Opinion of the Advocate General — ECLI:EU:C:2026:227
Date: 2026-03-19
Language of the case: French

Summary C-339/25 – 1 
Case C-339/25 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
17 May 2025 
Referring court: 
Tribunal de l’entreprise francophone de Bruxelles (Belgium) 
Date of the decision to refer: 
8 May 2025 
Applicant:  
Iulicris Recycling SRL 
Defendant:  
Ibanfirst SA 
  
1. Subject matter of the main proceedings: 
1 Commercial dispute concerning flexible futures covering the USD/RON foreign 
exchange risk, at first instance before the referring court. 
2. Subject matter and legal basis of the request:  
2 Reference for an interpretation of a provision of Directive (EU) 2015/2366 on 
payment services in the internal market. 
3. Provisions of European Union law relied upon: 
Directive 2014/65/EU of the European Parliament and of the Council of 15 May 
2014 on markets in financial instruments and amending Directive 2002/92/EC 
and Directive 2011/61/EU (recast). 
EN 
SUMMARY OF THE REQUEST FOR PRELIMINARY RULING – CASE C-339/25 
 
2  
3 Article 2 provides: 
‘Exemptions 
1. This Directive shall not apply to: 
… 
(c) persons providing an investment service where that service is provided in an 
incidental manner in the course of a professional activity and that activity is 
regulated by legal or regulatory provisions or a code of ethics governing the 
profession which do not exclude the provision of that service; …’ 
4 Annex I reads as follows: 
‘LISTS OF SERVICES AND ACTIVITIES AND FINANCIAL 
INSTRUMENTS 
… 
SECTION C 
Financial instruments 
… 
(4) Options, futures, swaps, forward rate agreements and any other derivative 
contracts relating to securities, currencies, interest rates or yields, emission 
allowances or other derivatives instruments, financial indices or financial 
measures which may be settled physically or in cash;’ 
Commission Delegated Regulation (EU) 2017/565 of 25 April 2016 
supplementing Directive 2014/65/EU of the European Parliament and of the 
Council as regards organisational requirements and operating conditions for 
investment firms and defined terms for the purposes of that Directive 
5 Article 4 provides: 
‘Provision of investment service in an incidental manner 
…  
For the purpose of the exemption in point (c) of Article 2(1) of Directive 
2014/65/EU, an investment service shall be deemed to be provided in an 
incidental manner in the course of a professional activity where the following 
conditions are satisfied: 
(a) a close and factual connection exists between the professional activity and 
the provision of the investment service to the same client, such that the 
IULICRIS RECYCLING 
 
3 
investment service can be regarded as accessory to the main professional 
activity; 
(b) the provision of investment services to the clients of the main professional 
activity does not aim to provide a systematic source of income to the person 
providing the professional activity; and 
(c) the person providing the professional activity does not market or otherwise 
promote his ability to provide investment services, except where these are 
disclosed to clients as being accessory to the main professional activity.’ 
6 Article 10 reads as follows: 
‘Characteristics of other derivative contracts relating to currencies 
1. For the purposes of Section C(4) of Annex I to Directive 2014/65/EU, other 
derivative contracts relating to a currency shall not be a financial instrument 
where the contract is one of the following: 
(a) a spot contract within the meaning of paragraph 2 of this Article, 
(b) a means of payment that: 
(i) must be settled physically otherwise than by reason of a default or 
other termination event; 
(ii) is entered into by at least a person which is not a financial counterparty 
within the meaning of Article 2(8) of Regulation (EU) No 648/2012 of the 
European Parliament and of the Council (20); 
(iii) is entered into in order to facilitate payment for identifiable goods, 
services or direct investment; and 
(iv) is not traded on a trading venue.’ 
Directive (EU) 2015/2366 of the European Parliament and of the Council of 
25 November 2015 on payment services in the internal market, amending 
Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) 
No 1093/2010, and repealing Directive 2007/64/EC 
7 Article 18 provides: 
‘Activities 
1. Apart from the provision of payment services, payment institutions shall be 
entitled to engage in the following activities: 
SUMMARY OF THE REQUEST FOR PRELIMINARY RULING – CASE C-339/25 
 
