Nowadays advantages of using electronic signatures are undeniable. They simplify business paperwork and facilitate cross-border transactions. However, in order to ensure legal security of electronic documents, the use of e-signatures is regulated on both European and State levels in Spain.
a) Legislation overview
EU Regulation nº 910/2014, of July 23, on electronic identification and trust services for electronic transactions in the internal market (“eIDAS Regulation”) is the main law on e-signatures directly applicable and enforceable in Spain as an EU member state. It establishes the legal framework for the use of e-signatures in all EU territory.
On the other hand, Spain has enacted its internal Law 6/2020, of November 11, on trust electronic services. It complements eIDAS Regulation and repeals Law 59/2003, of December 19, on electronic signature which implemented the former Directive 1999/93/EC.
Law 6/2020 mainly establishes legal standards to be met by qualified trust service providers in Spain. It does not contain any provisions different from eIDAS Regulation.
b) Categories of e-signatures
eIDAS Regulation distinguishes three categories of e-signatures depending on their level of security: simple, advanced and qualified.
– Simple e-signature
Such e-signature cannot ensure the undoubtful identification of the signatory. As an example, it can consist in a graphometry signature made on a tablet, SMS code, click on a button “Accept”, etc. This e-signature does not have enough legal security and thus is recommended for the signature of documents of little juridical relevance.
– Advanced e-signature
This category of e-signature grants more legal security to documents as it has to meet certain legal requirements stipulated in article 26 of eIDAS Regulation, which are as follows:
it is uniquely linked to the signatory;
it is capable of identifying the signatory;
it is created using electronic signature creation data that the signatory can, with a high level of confidence, use under his sole control; and
it is linked to the data signed therewith in such a way that any subsequent change in the data is detectable.
Such e-signatures are usually generated by specialised software, like, for example, Docusign.
– Qualified e-signature
This category of e-signatures has to meet the same requirements as the advanced one, but besides that, it has to be based on a qualified certificate for electronic signatures and issued by a qualified trust service provider.
This category includes, for example, e-signatures issued by Spanish National Mint (FNMT) or Spanish National Police (digital ID-card).
In compliance with eIDAS Regulation, Spain maintains a list of qualified trust service providers which can be checked via this link:
https://sede.serviciosmin.gob.es/Prestadores/Paginas/Inicio.aspx
Qualified e-signatures concede the maximum legal security and probative value to electronic documents.
c) Legal effect of e-signatures
In Spain it is allowed to use all three categories of e-signatures, that is, simple, advanced and qualified. Each of them produces its corresponding legal effect.
Article 25.1 of eIDAS Regulation states that “An electronic signature shall not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in an electronic form or that it does not meet the requirements for qualified electronic signatures.”
Furthermore, Spanish law 34/2002, of July 11, on information society services grants legal effect to contracts signed with e-signature, regardless of its category.
However, it is important to highlight that only a qualified electronic signature has the equivalent legal effect of a handwritten signature.
Likewise, Spanish Law on Civil Procedure grants higher probative value to electronic documents with a qualified e-signature as all its characteristics which may be challenged by the contrary party are presumed to be correct if it has been issued by a qualified trust service provider included in the official list.
Another important issue to bear in mind is that a qualified e-signature issued in one member state shall be recognized as a qualified electronic signature in all other member states of EU.
d) Use of e-signatures
A choice of a simple, advanced or qualified e-signature usually depends on the importance of the document to sign and/ or consent of both parties in the case of contracts.
However, for some particular procedures, the Spanish law stipulates the category of e-signature to use. For instance, a qualified e-signature is required for the documents to be submitted before the Spanish Authorities by electronic means.
On the other hand, not all documents can be signed with e-signature. Those are mainly documents required to be executed into a public deed before a Spanish notary, i.e. contracts concerning real estate, pre-nuptial agreements, certificates of shareholders and board minutes, etc.
The last example is quite interesting as the impossibility to sign such certificates with e-signature is due to technical obstacles rather than a legal ban, as there is still no legal tool which would enable Spanish notaries to legalize e-signatures.
Nevertheless, legislation on e-signatures continues evolving. Thus, further changes may be yet to come soon.
