Which licensed activity has to be selected for the licensed activity dropdown in the Register of Information if the entity is a legal protection insurance? According to the Annex of Solvency II it is the class 17, but class 17 is not available in the choices for the drop down field.

Can you set out how UCITS Management Companies fall in scope for DORA and if there are any exemptions.

The scope of DORA includes (Article 2(1)(k) “managers of alternative investment funds”. Such an entity is defined in Article 3(44) as “… a manager of alternative investment funds as defined in Article 4(1), point (b), of Directive 2011/61/EU”. It is noted that the definition does not extend to the need to be authorised or registered under Directive 2011/61/EU. As such this can be read as meaning that all managers (regardless of their jurisdiction) of alternative investment funds could potentially fall within scope of DORA.

ESMA_QA_2107 clarifies that a financial entity in the EU is subject DORA and that DORA does not directly apply to a non-EU entity providing services to an EU financial entity – although DORA may apply indirectly to the non-EU entity given that the “EU financial entity is expected to validate that the non-EU third-party provider does not prevent it to be compliant with DORA”.

Does the same principle apply to non-EU AIFMs that manage AIFs (regardless of where those AIFs are established) which have investors based in the EU i.e. DORA will not directly apply to such non-EU AIFMs, but may apply indirectly if such investors are financial entities in the EU who are directly subject to DORA?

Related to the definition provided by the Regulation, what are the criteria that can be used to identify the continuity component (i.e "on ongoing basis) mentioned?

We would like to submit to you the two following questions regarding the ambit of the exemptions provided for in article 2(1), under points (c) and (k) of Directive 2014/65/EU (MiFID II).

• As regards art. 2(1)(c) of MiFID II, the provision states that :

“The Directive shall not apply to (…) persons providing an investment service where that service is provided in an incidental manner in the course of a professional activity and that activity is regulated by legal or regulatory provisions or a code of ethics governing the profession which do not exclude the provision of that service”.

Article 4 of the Commission Delegated Regulation 2017/565 then states further that :

“(…) an investment service shall be deemed to be provided in an incidental manner in the course of a professional activity where the following conditions are satisfied:
(a) a close and factual connection exists between the professional activity and the provision of the investment service to the same client, such that the investment service can be regarded as accessory to the main professional activity ; (…)”.

Moreover, Recital 34 of this Delegated Regulation states that “the exemption should only apply if the investment service has an intrinsic connection to the main area of the professional activity and is subordinated thereto”.

Given the foregoing, assuming that conditions (b) and (c) from article 4 of the Delegated Regulation are met, should article 2(1)(c) of MiFID be construed as meaning that, in order to benefit from the exemption thereunder, it suffices that the provision of an investment service is complementary to the provision another service otherwise regulated, and do not need to be necessary to the provision of that other service?

• As regards art. 2(1)(k) of MiFID II, the provision states :

“The Directive shall not apply to (…) persons providing investment advice in the course of providing another professional activity not covered by this Directive provided that the provision of such advice is not specifically remunerated”.

Assuming that the investment advice is not specifically remunerated, should this article be construed as meaning that, in order to benefit from the exemption thereunder, it is necessary but sufficient that the investment advice is made in the context of the provision of another service (not covered by the Directive), irrespective of whether the investment advice is ancillary, incidental, complementary or even, factually or otherwise, connected to the other service, and irrespective of whether the activity is regulated?