through gross negligence and that, on the merits of the dispute, they should bear all losses pursuant to Article VII.44 of the WER. The presiding judge deemed that argument irrelevant to the provisional repayment.
In doing so, he expressly relied on the opinion of Advocate General Rantos dated March 5, 2026, in the Tukowiecka case (Opinion of Advocate General A. Rantos, March 5, 2026, C-70/25). Article 73 of the Second Payment Services Directive (PSD2) provides for immediate reimbursement; Article 74 merely specifies who bears the loss later, in legal proceedings. The correct interpretation is that the bank must first reimburse the customer and only then may it assert a claim against the payer who was negligent. The only exception to the refund is a strong presumption that the payer committed fraud, with written notification to the FPS Economy.
In doing so, the chair reiterated what he had already decided on May 26, 2026, and what we analyzed in our blog post about The question of whether the bank must first reimburse the customer after a phishing incident. He also cited the handbook by Straetmans and Steennot, which states that banks rarely, if ever, comply with Article VII.43 of the WER, as evidenced by the opinions of Ombudsfin (G. STRAETMANS and R. STEENNOT, Handbook on Consumer Protection and Market Practices, Antwerp, Intersentia, 2023, 620).
He drew two conclusions from this. The bank must use January 19, 2026, as the value date, so that the interest claimed is without merit. And the bank’s request to stay the proceedings until there is clarity regarding the criminal proceedings was denied: the bank itself had failed to recover anything, so it was entirely implausible that the plaintiffs would have been able to do so.
Why the bank was not permitted to offset the repayment based on its general terms and conditions
Set-off is the legal concept whereby two parties who are debtors to one another offset their debts against each other; conventional set-off is the variant in which the parties expand that option in their contract, for example, to include debts that are not yet due and payable. The bank invoked such a provision, albeit as a secondary argument, in its General Regulations for Transactions. If it were obligated to make a provisional repayment, then the plaintiffs would have had a due and payable claim against it, but it itself would have had a claim against them that was not yet due and payable under Article VII.44 of the WER. Set-off would therefore render the claim for repayment without merit.
The chairperson rejected that interpretation as a misinterpretation of the purpose of Article VII.44 of the WER. According to the bank’s reasoning, it would almost always have a non-demandable claim against its customers and could thus always oppose immediate repayment. To the extent that the general terms and conditions have that effect, they are, according to the presiding judge, contrary to law: in the contract between the bank and the client, the application of Article VII.43 of the WER cannot be excluded and cannot be deviated from. The bank must seek repayment in a trial on the merits if it believes the transaction was permissible or the result of gross negligence, and it cannot suspend its obligation pending such a trial by invoking the argument of set-off.
Why the bank did not receive a set-aside or security
Deposit is the option available to a party ordered to pay to deposit the amount of the judgment in escrow rather than pay it to the opposing party, pending the appeal; the court may deny this request if the delay in payment exposes the creditor to serious harm (Article 1406 of the Civil Code). The bank requested, as a matter of secondary importance, that enforcement be made contingent upon a deposit or other form of security.
The presiding judge refused. A set-off would, at first glance, amount to a circumvention of Article VII.43 of the WER, which specifically prescribes immediate and provisional reimbursement through the restoration of the affected account. Furthermore, the delay would indeed expose the plaintiffs to serious harm, as the legislature intended and as the presiding judge had already determined with respect to these plaintiffs. The bank was also ordered to pay the costs: 440.74 euros in summons fees, 3,924.42 euros in legal fees, and 165 euros in court fees.
Legal analysis and interpretation
A bank that sets off a claim it has yet to win
In this case, on April 9, 2026—eighty days after the fraud—the bank had indicated in a single email that it would not intervene. When she appeared before the chairperson, she cited a provision in her general regulations that allowed her to set off any debt owed to a client against any of her own claims, including those not yet due and payable. Applied to payment fraud, this means: the bank will not reimburse the client because it believes it may recover the funds at a later date.
The chairperson referred to this as a reversal of the law, and that characterization is legally sound. Article VII.29 of the WER lists the provisions from which the parties may deviate when the user is not a consumer; Article VII.44 is on that list, while Article VII.43 is not. The legislature has thus even restricted the provisional refund to businesses outside the scope of contractual freedom. A bank that eliminates this right for consumers through a set-off clause is doing what the law does not permit any party to do.
This reasoning is also consistent with an established principle of legal doctrine. If the bank has provisionally credited the account and subsequently concludes that the customer acted with gross negligence, it may not debit the account again on its own initiative: to do so, it needs the payer’s consent or an enforceable judgment, unless the payer himself committed fraud (R. STEENNOT, ‘Payment Fraud: A Never-Ending Story?’, TBH 2025/1, 83). What the bank is not permitted to reclaim retroactively, it may not withhold in advance. The set-off was essentially an attempt to take that second step before the first.
