Provisional text
JUDGMENT OF THE COURT (First Chamber)
5 November 2026 (*)
( Reference for a preliminary ruling – Payment services in the internal market – Directive (EU) 2015/2366 – Article 18(1)(a) – Entitlement of payment institutions to provide closely related ancillary services – Exchange service – Futures contracts relating to currencies – Investment services and activities – Financial instruments – Directive (EU) 2014/65 – Scope – Article 2(1)(c) – Delegated Regulation (EU) 2017/565 – Article 4 – Exemption )
In Case C‑339/25,
REQUEST for a preliminary ruling under Article 267 TFEU from the tribunal de l’entreprise francophone de Brussels (Brussels Business Court (French-speaking), Belgium), made by decision of 8 May 2025, received at the Court on 17 May 2025, in the proceedings
Iulicris Recycling SRL
v
Ibanfirst SA,
THE COURT (First Chamber)
composed of F. Biltgen, President of the Chamber, S. Gervasoni, A. Kumin, I. Ziemele and M. Bošnjak (Rapporteur), judges,
Advocate General: M. Campos Sánchez-Bordona,
Registrar: V. Di Bucci.
having regard to the written procedure,
after considering the observations submitted on behalf of:
– Iulicris Recycling SRL, by T.G. Derval and R. Jafferali, avocats,
– Ibanfirst SA, by D. Blommaert, advocaat, A. Guillaume and L. Van Muylem, avocates,
– the Belgian Government, by L. Jans, C. Pochet and M. Van Regemorter, acting as Agents,
– the Czech Government, by L. Halajová, J. Očková and J. Vláčil, acting as Agents,
– the European Commission, by C. Auvret and B. Stromsky, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 19 March 2026,
makes the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of 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 (OJ 2015 L 337, p. 35), 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 (OJ 2014 L 173, p. 349), as amended by Directive (EU) 2019/2177 of the European Parliament and of the Council of 18 December 2019 (OJ 2019 L 334, p. 155) (‘Directive 2014/65’) and Article 4 and Article 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 (OJ 2017 L 87, p. 1).
2 The request has been made in proceedings between Iulicris Recycling SRL, a company incorporated under Romanian law, and Ibanfirst SA, a company incorporated under Belgian law, concerning the nullity of the flexible currency futures contracts concluded between those two companies.
Legal framework
European Union law
Regulation (EU) No 648/2012
3 Article 2 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), as amended by Regulation (EU) No 2019/834 of the European Parliament and of the Council of 20 May 2019 (OJ 2019 L 141, p. 42) (‘Regulation No 648/2004’), entitled ‘Definitions’, provides:
‘For the purposes of this Regulation, the following definitions shall apply:
…
(8) “financial counterparty” means:
(a) an investment firm authorised in accordance with Directive [2014/65];
(b) a credit institution authorised in accordance with Directive 2013/36/EU 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)];
(c) an insurance undertaking or reinsurance undertaking authorised in accordance with Directive 2009/138/EC of the European Parliament and of the Council [of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) (OJ 2009 L 335, p. 1)];
(d) [an undertaking for collective investment in transferable securities (UCITS)] and, where relevant, its management company, authorised in accordance with Directive 2009/65/EC [of the European Parliament and the Council of 13 July 2009 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) (OJ 2009 L 302, p. 32)], unless that UCITS is set up exclusively for the purpose of serving one or more employee share purchase plans;
(e) an institution for occupational retirement provision (IORP), as defined in point (1) of Article 6 of Directive (EU) 2016/2341 of the European Parliament and of the Council [of 14 December 2016 on the activities and supervision of institutions for occupational retirement provision (IORPs) (OJ 2016 L 354, p. 37);
(f) an alternative investment fund (AIF), as defined in point (a) of Article 4(1) of Directive 2011/61/EU [of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC and Regulations (EC) No 1060/2009 and (EU) No 1095/2010 (OJ 2011 L 174, p. 1)], which is either established in the [European] Union or managed by an alternative investment fund manager (AIFM) authorised or registered in accordance with that Directive, unless that AIF is set up exclusively for the purpose of serving one or more employee share purchase plans, or unless that AIF is a securitisation special purpose entity as referred to in point (g) of Article 2(3) of Directive [2011/61], and, where relevant, its AIFM established in the Union;
(g) a central securities depository authorised in accordance with Regulation (EU) No 909/2014 of the European Parliament and of the Council [of 23 July 2014 on improving securities settlement in the European Union and on central securities depositories and amending Directives 98/26/EC and 2014/65/EU and Regulation (EU) No 236/2012 (OJ 2014 L 257, p. 1)]’.