4  
(a) the provision of operational and closely related ancillary services such as 
ensuring the execution of payment transactions, foreign exchange services, 
safekeeping activities, and the storage and processing of data; …’ 
4. Succinct presentation of the facts and procedure in the main 
proceedings: 
8 IULICRIS is a Romanian recycling undertaking which invoices scrap in US 
dollars (USD) and performs its payment obligations in Romanian lei (RON). 
9 IBANFIRST, an online payment service provider, has been authorised as a 
payment institution by the Banque nationale de Belgique (National Bank of 
Belgium) since 22 May 2013. 
10 On 1 July 2021, IULICRIS opened a bank account with IBANFIRST. In order to 
reduce the USD/RON foreign exchange risk, IULICRIS also concluded three 
flexible futures on 17, 28 and 30 September 2021, fixing the USD/RON exchange 
rates at 4.20 for USD 3 million, 4.22 for USD 3 million and 4.25 for 
USD 4 million, respectively. 
11 Between 9 March 2022 and 7 October 2022, IULICRIS paid IBANFIRST a total 
of USD 894 724 and RON 1 498 000 in respect of margin calls. 
12 On 26 October 2022, IULICRIS requested a renewal of the coverage period for 
the flexible futures for a further year. 
13 IBANFIRST said it was only prepared to extend the flexible futures for a further 
month, subject to the payment of new margin calls and the provision of financial 
collateral. 
14 IULICRIS refused those conditions, reminded IBANFIRST of the amounts of the 
margin calls already paid and reiterated its request for an extension of the 
contracts for a period of one year. 
15 On 21 November 2022, IBANFIRST informed IULICRIS that the flexible futures 
had expired and called on IULICRIS to deliver the agreed currencies to it. 
16 On 28 February 2023, IULICRIS claimed that the flexible futures were invalid ab 
initio in so far as they had been distributed in breach of public policy and gave 
IBANFIRST formal notice to reimburse IULICRIS the amounts paid in respect of 
the margin calls. 
17 Since all amicable steps taken were unsuccessful, IULICRIS brought proceedings 
against IBANFIRST on 25 May 2023. 
18 IULICRIS requests that the tribunal de l’entreprise francophone de Bruxelles 
(Belgique) (Brussels Business Court (French-speaking) (Belgium)) declare invalid 
the initial financial instruments deriving from the three flexible futures of 
IULICRIS RECYCLING 
 
5 
September 2021 and all financial instruments by which they were replaced in 
succession and order IBANFIRST to repay the sums of USD 894 724 and 
RON 1 498 000 paid in respect of margin calls. In the alternative, it requests that 
certain questions be submitted to the Court of Justice, the third of which is 
identical to the question which the Business Court refers the Court of Justice. 
5. The essential arguments of the parties in the main proceedings: 
IULICRIS 
19 IULICRIS claims that IBANFIRST infringed the relevant regulatory framework 
in so far as the flexible futures are financial instruments within the meaning of 
Section C, point 4 of Annex I to Directive 2014/65 on markets in financial 
instruments. They are not covered by the ‘spot’ exemption or the ‘payment’ 
exemption laid down in Article 10(1)(a) and (b) of Delegated Regulation 
2017/565. 
20 By distributing flexible futures, IBANFIRST provided a regulated investment 
service as a primary activity (and not in an incidental manner) without being 
entitled to do so. 
21 Although payment institutions (such as IBANFIRST) are authorised by their own 
regulatory framework to provide, in addition to their payment services, ‘closely 
related ancillary services such as … foreign exchange services’ (Article 18(1) of 
Directive 2015/2366 on payment services), the fact remains that that ability does 
not allow them to distribute financial instruments. The ‘spot’ exemption and the 
‘payment’ exemption are the only exceptions enabling currency derivatives to be 
excluded from the notion of ‘financial instrument’ within the meaning of 
Directive 2014/65 on markets in financial instruments. However, they do not 
cover the flexible futures at issue here. 
22 In other words, the notion of foreign exchange services only includes direct 
currency trading and futures which fall outside the notion of financial instrument 
by complying with the ‘spot’ or ‘payment’ exemptions. Only a service that is not 
an ‘investment service in financial instruments’ for the purposes of Directive 
2014/65 on markets in financial instruments can be a mere ‘foreign exchange 
service’. 
23 The need for a payment institution wishing to offer certain foreign exchange 
services to comply with the ‘payment’ exemption conditions is logical and is 
coherent with the EU legal order. Otherwise, the entire regulation of markets in 
financial instruments could be circumvented by a payment institution that does not 
have the necessary authorisation to provide investment services. 
24 In order to ensure the coherence of the EU legal order, it is self-evident that the 
incidental (‘closely related ancillary’) nature referred to in Article 18 of Directive 
2015/2366 on payment services must be interpreted in the light of Article 2(1) of 
SUMMARY OF THE REQUEST FOR PRELIMINARY RULING – CASE C-339/25 
 
