Provisional text
OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 19 March 2026 (1)
Case C‑339/25
Iulicris Recycling SRL
v
Ibanfirst SA
(Request for a preliminary ruling from the Tribunal de l’entreprise francophone de Bruxelles (Brussels Business Court (French-speaking), Belgium)
( Reference for a preliminary ruling – Payment services in the internal market – Directive (EU) 2015/2366 – Authorisation for payment institutions to provide closely related ancillary services – Foreign exchange services – Flexible currency futures – Directive 2014/65/EU – Delegated Regulation (EU) 2017/565 – Investment services – Financial instruments – Exclusion of investment services provided in an incidental manner by other professionals – Exemption of the incidental provision of investment services offered by payment service providers (payment exemption) )
1.        The proceedings giving rise to this reference for a preliminary ruling are between two companies: (a) one company, based in Belgium, acts as a payment services provider (‘PSP’) within the meaning of Directive (EU) 2015/2366, (2) with authorisation from the Belgian authorities; (b) the other, based in Romania (‘the client’), uses the services of the first company to conduct its business activities.
2.        The referring court would like to know whether the PSP can lawfully enter into flexible currency futures with clients, which may be subject to Directive 2014/65/EU (3) and Delegated Regulation (EU) 2017/565, (4) where the PSP is not authorised to act as an investment firm within the meaning of those two legal instruments.
I.      Legal framework
A.      European Union law
1.      The PSD2
3.        Article 18 (‘Activities’) reads:
‘1.      Apart from the provision of payment services, payment institutions shall be entitled to engage in the following activities:
(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;
…
2.      Where payment institutions engage in the provision of one or more payment services, they may hold only payment accounts which are used exclusively for payment transactions.
3.      Any funds received by payment institutions from payment service users with a view to the provision of payment services shall not constitute a deposit or other repayable funds within the meaning of Article 9 of Directive 2013/36/EU, or electronic money as defined in point (2) of Article 2 of Directive 2009/110/EC.
…
5.      Payment institutions shall not conduct the business of taking deposits or other repayable funds within the meaning of Article 9 of Directive 2013/36/EU.
…’
2.      The MiFID II
4.        Pursuant to Article 2 (‘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;
…’
5.        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.
…’
3.      The MiFID II Delegated Regulation
6.        Article 4, which concerns the provision of investment service in an incidental manner, provides:
‘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 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’.
7.        Article 10 (‘Characteristics of other derivative contracts relating to currencies’) reads as follows:
‘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 [of 4 July 2012 on OTC derivatives, central counterparties and trade repositories (OJ 2012 L 201, p. 1)];
(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.
2.      A spot contract for the purposes of paragraph 1 shall be a contract for the exchange of one currency against another currency, under the terms of which delivery is scheduled to be made within the longer of the following periods:
…
A contract shall not be considered a spot contract where, irrespective of its explicit terms, there is an understanding between the parties to the contract that delivery of the currency is to be postponed and not to be performed within the period set out in the first subparagraph.
…’
B.      National law
1.      Loi financière (5)
8.        Article 2(1)(d) contains a list of financial instruments similar to that in Section C(4) of Annex I to the MiFID II.
2.      Loi investissement (6)
9.        Under Article 4(1), the relevant title of that law does not apply to persons who provide investment services on terms similar to those set out in Article 2(1)(c) of the MiFID II.
3.      Loi paiement (7)
10.      Article 43(1) states that, without prejudice to Article 13, payment institutions are authorised to engage in the provision of operational services and ancillary services that are closely related to payment services, on terms similar to those set out in Article 18(1)(a) of the PSD2.
II.    Facts, proceedings and question referred for a preliminary ruling
11.      Iulicris Recycling SRL (‘Iulicris’) is a Romanian recycling undertaking which invoices scrap in US dollars (USD) and performs its payment obligations in Romanian lei (RON).
12.      Ibanfirst SA is an online PSP, authorised by the National Bank of Belgium since 22 May 2013, which provides services in the field of international transactions.
13.      On 1 July 2021, Iulicris opened a bank account with Ibanfirst. By signing the relevant contract, Iulicris subscribed to certain services, such as opening a multi-currency payment account, receiving and sending SEPA transfers (8) and accessing the Ibanfirst platform.
14.      In order to reduce the USD/RON foreign exchange risk, Iulicris also concluded three flexible futures on 17, 28 and 30 September 2021, (9) 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.
