Provisional text

JUDGMENT OF THE COURT (Eighth Chamber)

18 June 2026 (*)

( Reference for a preliminary ruling – Area of freedom, security and justice – Judicial cooperation in civil matters – Conflicts of laws – Regulation (EC) No 593/2008 (Rome I) – Applicable law – Consumer contracts – Exceptions – Financial contracts for differences (CFDs) – Rights and obligations which constitute a financial instrument – Process of setting prices for CFDs – Difference between the exchange rate deviation accepted in the consumer’s order and the exchange rate deviation in the transaction executed )

In Case C‑346/25,

REQUEST for a preliminary ruling under Article 267 TFEU from the Nejvyšší soud (Supreme Court, Czech Republic), made by decision of 12 May 2025, received at the Court on 22 May 2025, in the proceedings

FIBO Markets LTD

J.P,

THE COURT (Eighth Chamber),

composed of O. Spineanu-Matei (Rapporteur), President of the Chamber, N. Piçarra and N. Fenger, Judges,

Advocate General: R. Norkus,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– J.P, by M. Hostinský, advokát,

– the European Commission, by C. Auvret, J. Hradil and S. Noë, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 6(4)(d) of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ 2008 L 177, p. 6; ‘the Rome I Regulation’).

2 The request has been made in proceedings between FIBO Markets LTD (‘FIBO’) and J.P. concerning the payment of profit which J.P. claims that she did not make due to FIBO’s failure to execute in good time a buy order under a financial contract for differences (‘CFD’) and the law applicable to the contractual relations between those parties.

Legal context

The Rome I Regulation

3 Recitals 7, 23, 25, 26, 28 and 30 of the Rome I Regulation state as follows:

‘(7) The substantive scope and the provisions of this Regulation should be consistent with Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [(OJ 2001 L 12, p. 1), as amended by Council Regulation (EC) No 1791/2006 of 20 November 2006 (OJ 2006 L 363, p. 1)] (Brussels I) and Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) [OJ 2007 L 199, p. 40].

…

(23) As regards contracts concluded with parties regarded as being weaker, those parties should be protected by conflict-of-law rules that are more favourable to their interests than the general rules.

…

(25) Consumers should be protected by such rules of the country of their habitual residence that cannot be derogated from by agreement, provided that the consumer contract has been concluded as a result of the professional pursuing his commercial or professional activities in that particular country. The same protection should be guaranteed if the professional, while not pursuing his commercial or professional activities in the country where the consumer has his habitual residence, directs his activities by any means to that country or to several countries, including that country, and the contract is concluded as a result of such activities.

(26) For the purposes of this Regulation, financial services such as investment services and activities and ancillary services provided by a professional to a consumer, as referred to in sections A and B of Annex I to [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), as amended by Directive 2006/31/EC of the European Parliament and of the Council of 5 April 2006 (OJ 2006 L 114, p. 60) (“Directive 2004/39”)], and contracts for the sale of units in collective investment undertakings, whether or not covered by Council Directive 85/611/EEC of 20 December 1985 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) [OJ 1985 L 375, p. 3], should be subject to Article 6 of this Regulation. Consequently, when a reference is made to terms and conditions governing the issuance or offer to the public of transferable securities or to the subscription and redemption of units in collective investment undertakings, that reference should include all aspects binding the issuer or the offeror to the consumer, but should not include those aspects involving the provision of financial services.

…

(28) It is important to ensure that rights and obligations which constitute a financial instrument are not covered by the general rule applicable to consumer contracts, as that could lead to different laws being applicable to each of the instruments issued, therefore changing their nature and preventing their fungible trading and offering. Likewise, whenever such instruments are issued or offered, the contractual relationship established between the issuer or the offeror and the consumer should not necessarily be subject to the mandatory application of the law of the country of habitual residence of the consumer, as there is a need to ensure uniformity in the terms and conditions of an issuance or an offer. The same rationale should apply with regard to the multilateral systems covered by Article 4(1)(h), in respect of which it should be ensured that the law of the country of habitual residence of the consumer will not interfere with the rules applicable to contracts concluded within those systems or with the operator of such systems.