6  
Directive 2014/65 on markets in financial instruments, as specified in Article 4 of 
Delegated Regulation 2017/565 supplementing Directive 2014/65. 
25 As a result of that infringement of the regulatory framework, the flexible futures 
are invalid, leading to the repayment to IULICRIS of the margin calls it paid to 
IBANFIRST. 
IBANFIRST 
26 IBANFIRST contends that it is authorised to distribute flexible futures under the 
regulatory framework which applies to it in its capacity as a payment institution. 
27 The services related to those flexible futures are ancillary to the payment services 
which it offers to IULICRIS. The National Bank of Belgium’s authorisation 
expressly covers such ancillary services. 
28 IBANFIRST recalls that it expressly stated in its application for authorisation that 
it intended to provide foreign exchange services linked to its customers’ payment 
transactions: 
‘It should be pointed out that the vast majority of payment transactions carried out 
by [IBANFIRST] will simultaneously give rise to foreign exchange transactions 
the rate of which will be determined either on the basis of the market rates 
available on the date of performance of the payment transaction, or on the basis of 
a “guaranteed” exchange rate agreed between [IBANFIRST] and its customer 
when the customer hedges prior to validation of the payment transaction.’ 
29 The definition of ‘incidental’ within the meaning of Directive 2014/65 on markets 
in financial instruments cannot be transposed to the rules on payment services. 
The three conditions laid down in Article 4 of Delegated Regulation 2017/565 are 
therefore in no way applicable to the authorisation to provide payment services 
and therefore do not have to be fulfilled by IBANFIRST in order to be able to 
offer foreign exchange services, which include flexible futures. 
30 More fundamentally, IBANFIRST argues that the rules applicable to payment 
services and investment services are quite distinct (‘two sets of self-standing 
rules’), so that (i) the authorisation specifically envisaged for payment institutions 
and which is held by IBANFIRST need not be assessed having regard to the rules 
applicable to investment services and (ii) the incidental nature of a payment 
service need not be assessed in the light of the incidental nature required by 
Directive 2014/65 on markets in financial instruments. 
31 In other words, IBANFIRST submits that the scope of Directive 2014/65 on 
markets in financial instruments does not (and cannot) affect the authorisation 
specifically provided for in Directive 2015/2366 on payment services. 
32 Those two directives have contrasting scopes of application which do not 
intersect: whereas Directive 2015/2366 on payment services regulates the 
IULICRIS RECYCLING 
 
