1. Must it be held that, pursuant to Article 4(1)(2) (investment services and activities), Article 4(1)(17) (financial instruments) and Annex I, Section C, point (4) (forward currency contracts, derivative instruments) of Directive [2004/39/EC] (1) (˜the directive), the offer of an (exchange rate) transaction to a client which, under the legal form of a foreign currency denominated loan agreement, consists of a spot transaction at the time of the advance of the loan and a forward transaction at the time of repayment, which is carried out by converting into forints a registered amount of foreign currency and which exposes the clients loan to the effects and risks (currency risk) of capital markets, constitutes a financial instrument
2. Must it be held that, pursuant to Article 4(1)(6) (dealing on own account) and Annex I, Section A, point (3) (dealing on own account) of the directive, the carrying out of proprietary trading in respect of the financial instrument described in the first question constitutes an investment service or activity?
3. Must the financial institution perform the suitability check required by Article 19(4) and (5) of the directive, taking into account that the forward currency contract ” which is an investment service relating to financial derivative instruments ” was offered as part of another financial product (namely a loan agreement) and that the derivative instrument in itself constitutes a complex financial instrument? Must it be held that Article 19(9) of the directive is not applicable because, as the risks assumed by the client with regard to the loan and to the financial instrument are fundamentally different, the suitability assessment is essential inasmuch as the transaction contains a derivative instrument?
4. Does the circumvention of Article 19(4) and (5) of the directive lead to the annulment of the loan agreement between the bank and the client?
By the Press Release No. 143/15, the European Court of Justice considered first that certain EU legal measures designated to protect consumers are capable of being relevant in a case such as the present one. This applies to Directive 93/13 which has, moreover, already been the subject of a judgment of the Court in the specific context of foreign currency denominated loans and also Directives 87/102 and 2008/48, which contain a range of protective provisions imposing certain obligations on the lender concerning, in particular consumer information.
Next, the Court notes that foreign exchange transactions carried out in the context of the award of a foreign currency denominated loan, such as that in issue, are purely incidental to making the loan available and to the repayment of the loan. Those transactions simply allow the implementation of those two essential requirements of the loan agreement.
Since the borrower seeks only to secure funds with a view to purchasing goods or a service, and not to manage a foreign exchange risk or to speculate on a currencys exchange rate, the transactions at issue do not have as their purpose the provisions of an investment service. Moreover, in accordance with the directive, those transactions in themselves do not constitute such services either.
The exchange transactions at issue are, besides, linked to an instrument, the loan agreement, which does not constitute a financial instrument within the meaning of the directive. In that regard, the Court considers that those operations do not relate to a forward contract because they do not have as their purpose the sale of a financial asset at a price fixed at the time of conclusion of the agreement. In the present case, the value of currencies to be taken into account for the calculation of the repayments is not fixed in advance, but is determined on the basis of the sale price of those currencies on the due date of each monthly installment.
In those circumstances, the Court holds that, subject to the verification by the referring court, foreign exchange transactions which are part of foreign currency denominated loans, such as that at issue, do not constitute an investment service, with the result that the grant of such a loan is not subject to the provisions of the directive relating to the protection of investors