ESMA has published an opinion proposing amendments to its draft RTS relating to criteria to establish when a non-financial firm's commodity derivatives trading activity is considered to be ancillary to its main business under MiFID II. In its draft RTS, which ESMA submitted to the European Commission in September 2015, ESMA had designed quantitative tests, a trading activity and a business activity test. However, while supporting the overall approach of the draft RTS, the Commission asked ESMA to amend the business activity test and to introduce a capital-based test for certain firms. In its opinion, ESMA maintains that its business activity test was in line with the objectives set out in MiFID II, and a capital based test has significant drawbacks. However, it has identified some metrics for a numerator and denominator that the Commission could use to construct a capital test as an alternative to ESMA's main business test.