7 
provision of payment services (as listed exhaustively), Directive 2014/65 on 
markets in financial instruments regulates the provision of investment services 
relating to financial instruments (as listed exhaustively). 
33 The foreign exchange services offered by IBANFIRST do not constitute 
derivative contracts relating to a currency within the meaning of Directive 
2014/65 on markets in financial instruments, capable of constituting ‘financial 
instruments’ since the concept of ‘derivative contract’ covers only derivatives 
forming part of a speculation strategy. At the end of this type of contract, the 
contracting parties merely establish who has ‘won’ and who has ‘lost’ in the light 
of the movements in the relevant exchange rates calculated on the basis of a 
fictitious underlying amount. The foreign exchange contracts covered by Directive 
2014/65 on markets in financial instruments are therefore only foreign exchange 
contracts for investment or speculation purposes. In other words, the notion of 
‘derivative contract’ within the meaning of Directive 2014/65 on markets in 
financial instruments does not therefore cover flexible futures the sole purpose of 
which is to hedge the foreign exchange risk that undertakings face in their 
international payments. 
34 If the EU legislature had intended to make the ability of payment institutions to 
offer ancillary foreign exchange services, in the form of futures, to their customers 
subject to the ‘payment’ exemption conditions set out in Delegated Regulation 
2017/565, it would necessarily have made that clear in that regulation or, at the 
very least, would have made it clear in the new directive under preparation. 
35 Furthermore, in the hierarchy of norms of EU law, directives are legislative acts 
ranking higher than delegated regulations, which are non-legislative acts, with the 
result that Delegated Regulation 2017/565 cannot derogate from the authorisation 
envisaged for payment institutions by Directive 2015/2366 on payment services. 
The interpretation advocated by IULICRIS is tantamount to considering that, 
through its delegated regulation, the Commission altered, at least implicitly, the 
scope of a directive. 
36 IBANFIRST reaffirms that the flexible futures are compliant and concludes that 
they are not invalid. 
6. Succinct presentation of the reasoning in the request for a preliminary 
ruling: 
37 Undertakings established under Belgian law wishing to offer investment services 
or carry out investment activities involving financial instruments on a regular and 
professional basis are required to obtain authorisation from the supervisory 
authority before commencing their business. 
38 Under Article 4(1)(1) of Directive 2014/65 on markets in financial instruments, 
‘investment firm’ means any legal person whose regular occupation or business is 
SUMMARY OF THE REQUEST FOR PRELIMINARY RULING – CASE C-339/25 
 
8  
the provision of one or more investment services to third parties and/or the 
performance of one or more investment activities on a professional basis. 
39 ‘Investment services and activities’ means the investment services and activities 
listed in Section A of Annex I to that directive, relating to financial instruments. 
40 Article 2 of Directive 2014/65 on markets in financial instruments exempts from 
the scope of the directive, subject to compliance with certain conditions, persons 
providing investment services only in an incidental manner in the course of their 
professional activity. 
The notion of ‘incidental’ is clarified in Article 4 of Commission Delegated 
Regulation 2017/565. 
41 In addition, Article 10 of Delegated Regulation (EU) 2017/565 supplementing 
Directive 2014/65 on markets in financial instruments also establishes two 
exemptions known as the ‘spot’ and ‘payment’ exemptions, under which 
derivatives covered a priori by the concept of financial instrument are nevertheless 
excluded from it. 
42 The outcome of the present case therefore turns on whether it is necessary for 
payment institutions wishing to offer, on a regular and professional basis, 
currency derivatives as part of an ancillary foreign exchange service to ensure that 
those instruments fall within the ‘spot’ or ‘payment’ exemptions and do not 
therefore constitute financial instruments within the meaning of Directive 2014/65 
on markets in financial instruments. 
43 It is therefore necessary to stay the proceedings and to refer a question to the 
Court of Justice on to the interpretation of Directive 2015/2366 on payment 
services. 
7. Question referred for a preliminary ruling: 
44 The Business Court refers the following question for a preliminary ruling: 
Must Article 18(1)(a) of Directive (EU) 2015/2366 of the European Parliament 
and of the Council of 25 November 2015 on payment services in the internal 
market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and 
Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC (PSD II) be 
interpreted as meaning that, in order to be regarded as closely related ancillary 
services which payment institutions are entitled to engage in by operation of law, 
currency futures must: 
(a) satisfy the conditions for exemption laid down in Article 10(1)(b) (the payment 
exemption) of Commission Delegated Regulation (EU) 2017/565 of 25 April 2016 
(MiFID II Delegated Regulation)? 
IULICRIS RECYCLING 
 
9 
(b) be incidental in nature within the meaning of Article 2(1)(c) of Directive 
2014/65/EU of the European Parliament and of the Council of 15 May 2014 
(MiFID II Directive) and, consequently, satisfy the conditions laid down in 
Article 4 of Commission Delegated Regulation (EU) 2017/565 of 25 April 2016 
(MiFID II Delegated Regulation)?