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Commission Delegated Regulation (EU) 2017/565 of 25 April 2016 supplementing Directive 2014/65/EU of the European Parliament and of the Council as regards organisational requirements and operating conditions for investment firms and defined terms for the purposes of that Directive (Text with EEA relevance) (MiFID II Delegated Regulation)RecitalsChapter I Scope and Definitions (arts. 1-20)Article 1 Subject-matter and scopeArticle 2 DefinitionsArticle 3 Conditions applying to the provision of informationArticle 4 Provision of investment service in an incidental mannerArticle 5 Wholesale energy products that must be physically settledArticle 6 Energy derivative contracts relating to oil and coal and wholesale energy productsArticle 7 Other derivative financial instrumentsArticle 8 Derivatives under Section C(10) of Annex I to Directive 2014/65/EUArticle 9 Investment adviceArticle 10 Characteristics of other derivative contracts relating to currenciesArticle 11 Money-market instrumentsArticle 12 Systematic internalisers for shares, depositary receipts, ETFs, certificates and other similar financial instrumentsArticle 13 Systematic internalisers for bondsArticle 14 Systematic internalisers for structured finance productsArticle 15 Systematic internalisers for derivativesArticle 16 Systematic internalisers for emission allowancesArticle 16a Participation in matching arrangementsArticle 17 Relevant assessment periodsArticle 18 Algorithmic tradingArticle 19 High frequency algorithmic trading techniqueArticle 20 Direct electronic accessChapter II Organisational Requirements (arts. 21-43)Section 1 Organisation (arts. 21-29)Article 21 General organisational requirementsArticle 22 ComplianceArticle 23 Risk managementArticle 24 Internal auditArticle 25 Responsibility of senior managementArticle 26 Complaints handlingArticle 27 Remuneration policies and practicesArticle 28 Scope of personal transactionsArticle 29 Personal transactionsSection 2 Outsourcing (arts. 30-32)Article 30 Scope of critical and important operational functionsArticle 31 Outsourcing critical or important operational functionsArticle 32 Service providers located in third countriesSection 3 Conflicts of interest (arts. 33-43)Article 33 Conflicts of interest potentially detrimental to a clientArticle 34 Conflicts of interest policyArticle 35 Record of services or activities giving rise to detrimental conflict of interestArticle 36 Investment research and marketing communicationsArticle 37 Additional organisational requirements in relation to investment research or marketing communicationsArticle 38 Additional general requirements in relation to underwriting or placingArticle 39 Additional requirements in relation to pricing of offerings in relation to issuance of financial instrumentsArticle 40 Additional requirements in relation to placingArticle 41 Additional requirements in relation to advice, distribution and self-placementArticle 42 Additional requirements in relation to lending or provision of credit in the context of underwriting or placementArticle 43 Record keeping in relation to underwriting or placingChapter III Operating Conditions for Investment Firms (arts. 44-79) Section 1 Information to clients and potential clients (arts. 44-51)Article 44 Fair, clear and not misleading information requirementsArticle 45 Information concerning client categorisation Article 46 General requirements for information to clientsArticle 47 Information about the investment firm and its services for clients and potential clientsArticle 48 Information about financial instrumentsArticle 49 Information concerning safeguarding of client financial instruments or client fundsArticle 50 Information on costs and associated chargesArticle 51 Information provided in accordance with Directive 2009/65/EU and Regulation (EU) No 1286/2014Section 2 Investment advice (arts. 52-53) Article 52 Information about investment adviceArticle 53 Investment advice on an independent basisSection 3 Assessment of suitability and appropriateness (arts. 54-58)Article 54 Assessment of suitability and suitability reportsArticle 55 Provisions common to the assessment of suitability or appropriatenessArticle 56 Assessment of appropriateness and related record-keeping obligationsArticle 57 Provision of services in non-complex instrumentsArticle 58 Retail and Professional Client agreementsSection 4 Reporting to clients (arts. 59-63)Article 59 Reporting obligations in respect of execution of orders other than for portfolio managementArticle 60 Reporting obligations in respect of portfolio managementArticle 61 Reporting obligations in respect of eligible counterpartiesArticle 62 Additional reporting obligations for portfolio management or contingent liability transactionsArticle 63 Statements of client financial instruments or client fundsSection 5 Best execution (arts. 64-66)Article 64 Best execution criteriaArticle 65 Duty of investment firms carrying out portfolio management and reception and transmission of orders to act in the best interests of the clientArticle 66 Execution policySection 6 Client order handling (arts. 67-70)Article 67 General principlesArticle 68 Aggregation and allocation of ordersArticle 69 Aggregation and allocation of transactions for own accountArticle 70 Prompt fair and expeditious execution of client orders and publication of unexecuted client limit orders for shares traded on a trading venueSection 7 Eligible counterparties (art. 71)Article 71 Eligible counterpartiesSection 8 Record-keeping (arts. 72-76)Article 72 Retention of recordsArticle 73 Record keeping of rights and obligations of the investment firm and the clientArticle 74 Record keeping of client orders and decision to dealArticle 75 Record keeping of transactions and order processingArticle 76 Recording of telephone conversations or electronic communicationsSection 9 SME growth markets (arts. 77-79)Article 77 Qualification as an SMEArticle 78 Registration as an SME growth marketArticle 79 Deregistration as an SME growth marketChapter IV Operating Obligations for Trading Venues (arts. 80-82)Article 80 Circumstances constituting significant damage to investors' interests and the orderly functioning of the marketArticle 81 Circumstances where significant infringements of the rules of a trading venue or disorderly trading conditions or system disruptions in relation to a financial instrument may be assumedArticle 82 Circumstances where a conduct indicating behaviour that is prohibited under Regulation (EU) No 596/2014 may be assumedChapter V Position Reporting in Commodity Derivatives (art. 83)Article 83 Position reportingChapter VI Data Provision Obligations for Data Reporting Service Providers (arts. 84-89)Article 84 Obligation to provide market data on a reasonable commercial basisArticle 85 Provision of market data on the basis of costArticle 86 Obligation to provide market data on a non-discriminatory basisArticle 87 Per user feesArticle 88 Unbundling and disaggregating market dataArticle 89 Transparency obligationChapter VII Competent Authorities and Final Provisions (art. 90)Article 90 Determination of the substantial importance of the operations of a trading venue in a host Member StateChapter VIII Final Provisions (art. 91)Article 91 Entry into force and applicationAnnex I Record-keepingAnnex II Costs and chargesAnnex III Requirement for operators of trading venues to immediately inform their national competent authorityAnnex III, Section A Signals that may indicate significant infringements of the rules of a trading venue or disorderly trading conditions or system disruptions in relation to a financial instrumentAnnex III, Section B Signals that may indicate abusive behaviour under Regulation (EU) No 596/2014Annex IVAnnex IV, Section 1 Record keeping of client orders and decision to dealAnnex IV, Section 2 Record keeping of transactions and order processingDone at
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Version status: Applicable | Document consolidation status: Updated to reflect all known changes
Version date: 3 January 2018 - onwards
Version 3 of 3

Article 4 Provision of investment service in an incidental manner

(Article 2(1) of Directive 2014/65/EU)

For the purpose of the exemption in point (c) of Article 2(1) of Directive 2014/65/EU, 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;

(b) the provision of investment services to the clients of the main professional activity does not aim to provide a systematic source of income to the person providing the professional activity; and

(c) the person providing the professional activity does not market or otherwise promote his ability to provide investment services, except where these are disclosed to clients as being accessory to the main professional activity.

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