Calculation of COH according to Article 20 vs. Art. 12 (1) Subparagraph 2

How exactly does the calculation of COH, AUM, ASA, DTF, NPR and TCD on the basis of IFR Article 12 (1) Subparagraph 2 differ from the general method for calculation COH in IFR Article 20?

To clarify the problem, we take the calculation of COH as an example for all the above mentioned metrics. Article 20 defines the details for the calculation of COH. Paragraph 1 specifies that COH shall be calculated as the rolling average of the value of the total daily client orders handled , measured throughout each business day over the previous six months excluding the three most recent months. Article 12 defines the conditions for an investment firm to be qualified as small and not interconnected (Class 3). These conditions include the two limits for COH cash trades as well as derivatives. Art. 12 (1) Subparagraph 2 stipulates, that the amounts of COH to be calculated for the purposes of Art. 12 shall not be calculated according to the standard method of Article 20. Instead, it states that the amount of COH is calculated by using end-of-day values .  Since the wording of this subparagraph isn’t exactly clear on how the calculation is to be done in detail, we don’t know how the method for calculation COH for the purpose of Article 12 differs from the standard method of Article 20. As far as we see, there are two possible scenarios for how to interpret the provision: It means that for COH the investment firms shall monitor their value at the end of each business day and if the threshold of Art. 12(1) IFR is breached, the investment firm shall be class 2 within the timing set in Art. 12(3) and (4) IFR. Therefore, in theory, an investment firm may have a K-COH, calculated according to Art. 20 IFR, below the thresholds set in Art. 12(1) (b) IFR, but breach the threshold at the end of a given day, and thus become class 2 after three months “from the date on which the threshold was exceeded”, as stated in Art. 12 (3) subparagraph 2. The “end-of-day” provision may also be interpreted in conjunction with point (b) of Paragraph 1, thus reading that the frequency and methodology of the calculation do not change with reference to Art. 20 and only the extracted value (end-of-day instead of “throughout the business day”) is different.  When comparing the two possible approaches, the second approach seems to be the more proportionate of the two.