15.      Beginning in March 2022, Ibanfirst made a number of margin calls (10) asking Iulicris to pay various amounts under those calls. 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 guarantee margins. (11)
16.      On 26 October 2022, Iulicris requested a renewal of the hedging period for the flexible futures for a further year.
17.      Ibanfirst stated that it was only prepared to extend the flexible futures for a further month, subject to the payment of new guarantee margins and the provision of financial collateral.
18.      Iulicris refused those conditions, reminded Ibanfirst of the margin calls already paid and reiterated its request for an extension of the flexible futures
for a period of one year.
19.      On 21 November 2022, Ibanfirst informed Iulicris that the flexible futures had expired and called on Iulicris to pay it the agreed currencies.
20.      On 28 February 2023, Iulicris informed Ibanfirst that the flexible futures had been marketed in breach of public policy and were null and void. Iulicris demanded that Ibanfirst return the amounts paid in respect of guarantee margins.
21.      After all attempts to reach an out-of-court settlement proved unsuccessful, Iulicris brought proceedings against Ibanfirst on 25 May 2023 seeking the following:
–        an order declaring the initial financial instruments deriving from the three flexible futures of September 2021 and all successive financial instruments replacing them to be null and void;
–        an order requiring Ibanfirst to repay the sums of USD 894 724 and RON 1 498 000 paid in respect of guarantee margins.
22.      In those circumstances, the Tribunal de l’entreprise francophone de Bruxelles (Brussels Business Court (French-speaking), Belgium) referred the following question to the Court of Justice for a preliminary ruling:
‘Must Article 18(1)(a) of [the PSD2] 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 [means of] payment exemption) of the [MiFID II Delegated Regulation]?
(b)      be incidental in nature within the meaning of Article 2(1)(c) of [the MiFID II] and, consequently, satisfy the conditions laid down in Article 4 of the [MiFID II Delegated Regulation]?’
III. Proceedings before the Court of Justice
23.      The request for a preliminary ruling was received at the Registry of the Court on 17 May 2025.
24.      Written observations have been submitted by Iulicris, Ibanfirst, the Belgian and Czech Governments and the European Commission.
25.      The Court did not deem it necessary to hold a hearing.
IV.    Assessment
A.      Admissibility
26.      Ibanfirst argues that part (a) of the question referred for a preliminary ruling is inadmissible because it is not necessary for the resolution of the dispute in the main proceedings. In its opinion:
–        that part of the question would only be relevant if the court a quo
had found at an earlier stage that the contracts in dispute are currency derivatives for the purpose of the MiFID II and Article 10(1)(b) of the MiFID II Delegated Regulation.
–        the contracts in dispute do not, however, fall within the scope of the MiFID II legal framework.
27.      The Belgian Government submits that, because Article 10(1)(b) of the MiFID II Delegated Regulation
precludes, under certain conditions, currency derivatives from being classified as
financial instruments, there is no need to consider whether the supervision regime established by the MiFID II is applicable. Therefore, without directly objecting
to the admissibility of part (a) of the question referred for a preliminary ruling, it limits its observations to answering part (b) of that question.
28.      In my opinion, the question referred for a preliminary ruling is admissible in its entirety. It benefits from the presumption of relevance applied by the Court to questions referred for a preliminary ruling by national courts. (12) Moreover, the inadmissibility claimed by Ibanfirst is inseparable from the examination of the substance of the question.
29.      Although the referring court did not expressly rule on the classification of the contracts in dispute, the question asked (in part (a) of the question referred for a preliminary ruling) concerns the interpretation of a provision of the MiFID II Delegated Regulation, which governs the ‘characteristics of other derivative contracts relating to currencies’.
30.      That question presupposes that, for the referring court, it is at least plausible that the contracts in dispute can be classified as futures, which may be subject to certain exceptions laid down in the MiFID II rules.
31.      In the same vein, the referring court summarises the dispute as follows: ‘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 exemptions [of Article 10(1) of the MiFID II Delegated Regulation] and do not therefore constitute financial instruments within the meaning of [the MiFID II]’. (13)
32.      Under those conditions, I take the view that the question referred for a preliminary ruling
is admissible in its entirety.
B.      Substance
1.      Preliminary remarks: nature of the disputed contracts
33.      The referring court must determine whether Ibanfirst’s authorisation to act as a PSP in Belgium allowed it to enter into flexible currency futures with Iulicris.
