SPAIN Law and Practice Contributed by: Miguel Cases and Claudi Rossell, Cases & Lacambra
alent third-country trading venues). Investment firms acting as an SI are excluded from the scope of this regulation. For such cases, ESMA was authorised to draft regulatory technical standards (RTS), later adopt - ed by the European Commission as Commission Del - egated Regulation (EU) 2017/2417. Despite the simi - larities with the clearing obligation, their scopes are different, albeit aligned, since derivatives subjected to mandatory trading must fulfil two specific tests: (i) the trading venue test, where the affected derivatives must be traded at least on one trading venue; and (ii) the liquidity test, which is exclusively based on the requirements of the relevant benchmarks instead of the notional amount of the transactions. 3.1.4 Position Limits This matter is regulated by MiFID III and is transposed into Spanish law by Article 78 of the SMA and Articles 129 to 141 of Royal Decree 814/2023, of 8 Novem - ber 2023, on financial instruments, listing, negotiable securities records and market infrastructures. The CNMV, acting through its steering committee ( com- ité ejecutivo ), is the national competent authority in Spain that calculates and enforces position limits in respect of Spanish trading venues, while its president as well as its vice-president are authorised to grant exemptions to such limits, as per the CNMV Resolu - tion dated 5 March 2025. Notwithstanding the deci - sions that trading venues may take in the event that position limits are exceeded, the CNMV may impose sanctions corresponding to those in the SMA. As per the SMA, position limits – and updates thereof – on Spanish trading venues are made public by the CMNV on its website , with the currently applicable resolu - tion dated 18 March 2021. At present, the scope of EU position limits regulation is limited to agricultural – and other critical and relevant – commodities and is calculated over net positions, excluding positions closed for hedging or liquidity purposes. The relevant ESMA legislation covers three areas: • the RTS for the calculation and application of posi - tion limits to commodity derivatives and proce - dures for applying for exemption from position limits – Commission Delegated Regulation (EU) 2022/1302, which derogated Commission Delegat - ed Regulation (EU) 2017/591;
• the RTS on the format of position reports by invest - ment firms and market operators – Implementing Regulation (EU) 2017/1093 as amended by Imple - menting Regulation (EU) 2022/1300; and • the RTS on the content of position management controls by trading venues – Delegated Regulation (EU) 2022/1299. Notwithstanding the foregoing, ESMA is reviewing margin call levels and position limits. 3.1.5 Reporting The two most relevant reporting duties are those required by EMIR (reporting of transactions to trade repositories) and by MiFID III and MiFIR II (pre- and post-trade transparency and post-trade reporting duties). It is worth noting that ESMA was expressly mandated to enhance the co-ordination of these two reporting regimes, since their co-existence can easily lead to duplications, as well as to align transparency and transaction reporting obligations. Moreover, both reporting regimes are amended by MiFIR II and EMIR 3, which will result in the temporal disapplication of some new provisions until the currently applicable RTS has been amended. In general, it should be noted that ESMA shall strengthen the regulation on transac - tion reporting through RTS. EMIR reporting covers all derivatives transactions (both OTC and exchange-traded) and was originally mandatory for all counterparties. However, this situ - ation proved to be extremely burdensome for NFCs, and the duplicated regime caused several reporting mistakes. The amendment of Article 9 of EMIR by Regulation (EU) 2019/834 (EMIR Refit) made FCs and FC-s solely responsible, and legally liable, for report - ing on behalf of NFCs other than NFC+s, as well as for ensuring the correctness of the details reported. Nevertheless, NFCs may voluntarily choose to report the corresponding transactions and, if feasible, to enter into delegation agreements to fulfil such duties. The data subjected to these reporting obligations is to be provided to the trade repositories regulated by EMIR on a trading day plus one business day (T+1) basis. If at least one of the counterparties is an NFC, provided that (i) both parties are included in the same consolidation group on a full-time basis, (ii) both par - ties are subject to appropriate centralised risk evalu -
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