Directive 2014/65
4 Recitals 3 and 4 of Directive 2014/65 state:
‘(3) In recent years more investors have become active in the financial markets and are offered an even more complex wide-ranging set of services and instruments. In view of those developments the legal framework of the Union should encompass the full range of investor-oriented activities. To that end, it is necessary 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. [Council] Directive 93/22/EEC [of 10 May 1993 on investment services in the securities field (OJ 1993 L 141, p. 27),] was therefore replaced by Directive 2004/39/EC [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)].
(4) The financial crisis has exposed weaknesses in the functioning and in the transparency of financial markets. The evolution of financial markets has exposed the need to strengthen the framework for the regulation of markets in financial instruments, including where trading in such markets takes place over-the-counter (OTC), in order to increase transparency, better protect investors, reinforce confidence, address unregulated areas, and ensure that supervisors are granted adequate powers to fulfil their tasks.’
5 Article 1 of Directive 2014/65, entitled ‘Scope’, provides:
‘1. This Directive shall apply to investment firms, market operators, and third-country firms providing investment services or performing investment activities through the establishment of a branch in the Union.
2. This Directive establishes requirements in relation to the following:
(a) authorisation and operating conditions for investment firms;
…’
6 Article 2 of that directive, entitled ‘Exemptions’, provides, in paragraph 1(c):
‘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’.
7 Article 4 of that directive, entitled ‘Definitions’, provides in subparagraphs 1, 2 and 15 of paragraph 1:
‘For the purpose of this Directive the following definitions shall apply:
(1) “investment firm” means any legal person whose regular occupation or business is 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.
…
(2) “investment services and activities” means any of the services and activities listed in Section A of Annex I relating to any of the instruments listed in Section C of Annex I.
…
(15) “financial instrument” means those instruments specified in Section C of Annex I”.
8 Annex I to that directive, entitled ‘Lists of services and activities and financial instruments’, is worded as follows, in Section C thereof:
‘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;
…’
Directive 2015/2366
9 Recital 6 of Directive 2015/2366 states:
‘New rules should be established to close the regulatory gaps while at the same time providing more legal clarity and ensuring consistent application of the legislative framework across the Union. Equivalent operating conditions should be guaranteed, to existing and new players on the market, enabling new means of payment to reach a broader market, and ensuring a high level of consumer protection in the use of those payment services across the Union as a whole. This should generate efficiencies in the payment system as a whole and lead to more choice and more transparency of payment services while strengthening the trust of consumers in a harmonised payments market.’
10 Article 1 of that directive, entitled ‘Subject matter’, provides, in paragraph 2:
‘This Directive also establishes rules concerning:
(a) the transparency of conditions and information requirements for payment services; and
(b) the respective rights and obligations of payment service users and payment service providers in relation to the provision of payment services as a regular occupation or business activity.’
11 Article 18 of the directive, entitled ‘Activities’, provides in paragraph 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;
(b) the operation of payment systems, without prejudice to Article 35;
(c) business activities other than the provision of payment services, having regard to applicable Union and national law.’
Delegated Regulation 2017/565
12 Recitals 7, 8 and 10 of Delegated Regulation 2017/565 state:
‘(7) Directive [2014/65] establishes the general framework for a regulatory regime for financial markets in the Union, setting out in Section C of Annex I the list of financial instruments covered. Section C(4) of Annex I to Directive [2014/65] includes financial instruments relating to a currency which are therefore under the scope of this Directive.
