Ancillary to the main business at a group level - MiFID 2 Provision: Difference between revisions

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-{{a|mifid2|{{subtable|{{MiFID 2 Art 2(4)}}
+{{a|mifid2|{{subtable|{{MiFID 2 Art 2(4)}}}}
-}}
+{{subtable|{{MiFID 2 RTS Art 5}}}}
+}}This whole business of what is or is not in scope for MiFID — especially where it comes to the fractal coastline of commodities and commodity-like things, is an utter disaster with a face only a Eurocrat could love.  This article stands as a sort of help to the articles on the MiFID-regulated [[Investment services and activities|investment service]] of [[dealing on own account]], the related de minimis threshold test, and also EMIR’s [[hedging exemption]].
-{{subtable|
+This regulatory technical standard describes in better detail what is meant by “[[objectively measurable as reducing risks]]” directly relating to a person’s commercial activity or treasury financing activity.
-(1) For the purposes of point (b) of the fifth subparagraph of Article [[2(4) - MiFID 2 Provision|2(4)]] of Directive [[MiFID 2|2014/65/EU]], a transaction in derivatives shall be considered [[objectively measurable as reducing risks]] directly relating to the commercial activity or treasury financing activity when one or more of the following criteria is met:
-(a) the transaction reduces the risks arising from the potential change in the value of assets, services, inputs, products, commodities or liabilities that the person or its group owns, produces, manufactures, processes, provides, purchases, merchandises, leases, sells, or incurs or reasonably anticipates owning, producing, manufacturing, processing, providing, purchasing, merchandising, leasing, selling or incurring in the normal course of its business;
+So.
-(b) the transaction covers the risks arising from the potential indirect impact on the value of assets, services, inputs, products, commodities or liabilities referred to in point (a), resulting from fluctuation of interest rates, inflation rates, foreign exchange rates or credit risk;
+For a start, “[[dealing on own account]]” when it comes to [[emissions allowances]] and [[commodity derivatives]] is a regulated [[Investment services and activities|investment service]], with, in Article {{mifid2prov|2(1)(j)}}, some exceptions, buried amongst which is that the activity is “ancillary to their main business, when considered on a group basis”. Something will be considered ancillary (assuming all no other other criteria are triggered: see [[dealing on own account]] about this as it will do your head in), if it passes the [[de minimis threshold test]], which looks at the “net outstanding notional exposure” in [[commodity derivatives]] for cash settlement or emission allowances or derivatives thereof for cash settlement.
-(c) the transaction qualifies as a hedging contract pursuant to International Financial Reporting Standards adopted in accordance with Article 3 of Regulation (EC) No 1606/2002 of the European Parliament and of the Council.
+What counts as “[[net outstanding notional exposure]]” is no cake walk, since the regulations teeter uneasily between scoping out physical commodities, and scoping in cash-settled ones, exchange-traded ones, and so on. It is a thorough mess. Cue this [[regulatory technical standard]]. It may not do what it sets out to do - by putting some contracts out of scope, one wonders whether one should be allowed to count them for risk-reducing purposes. For example: If I have a physical emissions contract (that is, I hold an emissions allowance) which I am hedging with a cash-settled emissions derivative, and when calculating my [[net outstanding notional exposure]] I must exclude the hedging transaction, because it is a hedging transaction, but cannot exclude the emission allowance it actually hedges, then this exemption puts me in a worse position than I would have been in had I not counted to the hedge.
-(2) For the purposes of paragraph 1, a qualifying risk-reducing transaction taken on its own or in combination with other derivatives is one for which a non-financial entity:
+This is madness of course, and is plainly not what is intended, but good luck getting a legal opinion confirming that without significant runniness around the edges.
-(a) describes the following in its internal policies:
+Anyway, we are proceeding on the basis that what was intended was for hedging derivatives to reduce net outstanding notional exposure, that they therefore knock out any positions, however constituted that they hedge, and that therefore the hedging exemption is a good thing. In this case, any derivative that matches the exposure you face on an emissions allowance, to the return you must pay on a secured note repackaging the allowance and the derivative, on any account “reduces the risks arising from the potential change in the value of assets ... or liabilities that the person ... owns ... or incurs ... in the normal course of its business”.
-:(i) the types of commodity derivative, emission allowance or derivative thereof contracts included in the portfolios used to reduce risks directly relating to commercial activity or treasury financing activity and their eligibility criteria;
+This may not help: it may make things worse, but it ''feels'' like it ought to be a positive step.
-:(ii) the link between the portfolio and the risks that the portfolio is mitigating;
-:(iii) the measures adopted to ensure that the transactions concerning those contracts serve no other purpose than covering risks directly related to the commercial activity or the treasury financing activity of the non-financial entity, and that any transaction serving a different purpose can be clearly identified;
-(b) is able to provide a sufficiently disaggregate view of the portfolios in terms of class of commodity derivative, emission allowance or derivative thereof, underlying commodity, time horizon and any other relevant factors. <br>
-}}}}This whole business of what is or is not in scope for MiFID — especially where it comes to the fractal coastline of commodities and commodity-like things, is an utter disaster with a face only a Eurocrat could love.  This article stands as a sort of help to the articles on the MiFID-regulated [[Investment services and activities|investment service]] of [[dealing on own account]], the related de minimis threshold test, and also EMIR’s [[hedging exemption]].
-This regulatory technical standard describes in better detail what is meant by “objectively measurable as reducing risks” directly relating to a person’s commercial activity or treasury financing activity.
 {{sa}}
 *[[De minimis threshold test]]
 *[[Dealing on own account]]
 *[[Hedging exemption]]