EU Delegated Regulation on Ancillary Activity Criteria under MiFID II

An EU Commission Delegated Regulation (2021/1833) on the criteria for when an activity will be considered as ancillary to the main business has been published in the Official Journal of the European Union.  The changes to the EU’s Markets in Financial Instruments Directive, known as MiFID Quick Fix, include changes to the ancillary activity exemption.  The exemption from authorization as an investment firm is available when dealing on own account, or providing investment services to clients in commodity derivatives, emission allowances or derivatives thereof, provided that the activity is an ancillary activity to their main business at group level and the main business is not the provision of investment services within the meaning of MiFID II or banking activities under the Capital Requirements Directive.

Commission Delegated Regulation (EU 2017/592) currently sets out the criteria for establishing when an activity should be considered as ancillary to the main business at group level, including the rules for calculating the overall market trading activity of a firm.
The recently published Delegated Regulation (2021/1833) will repeal that Regulation, replacing the existing criteria with revised criteria.  Under the revisions, there are three ancillary activity tests, the first being a De-Minimis Threshold Test, the second a trading size test and the third, a capital employed test.  The new Delegated Regulation will apply directly across the EU from November 9, 2021.  EU Member States are obliged to transpose the MiFID II Quick Fix provisions into national laws by November 28, 2021 and to apply them from February 28, 2022.
 
Return to main website.