(8) In order to ensure the uniform application of Directive [2014/65], it is necessary to clarify the definitions laid down in Section C(4) of Annex I to Directive [2014/65] for other derivative contracts relating to currencies and to clarify that spot contracts relating to currencies are not other derivative instruments for the purposes of Section C(4) of Annex I to Directive [2014/65].
…
(10) Foreign exchange contracts may also be used for the purpose of effecting payment and those contracts should not be considered financial instruments provided they are not traded on a trading venue. Therefore it is appropriate to consider as spot contracts those foreign exchange contracts that are used to effect payment for financial instruments where the settlement period for those contracts is more than 2 trading days and less than 5 trading days. It is also appropriate to consider as means of payments those foreign exchange contracts that are entered into for the purpose of achieving certainty about the level of payments for goods, services and real investment. This will result in excluding from the definition of financial instruments foreign exchange contracts entered into by non-financial firms receiving payments in foreign currency for exports of identifiable goods and services and non-financial firms making payments in foreign currency to import specific goods and services.’
13 Under Article 4 of that delegated regulation, entitled ‘Provision of investment service in an incidental manner (Article 2(1) of Directive [2014/65])’:
‘For the purpose of the exemption in point (c) of Article 2(1) of Directive [2014/65], 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.’
14 Article 10 of that delegated regulation, entitled ‘Characteristics of other derivative contracts relating to currencies’, provides, in paragraphs (1) and (2):
‘1. For the purposes of Section C(4) of Annex I to Directive [2014/65], 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 [No 648/2012];
(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) 2 trading days in respect of any pair of the major currencies set out in paragraph 3;
(b) for any pair of currencies where at least one currency is not a major currency, the longer of 2 trading days or the period generally accepted in the market for that currency pair as the standard delivery period;
(c) where the contract for the exchange of those currencies is used for the main purpose of the sale or purchase of a transferable security or a unit in a collective investment undertaking, the period generally accepted in the market for the settlement of that transferable security or a unit in a collective investment undertaking as the standard delivery period or 5 trading days, whichever is shorter.
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.’
Belgian law
15 Point 4 of the list in Section C of Annex I to Directive 2014/65 was transposed into Belgian law by Article 2(1)(d) of the loi du 2 août 2002 relative à la surveillance du secteur financier et aux services financiers (Law of 2 August 2002 on the supervision of the financial sector and on financial services (Moniteur belge of 4 September 2002, p. 39121) (‘the Financial Law’).
16 Article 4(1) of the loi du 25 octobre 2016 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 (Law of 25 October 2016 on access to the activity of providing investment services and on the status and supervision of portfolio management and investment consultancy companies (Moniteur belge of 18 November 2016, p. 76915) transposed Article 2(1)(c) of Directive 2014/65 into Belgian law.
17 Article 43(1)(1) of the loi du 11 mars 2018 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 (Law of 11 March 2018 on the status and supervision of payment institutions and electronic money institutions, on access to the activity of payment services provider and to the activity of issuing electronic money, and on access to payment systems (Moniteur belge of 26 March 2018, p. 29444) transposed Article 18(1)(a) of Directive 2015/2366 into Belgian law.
The dispute in the main proceedings and the question referred for a preliminary ruling
18 Iulicris Recycling is a company active in the recycling of raw materials.
19 Ibanfirst is a company authorised as a payment institution by the Banque Nationale de Belgique (National Bank of Belgium).
20 Iulicris Recycling settles a high number of liabilities in Romanian lei (RON), while the price of the goods which it regularly sells to its customers, namely recycled scrap, is expressed in United States dollars (USD). In the dispute in the main proceedings, that company stated that it was seeking to reduce the exchange rate risk to which it is exposed as a result of the variation in the price of the RON and the USD.
21 By a contract signed on 1 July 2021, Iulicris Recycling opened a bank account with Ibanfirst, under which it subscribed to certain services, namely the opening of a multi-currency payment account, the receipt and issue of SEPA (Single Euro Payment Area) transfers and access to the Ibanfirst platform.
