Payment firms may sell FX futures only inside MiFID exemption

The Court of Justice held on 5 November 2026Europa, in Case C-339/25 Iulicris Recycling v IbanfirstEuropa, that a payment institution authorised under Directive (EU) 2015/2366 may offer currency futures as ancillary services closely related to payment servicesEuropa, but that those futures must satisfy the investment-firm exemption conditions wherever they qualify as investment services relating to financial instrumentsEuropa. The First Chamber ruling answers a reference from the tribunal de l'entreprise francophone de Bruxelles in a dispute over the validity of three flexible currency futures and the margin paid under them.

Iulicris Recycling, a Romanian raw-materials recycler, settles many of its liabilities in Romanian lei while the scrap it sells is priced in United States dollars. After opening a multi-currency account with Ibanfirst, a company authorised as a payment institution by the National Bank of Belgium, it concluded three flexible futures on 17, 28 and 30 September 2021 fixing the USD/RON rate at 4.20, 4.22 and 4.25 for amounts of up to USD 3 million, USD 3 million and USD 4 million. From March 2022 Ibanfirst issued margin calls, under which Iulicris paid USD 894,724 and USD 1,498,000 between 9 March and 7 October 2022. After a refused one-year rollover, the contracts expired in November 2022, and in May 2023 Iulicris sued in Brussels seeking a declaration that the contracts were void and repayment of the margin amounts.

The Court first confirms that Article 18(1)(a) of Directive 2015/2366 covers more than spot conversion at the day's rateEuropa: contracts fixing the exchange rate for a later date are also capable of falling within foreign exchange services offered as closely related ancillary servicesEuropa. But that provision does not govern such services fully and exclusively where they also fall within the scope of Directive 2014/65Europa. Letting the payments objective prevail over investor protection merely because an instrument is sold alongside a payment service would subordinate one directive's aims to the other's, which the Court rejects.

Whether Directive 2014/65 applies turns on two filtersEuropa, both left for the referring court to verifyEuropa. First, the contracts must be financial instrumentsEuropa: futures and currency derivatives fall under point 4 of Section C of Annex I to Directive 2014/65, applying the Banif Plus Bank definition of a futures contract, unless they escape classification under Article 10(1)(b) of Delegated Regulation 2017/565Europa. That escape needs four cumulative conditions: physical settlement other than on default or termination, at least one party not a financial counterparty, a purpose of facilitating payment for identifiable goods, services or direct investment, and no trading on a trading venueEuropa. Second, even if the contracts are financial instruments offered as an investment service, Directive 2014/65 still does not apply where the Article 2(1)(c) exemption for services provided in an incidental mannerEuropa is metEuropa, as specified in Article 4 of the delegated regulationEuropa: a close factual connection making the service accessory to the main professional activity, no aim of drawing a systematic income from it, and no marketing of the investment capability except as disclosed as accessoryEuropa.

For payment institutions and cross-border payments fintechs, the practical point is that a payments licence plus a foreign-exchange permission does not by itself cover currency forwards and futures sold to business clientsEuropa: each product must pass the Article 10(1)(b) classification test and, failing that, the three Article 4 incidental-manner conditions, or a MiFID investment-firm authorisation is neededEuropa. Corporate hedgers should verify the counterparty's basis for offering the hedge.

Its legal basis is Article 18(1)(a) of Directive (EU) 2015/2366, Article 2(1)(c) and Article 4(1)(2) of Directive 2014/65/EU, and Articles 4 and 10(1)(b) of Delegated Regulation (EU) 2017/565.