34.      Ibanfirst submits that Article 18 of the PSD2 exclusively governs its legal relationship with Iulicris, including with regard to the flexible currency futures. That position is also held by the Czech Government (14) and the Commission. (15) The Belgian Government, for its part, takes a middle ground, in that it acknowledges that the PSD2 scheme is self-sufficient, but considers that the exemption criteria laid down in the MiFID II rules could also be taken into account.
35.      Iulicris argues, by contrast, that those contracts are financial instruments regulated by the MiFID II rules. (16) In order to conclude them, Ibanfirst must have authorisation as an investment service provider.
36.      The reference for a preliminary ruling seeks to address the relationship between the PSD2 and the MiFID II rules on a point that, to date, has not been expressly regulated by the EU legislature. The current regulatory framework does not lay down a clear rule on whether a PSP can provide investment services without MiFID II authorisation.
37.      On the other hand, there is such a rule for credit institutions authorised under Directive 2013/36/EU (17) which engage in one or more investment activities, as reflected in Article 1(3) and (4) of the MiFID II.
38.      It must therefore be determined whether it is necessary for a PSP to secure additional administrative authorisation, as an investment firm, in order to offer services which may be subject to the MiFID II rules, even if it provides those services in a manner incidental to its main business as a PSP.
39.      The PSD2, adopted on the basis of Article 114 TFEU, lays down rules concerning ‘the transparency of conditions and information requirements for payment services’, and ‘the respective rights and obligations of payment service users and [PSPs] in relation to the provision of payment services as a regular occupation or business activity’ (Article 1(2)(a) and
(b)). That directive therefore applies to payment services.
40.      For its part, the MiFID II, adopted on the basis of Article 53(1) TFEU, establishes requirements in relation to the ‘authorisation and operating conditions for investment firms’ and the ‘provision of investment services or activities by third-country firms through the establishment of a branch’ (Article 1(2)(a) and
(b)).
41.      The scope of the MiFID II is dependent on the concept of ‘financial instrument’, in so far as the ‘investment services and activities’ to which it applies should relate to the instruments listed in Section C of Annex I
thereto, which includes futures.
42.      Despite the differences between the regulatory frameworks governing payment services and investment services, in practice there is often an interplay between them: payment services companies market to their clients (in principle, in a manner incidental to their main business) some financial instruments relating to that main business.
43.      That is the case here. Ibanfirst, which is a PSP, offered a client (Iulicris) a supplementary financial instrument (flexible currency futures) that could potentially fall within the scope of the MiFID II.
44.      In my view, the flexible currency futures concluded between Ibanfirst and Iulicris can be classified as financial instruments, that is, instruments which are in principle subject to the MiFID II.
45.      The MiFID II does not provide a general definition of ‘financial instrument’, but lists the financial instruments to which it applies in Annex I. In Section C(4) of that Annex, options, futures and other derivative contracts are classified as financial instruments.
46.      EU legislation also does not define futures, but the Court has taken them to be
‘as usually construed in finance law’. (18)
47.      On that basis, the Court has stated that ‘futures are a type of commodity derivative by which two parties undertake respectively to purchase and to sell, on a subsequent date, a so-called “underlying” asset at a price which is fixed at the time of conclusion of the agreement’. (19)
48.      Although that definition corresponded to Directive 2004/39/EC, (20) the predecessor of MiFID II, given that the lists of financial instruments are similar in both directives it can be used to interpret the MiFID II.
49.      The contracts between Ibanfirst and Iulicris, in dispute in the main proceedings, are called flexible futures (which is quite significant in itself) and, in my opinion, again, they fit the definition of futures used by the Court, given that:
–        in those contracts, which appear to follow the FX model (Forex, or foreign exchange, derivatives), the parties seek to reduce the risk associated with exchange rate fluctuations, especially the risk to Iulicris, which operates in RON but carries out many sales and transactions in USD;
–        during the contractual relationship arising from the contracts in dispute, Ibanfirst made two margin calls to Iulicris, requiring it to deposit additional funds, because the capital in the account had fallen below the maintenance margin due to losses caused by USD/RON exchange rate fluctuations.
50.      Everything therefore seems to indicate that the flexible currency futures at issue in the main dispute are financial instruments, within the meaning of the MiFID II.
51.      Starting from that premiss, it is necessary to examine whether, by means of those contracts, Ibanfirst provided to Iulicris a characteristic service of an investment activity, even though that activity was carried out in a manner incidental to its main business (online payment services involving foreign exchange operations being Ibanfirst’s main business).
52.      That analysis calls for an interpretation of Article 18(1)(a) of the PSD2, in itself and, where appropriate, in combination with Article 2 of the MiFID II and Articles 4 and 10 of the MiFID II Delegated Regulation.