22 On 17, 28 and 30 September 2021, Iulicris Recycling and Ibanfirst concluded three flexible futures contracts (‘the contracts at issue’). Those contracts fixed the exchange rate between the USD and the RON at 4.20 for an amount up to USD 3 000 000, 4.22 for an amount up to USD 3 000 000 and 4.25 for an amount up to USD 4 000 000.
23 From March 2022, Ibanfirst sent Iulicris Recycling a number of margin calls and the latter consequently made payments to Ibanfirst. Between 9 March 2022 and 7 October 2022, Iulicris Recycling thus paid Ibanfirst the sums of USD 894 724 and USD 1 498 000 for that purpose.
24 On 26 October 2022, Iulicris Recycling requested a renewal of the hedging period for the contracts at issue for a further year. Ibanfirst stated that it was only prepared to extend those contracts for a further month, subject to the payment of new margin calls and the provision of financial collateral. Iulicris Recycling refused those conditions, reminded Ibanfirst of the amounts of the margin calls already paid and insisted on an extension of those contracts for a period of one year.
25 On 21 November 2022, Ibanfirst informed Iulicris Recycling that those contracts had expired and called on Iulicris Recycling to deliver the agreed currencies. Ibanfirst also stated that, in the absence of a settlement, and in accordance with its general terms and conditions, it would sell the positions of Iulicris Recycling in RON at the market price.
26 On 28 February 2023, by letter from its lawyers, Iulicris Recycling drew Ibanfirst’s attention, in particular, to the fact that the contracts at issue had been distributed in breach of public policy and that they were rendered absolutely void. By that letter, Iulicris Recycling also gave Ibanfirst formal notice to reimburse it for the amounts which it had paid in connection with the margin calls.
27 Following an unsuccessful exchange of letters, on 25 May 2023, Iulicris Recycling brought proceedings against Ibanfirst before the tribunal de l’entreprise francophone de Bruxelles (Brussels Business Court (French-speaking), Belgium), the referring court, seeking, inter alia, a declaration that those contracts were void and an order that Ibanfirst repay to it the amounts paid in the performance of those contracts.
28 In support of its claim, Iulicris Recycling alleged that Ibanfirst had infringed the regulatory framework applicable to it. In that regard, it submitted, inter alia, first, that the contracts at issue were financial instruments within the meaning of Article 2(1)(d) of the Financial Law. Second, it argued that those contracts do not fall within the scope of the exemptions provided for in Article 10(1)(a) and Article 10(1)(b) of Delegated Regulation 2017/565. Third, it maintained that, by distributing those contracts, Ibanfirst provided a regulated investment service as a principal rather than an ancillary activity. Fourth, it claimed that Ibanfirst infringed the rules applicable to the distribution of those contracts. Fifth, it argued that the condition relating to the ancillary nature of the services laid down in Article 18 of Directive 2015/2366 should be interpreted in the light of Article 2(1)(c) of Directive 2014/65.
29 However, Ibanfirst stated before the referring court that it is authorised to distribute the contracts at issue under the regulatory framework applicable to it in its capacity as a payment institution. In addition, the services related to those contracts are indeed ancillary to the payment services which it offers to Iulicris Recycling and it received authorisation to that effect from the National Bank of Belgium.
30 According to Ibanfirst, the regulations applicable to payment services and those applicable to investment services are distinct, so that the specific authorisation for payment institutions, which it enjoys, should not be assessed in the light of the rules applicable to investment services. Moreover, the ancillary nature of a payment service should not be assessed having regard to the definition of ‘ancillary nature’ laid down for investment services.
31 In the alternative, Ibanfirst stated that, even according to the definitions applicable to investment services, the contracts at issue could be distributed by Ibanfirst on the ground that the services related to those contracts were neither investment services nor services ancillary to such services. In addition, the services related to those contracts are not carried out in respect of ‘financial instruments’ and, in any event, fall within the exemption provided for in Article 10(1)(b) of Delegated Regulation 2017/565. Ibanfirst also argued that the services related to those contracts are ancillary, for the purposes of Directive 2014/65 and Delegated Regulation 2017/565.
