Ancillary activity

The EU directive 2014/65/EU of 15 May 2014 on markets in financial instruments, called MiFID II, was implemented in EU and EEA in 2018. It is not intended to regulate commercial users and producers of commodities using Fish Pool to hedge salmon prices. Meaning salmon farmers, exporters/importers, processors of salmon etc.

Formally Article 2(1)(j) in MiFID II says the following. Here shortened for easy reading for companies in the value chain of salmon. Please see the full regulation for details:

The directive does not apply to persons (companies)

.. who deal on own account… in commodity derivatives……  provided that ….this is an ancillary activity to their main business, when considered on a group basis….  , and those persons notify annually the relevant competent authority that they make use of this exemption and upon request report to the competent authority the basis on which they consider that their activity …. is ancillary to their main business.

You must notify the Financial Supervisory Authority in your own country:

Most Fish Pool Trade Members are Non-Financial companies. This means the company’s trading at Fish Pool may be both speculative or hedge (reducing your salmon price risk exposure). Every year, before March 31st , the Trade Members must inform their financial supervisory authority that your financial Fish Pool contracts are ancillary (an addition to your main activity).  You will thus be exempt from the need of licence for using financial Fish Pool contracts.

Documentation of Ancillary activity:

Commission Delegated Regulation (EU) 2017/592 specifies the calculations a non-financial company must comply with to continue trading derivatives and avoid the obligation to be licenced as an investment firm.

In case of need for documentation to report that your trading at Fish Pool is ancillary to your main activity, please contact Fish Pool for more information and help.

As Fish Pool at present trades low volumes compared to other commodities all companies have been very far below the limits set by EU.  Total “Other commodities” the latest 3 years (2016-18) has been app 1.300 billion EUR. Companies below 3% (app 40 bill EUR) will thus qualify according to the Ancillary calculations. Using 6 EUR/kg as salmon price, companies with more than 6 mill. tonnes in speculative Fish Pool contracts may thus be in breach. All companies are by 2019 below 1% of these volumes in speculative trading, and will thus satisfy the Ancillary activity calculations.

If a Trade Member trades significant volumes in other commodity derivatives in addition to salmon it is obliged to investigate whether it must have a licence as “Investment firm” or not.

How to report to the Financial Supervisory Authority in your own country.

Here are some links and examples:

Norway:
You have to report in Altinn using formula KRT-1165. Click here for a link to a user manual. After you have filled in once, Altinn will send a new formula to your inbox called KRT-1166.
Denmark:
The website of the Danish Finanstilsynet (Danish FSA) is https://www.finanstilsynet.dkand use this link for “accessorisk virksomhed”.
France:
Follow this link to AMF France for info, and enclosed is the Excel you have to fill in and send for 2020. Excel: AMF notification-form-activite-accessoire
Germany:
Please follow this link 
to BAFIN for info on how you can send a letter (or email) to BAFIN. You will thus be listed as a company using Ancillary, “Nebentätigkeitsausnahme”.
Netherlands:
Netherlands Autoriteit Financiële Markten (AFM) has made the notification form public at this link. The notification form is at the bottom of the page, under “procedure for licence application and notification”.
Spain:
The website of the Spanish Comisión Nacional del Mercado de Valores (CNMV): http://www.cnmv.es/portal/home.aspx. You fill in: “Notificación de la excepción de Actividad Auxiliar” on this link. View more information here.
United Kingdom:
United Kingdom Financial Conduct Authority (FCA) has made the notification form public at this linkPlease be aware that this may be updated due to Brexit.