Exclusion of partition: a departure from established case law, but a logical one
In published case law on payment fraud, the exclusion of the escrow provision is virtually never granted. The Commercial Court in Leuven denied the request in 2021 because the loss was disputed and had not been proven (Orb. Leuven March 23, 2021, A/20/00352, DBF-BFR 2022/4, 231), and the Dutch-speaking Commercial Court in Brussels even refused it in 2022 after finding that the bank had violated its obligation to make an immediate refund (Orb. Brussels (Dutch) October 27, 2022, DBF-BFR 2022/4, 247).
The difference lies in the nature of the proceedings, and that deserves an explanation. A judgment on the merits grants a definitive claim; a provisional payment order merely postpones the time of payment, while the right itself is established. An order in summary proceedings, on the other hand, grants a measure that is nothing other than that payment: the provisional restoration of the account, pending the hearing on the merits. Anyone who has such a measure set aside effectively nullifies it. The presiding judge characterized this as a circumvention of Article VII.43 of the WER, and that is precisely what it is.
Added to this is the legal structure of summary proceedings. Orders issued in summary proceedings are enforceable by operation of law on a provisional basis and without security, unless the judge expressly orders otherwise (Article 1039 of the Code of Civil Procedure). The bank therefore did not request a right to which it was entitled, but rather a favor that the law treats as an exception. The figures from legal scholarship explain why that favor would carry significant weight here: a first-instance ruling on phishing is issued, on average, 528 days after the events, and an appellate decision, on average, 1,647 days (K. DOBBELAERE, ‘Liability in Phishing Fraud: Visualization of a Legally Uncertain Procedure,’ RW 2024-25, 1534). For plaintiffs aged 80 and 87, a provisional payment order deferred until after the appeal is not a postponement but a denial.
The dissenting voice: The Brussels president and the European legislator are moving in the opposite direction
Anyone who reads this ruling as a fixed rule overlooks two countervailing developments. The first comes from Brussels. On June 10, 2026, the presiding judge of the Dutch-language Commercial Court ruled that the immediate effect of Article VII.43 of the WER does not legally imply the urgency required by Article 584 of the Ger.W. does not legally imply, and that the payer may also request the same provisional judgment from the trial court pursuant to Article 19, paragraph 3, Ger.W., if necessary in summary proceedings (Presiding Judge, Commercial Court of Brussels (Dutch) (KG), June 10, 2026, C/26/00017, unpublished). We previously compared these two approaches in our blog post on the urgency of reimbursement in summary proceedings.
That dissenting vote carries less weight than it appears, and the Antwerp chairman implicitly took it into account. He not only relied on the nature of the measure but also specifically established its urgency: age, half of the savings, and the need for funds for housing and care. The Brussels case involved a company with ample liquidity and an overdraft facility. The difference between the two rulings is therefore largely a difference in the facts of the case, not in the law. What remains clear, however, is that a plaintiff who relies solely on the statutory deadline and submits no documentation regarding their financial situation faces a real risk in Brussels.
The second counter-movement comes from the European legislature. The final compromise text of the new Payment Services Regulation (PSR), which the Council published on April 23, 2026, allows the bank, under Article 56, to suspend the immediate refund if it has objectively justified grounds to suspect intent or gross negligence on the part of the payer and communicates those grounds to the payer in writing. The bank then has fifteen business days to either refund the amount or provide reasons for its refusal. This is precisely the exception that Advocate General Rantos rejected under PSD2 and that the President rejected here.
However, this does not change the decision for the time being, for two reasons. The regulation has not yet been published in the Official Journal and will not take effect until 21 months after its entry into force—realistically, in 2028; until then, Book VII of the WER, interpreted in light of PSD2, remains the applicable law. And even under the new text, the bank’s conduct in this case would not be permissible: a silence of eighty days followed by an unsubstantiated email does not constitute a written notification of objectively justified reasons within fifteen business days. Incidentally, regarding bank help desk fraud involving a spoofed phone number, Article 59 of that same text adds a new rule: in such cases, the bank must even refund a payment authorized by the consumer themselves, as soon as the consumer has reported the fraud to the bank and the police. The facts of this case, in which the bank’s logo and name appeared on the cell phone screen, fall squarely within that provision.
Specifically, what does this mean?
For victims of phishing and bank help desk fraud. Report the fraud to your bank and to Card Stop on the same day, file a complaint with the police, and keep all evidence of those reports; in this case, the fraud hotline, Card Stop, and the complaints filed in Spain and Belgium were all taken into account when determining whether the report was timely. According to this ruling, filing a complaint with Ombudsfin and waiting for the 90-day processing period does not affect the urgency of your case, but do not count on the same flexibility in every district. Document your financial situation with supporting documents: age, pension, planned expenses, and the proportion of the loss relative to your savings, as these are the factors the chairperson specifically considered. If you’re unsure whether your case is suitable for summary proceedings, the first thing we’ll assess for you is that sense of urgency. In addition, always request that the credit be posted with a value date of the day the fraud occurred: this replaces the interest claim and is what the law requires. On our information page about The Bank's Liability in Phishing Cases You can read here how the preliminary refund compares to the final distribution.
