Inaccurate Measurement of the threshold “total annual gross revenue from investment services and activities of the investment firm” in the ITS on reporting for Investment Firms.

Is it correct that the calculation of the threshold “total annual gross revenue” in row 0110 of template I 05.00 of Annex II of the commission implementing regulation (EU) 2021/2284 includes the revenues stemming from the MiFID Ancillary Services listed in rows 0230 to 0290 even though the corresponding definition of this threshold in article 12 (1) (i) of the IFR is explicitly referring to “total annual gross revenue from investment services and activities of the investment firm” and therefore doesn’t include any revenues stemming from such ancillary services?

The template I 05.00 of the ITS on reporting for investment firms (Commission Implementing Regulation (EU) 2021/2284) has the investment firms report the actual value for all of the thresholds defined in Article 12 (1) of the IFR. This includes the threshold “the total annual gross revenue from investment services and activities of the investment firm is less than EUR 30 million, calculated as an average on the basis of the annual figures from the two‐year period immediately preceding the given financial year” (Art. 12 (1) (i) of IFR). Following the definition of this threshold, an investment firm only has to include all the revenues stemming from investment services and activities according to Annex I Section A of MiFID II when calculating the threshold. This is further supported by the definition of “total gross revenue” in Art. 4 (1) (53) IFR as well as the reporting requirement for the threshold in Art. 54 (1) (d) IFR which are both specifically referring to investment services and activities. In contrast to the above mentioned definitions the actual calculation of the threshold “total annual gross revenues” in row 0110 of template I 05.00 of Annex II of the ITS on reporting for Investment Firms does not only include the revenues of investment services (rows 0140 to 0220) but in addition those revenues stemming from ancillary Services according to Annex I Section B of MiFID II (rows 0230 to 0290). The inclusion of these revenues is also mirrored in the validation rule “v11162_m” for row 0110 which checks that the value of this row also includes the values from rows 0230 to 0290 concerned with revenues from ancillary services. As a consequence, an investment firm providing ancillary services in addition to its investment services and activities has to include the respective revenues when calculating the threshold. This leads to the result that an investment firm providing ancillary services will always report a higher threshold than they are actually required to by the factual requirements of the IFR. In the end this could lead to the fact that an investment firm has to report a breach of the threshold even though by definition (based on revenues from investment services alone) it is still below the threshold.