32 The referring court considers that the outcome of the dispute before it depends on whether payment institutions wishing to offer, on a regular and professional basis, derivatives relating to currencies in the context of an ancillary foreign exchange service must ensure that those instruments fall within one of the two exemptions provided for in Article 10(1) of Delegated Regulation 2017/565 and are not, therefore, financial instruments within the meaning of Directive 2014/65.
33 In those circumstances, the tribunal de l’entreprise francophone de Bruxelles (Brussels Business Court (French-speaking)) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Must Article 18(1)(a) of Directive [2015/2366] 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 [Delegated Regulation 2017/565]?
(b) be incidental in nature within the meaning of Article 2(1)(c) of Directive [2014/65] and, consequently, satisfy the conditions laid down in Article 4 of [Delegated Regulation 2017/565]?’
The question referred for a preliminary ruling
Admissibility of point (a) of the question referred for a preliminary ruling
34 In its written observations, Ibanfirst submits that point (a) of the question referred for a preliminary ruling is inadmissible on the ground that it is neither necessary nor relevant for the resolution of the dispute before the referring court.
35 According to Ibanfirst, point (a) of the question referred for a preliminary ruling would have been relevant only if the referring court had previously considered that the contracts at issue constitute ‘derivative contracts relating to a currency’ for the purposes of Directive 2014/65 and within the meaning of Article 10(1)(b) of Delegated Regulation 2017/565. However, those contracts do not fall within the scope of those provisions, with the result that it is not necessary to determine whether the conditions laid down in those provisions must be satisfied in order for the futures exchange services offered by payment institutions to be regarded as being ‘closely related ancillary services which payment institutions are entitled to engage in by operation of law’, for the purposes of Article 18(1)(a) of Directive 2015/2366. If those contracts were not ‘derivative contracts relating to a currency’, referred to in Article 10(1)(b) of Delegated Regulation 2017/565, there would be no doubt that that provision would not apply.
36 In addition, in its written observations, the Belgian Government questions the referring court’s interest in raising point (a) of the question referred for a preliminary ruling, without, however, expressly challenging the admissibility of that part of the question. Indeed, that government considers that it should adopt a position only on point (b) of the question referred for a preliminary ruling.
37 The Belgian government, referring to recitals 7, 8 and 10 of Directive 2014/65, submits that, since Article 10(1)(b) of Delegated Regulation 2017/565 excludes, under certain conditions, classification as a financial instrument as regards foreign exchange futures contracts, there is no need to ask whether the ‘control status’ established by Directive 2014/65 is applicable.
38 It is apparent from settled case-law that questions relating to EU law enjoy a presumption of relevance. The Court of Justice may refuse to give a ruling 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 (judgment of 13 November 2025, Inteligo Media, C‑654/23, EU:C:2025:871, paragraph 71 and the case-law cited).
39 While it is true that the referring court does not expressly ask the Court of Justice about the legal classification of contracts such as those at issue, such a question arises as a preliminary matter, given that Article 10(1)(b) of Delegated Regulation 2017/565 refers to ‘other derivative contracts relating to a currency’. The possibility of classifying the contracts at issue in that way does not appear to be excluded in the light of the characteristics of those contracts. Therefore, that question is closely related to the subject matter of the dispute before the referring court, namely the question of the scope of Article 18(1)(a) of Directive 2015/2366 in order to determine whether that provision allows a payment institution to offer contracts such as the contracts at issue, a question which is linked to the claim that those contracts are void.
40 Accordingly, point (a) of the question referred for a preliminary ruling is admissible and it must be examined as to its substance.
