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Case C-604/11: Reference for a preliminary ruling from the Juzgado de Primera Instancia No 12 de Madrid (Spain) lodged on 28 November 2011 — Genil 48 S.L. and Comercial Hostelera de Grandes Vinos S.L. v Bankinter S.A. and Banco Bilbao Vizcaya Argentaria S.A.
ECLI:EU:UNKNOWN:62011CN0604
62011CN0604
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Official Journal of the European Union
C 32/15
(Case C-604/11)
2012/C 32/28
Language of the case: Spanish
Referring court
Juzgado de Primera Instancia N° 12 de Madrid
Parties to the main proceedings
Applicants: Genil 48 S.L. and Comercial Hostelera de Grandes Vinos S.L.
Defendants: Bankinter S.A. and Banco Bilbao Vizcaya Argentaria S.A.
Questions referred
1.Must the offering to a client of an interest rate swap arrangement to cover the risk of variations of interest rates on other financial products be regarded as investment advice within the meaning of point [(4)] of Article 4(1) of the MiFID Directive (1)?
2.Must omission of the suitability test provided for in Article 19(4) of that directive for a retail investor give rise to fundamental nullity of the contract entered into between the investor and the investment institution?
3.In the event that the service provided in the terms described is not regarded as investment advice, does the mere fact of purchasing a complex financial instrument, into which category falls an interest rate swap arrangement, without the appropriateness test provided for in Article 19(5) of the MiFID Directive being carried out, for reasons imputable to the investment institution, give rise to fundamental nullity of the contract?
4.Does the fact that a credit institution offers a complex financial instrument linked to other financial products constitute sufficient cause to exclude application of the obligations to carry out the suitability and appropriateness tests provided for by Article 19 of the MiFID Directive which the investment institution must undertake in the case of a retail investor?
5.In order to enable the obligations laid down in Article 19(9) of the MiFID Directive to be excluded, is it necessary for the financial product to which the financial instrument offered is linked to be subject to investor-protection standards similar to those laid down in that directive?
(1) 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).