2.      Interpretation of Article 18(1)(a) of the PSD2
53.      In essence, the referring court asks the Court to interpret Article 18(1)(a) of the PSD2.
54.      In particular, it enquires whether, ‘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:
–        satisfy the conditions for exemption laid down in Article 10(1)(b) of the MiFID II Delegated Regulation;
–        be incidental in nature within the meaning of Article 2(1)(c) of the MiFID II and, consequently, satisfy the conditions laid down in Article 4 of the MiFID II Delegated Regulation.
55.      Under Article 18(1)(a) of the PSD2, ‘apart from the provision of payment services, payment institutions shall be entitled to engage in … closely related ancillary services such as … foreign exchange services …’.
56.      The concept of ‘closely related ancillary services’ in relation to the provision of payment services makes no reference to the domestic laws of the Member States. In order to ensure the uniform application of EU law and the principle of equality, the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union. (21)
57.      Since the PSD2 does not define the concept of ‘closely related ancillary services’ in relation to the provision of payment services, it must be interpreted by reference to its usual meaning in everyday language, while also taking into account the context in which it is used and the purposes of the rules of which it is part. (22)
(a)    Literal interpretation
58.      Article 18(1)(a) of the PSD2 specifically includes foreign exchange services among closely related ancillary services in relation to the provision of payment services. (23)
59.      The dispute in the main proceedings provides an example of such an ancillary service. The institution providing payment services (Ibanfirst) also offers its client (Iulicris) foreign exchange services, as a closely related ancillary service, because that client receives payments in USD and operates in RON.
60.      Therefore, foreign exchange services can certainly be classified as closely related ancillary services in relation to the provision of payment services.
61.      However, the
legal provision under consideration does not make it possible in itself to determine whether that classification is also possible when the foreign exchange service is accompanied by futures, agreed between the parties to manage the hedging of
the risk inherent in the evolution of currency exchange rates.
62.      Article 18(1)(a) of the PSD2 is therefore not very helpful, from a textual perspective, in deciding when futures, which are themselves financial instruments, can be classified as closely related ancillary services in relation to the main business of PSPs.
63.      Furthermore, Article 18(1)(a) of the PSD2:
–        makes no reference to the exemption conditions laid down in Article 10 of the MiFID II Delegated Regulation;
–         also does not refer to the provisions on the incidental nature of the marketing of certain financial instruments, contained in Article 2(1)(c) of the MiFID II and Article 4 of the MiFID II Delegated Regulation. On the other hand, those two rules governing investment services make no express reference to Article 18(1)(a) of the PSD2.
64.      In short, from a literal perspective, there is no basis in the present case to support an interpretation of Article 18(1)(a) of the PSD2 in conjunction with the MiFID II and the MiFID II Delegated Regulation. Furthermore, the proposed amendment to the PSD2 (24) retains a provision identical to Article 18 without mentioning the MiFID II.
(b)    Systematic interpretation
65.      A systematic perspective might militate in favour of an interpretation of Article 18(1)(a) of the PSD2 in line with the relevant provisions of the MiFID II and the MiFID II Delegated Regulation.
66.      However, there are many obstacles to that attempt at a combined interpretation. The MiFID II rules were adopted in relation to the provision of investment services, with the result that they follow a different rationale and apply to different situations.
67.      Article 10(1)(b) of the MiFID II Delegated Regulation states that, for the purposes of Section C(4) of Annex I to the MiFID II, ‘… other derivative contracts relating to a currency shall not be a financial instrument where the contract …’ is a means of payment meeting certain requirements. (25)
68.      The contracts eligible for that exception are those primarily aimed at creating a means of payment that guarantees the exchange rate between two different currencies. They are not primarily aimed at investment, but rather supplement a payment transaction in which different currencies are used.
69.      Again, currency derivatives of that type are not considered to be financial instruments within the MiFID II framework, although they are intrinsically of that nature. Institutions which market them do not therefore need to obtain administrative authorisation as an investment firm within the MiFID II
framework.
