Genil 48 SL and Comercial Hostelera de Grandes Vinos SL v Bankinter SA and Banco Bilbao Vizcaya Argentaria SA.
Date: 2013-05-30
26. As regards Genil 48’s first objection, it should be remembered that, according to the Court’s settled case‑law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C‑45/09 Rosenbladt  [2010] ECR I‑9391, paragraph 33 and the case-law cited).
38. According to settled case-law, the various language versions of a text of EU law must be given a uniform interpretation and hence, in the case of divergence between the language versions, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms a part (see Case C‑19/11 Geltl  [2012] ECR I-0000, paragraph 43 and the case-law cited).
39. Article 19(9) of Directive 2004/39 constitutes a derogation from the assessment scheme provided for elsewhere in that article where investment services are offered by investment firms and it must therefore be interpreted strictly. That is all the more so because according to the wording of the title of Section 2 of Chapter II of Title II of that directive, of which Article 19 forms a part, those assessments are measures aimed at guaranteeing investor protection which, as stated in recitals 2 and 31 in the preamble thereto, is one of its objectives (see, to that effect, Case C‑248/11 Nilaş and Others [2012] ECR I-0000, paragraph 48).
43. The question whether the main proceedings involve an investment service offered as part of a financial product within the meaning of that provision, as interpreted by the Court in the preceding paragraphs, entails an assessment of the facts which, under the division of jurisdiction between the European Union judicature and national courts, must be conducted by the referring court. However, the Court of Justice, when giving a preliminary ruling, may, where appropriate, provide clarification to guide the national court in its interpretation (see, to that effect, Case C‑135/10 SCF [2012] ECR I-0000, paragraph 67 and the case-law cited).
57. It should be noted that, although Article 51 of Directive 2004/39 provides for the imposition of administrative measures or sanctions against the parties responsible for non-compliance with the provisions adopted pursuant to that directive, it does not state either that the Member States must provide for contractual consequences in the event of contracts being concluded which do not comply with the obligations under national legal provisions transposing Article 19(4) and (5) of Directive 2004/39, or what those consequences might be. In the absence of EU legislation on the point, it is for the internal legal order of each Member State to determine the contractual consequences of non-compliance with those obligations, subject to observance of the principles of equivalence and effectiveness (see, to that effect, Case C‑591/10 Littlewoods Retail and Others [2012] ECR I-0000, paragraph 27 and the case-law cited).
58. The answer to the second and third questions is therefore that 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, subject to observance of the principles of equivalence and effectiveness.
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