SPAIN Law and Practice Contributed by: Miguel Cases and Claudi Rossell, Cases & Lacambra
1. General 1.1 Overview of Derivatives Markets
• The enactment of the SMA, which is of special interest in respect of transactions with crypto- assets as the underlying assets. • The transposition into Spanish Law of Directive (EU) 2019/1023 by means of the enactment of Act 16/2022, which amended Spanish insolvency legislation by adding a new restructuring process and entered into force on 1 January 2023. Unfor - tunately, this piece of legislation did not broaden the list of qualified entities covered by the Spanish close-out netting regime, as allowed by the direc - tive. The inclusion of commodity brokers in such list would have been a positive step due to the increasing market activity and the key role brokers play in managing the related market risks, but the decision was left to the member states. However, Act 16/2022 empowered Spanish commercial judges to order the early resolution of derivative transactions in restructuring proceedings, as well as in insolvency proceedings. • The enactment of MiFID III and MiFIR II. • The enactment of EMIR 3 by the European Parlia - ment in November 2024. • The enactment of Regulation (EU) 2025/914 of the European Parliament and of the Council of 7 May 2025, amending Regulation (EU) 2016/1011 in respect of the scope of the rules for benchmarks, the use in the EU of benchmarks provided by an administrator located in a third country and certain reporting requirements. This Regulation shall apply from 1 January 2026. • The enactment of Directive (EU) 2024/2811 of the European Parliament and of the Council of 23 October 2024 amending Directive 2014/65/EU to make public capital markets in the Union more attractive for companies and to facilitate access to capital for small and medium-sized enterprises and repealing Directive 2001/34/EC. In the authors’ opinion, the main drivers of the market in the near future will be: • the transposition and implementation of the new set of EU legislation mentioned above; • the trading of derivatives over crypto-assets and derivatives with ESG features, spurred by the entry into force of Regulation (EU) 2023/1114 (MICA) and
All financial derivatives are characterised as finan - cial instruments under Section 4.1.15 of Directive 2014/65/EU on markets in financial instruments, as amended by Directive (EU) 2024/790 of 28 February 2024 (MiFID III). Consequently, these products are subject to securities legislation, the main components of which in Spain are as follows. • The Spanish Securities Market and Investment Services Act 6/2023 (SMA): As the cornerstone of the regulatory regime, the SMA should fully trans - pose MiFID III not later than 29 September 2025. The SMA is of paramount importance in relation to derivatives trade, investment firms’ roles and administrative sanctions. • Regulation (EU) 600/2014 on markets in finan - cial instruments, as amended by Regulation (EU) 2024/791 of 28 February 2024 (MiFIR II). • Regulation (EU) 648/2012 on OTC derivatives, central counterparties and trade repositories (EMIR). EMIR’s scope is limited to OTC derivatives and is directed towards creating robust market structures, such as central counterparties (CCPs), margin practices (ie, initial and variation margin), timely confirmation, conciliation and compression of portfolios, and transactions reporting to trade repositories. On 4 December 2024 the EU’s Official Gazette published Regulation (EU) 2024/2987 of the European Parliament and of the Council of 27 November 2024 (EMIR 3) amending the EMIR and other European regulations related to measures for the mitigation of excessive exposure to third- country central counterparties (CCPs) and improve the efficiency of Union clearing markets. In general, EMIR 3 entered into force on 24 December 2024. • Royal Decree-Law (RDL) 5/2005 (RDL 5/2005), which transposes into Spanish Law Directive 2002/47/EC on financial collateral arrangements and regulates close-out netting in Spain. 1.2 Historical Trends and Looking Forwards The key recent legal developments in this field are as follows.
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