70.      However, the exemption mentioned above is different from the one established by Article 18 of the PSD2: Article 10(1)(b) of the MiFID II Delegated Regulation refers to a specific type of currency contract, whereas Article 18 of the PSD2 refers to all foreign exchange services, without exception. Therefore, the combined application of both rules would result in an unjustified limitation of the scope of Article 18 of the PSD2. (26)
71.      Nor can the exemption laid down in Article 2(1)(c) of the MiFID II (27) be used to interpret Article 18 of the PSD2. That exemption in the MiFID II is not comparable to the provision made in Article 18 of the PSD2 for two reasons:
–        In the first place, although the terminology is similar, Article 18 of the PSD2 includes within the scope of that directive certain closely related ancillary services in relation to the provision of payment services. By contrast, Article 2(1)(c) of the MiFID II excludes from its scope investment services provided in an incidental manner by institutions whose usual main business is not the provision of investment services.
–        In the second place, making the application of Article 18 of the PSD2 dependent on compliance with Article 2(1)(c) of the MiFID II
would limit the scope of the PSD2: only investment services could constitute closely related ancillary services in relation to the provision of payment services. As stated above, Article 18 of the PSD2 specifically mentions, as closely related ancillary services in relation to the provision of payment services, services that may not include financial instruments, such as safekeeping services and data processing and storage services.
(c)    Purposive interpretation
72.      In referring to closely related ancillary services in relation to payment services provided by PSPs to their clients, Article 18(1)(a) of the PSD2 intends for those services to be included and covered by the administrative authorisations under which PSPs operate.
73.      In the same vein, Article 18(4) of the PSD2, which governs the conditions under which a PSP can grant credit, specifies that the credit must be linked to the payment services provided to the client and, furthermore, must be ‘ancillary and granted exclusively in connection with the execution of a payment transaction’. (28)
74.      The purpose of those provisions of the PSD2 is to facilitate and not hinder the business of PSPs. Their aim is described in Directive 2007/64/EC (29) in terms which remain applicable to the PSD2, which replaced it, adapting its content to changes in the field of payment services as a result of technological developments and financial innovation. (30)
75.      Again, the aim of Article 18(1)(a) of the PSD2 is to ensure that, where payment services require foreign exchange transactions, authorisation to operate as a PSP is sufficient and there is no need to obtain a separate authorisation.
76.      In line with that aim, it is logical to interpret Article 18(1)(a) of the PSD2 as acknowledging that ‘foreign exchange services’ include not only transactions that purely involve converting a sum of money from one currency to another, but also additional transactions that hedge the future risk of exchange rate fluctuations.
77.      If foreign exchange services are interpreted in those terms (as closely related ancillary services in relation to the business of payment service providers), PSPs will be in a position to improve the provision of payment services to their clients: foreign exchange will be strengthened by additional hedging of the risk of exchange rate fluctuations.
78.      In short, I take the view that the teleological criterion is decisive if both foreign exchange transactions, in and of themselves, and futures hedging those transactions against the risk of exchange rate fluctuations are to be brought within the scope of Article 18(1)(a) of the PSD2.
79.      To that extent, authorisation to operate as a PSP confers on the holder the right to provide foreign exchange services, supplemented where necessary by futures hedging the risk of exchange rate fluctuations inherent in those transactions, without having to a request a separate authorisation to do so.
80.      If that is the case, there will be no need to examine the objectives of the MiFID II, (31) which differ from those of the PSD2 in so far as they relate to investment firms. The provisions of both directives, as regards their purpose, must be interpreted separately.
(d)    Interim conclusion
81.      Based on the above, I consider that Article 18(1)(a) of the PSD2 should be interpreted as meaning that, in order to be classified as closely related ancillary services in relation to the provision of payment services, foreign exchange services that include futures must satisfy the conditions laid down in that article. To that end, they do not need to comply with the requirements laid down in the MiFID II legal framework.
3.      Relevance of the MiFID II rules for the marketing, by PSPs, of flexible currency futures
82.      The foregoing is sufficient, in principle, to answer the question referred for a preliminary ruling: Article 18(1)(a) of the PSD2 allows PSPs to offer futures such as those in dispute, with no need for a (new) administrative authorisation to operate as investment service providers subject to the MiFID II rules.
83.      However, in view of the wording of the request for a preliminary ruling, that response would probably be incomplete if it did not consider the possible impact on the present case of the provisions of the MiFID II and the MiFID Delegated Regulation referred to in the order for reference.
84.      It is thus necessary to determine whether the conditions are satisfied in the present case in order to exclude the service provided by Ibanfirst to Iulicris from the scope of the MiFID II and the MiFID II Delegated Regulation.
85.      That would be the case if that service, after being classified as an ‘investment service’ (in so far as that covers financial instruments such as futures):
–        had been provided in an incidental manner in the course of a professional activity provided that that activity is regulated by legal or regulatory provisions which do not exclude the provision of that service (Article 2(1)(c) of the MiFID II); or
–        included derivative contracts relating to currencies with the characteristics referred to in Article 10(1) of the MiFID II Delegated Regulation.