…

(30) For the purposes of this Regulation, financial instruments and transferable securities are those instruments referred to in Article 4 of Directive 2004/39/EC.’

4 Article 1 of the Rome I Regulation, headed ‘Material scope’, states, in the first subparagraph of paragraph 1 thereof:

‘This Regulation shall apply, in situations involving a conflict of laws, to contractual obligations in civil and commercial matters.’

5 Article 6 of that regulation, headed ‘Consumer contracts’, states:

‘1. Without prejudice to Articles 5 and 7, a contract concluded by a natural person for a purpose which can be regarded as being outside his trade or profession (the consumer) with another person acting in the exercise of his trade or profession (the professional) shall be governed by the law of the country where the consumer has his habitual residence, provided that the professional:

(a) pursues his commercial or professional activities in the country where the consumer has his habitual residence, or

(b) by any means, directs such activities to that country or to several countries including that country,

and the contract falls within the scope of such activities.

2. Notwithstanding paragraph 1, the parties may choose the law applicable to a contract which fulfils the requirements of paragraph 1, in accordance with Article 3. Such a choice may not, however, have the result of depriving the consumer of the protection afforded to him by provisions that cannot be derogated from by agreement by virtue of the law which, in the absence of choice, would have been applicable on the basis of paragraph 1.

…

4. Paragraphs 1 and 2 shall not apply to:

…

(d) rights and obligations which constitute a financial instrument and rights and obligations constituting the terms and conditions governing the issuance or offer to the public and public take-over bids of transferable securities, and the subscription and redemption of units in collective investment undertakings in so far as these activities do not constitute provision of a financial service;

…’

Directive 2004/39

6 Under the second paragraph of Article 70 of Directive 2004/39, that directive was to apply from 1 November 2007. Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (OJ 2014 L 173, p. 349), as amended by Directive (EU) 2016/1034 of the European Parliament and of the Council of 23 June 2016 (OJ 2016 L 175, p. 8), repealed Directive 2004/39 with effect from 3 January 2018 and provided that references to a term defined in that directive or to an article of that directive were to be construed as references to the equivalent term defined in, or article of, Directive 2014/65. However, in view of the date of the facts of the dispute in the main proceedings, Directive 2004/39 is still applicable to that dispute.

7 Article 4 of Directive 2004/39, headed ‘Definitions’, provided, in paragraph 1 thereof:

‘For the purposes of this Directive, the following definitions shall apply:

…

17) “Financial instrument” means those instruments specified in Section C of Annex I;

…’

8 Under the heading ‘Financial instruments’, Section C of Annex I to Directive 2004/39 set out the list of financial instruments covered by that directive, which included, in point 9 of that section, CFDs.

The dispute in the main proceedings and the question referred for a preliminary ruling

9 J.P. is a natural person domiciled in the Czech Republic. FIBO is a company incorporated under Cypriot law, which operates as a broker of transferable securities and offers its services via the internet to, inter alia, clients residing in the Czech Republic.

10 On 2 October 2014, J.P. remotely concluded a framework contract with FIBO titled ‘Terms of Business’, the purpose of which was to enable her to make transactions on the foreign exchange market – known as ‘the FOREX market’ – by placing orders to buy and sell base currency, which FIBO would execute by means of its online trading platform. Clause 8.10 of the framework contract provided that FIBO reserved the right, in the event of a technical failure on that platform, not to execute the transaction as instructed by J.P, that is to say, not to conclude the corresponding CFD or, as the case may be, to execute it on different terms, in particular at a price other than that indicated in J.P.’s order.

11 The framework contract provided for the conclusion, between J.P. and FIBO, of individual trades classified as CFDs, which are financial instruments the purpose of which is to make profit on the difference between the exchange rates applicable to the buying and selling, respectively, of the base currency vis-à-vis the quote currency. Additionally, J.P. leveraged her trading by selecting the option of trading via ‘lots’, a lot being worth 100 000 United States dollars (USD) (approximately EUR 85 000). That mechanism enabled her to trade on the market using amounts greater than the funds that she actually had available to her.

12 Clause 30.2 of the framework contract was a clause designating Cypriot law as the law applicable both to that framework contract and to all the transactional relations between J.P. and FIBO.