Substance
41 By its single question, the two parts of which must be examined together, the referring court asks, in essence, whether Article 18(1)(a) of Directive 2015/2366 must be interpreted as meaning that payment institutions, authorised as payment service providers under that directive, are entitled to offer futures contracts relating to currencies as ancillary services closely related to the provision of payment services only in so far as those ancillary services, where they are investment services within the meaning of Article 4(1)(2) of Directive 2014/65, relating to a financial instrument listed in Section C(4) of Annex I to that directive, as specified in Article 10(1)(b) of Delegated Regulation 2017/565, satisfy the conditions laid down in Article 2(1)(c) of that directive, as specified in Article 4 of that delegated regulation.
42 As a preliminary point, it should be noted that the question of the possible relevance of the provisions of Directive 2014/65 arises only if Article 18(1)(a) of Directive 2015/2366 does not constitute a sufficient legal basis for a payment service provider to be able to offer fixed futures contracts relating to currencies.
43 That provision governs the activities in which payment institutions are entitled to engage, beyond payment services. In accordance with that provision, payment institutions, in addition to the provision of payment services, are entitled to engage in ‘the provision of operational and closely related ancillary services such as … foreign exchange services …’.
44 In that respect, it should be borne in mind that, according to settled case-law, in order to interpret a provision of EU law, it is necessary to consider its wording, the context in which it occurs and the objectives pursued by the rules of which it is part (judgments of 17 November 1983, Merck, 292/82, EU:C:1983:335, paragraph 12, and of 1 August 2025, Alace and Canpelli, C‑758/24 and C‑759/24, EU:C:2025:591, paragraph 91).
45 According to the usual meaning of the concept of ‘foreign exchange service’, such a service consists at least of a conversion operation between different currencies. It must be pointed out that the wording of Article 18(1) of Directive 2015/2366 does not expressly state whether the transactions referred to are only those consisting of converting currencies using the exchange rate in force on the date of those transactions, or whether contracts fixing the exchange rate applicable at a date subsequent to the date on which they are concluded are also covered.
46 As regards the concept of ‘closely related ancillary services’, Article 18(1) of Directive 2015/2366 does not lay down any specific condition other than that they must be related and ancillary to the operational payment service offered.
47 In the absence of a definition in Directive 2015/2366, those terms must be understood as meaning that the foreign exchange service may be offered only in close connection with the payment services provided by the payment service provider on behalf of a user of those services, which must be provided as the main service by that payment service provider.
48 As the European Commission submitted in its written observations, it should be noted that Article 18(1) of Directive 2015/2366 does not expressly refer to any other legislative text for the purposes of determining its content. Moreover, the regulatory context of that directive does not provide any specific indication as to the scope to be given to the concept of ‘closely related ancillary services’.
49 As regards the aims pursued by that directive, it should be noted that the purpose of that directive, in accordance with Article 1(2) thereof, is to lay down rules concerning, first, ‘the transparency of conditions and information requirements for payment services’ and, second, ‘the respective rights and obligations of payment service users and payment service providers in relation to the provision of payment services as a regular occupation or business activity’.
50 In addition, it follows from recital 6 of Directive 2015/2366 that that directive seeks to establish rules that ensure a high degree of legal clarity and a consistent application of the legislative framework on payment services across the European Union. Furthermore, it is apparent from that recital that ‘equivalent operating conditions should be guaranteed, to … players on the market, enabling new means of payment to reach a broader market, and ensuring a high level of consumer protection in the use of those payment services across the Union as a whole, while ensuring a high level of consumer protection in the use of payment services throughout the Union’, which ‘should generate efficiencies in the payment system as a whole and lead to more choice and more transparency of payment services while strengthening the trust of consumers in a harmonised payments market.’
51 It is apparent from the preceding paragraphs of the present judgment that the objective of Directive 2015/2366 is to establish clear and consistent rules in order to enhance the effectiveness of the payment system and, therefore, inter alia, to facilitate the activities of payment service providers.
52 In the light, in particular, of that objective, it must be held that not only transactions consisting of converting currencies using the exchange rate in force on the date of those transactions, but also contracts fixing the exchange rate applicable at a date subsequent to the date on which they were entered into are capable of falling within the scope of Article 18(1)(a) of Directive 2015/2366.