86.      Following the order set out in the reference for a preliminary ruling, I will first address the possible impact of Article 10(1) of the MiFID II Delegated Regulation.
(a)    Derivative contracts relating to currencies that are not considered to be financial instruments, under Article 10(1) of the MiFID II Delegated Regulation
87.      Where a derivative contract relating to currencies is entered into and its contents fall within
Article 10(1)(b) of the MiFID II Delegated Regulation, that rules stipulates that it is not to be treated as a financial instrument.
88.      The conditions for the application of that provision require the derivative contract relating to currencies ‘to be’ a means of payment that: (i) must be settled physically; (ii) is entered into by at least a person which is not a financial counterparty; (iii) is intended to facilitate payment for identifiable goods, services or direct investment; and (iv) is not traded on a trading venue.
89.      I have already explained the reasons for my view that Article 18(1)(a) of the PSD2 entitles PSPs, independently, to provide foreign exchange services (including where those services incorporate futures) to their clients. Therefore, the requirements of the MiFID II Delegated Regulation do not have to be met for those purposes.
90.      If the opposite approach is taken, it would fall to the referring court, which has at its disposal all the clauses of the contracts in dispute in this case, to assess whether the four specific requirements of Article 10(1)(b) of the MiFID II Delegated Regulation are met in order to rule out the existence of a financial instrument. The order for reference does not provide enough information in that respect.
(b)    Inapplicability of the MiFID II to investment services provided in an incidental manner in the course of a professional activity
91.      Directive 2004/39, which was the predecessor of the MiFID II, contained a provision similar to Article 2(1)(c) of the MiFID II, which has been interpreted by the Court.
92.      The judgment in
Länsförsäkringar Sak Försäkringsaktiebolag and Others (32) concerned financial advice in connection with the placement of capital in the context of insurance mediation relating to the conclusion of a capital life assurance contract. The Court held that that activity fell within the scope of Directive
2002/92/EC (33) and not that of Directive 2004/39.
93.      A number of useful inferences for the present case can be drawn from that judgment with regard to the following:
–        In principle, financial advice may fall within the material scope of Directive 2004/39 because it is an ‘investment service’. The insurance intermediary may be classified as an ‘investment firm’ where it provides such advice as a regular occupation or business activity.
–        Nonetheless, Article 2(c) of Directive 2004/39 excludes from its scope persons providing an investment service ‘where that service is provided incidentally 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’.
–        The professional activity of an insurance intermediary consists, under Article 2(5) of Directive 2002/92, in insurance mediation. In so far as such an intermediary offers, among the insurance products available, a product such as capital life assurance, it must be held that advice on the investment of the capital used in that product is provided incidentally, since it is provided in the context of mediation on the conclusion of an insurance contract, an activity which is subject to legislative provisions of EU law, namely those of Directive 2002/92. (34)
94.      Following the same logic as in the judgment in
Länsförsäkringar Sak Försäkringsaktiebolag and Others, the following inferences may be drawn:
–        The main business of a PSP (such as Ibanfirst) is the provision of payment services, under Article 1 of the PSD2, the provisions of which apply to such business. Article 18 of the PSD2 allows payment institutions to provide closely related ancillary services linked to payment services, such as the provision of foreign exchange services, on the terms that I have indicated above.
–        Although, in principle, futures that supplement the provision of payment services can be classified as investment activities, Article 2(1)(c) of the MiFID II excludes from its scope investment services provided incidentally in the course of a regulated professional activity.
–        The concept of investment services being ‘incidental’
was developed by Article 4 of the MiFID II Delegated Regulation, which lays down three conditions to be satisfied if the exception laid down in Article 2(1)(c) of the MiFID II is to be applied.
95.      Under Article 4 of the MiFID II Delegated Regulation, ‘…
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 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’.
96.      Once again, I must restate the considerations set out above on the self-standing nature of Article 18(1)(a) of the PSD2, the application of which does not require compliance with the MiFID II rules.
97.      If that premiss were not accepted, it would fall to the referring court, which has all the information in that regard at its disposal, to decide whether the three conditions of Article 4 of the MiFID II Delegated Regulation are satisfied in the present case. For my part, I would simply like to draw attention to the following:
–        A close and factual connection exists between the professional activity of Ibanfirst, as a PSP, and the provision of the investment service consisting of supplementing the foreign exchange payment service (main professional activity) with futures. From that perspective, flexible currency futures constitute a closely related ancillary service in relation to the provision of payment services.
