Overall, when it comes to transitory issues, it is useful to note that for an anciliary activity exemption the clock has started ticking as from July 2015 i.e. well before 2017, which is is the date when MiFID II will enter into force.
It follows, the trading activity executed as from July 2015 must be assessed against the relevant thresholds.
Article 4 of the ESMA's draft of 28 September 2015 of the Commission Delegated Regulation supplementing Directive 2014/65/EU of the European Parliament and of the Council with regard to regulatory technical standards for criteria to establish when an activity is considered to be ancillary to the main business sets out the the relevant procedure and calculations periods.
Firms are now granted an opportunity to take strategic decisions about the future of their business in response to the new regulatory framework.
Persons seeking to avail themselves of the exemption need to assess their compliance with the relevant conditions, and seek authorisation as an investment firm where they are unable to meet requirements.
There are some difficulties in performing calculations, in particular, when assessing the overall market size in specific asset classes.
ESMA asserts it has no legal empowerment to establish such a benchmark, on the other hand it intends to make data available on a best effort basis (Cost Benefit Analysis – Annex II Draft Regulatory and Implementing Technical Standards MiFID II/MiFIR of 28 September 2015 (ESMA/2015/1464), p. 417).
However, the said document acknowledges costs will be incurred by market participants to gather and aggregate data on own trading across a group of entities and of overall trading volume for each of the eight asset classes, where the non-financial firm would not rely on the overall market data made available by ESMA.
Hence, it is quite probable the market for skilled data providers for the relevant scope will expand soon.