53 However, there is nothing in that directive to indicate that it must govern fully and exclusively the provision of such services by a payment institution, to the exclusion of other acts of EU law, in the event that those services, when offered on an ancillary basis, may fall within the material scope of another EU act, in the present case Directive 2014/65.
54 Such an interpretation would lead to the objectives of Directive 2015/2366 prevailing over those of Directive 2014/65 solely because a financial instrument is offered as an ancillary service related to a payment service. The objective of facilitating the provision of payment services cannot in itself lead to such an outcome.
55 As regards Directive 2014/65, it should be borne in mind that, according to Article 1(2) thereof, it lays down requirements concerning, inter alia, the authorisation and operating conditions for investment firms.
56 As regards the objectives pursued by that directive, it should be noted that, in accordance with recitals 3 and 4 thereof, it seeks to provide a high level of investor protection, taking into account, inter alia, an ‘even more complex’ wide-ranging set of services and instruments which they can use, and to increase the transparency of trading on markets in financial instruments.
57 The applicability of Directive 2014/65 is conditional on the existence of a characteristic type of service, namely ‘investment services and activities’, which Article 4(1)(2) of that directive defines as the services and activities listed in Section A of Annex I to that directive relating to one of the financial instruments listed in Section C of Annex I.
58 It follows that, in the present case, the question of the relationship between Directives 2014/65 and 2015/2366 arises only if the ancillary services at issue relate to a financial instrument within the meaning of Section C of Annex I to Directive 2014/65, as the Advocate General observed, in essence, in points 41 to 51 of his Opinion.
59 That list includes, in point 4 of that section, ‘futures’ contracts and ‘derivative contracts relating to … currencies’. However, Directive 2014/65, likewise, does not contain a definition of the concept of a ‘futures’ contract or of the more general concept of a ‘derivative contract’.
60 In accordance with settled case-law of the Court, the concept of a ‘futures’ contract should be interpreted as it is usually construed in finance law. Thus, a futures contract is 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 (judgment of 3 December 2015, Banif Plus Bank, C‑312/14, EU:C:2015:794, paragraph 69). Although such a definition was adopted in the context of the interpretation of Directive 2004/39 – the directive repealed by Directive 2014/65 – given the similarity of the wording used in the lists of financial instruments in both those directives, it must be held that that case-law can be applied to the interpretation of the list in Annex I to the latter directive. According to that definition, in the case of a futures contract relating to currencies, the ‘underlying’ asset is a currency.
61 In the present case, and according to the information available to the Court, the contracts at issue, which, moreover, are called ‘flexible futures’, fixed the exchange rate between the USD and the RON when they were concluded. As is apparent from the definition of a ‘futures’ contract in the preceding paragraph of this judgment, fixing the exchange rate by contractual provisions is a typical feature of a derivative futures contract relating to currencies.
62 However, it should be noted that the provisions of Directive 2014/65 do not apply where the contracts concerned are excluded from classification as ‘financial instruments’ under a legislative provision. That is the case where the conditions under Article 10(1)(b) of Delegated Regulation 2017/565 have been satisfied.
63 In particular, that provision applies if the four conditions which it lays down have been cumulatively satisfied, that is to say, if the contract concerned is a means of payment which 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 who 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.
64 As the Commission submitted in its written observations, it is important to note that the conditions laid down in Article 10(1)(b) of Delegated Regulation 2017/565, due to their cumulative effect, are intended to cover a specific type of derivative contract relating to currencies. Nevertheless, it cannot be ruled out that Article 10(1)(b) of Delegated Regulation 2017/565 may be applicable in the present case, which is a matter for the referring court to ascertain. If that were the case, Directive 2014/65 would not be applicable, as is apparent from paragraph 57 above, with the result that the question whether the services at issue in the present case are ancillary services closely related to the provision of payment services and therefore satisfy the provisions of Article 18(1)(a) of Directive 2015/2366 would have to be assessed independently of the provisions of Directive 2014/65.
