More than ten years after Cadbury Schweppes, the European Court of Justice reaffirmed that directive benefits cannot be denied on the basis of assumptions laid down in domestic tax laws. Substance must be tested but cannot be denied on the basis of rules generally describing directive shopping situations.

The Frankfurt am Main Court of Appeal determined in its decision on 21 June 2017 (17 U 160/16) that a recommendation for an investment in closed-end real estate funds to a charitable foundation, which is subject to the obligation of capital preservation pursuant to its articles of association, was not a violation of the duty to provide investor-oriented advice as the investment in such a fund does not violate the charitable foundation's obligation of capital preservation as a matter of principle.

MiFID II has introduced a set of new requirements for investment firms as “producers” of investment products and for placement agents as “distributors” of such products. Most of the requirements set forth in MiFID II are provided in connection with retail clients. However, certain requirements also apply when dealing with professional clients.