13 On 3 October 2014, J.P. concluded a CFD with FIBO under which she placed a buy order in respect of 35 lots at a fixed exchange rate for Japanese yen, accepting that, in the event of FIBO’s counter-offer, FIBO was not required to execute the buy order beyond a specified rate. Since that counter-offer was within the agreed deviation, J.P. accepted it by confirming the buy order.

14 Since a long series of orders were being processed in the FIBO trading system, the order placed by J.P. was executed by that company with a delay of 16 seconds, during which time a fluctuation in the exchange rate occurred on the FOREX market. Consequently, FIBO’s purchase of the amount of US dollars approved by J.P. was made at a different exchange rate from that which J.P. had accepted when confirming her buy order.

15 According to J.P., if her order to buy the base currency had been executed without delay, she would have made an additional profit of USD 8 927.90 (approximately EUR 7 599).

16 J.P. then brought an action before the Krajský soud v Ostravě (Regional Court, Ostrava, Czech Republic), arguing that the unjust enrichment that FIBO allegedly received should be returned to her. By judgment of 9 December 2022, that court ordered FIBO to pay J.P. the sum of USD 8 927.90, together with default interest. As regards the determination of the applicable law, that court held that the legal relationship between J.P. and FIBO came under Czech law, on the ground that the framework contract at issue had to be regarded as a contract concluded with a consumer, for the purpose of Article 6 of the Rome I Regulation. According to that court, the exception provided for in Article 6(4)(d) of that regulation did not apply.

17 The Krajský soud v Ostravě (Regional Court, Ostrava) considered that a distinction had to be drawn according to whether the contract related to the financial instrument itself or to rights and obligations relating to the trading of that instrument. In that second situation, the supplies at issue constitute, in its view, financial services which do not come within the exception laid down in Article 6(4)(d) of that regulation. Consequently, the effect of that provision is to exclude from consumer protection provisions only financial instruments strictly speaking, and not contracts which govern their acquisition and related transactions. Accordingly, in the view of that court, the exception provided for in that provision applied only to the CFDs concluded between the parties, which constituted financial instruments strictly speaking, and not to the framework contract, which merely set out the circumstances in which such individual contracts could be concluded.

18 By judgment of 27 July 2023, the Vrchní soud v Olomouci (High Court, Olomouc, Czech Republic) upheld the judgment of the Krajský soud v Ostravě (Regional Court, Ostrava). According to the appeal court, the framework contract did not include rights and obligations constituting a ‘financial instrument’, but laid down a set of rules and procedures allowing J.P. to enter into contractual relations with FIBO or with other persons through FIBO. It found that, although those relationships could lead to the conclusion of a financial instrument, that instrument nevertheless arose from the ‘financial service’ provided.

19 FIBO then brought an appeal on a point of law before the Nejvyšší soud (Supreme Court, Czech Republic), which is the referring court, claiming that the courts adjudicating on the substance had erred in law in holding that Czech law was applicable to the dispute in the main proceedings. Accordingly, it is for the referring court to determine which of Czech law or Cypriot law is applicable to the legal relationships between the parties to the main proceedings.

20 In that regard, the referring court takes the view that, in order to determine the applicable law, it is necessary, inter alia, to ascertain whether the rules relating to the setting of the CFD price or FIBO’s right unilaterally to alter the price of the transaction, in breach of the rules contained in the framework contract, fall under rights and obligations ‘which constitute a financial instrument’, within the meaning of Article 6(4)(d) of the Rome I Regulation, or whether, on the contrary, they come under rights and obligations in the field of the ‘provision of a financial service’ which may come within the scope of Article 6 of that regulation.

21 According to the referring court, the nature of the CFD, the content of the framework contract and the terms for performing the CFD concluded between the parties give rise to difficulties of interpretation as regards the concepts referred to in the preceding paragraph, including with respect to the condition that it must not relate to the provision of a financial service. It observes, in that regard, that CFDs are highly speculative, risky and non-standardised products, the structure of which does not make it possible to distinguish clearly which rights and obligations characterise them as a financial instrument and which can be associated with the provision of financial services.

