SPAIN Law and Practice Contributed by: Alfonso López-Ibor Aliño, Olivia López-Ibor Jaume and Victoria Moreno Motilva, López-Ibor Abogados
7. Tokenisation and Real-World Assets 7.1 Treatment Spain does not apply a standalone regime to tokenised assets or real-world assets (RWA) on blockchain. Instead, regulation follows the EU’s technology-neu- tral, activity-based approach, meaning the legal treat- ment depends on the nature of the underlying asset rather than its tokenised form. Where a token represents a financial instrument under MiFID II – such as tokenised shares, bonds, money- market instruments, or fund units – it is regulated exactly like its traditional equivalent. This triggers the full EU securities framework, including prospectus requirements, investment firm authorisation, market abuse rules, custody and settlement obligations, and trading venue regulation. Tokenisation affects only the technical form of issuance or transfer, not the regula- tory classification. Tokenised RWAs that do not qualify as financial instru- ments fall under general civil and commercial law. However, where such tokens are issued, offered, or traded as crypto-assets, they fall within the scope of MiCA, unless they qualify as financial instruments, in which case MiCA does not apply. Compared with non-blockchain equivalents, tokenisa- tion does not alter the legal nature of the asset, but it introduces additional supervisory focus. Spain has also positioned itself as relatively recep- tive to tokenised financial instruments through the implementation of the EU DLT Pilot Regime and the amendments introduced by Law 6/2023 on Securities Markets and Investment Services, which expressly recognise the issuance and representation of certain financial instruments through distributed ledger tech- nology systems.
6.2.4 Special Considerations Under MiCA, stablecoins that may pose systemic risk are subject to an enhanced prudential and supervi- sory regime through the designation of “significant” EMTs and ARTs. A token may be classified as signifi- cant based on quantitative and qualitative indicators such as user numbers, transaction volumes, market capitalisation, cross-border relevance, interconnect- edness with financial institutions, and its potential to function as a substitute for traditional payment instru- ments. The assessment is carried out by the EBA, in co-ordination with ESMA and national authorities, including the CNMV and the Bank of Spain. Once designated significant, a stablecoin becomes subject to direct supervision by the EBA, alongside continued involvement of national competent authori- ties within their respective remits. This introduces a higher degree of supervisory intensity and EU-level harmonisation. Significant EMTs and ARTs are subject to stricter ongoing requirements, including enhanced reporting obligations, more demanding governance and risk management standards, and heightened expectations regarding reserve composition, liquidity management, and redemption capacity. Regulators may also impose more conservative reserve structures, more frequent stress testing, and detailed contingency planning to address run risk.
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