Case C-604/11

Genil 48 SL

and

Comercial Hostelera de Grandes Vinos SL

v

Bankinter SA

and

Banco Bilbao Vizcaya Argentaria SA

(Request for a preliminary ruling from the Juzgado de Primera Instancia No 12 de Madrid)

‛Directive 2004/39/EC — Markets in financial instruments — Article 19 — Conduct of business obligations when providing investment services to clients — Investment advice — Other investment services — Obligation to assess the suitability or appropriateness of the service to be provided — Contractual consequences of non-compliance with that obligation — Investment service offered as part of a financial product — Interest-rate swap agreements to protect against the risk of variations of interest rates on financial products’

Summary — Judgment of the Court (Fourth Chamber), 30 May 2013

Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Jurisdiction of the national court — Establishing and assessing the facts of the dispute — Necessity of a question referred and relevance of the questions raised — Assessment by the national court — Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer — Questions bearing no relation to the subject matter of the case in the main proceedings (Art. 267 TFEU) EU law — Interpretation — Texts in several languages — Uniform interpretation — Consideration of different language versions — Directive 2004/39 (European Parliament and Council Directive 2004/39, Art. 19(9)) Freedom of establishment — Freedom to provide services — Markets in financial instruments — Directive 2004/39 — Rules of conduct for the provision of investment services to clients — Obligation, for the investment firm, to assess the suitability and appropriateness of the service provided — Derogation — Conditions (European Parliament and Council Directive 2004/39, Art 19(4), (5) and (9)) Freedom of establishment — Freedom to provide services — Markets in financial instruments — Directive 2004/39 — Service de conseil en investissement — Concept — Swap agreement aimed at covering the risk of variation of interest rates on financial products — Included — Conditions (European Parliament and Council Directive 2004/39, Art. 4(1), point 4) Freedom of establishment — Freedom to provide services — Markets in financial instruments — Directive 2004/39 — Rules of conduct for the provision of investment services to clients — Obligation, for the investment firm, to assess the suitability and appropriateness of the service provided — Non-compliance with that obligation — Contractual consequences — Application of national law — Limits — Respect for the principles of equivalence and effectiveness (European Parliament and Council Directive 2004/39, Art. 19(4) and (5))

See the text of the decision. (see para. 26) See the text of the decision. (see para. 38) Article 19(9) of Directive 2004/39 on markets in financial instruments must be interpreted as meaning, firstly, that an investment service is offered as part of a financial product only when it forms an integral part thereof at the time when that financial product is offered to the client and, secondly, that the provisions of European Union legislation and the common European standards referred to by that provision must enable there to be a risk assessment of clients and/or include information requirements, which also encompass the investment service which forms an integral part of the financial product in question, in order for that service no longer to be subject to the obligations laid down in Article 19. (see para. 48, operative part 1) Point 4 of Article 4(1) of Directive 2004/39 on markets in financial instruments must be interpreted as meaning that the offering of a swap agreement to a client in order to cover the risk of variation of interest rates on a financial product for which that client has subscribed constitutes investment advice, as defined in that provision, provided that the recommendation to subscribe to such a swap agreement is made to that client in his capacity as an investor, it is presented as suitable for that person or based on a consideration of the circumstances of that person and it is not made solely through distribution channels or intended for the public. (see para. 55, operative part 2) It is for the internal legal order of each Member State to determine the contractual consequences where an investment firm offering an investment service fails to comply with the assessment requirements laid down in Article 19(4) and (5) of Directive 2004/39 on markets in financial instruments, subject to observance of the principles of equivalence and effectiveness. (see para. 58, operative part 3)

Case C-604/11

Genil 48 SL

and

Comercial Hostelera de Grandes Vinos SL

v

Bankinter SA

and

Banco Bilbao Vizcaya Argentaria SA

(Request for a preliminary ruling from the Juzgado de Primera Instancia No 12 de Madrid)

‛Directive 2004/39/EC — Markets in financial instruments — Article 19 — Conduct of business obligations when providing investment services to clients — Investment advice — Other investment services — Obligation to assess the suitability or appropriateness of the service to be provided — Contractual consequences of non-compliance with that obligation — Investment service offered as part of a financial product — Interest-rate swap agreements to protect against the risk of variations of interest rates on financial products’

Summary — Judgment of the Court (Fourth Chamber), 30 May 2013

Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Jurisdiction of the national court — Establishing and assessing the facts of the dispute — Necessity of a question referred and relevance of the questions raised — Assessment by the national court — Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer — Questions bearing no relation to the subject matter of the case in the main proceedings (Art. 267 TFEU) EU law — Interpretation — Texts in several languages — Uniform interpretation — Consideration of different language versions — Directive 2004/39 (European Parliament and Council Directive 2004/39, Art. 19(9)) Freedom of establishment — Freedom to provide services — Markets in financial instruments — Directive 2004/39 — Rules of conduct for the provision of investment services to clients — Obligation, for the investment firm, to assess the suitability and appropriateness of the service provided — Derogation — Conditions (European Parliament and Council Directive 2004/39, Art 19(4), (5) and (9)) Freedom of establishment — Freedom to provide services — Markets in financial instruments — Directive 2004/39 — Service de conseil en investissement — Concept — Swap agreement aimed at covering the risk of variation of interest rates on financial products — Included — Conditions (European Parliament and Council Directive 2004/39, Art. 4(1), point 4) Freedom of establishment — Freedom to provide services — Markets in financial instruments — Directive 2004/39 — Rules of conduct for the provision of investment services to clients — Obligation, for the investment firm, to assess the suitability and appropriateness of the service provided — Non-compliance with that obligation — Contractual consequences — Application of national law — Limits — Respect for the principles of equivalence and effectiveness (European Parliament and Council Directive 2004/39, Art. 19(4) and (5))