–        It is more doubtful that, in the present case, the provision of investment services to the clients of its main business is not a systematic source of income for a PSP such as Ibanfirst.
–        There may also be doubts as to whether Ibanfirst markets or promotes its ability to provide investment services and, if so, whether it discloses to its clients that those services are accessory to its main business as a PSP.
98.      Nonetheless, even if all (or some) of those three conditions are not met and the service in dispute cannot be classified as an investment service provided in an incidental manner, within the meaning of Article 2(1)(c) of the MiFID II, as implemented by Article 4 of the MiFID II Delegated Regulation, I am firm in the view that that would not prevent Article 18 of the PSD2 from applying in the present case.
V.      Conclusion
99.      In the light of the forgoing, I propose that the following answer be given to the Tribunal de l’entreprise francophone de Bruxelles (Brussels Business Court (French-speaking), Belgium):
‘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
must be interpreted as meaning that
institutions authorised to act as payment service providers are entitled to provide closely related ancillary services in relation to the provision of payment services, such as foreign exchange services that include flexible currency futures.
For that purpose, the following provisions are not applicable:
–        Article 2(1)(c) of 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;
–        Articles 4 and 10(1)(b) of 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.’
1      Original language: Spanish.
2      Directive 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 (OJ 2015 L 337, p. 35) (‘the PSD2’).
3      Directive 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 (OJ 2014 L 173, p. 349) (‘the MiFID II).
4      Commission Delegated Regulation 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 (OJ 2017 L 87, p. 1) (‘the MiFID II Delegated Regulation’).
5      Loi relative à la surveillance du secteur financier et aux services financiers du 2 août 2002 (Law of 2 August 2002 on supervision of the financial sector and on financial services) (Moniteur belge of 4 September 2002, p. 39121).
6      Loi relative à l’accès à l’activité de prestation de services d’investissement et au statut et au contrôle des sociétés de gestion de portefeuille et de conseil en investissement du 25 octobre 2016 (Law of 25 October 2016 on access to the activity of providing investment services and on the status and supervision of portfolio management companies and investment advice firms) (Moniteur belge of 18 November 2016, p. 76915).
7      Loi relative au statut et au contrôle des établissements de paiement et des établissements de monnaie électronique, à l’accès à l’activité de prestataire de services de paiement, et à l’activité d’émission de monnaie électronique, et à l’accès aux systèmes de paiement du 11 mars 2018 (Law of 11 March 2018 on the status and supervision of payment institutions and electronic money institutions, on access to the activity of payment service provider and the activity of issuing electronic money, and on access to payment systems) (Moniteur belge of 26 March 2018, p. 29444).
8      SEPA is the acronym for the Single Euro Payment Area. SEPA is the area where citizens, businesses and other economic operators can make and receive payments in euros in Europe, both within and beyond national borders, under the same conditions and with the same rights and obligations, wherever they are. It is a key component of the internal market for payments.
9      The order for reference, originally in French, refers to those contracts as ‘contrats à terme flexible’. ‘Contrats à terme’ are among the financial instruments listed in Section C(4) of Annex I to the MiFID II.
10      For further information on margin calls, see footnote 11.
11      In futures, the initial margin or guarantee margin is the minimum amount that must be deposited to open a position. That margin acts as a guarantee against losses, not full payment. The maintenance margin is the minimum balance that must be kept in the account while the position is open. If that balance falls below the maintenance margin set, a margin call will be made to request additional funds until the balance has returned to the level of the initial margin. In the margin call, the party that has to replenish the balance is warned that if funds are not added (or positions closed), the transaction will close automatically to hedge the risk. The margin call acts as a critical risk warning and is a means of ensuring the liquidity and stability of the market, allowing it to operate with leverage.
12      Judgments of 13 November 2025, Inteligo Media (C‑654/23, EU:C:2025:871), paragraph 71, and of 15 June 2021, Facebook Ireland and Others (C‑645/19, EU:C:2021:483, paragraph 115).
13      Order for reference, part III (‘Discussion’), in fine. Emphasis added.
14      In its written observations (paragraphs 5 and 12), the Czech Government asserts that currency futures only have to satisfy the conditions set out in Article 18(1) of the PSD2. The exceptions listed in the MiFID II rules only come into play if those conditions are not satisfied.
