Background
Iulicris Recycling SRL, a Romanian company active in recycling raw materials, settles many liabilities in Romanian lei while selling recycled scrap priced in United States dollars. It said it sought to reduce the resulting exchange-rate risk. Ibanfirst SA, a Belgian company authorised as a payment institution by the National Bank of Belgium, provided Iulicris with services including a multi-currency payment account, SEPA transfers and access to its platform under a contract signed on 1 July 2021.
On 17, 28 and 30 September 2021, the companies concluded three “flexible futures” contracts. They fixed USD/RON exchange rates at 4.20 for up to USD 3,000,000, 4.22 for up to USD 3,000,000 and 4.25 for up to USD 4,000,000. Following margin calls from March 2022, Iulicris paid Ibanfirst USD 894,724 and USD 1,498,000 between 9 March and 7 October 2022. A dispute followed over renewal of the hedging period, expiry of the contracts and delivery of the currencies. On 25 May 2023, Iulicris sued in the tribunal de l’entreprise francophone de Bruxelles, seeking, among other relief, a declaration that the contracts were void and repayment of amounts paid under them.
Iulicris argued that the contracts were financial instruments, did not qualify for the exemptions in Article 10(1) of Commission Delegated Regulation (EU) 2017/565, and involved regulated investment services provided as a principal rather than ancillary activity. Ibanfirst maintained that its payment-institution authorisation covered the contracts and that the payment-services and investment-services regimes were distinct. The Belgian court stayed the proceedings and referred a two-part question under Article 267 TFEU. The First Chamber comprised F. Biltgen, President, S. Gervasoni, A. Kumin, I. Ziemele and M. Bošnjak, Judge-Rapporteur. Advocate General M. Campos Sánchez-Bordona delivered his Opinion on 19 March 2026.
The Court’s Holding
The Court first rejected Ibanfirst’s admissibility objection to point (a) of the referred question. Applying the presumption that questions concerning EU law are relevant, it held that the possible classification of the contracts as “other derivative contracts relating to a currency” arose as a preliminary matter and was closely connected to the dispute and the nullity claim. Point (a) was therefore admissible.
On the substance, the Court held that Article 18(1)(a) of Directive (EU) 2015/2366 entitles payment institutions to offer currency futures as ancillary services closely related to payment services. Both currency conversions using the exchange rate in force at the time of the transaction and contracts fixing an exchange rate for a later date can fall within that provision. The foreign-exchange service must, however, be offered in close connection with payment services supplied to the same user, with those payment services remaining the main service.
That entitlement does not displace Directive 2014/65/EU. Flexible currency futures may, in principle, be financial instruments under Section C(4) of Annex I to that directive. But if the four cumulative conditions in Article 10(1)(b) of Delegated Regulation 2017/565 are satisfied—physical settlement apart from default or another termination event, participation by at least one non-financial counterparty, facilitation of payment for identifiable goods, services or direct investment, and no trading on a trading venue—the contracts are excluded from that classification. The referring court must determine whether those conditions are met; if they are, Directive 2014/65 does not apply and the ancillary-services issue is assessed independently of it.
Where the ancillary services instead constitute investment services relating to a financial instrument, they must satisfy Article 2(1)(c) of Directive 2014/65 and the three conditions in Article 4 of the delegated regulation: a close factual connection making the service accessory to the same client’s main professional activity, no aim of providing a systematic source of income, and no marketing or promotion of investment-services capability except as accessory to that activity. The Court stated that currency futures offered by a payment institution to reduce foreign-exchange risk when carrying out payment transactions are offered in an incidental manner, but expressly left verification of the applicable conditions to the referring court.
Key Takeaways
- Payment institutions may offer currency futures as closely related ancillary foreign-exchange services under Article 18(1)(a) of Directive 2015/2366.
- The payment-services authorisation does not automatically exclude the investment-services regime where the contracts are financial instruments.
- Satisfaction of Article 10(1)(b)’s four cumulative conditions removes the contracts from classification as financial instruments; otherwise, the incidental-services exemption conditions may apply.
- The Belgian court retains responsibility for the factual checks and for deciding the underlying validity and repayment claims.
Why It Matters
The judgment explains how the payment-services and investment-services frameworks interact when a payment institution offers currency futures. It identifies the relevant exemptions and conditions without itself deciding whether Ibanfirst satisfied them or whether the disputed contracts are void.
For the parties in the main proceedings, the preliminary ruling is a step in the Belgian action. The referring court will decide costs between them; costs incurred by other participants in submitting observations to the Court are not recoverable.