For businesses that were victims. The provisional reimbursement under Article VII.43 of the WER also applies to you; Article VII.29 of the WER only allows the bank to contractually exclude Article VII.44, not Article VII.43. However, you must prove the urgency more convincingly than a retired couple would, and the Brussels presiding judge rejected a company with sufficient liquidity. In that case, consider seeking a provisional measure from the trial court as an alternative, as we discussed in our blog post about the refund of a fraudulent wire transfer to a company.
For banks and payment service providers. A refusal without justification, months after the report was filed, will not hold up in summary proceedings. If you wish to suspend the reimbursement, current law provides only one avenue: reasonable grounds to suspect fraud on the part of the payer, reported in writing to the FPS Economy. A compensation clause in the general terms and conditions is not a second avenue, nor is a request for a provisional payment in summary proceedings. You must raise the issue of gross negligence in the proceedings on the merits, where you act as the plaintiff and bear the burden of proof; to learn how strict that standard is since the Court of Cassation ruled on the matter, read our blog post about gross negligence in phishing. Anyone preparing for the upcoming Payment Services Regulation would be wise to establish a procedure now that provides a reasoned, written response within fifteen business days.
Frequently asked questions (FAQ)
Can the bank refuse to reimburse me after a phishing incident as long as it believes I was grossly negligent?
No, not under current law. Article VII.43 of the WER requires the bank to refund an unauthorized payment transaction immediately and no later than the next business day. The only exception is a reasonable suspicion that you committed fraud yourself, reported in writing to the FPS Economy. A suspicion of gross negligence falls under the definitive allocation of liability set forth in Article VII.44 of the WER, which the bank must enforce in proceedings on the merits. This was the ruling of the Antwerp presiding judge on May 26 and September 1, 2026, and the opinion of Advocate General Rantos on March 5, 2026.
Can my bank offset the refunded amount against what it expects to be able to recover from me later?
According to the presiding judge of the Commercial Court in Antwerp, no. A provision in the general terms and conditions that allows for set-off against claims that are not yet due and payable is contrary to the law as soon as the bank uses it to block the provisional repayment. Otherwise, the bank could almost always invoke a claim against its customer, and the repayment obligation would become a dead letter. If the bank believes you are liable, it must bring a substantive claim itself; in the meantime, it may not withhold payment or debit your account again on its own initiative.
What is a bank deposit, and can the bank invoke it in summary proceedings?
A deposit allows a party found liable to deposit the amount of the judgment rather than pay it, pending an appeal. The judge may deny this option if the delay exposes the creditor to serious harm (Article 1406 of the Judicial Code). In main proceedings concerning phishing, such a denial is rarely granted. In summary proceedings, the presiding judge in Antwerp ruled otherwise on September 1, 2026: a deposit would itself preclude the provisional reimbursement and thus circumvent Article VII.43 of the WER, and the elderly plaintiffs suffered serious harm.
Will I lose the urgency of summary proceedings if I go to Ombudsfin first?
According to this ruling, no. Following the bank’s refusal on April 9, 2026, the plaintiffs filed a complaint with Ombudsfin, waited for the 90-day processing period to elapse, and filed a lawsuit on August 4, 2026, one and a half months after the bank’s response to their notice of default. The chairperson did not consider this to be late, because the law places the burden of taking legal action on the bank, and victims cannot be blamed for first seeking an out-of-court resolution. Other chairpersons may be stricter, so be sure to document every step and your financial situation.
Conclusion
The presiding judge of the Commercial Court in Antwerp reaffirms the ruling of May 26, 2026, and strengthens its terms. The bank must provisionally reimburse an unauthorized payment transaction with a value date of the day of the fraud, and it cannot delay that reimbursement by citing the criminal investigation, by invoking a set-off clause in its general terms and conditions, or by requesting a deposit into escrow. In Belgium, the victim’s gross negligence is assessed only in the proceedings on the merits, where the bank itself must take action. Brussels case law and the upcoming European Payment Services Regulation show that the debate is not yet settled; however, until the new regulation takes effect, this remains the applicable framework.
ICT Rechtswijzer is the knowledge platform of the Intellectual Property, IT Law, AI Law, Data Protection, and Media Law department at Everest Advocaten, led by Joris Deene, Esq. Our attorneys assist victims of phishing and bank help desk fraud in securing provisional reimbursement from the bank—whether through summary proceedings or before the trial court—and in defending against the claim of gross negligence that the bank subsequently raises.
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