Article 4(1)(2) of Directive 2004/39 on markets in financial instruments must be interpreted as meaning that, subject to verification by the referring court, an investment service or activity within the meaning of that provision does not encompass certain foreign exchange transactions, effected by a credit institution under clauses of a foreign currency denominated loan agreement, consisting in fixing the amount of the loan on the basis of the purchase price of the currency applicable when the funds are advanced and in determining the amounts of the monthly instalments on the basis of the sale price of that currency applicable when each monthly instalment is calculated.

Investment services and activities encompass any of the services and activities listed in Section A of Annex I to Directive 2004/39 relating to any of the instruments listed in Section C of Annex I. Yet it is clear that the transactions at issue do not come within the scope of Section A, consisting as they do of exchange activities which are entirely incidental to the granting and repayment of a foreign currency denominated consumer loan, and since they are restricted to converting the amounts of the loan and the monthly instalments denominated in the foreign currency in question (the currency in which payment obligations are to be met) into the domestic currency (the currency in which the payments are actually made), on the basis of the exchange rates for the purchase and sale of the foreign currency. Transactions such as this serve no other function than to be the manner of performing the fundamental payment obligations under the loan agreement, consisting in the lender’s making the capital available and the borrower’s repayment of the capital together with interest. Those transactions do not have as their purpose the completion of an investment, as the consumer is seeking only to secure funds with a view to purchasing a consumer good or a service, not, for example, to manage a foreign exchange risk or speculate on a currency’s exchange rate.

It is, moreover, clear from the Directive that foreign exchange services of themselves do not constitute investment services coming within the scope of Section A of Annex I to that directive.

The foreign exchange transactions at issue in the main proceedings are not linked to an investment service within the meaning of Article 4(1)(2) of Directive 2004/39, but rather to a transaction which itself does not constitute a financial instrument as defined in Article 4(1)(17) of that directive.

The foreign exchange transactions effected by a credit institution in the performance of a loan agreement do not relate to one of the financial instruments referred to in Section C of Annex I to Directive 2004/39, particularly not futures, since a consumer loan agreement does not have as its purpose the sale of a financial asset at a price which is fixed at the time of conclusion of the agreement.

In a loan agreement such as the one at issue the value of the currencies to be taken into account for the calculation of the repayments is not fixed in advance because it is determined on the basis of the sale price of those currencies on the due date of each monthly instalment.

(see paras 54-57, 66-68, 70, 74, 76, operative part)