22 The referring court notes that the Court has held previously that a CFD constitutes a financial instrument, in particular in its judgments of 3 October 2019, Petruchová (C‑208/18, EU:C:2019:825), and of 2 April 2020, Reliantco Investments and Reliantco Investments Limassol Sucursala Bucureşti (C‑500/18, EU:C:2020:264). However, that interpretation was adopted in the context of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1). The Court points out that that regulation does not contain an exception comparable to that provided for in Article 6(4)(d) of the Rome I Regulation. Consequently, the referring court is of the view that the case-law of the Court does not yet make it possible to determine clearly what specific rights and obligations are attached to the CFD, in particular as regards the process of setting its price or the price difference. Accordingly, the question also arises as to whether that process comes within the scope of the provision of financial services or whether it concerns rights and obligations constituting a financial instrument.

23 In those circumstances, the Nejvyšší soud (Supreme Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Is Article 6(4)(d) of [the Rome I Regulation] to be interpreted as meaning that the rights and obligations which constitute a financial instrument include rights and obligations concerning the process of setting prices in [CFDs], or the process of establishing the difference between the prices of underlying assets in respect of which the [CFD] is concluded?’

Consideration of the question referred

24 By its question, the referring court asks, in essence, whether Article 6(4)(d) of the Rome I Regulation must be interpreted as meaning that, in the case of a CFD concluded between a professional and a consumer, the expression ‘rights and obligations which constitute a financial instrument’, within the meaning of that provision, includes rights and obligations relating to the financial terms on which the consumer’s order is to be executed, and specifically to the determination of the difference between the reference price used to calculate the profit or loss under that CFD. It is uncertain, in particular, whether that expression covers the terms of the framework contract concluded between the consumer and the professional which allow the latter not to execute such an order or to execute it on terms different from those initially agreed to by the consumer.

25 As a preliminary point, the Court notes that the Rome I Regulation is intended to contribute to the consistency of the conflict-of-law rules in force in the Member States. In order to increase the foreseeability of the outcome of disputes and to ensure certainty as to the applicable law, that regulation lays down uniform conflict-of-law rules designating which law is applicable, irrespective of the Member State in which the action is brought.

26 Article 6(1) of the Rome I Regulation provides that a contract concluded by a natural person – the consumer – for a purpose which can be regarded as being outside his or her trade or profession with another person – the professional – acting in the exercise of his or her trade or profession is to be governed by the law of the country where the consumer has his or her habitual residence, provided that the professional pursues his or her commercial or professional activities in the country where the consumer has his or her habitual residence, or directs such activities to that country or to several countries including that country.

27 According to Article 6(2) of the Rome I Regulation, the parties to a consumer contract – that is to say, a contract concluded by a professional and a consumer, may choose the law applicable to the contract; however, such a choice may not have the result of depriving the consumer of the protection afforded to him or her by provisions that cannot be derogated from by agreement by virtue of the law which, in the absence of choice, would have been applicable on the basis of Article 6(1).

28 Article 6(4) of the Rome I Regulation sets out the cases in which Article 6(1) and (2) are not to apply.

29 In particular, Article 6(4)(d) of that regulation provides that Article 6(1) and (2) are not to apply to ‘rights and obligations which constitute a financial instrument’ or to rights and obligations constituting the terms and conditions governing the issuance or offer to the public and public take-over bids of transferable securities, or the subscription or redemption of units in collective investment undertakings in so far as those activities do not constitute provision of a financial service.

30 Under recital 28 of the Rome I Regulation, ‘it is important to ensure that rights and obligations which constitute a financial instrument are not covered by the general rule applicable to consumer contracts, as that could lead to different laws being applicable to each of the instruments issued, therefore changing their nature and preventing their fungible trading and offering’.

31 The Rome I Regulation does not define the concept of ‘financial instrument’ as used in that regulation.

32 However, recital 30 of that regulation states that, for the purposes of the application of that regulation, ‘financial instruments and transferable securities are those instruments referred to in Article 4 of [Directive 2004/39]’.

