On 14 July 2021, the European Commission adopted a Delegated Regulation supplementing MiFID II by specifying the criteria for establishing when an activity is to be considered to be ancillary to the main business at group level.
Article 2(4) of MiFID II empowered the Commission to adopt regulatory technical standards (RTS) specifying the criteria for establishing when an activity is to be considered ancillary to the main business of a group.
Directive 2021/338 (Capital Markets Recovery Package) revisited the MiFID II ancillary activity exemption and empowered the Commission to adopt a Delegated Regulation that will replace Commission Delegated Regulation 2017/592 (RTS 20). The changes triggered by the amended ancillary activity exemption are the deletion of the overall market size test of Article 2 of RTS 20 and the introduction of the new de-minimis threshold test. The amended ancillary activity exemption does not change the established calculation methodology of the trading test and capital employed test as described in RTS 20 The only change to these two tests is the level of the corresponding threshold as set out in Directive 2021/338.
The Delegated Regulation enters into force on the twentieth day following that of its publication in the Official Journal of the European Union.