15      In its written observations (paragraph 82), the Commission submits that in order to determine whether the authorisation granted to a payment institution under the PSD2 can cover the conclusion of flexible futures, it is the conditions of Article 18 of the PSD2 that should be taken into account and not the MiFID II rules.
16      Paragraph 33 of the written observations of Iulicris.
17      Directive of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ 2013 L 176, p. 338).
18      Judgment of 3 December 2015, Banif Plus Bank (C‑312/14, EU:C:2015:794, paragraph 69).
19      Judgment of 3 December 2015, Banif Plus Bank (C‑312/14, EU:C:2015:794, paragraph 69).
20      Directive 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 (OJ 2004 L 145, p. 1).
21      Judgments of 30 March 2023, Hauptpersonalrat der Lehrerinnen und Lehrer (C‑34/21, EU:C:2023:270, paragraph 40), and of 2 June 2022, HK/Danmark and HK/Privat (C‑587/20, EU:C:2022:419, paragraph 25).
22      Judgments of 30 March 2023, Hauptpersonalrat der Lehrerinnen und Lehrer (C‑34/21, EU:C:2023:270, paragraph 41), and of 2 June 2022, HK/Danmark and HK/Privat (C‑587/20, EU:C:2022:419, paragraph 26).
23      In addition to foreign exchange services, Article 18(1)(a) of the PSD2 expressly mentions ‘… ensuring the execution of payment transactions …, safekeeping activities, and the storage and processing of data’ as closely related ancillary services in relation to the provision of payment services.
24      Article 10(1) of the Proposal for a Directive of the European Parliament and of the Council on payment services and electronic money services in the Internal Market amending Directive 98/26/EC and repealing Directives 2015/2366/EU and 2009/110/EC (COM(2023) 366 final) of 28 June 2023.
25      That means of payment must: (i) be settled physically otherwise than by reason of a default or other termination event; (ii) be entered into by at least a person which is not a financial counterparty within the meaning of Article 2(8) of Regulation No 648/2012; (iii) be entered into in order to facilitate payment for identifiable goods, services or direct investment; and (iv) not be traded on a trading venue.
26      As the Commission points out in its written observations (paragraphs 63 and 64), Article 10(1)(b) of the MiFID II Delegated Regulation limits the exemption to currency derivatives entered into by at least a person which is not a financial counterparty within the meaning of Article 2(8) of Regulation No 648/2012. That would have the consequence of excluding foreign exchange transactions between two financial institutions from Article 18 of the PSD2, when that exclusion does not feature at all in that latter rule.
27      Under that provision, the MiFID II does not apply to ‘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’.
28      Recital 40 of the PSD2 states that the directive regulates ‘… the granting of credit by payment institutions, namely the granting of credit lines and the issuance of credit cards, only where it is closely linked to payment services’. That recital adds that ‘… only if credit is granted in order to facilitate payment services and such credit is of a short-term nature and is granted for a period not exceeding 12 months, including on a revolving basis, is it appropriate to allow payment institutions to grant such credit with regard to their cross-border activities, on condition that it is refinanced using mainly the payment institution’s own funds, as well as other funds from the capital markets, and not the funds held on behalf of clients for payment services …’.
29      Directive of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC (OJ 2007 L 319, p. 1).
30      Under Recital 4 of Directive 2007/64, the purpose was to ‘… establish at Community level a modern and coherent legal framework for payment services … which is neutral so as to ensure a level playing field for all payment systems, in order to maintain consumer choice, which should mean a considerable step forward in terms of consumer cost, safety and efficiency, as compared with the present national systems’.
31      Recital 3 of the MiFID II states that it aims to provide for ‘… the degree of harmonisation needed to offer investors a high level of protection and to allow investment firms to provide services throughout the Union, being an internal market, on the basis of home country supervision …’.
32      Judgment of 31 May 2018, Länsförsäkringar Sak Försäkringsaktiebolag and Others (C‑542/16, EU:C:2018:369).
33      Directive of the European Parliament and of the Council of 9 December 2002 on insurance mediation (OJ 2003 L 9, p. 3), repealed by Directive (EU) 2016/97 of the European Parliament and of the Council of 20 January 2016 on insurance distribution (OJ 2016 L 26, p. 19).
34      As I stated in my Opinion of 21 November 2017, Länsförsäkringar Sak Försäkringsaktiebolag and Others (C‑542/16, EU:C:2017:879), points 96, 104 and 105, investment services have a higher risk level than insurance services and, therefore, the authorities exercise stricter supervision over investment firms than insurance companies.