# C_2011290EN.01000301.xml

| 1.10.2011 | EN | Official Journal of the European Union | C 290/3 |
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1.10.2011

EN

Official Journal of the European Union

C 290/3

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Reference for a preliminary ruling from the Juzgado Mercantil de Barcelona (Spain) lodged on 18 July 2011 — Manuel Mesa Bertrán and Cristina Farrán Morenilla v Novacaixagalicia

(Case C-381/11)

2011/C 290/04

Language of the case: Spanish

Referring court

Referring court

Juzgado Mercantil de Barcelona

Parties to the main proceedings

Parties to the main proceedings

Applicants: Manuel Mesa Bertrán and Cristina Farrán Morenilla

Applicants:

Defendant: Novacaixagalicia

Defendant

Questions referred

Questions referred

| 1. | If a credit institution offers a client with whom it has previously signed a mortgage loan contract an interest rate swap arrangement to cover the risk of variations of interest rates on that loan, must this be regarded as investment advice within the meaning of point [(4)] of Article 4(1) of the MiFID Directive [Directive 2004/39/EC] (1)? |
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1.

If a credit institution offers a client with whom it has previously signed a mortgage loan contract an interest rate swap arrangement to cover the risk of variations of interest rates on that loan, must this be regarded as investment advice within the meaning of point [(4)] of Article 4(1) of the MiFID Directive [Directive 2004/39/EC] (1)?

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| 2. | Must omission of the suitability test provided for in Article 19(4) of the MiFID Directive with regard to a retail investor give rise to fundamental nullity of the interest rate swap arrangement entered into between the investor and the advising credit institution? |
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2.

Must omission of the suitability test provided for in Article 19(4) of the MiFID Directive with regard to a retail investor give rise to fundamental nullity of the interest rate swap arrangement entered into between the investor and the advising credit institution?

| 3. | In the event that the service provided in the terms described is not regarded as investment advice, does the mere fact of purchasing a complex financial instrument, into which category falls an interest rate swap arrangement, without the appropriateness test provided for in Article 19(5) of the MiFID Directive being carried out, for reasons imputable to the investment institution, give rise to fundamental nullity of the purchase contract concluded with the same credit institution? |
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3.

In the event that the service provided in the terms described is not regarded as investment advice, does the mere fact of purchasing a complex financial instrument, into which category falls an interest rate swap arrangement, without the appropriateness test provided for in Article 19(5) of the MiFID Directive being carried out, for reasons imputable to the investment institution, give rise to fundamental nullity of the purchase contract concluded with the same credit institution?

| 4. | Under Article 19(9) of the MiFID Directive, does the mere fact that a credit institution offers a complex financial instrument linked to a mortgage loan constitute sufficient cause to exclude application of the obligation to carry out the suitability and appropriateness tests provided for by the said Article 19 which the investment institution must undertake in the case of a retail investor? |
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4.

Under Article 19(9) of the MiFID Directive, does the mere fact that a credit institution offers a complex financial instrument linked to a mortgage loan constitute sufficient cause to exclude application of the obligation to carry out the suitability and appropriateness tests provided for by the said Article 19 which the investment institution must undertake in the case of a retail investor?

| 5. | In order to enable the obligations laid down in Article 19 of the MiFID Directive to be excluded, is it necessary for the financial product to which the financial instrument offered is linked to be subject to statutory investor-protection standards similar to those laid down in that directive? |
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5.

In order to enable the obligations laid down in Article 19 of the MiFID Directive to be excluded, is it necessary for the financial product to which the financial instrument offered is linked to be subject to statutory investor-protection standards similar to those laid down in that directive?

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(1)  Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments, amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC.

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