The European Securities and Markets Authority issued an opinion describing when a non-financial firm’s commodity derivatives trading should be considered ancillary to its main business and thus not subject to certain requirements of the Markets in Financial Instruments Directive II. Previously, ESMA proposed a trading activity and business activity test to measure the scope of the entity’s speculative commodity trading activity compared to the size of the relevant commodity market and relevant to the entity’s total trading activity. In response to a request by the European Commission, ESMA is also proposing a capital test as an alternative to the business test. However, ESMA stated that it is not a proponent of the capital test, fearing that, “given the differences in size and the wide variety of sectors and participants represented in commodities derivatives markets, introducing such a test is not likely to meet the principle of ensuring a level-playing-field for market participants.”