Template:MiFID 2 Art 2(4)
2(4). ESMA shall develop draft regulatory technical standards to specify, for the purposes of point (j) of paragraph 1, the criteria for establishing when an activity is to be considered to be ancillary to the main business at a group level.
Those criteria shall take into account at least the following elements:
(a) the need for ancillary activities to constitute a minority of activities at a group level;
(b) the size of their trading activity compared to the overall market trading activity in that asset class.
In determining the extent to which ancillary activities constitute a minority of activities at a group level ESMA may determine that the capital employed for carrying out the ancillary activity relative to the capital employed for carrying out the main business is to be considered. However, that factor shall in no case be sufficient to demonstrate that the activity is ancillary to the main business of the group.
The activities referred to in this paragraph shall be considered at a group level.
The elements referred to in the second and third subparagraphs shall exclude:
(a) intra-group transactions as referred to in Article 3 of Regulation (EU) No 648/2012 [EMIR — Ed] that serve group-wide liquidity or risk management purposes;
(b) transactions in derivatives which are objectively measurable as reducing risks directly relating to the commercial activity or treasury financing activity;
(c) transactions in commodity derivatives and emission allowances entered into to fulfil obligations to provide liquidity on a trading venue, where such obligations are required by regulatory authorities in accordance with Union law or with national laws, regulations and administrative provisions, or by trading venues.
ESMA shall submit those draft regulatory technical standards to the Commission by 3 July 2015.
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.