33 Article 4(1)(17) of Directive 2004/39 defines ‘financial instruments’ as meaning those instruments specified in Section C of Annex I to that directive, headed ‘List of services and activities and financial instruments’. Section C refers, in particular, to CFDs, transferable securities, options, futures, swaps, forward rate agreements and any other derivative contracts relating to securities, currencies or interest rates.

34 As the European Commission claims, a financial instrument may be defined as a set of rights and obligations under company law, such as shares in companies, or of a contractual nature, such as bonds, options or derivative contracts. CFDs, specifically, are contractual in nature. They are cash settled derivative contracts, the purpose of which is to transfer to the investor the exposure to fluctuations in the value of an underlying asset. The transaction between the parties is based on the difference between the prevailing value of the underlying asset at the time of the conclusion of the contract and its value at the time of sale.

35 In the present case, the question referred by the referring court concerns the definition of ‘rights and obligations which constitute a financial instrument’ within the meaning of Article 6(4)(d) of the Rome I Regulation.

36 It is apparent from the order for reference that, under clause 8.10 of the framework contract, FIBO had the right, in the event of a technical failure of the exchange platform or other technical problems, not to execute the order placed by J.P. or to execute it at a price different from that initially accepted by J.P.

37 In order to answer the question referred, it is appropriate to interpret Article 6(4)(d) of the Rome I Regulation by considering not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (see, to that effect, judgment of 8 November 2016, Ognyanov, C‑554/14, EU:C:2016:835, paragraph 31).

38 First of all, as regards the wording of Article 6(4)(d) of the Rome I Regulation, the Court notes that the French version of that provision uses the verb ‘to constitute’ (‘constituter’) in the expression ‘rights and obligations which constitute a financial instrument’ (‘droits et obligations qui constituent des instruments financiers’), which may lead to the conclusion that the exclusion of financial instruments from the consumer protection provided for in that provision covers only the rights and obligations which form the financial instrument itself strictly speaking.

39 However, there is a discrepancy between the various language versions of Article 6(4)(d) of the Rome I Regulation.

40 Almost all of those language versions – that is to say, 22 of them – use the verb ‘to constitute’. That is the case for the versions in Bulgarian (‘съставляват’), Croatian (‘predstavljaju’), Czech (‘představují’), Danish (‘udgør’), Dutch (‘vormen’), English (‘constitute’), Finnish (‘muodostavat’), French (‘constituent’), Greek (‘συνιστούν’), Hungarian (‘megtestesített’), Irish (‘arb … iad’), Italian (‘costituiscono’), Latvian (‘veido’), Lithuanian (‘sudarančioms’), Maltese (‘jikkostitwixxu’), Polish (‘stanowiących’), Portuguese (‘constituam’), Romanian (‘constituie’), Slovak (‘predstavujú’), Slovenian (‘tvorijo’), Spanish (‘constituyan’) and Swedish (‘utgör’).

41 The Estonian-language version of that provision, which does not use that verb, is similar to the 22 language versions mentioned in the preceding paragraph of the present judgment, since it refers to the rights and obligations ‘in the form of a financial instrument’ (‘finantsinstrumendi kujul esinevad’).

42 By contrast, the German version of that provision is different from the other versions in that it uses the expression ‘in relation to a financial instrument’ (‘im Zusammenhang mit einem Finanzinstrument’), the scope of which is broader than that of the verb ‘to constitute’.

43 In that regard, according to the settled case-law of the Court, the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions. Provisions of EU law must be interpreted and applied uniformly in the light of the versions existing in all languages of the European Union. Where there is a divergence between the various language versions of an EU legislative text, the provision in question must be interpreted by reference to the general scheme and purpose of the rules of which it forms part (see, to that effect, judgment of 27 October 1977, Bouchereau, 30/77, EU:C:1977:172, paragraph 14, and order of 2 December 2022, Compania Naţională de Transporturi Aeriene Tarom, C‑229/22, EU:C:2022:978, paragraph 21 and the case-law cited).

44 In the light of the wording of Article 6(4)(d) of the Rome I Regulation in 23 of the 24 language versions of that provision, the Court notes that that provision does not cover all the rights and obligations connected to a financial instrument, but those which form that instrument strictly speaking.