65 Accordingly, and subject to the checks referred to in the preceding paragraph of the present judgment, which it is for the referring court to carry out, flexible futures contracts relating to currencies may, in principle, be financial instruments within the meaning of Directive 2014/65. It follows that such contracts may fall within the scope of Directive 2014/65 in so far as, in accordance with Article 1(1) and Article 4(1) and (2) thereof, they are offered as part of an investment service and the provider may be classified as an ‘investment firm’, in so far as it offers such contracts as a regular occupation or business.
66 Nonetheless, Article 2(1)(c) of Directive 2014/65 excludes from its scope persons providing an investment service 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 (see, as regards Directive 2004/39, judgment of 31 May 2018, Länsförsäkringar Sak Försäkringsaktiebolag and Others, C‑542/16, EU:C:2018:369, paragraph 61).
67 The concept of ‘investment service in an incidental manner’ was clarified by Article 4 of Delegated Regulation 2017/565, which lays down three conditions in that regard. That provision requires, first, that a close and factual connection exists between the professional activity and the provision of that service to the same client, such that the investment service can be regarded as accessory to the main professional activity. Second, it states that the provision of investment services by the person providing the professional activity to the clients of its main professional activity must not be intended to provide that person with a systematic source of income and, third, that the person providing that professional activity does not market or otherwise promote its ability to provide investment services, except where these are disclosed to the client as being accessory to the main professional activity.
68 In the present case, the professional activity of a payment institution consists of the provision of payment services. In so far as such an institution offers futures contracts relating to currencies, the view must be taken that those contracts are offered in an incidental manner, since they are offered in order to reduce the foreign exchange risk when carrying out payment transactions, an activity which is subject to certain legislative provisions of EU law, namely those of Directive 2015/2366 (see, by analogy, judgment of 31 May 2018, Länsförsäkringar Sak Försäkringsaktiebolag and Others, C‑542/16, EU:C:2018:369, paragraph 62).
69 However, it must be borne in mind that it is for the referring court, which alone has the relevant information, to ascertain whether the conditions set out in paragraphs 66 and 67 above are satisfied.
70 Moreover, it should be noted that the interpretation set out in paragraph 68 above is supported by the objective of legal clarity, which is one of the aims of Directive 2015/2366, as is apparent from paragraph 50 above. In the absence of legislative clarification as to the scope of the foreign exchange services that may be offered under Article 18(1)(a) of Directive 2015/2366, verifying the conditions described in paragraphs 66 and 67 above does not result solely from the need to take account of the aims of Directive 2015/2366 and those of Directive 2014/65, but also seeks to ensure legal clarity in the determination of the services which payment service providers may offer.
71 In the light of all the foregoing considerations, the answer to the question referred is that Article 18(1)(a) of Directive 2015/2366 must be interpreted as meaning that payment institutions, authorised as payment service providers under that directive, are entitled to offer futures contracts relating to currencies as ancillary services closely related to the provision of payment services. Where those ancillary services are investment services within the meaning of Article 4(1)(2) of Directive 2014/65, relating to a financial instrument listed in Section C(4) of Annex I to that directive, as specified in Article 10(1)(b) of Delegated Regulation 2017/565, they must satisfy the conditions laid down in Article 2(1)(c) of that directive, as specified in Article 4 of that delegated regulation.
Costs
72 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (First Chamber) hereby rules:
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 payment institutions, authorised as payment service providers under that directive, are entitled to offer futures contracts relating to currencies as ancillary services closely related to the provision of payment services. Where those ancillary services are investment services within the meaning of Article 4(1)(2) 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, as amended by Directive (EU) 2019/2177 of the European Parliament and of the Council of 18 December 2019, relating to a financial instrument listed in Section C(4) of Annex I to Directive 2014/65, as specified in Article 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, they must satisfy the conditions laid down in Article 2(1)(c) of that directive, as specified in Article 4 of that delegated regulation.
[Signatures]
* Language of the case: French.