3.8.2013
EN
Official Journal of the European Union
C 225/16
Judgment of the Court (Fourth Chamber) of 30 May 2013 (request for a preliminary ruling from the Juzgado de Primera Instancia no 12 de Madrid — Spain) — Genil 48 SL, Comercial Hostelera de Grandes Vinos SL v Bankinter SA, Banco Bilbao Vizcaya Argentaria SA
(Case C-604/11) (1)
(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)
2013/C 225/25
Language of the case: Spanish
Referring court
Juzgado de Primera Instancia No 12 de Madrid
Parties to the main proceedings
Applicant: Genil 48 SL, Comercial Hostelera de Grandes Vinos SL
Defendants: Bankinter SA, Banco Bilbao Vizcaya Argentaria SA
Re:
Request for a preliminary ruling — Juzgado de Primera Instancia No 12 de Madrid — Interpretation of Arts 4(1), point (4), and 19(4), (5) and (9) of 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) — Interest rate swap arrangements to cover the risk of variations of interest rates on other financial products — Suitability test
Operative part of the judgment
1.
Article 19(9) of 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 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.
2.
Article 4(1)(4) of Directive 2004/39 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.
3.
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.
(1) OJ C 32, 4.2.2012.
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