45 In the case of a CFD, its specific structure relates in particular to the mechanism by which the parties are exposed to fluctuations in the value of an underlying asset and how they determine the difference payable between them once the term of the contract expires.

46 By contrast, terms which stipulate how the professional is to receive, process, execute or modify the order placed by the consumer do not, in the light of the wording of Article 6(4)(d) of the Rome I Regulation alone, come within the scope of the rights and obligations constituting the financial instrument itself.

47 That interpretation of the wording of that provision is borne out by a contextual interpretation of it. In that regard, the Court notes that recital 30 of that regulation refers, for the purpose of understanding the concept of ‘financial instruments’, to the instruments referred to in Article 4 of Directive 2004/39. In Annex I, that directive distinguishes investment services and activities, listed in Section A of that annex, from financial instruments, listed in Section C of that annex, the latter of which include, inter alia, CFDs. Section A covers, inter alia, the reception and transmission of orders in relation to one or more financial instruments, the execution of orders on behalf of clients, dealing on own account and portfolio management. Those services relate to financial instruments, but should not be confused with the rights and obligations constituting such instruments.

48 It follows that the terms of a framework contract which lay down the circumstances in which a professional is to receive or execute an order relating to a CFD, including those which allow him or her, in the event of technical difficulty, not to execute that order or to execute it at a price different from the price initially accepted by the consumer, comes within the context of the provision of a financial service and not within the context of the definition of the financial instrument itself.

49 Lastly, that interpretation is consistent with the objective pursued by Article 6(4)(d) of the Rome I Regulation. It is apparent from recital 28 of that regulation that the purpose of the exclusion of rights and obligations constituting financial instruments from the scope of the protective rules laid down in the context of consumer contracts in Article 6(1) and (2) is to prevent the application of different laws to instruments issued changing their nature and preventing their fungible trading and offering.

50 That objective does not justify expanding that exclusion to cover the terms of a framework contract which, in a relationship negotiated between a professional and a consumer, lay down the conditions for the receipt, processing or execution of an order relating to a CFD. Moreover, it would be difficult to reconcile expanding the exclusion in that way with the fact that Article 6(4)(d) of the Rome I Regulation constitutes a derogation; that provision must be interpreted strictly since it excludes the application of the protective rules laid down in Article 6(1) and (2).

51 Furthermore, as the referring court points out, CFDs are complex, highly speculative and non-standardised instruments which expose the consumer to significant risks. A broad interpretation of the expression ‘rights and obligations which constitute a financial instrument’, which would include the terms of a framework contract giving the professional the right to amend unilaterally the terms of execution of the order or the conclusion of the CFD, would have the effect of depriving the consumer of the protection afforded to him or her by the law of the Member State in which he or she has his or her habitual residence, or even, if it were to lead to the application of the law of a third State, of the protection afforded by EU law. Therefore, limiting that expression to the rights and obligations that define the CFD strictly speaking is consistent with the objective of consumer protection pursued by Article 6(4) of the Rome I Regulation.

52 In the light of all the foregoing considerations, the answer to the question referred is that Article 6(4)(d) of the Rome I Regulation must be interpreted as meaning that, in the case of a CFD concluded between a professional and a consumer, the expression ‘rights and obligations which constitute a financial instrument’, within the meaning of that provision, includes rights and obligations relating to the financial terms on which the consumer’s order is to be executed, and specifically to the determination of the difference between the reference price used to calculate the profit or loss under that CFD, but not to the terms of the framework contract concluded between the consumer and the professional which allow the latter not to execute such an order or to execute it on terms different from those initially agreed to by the consumer.

Costs

53 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Eighth Chamber) hereby rules:

Article 6(4)(d) of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I)

must be interpreted as meaning that, in the case of a financial contract for differences concluded between a professional and a consumer, the expression ‘rights and obligations which constitute a financial instrument’, within the meaning of that provision, includes rights and obligations relating to the financial terms on which the consumer’s order is to be executed, and specifically to the determination of the difference between the reference price used to calculate the profit or loss under that financial contract for differences, but not to the terms of the framework contract concluded between the consumer and the professional which allow the latter not to execute such an order or to execute it on terms different from those initially agreed to by the consumer.

[Signatures]

* Language of the case: Czech.