eSignature Legality
in Spain
Use of eSignatures is common in Spain, especially within the business communities. Spain had laws like the e-Signature Act 59/2003 before the implementation of eIDAS. The e-Signature Act 59/2003 was then replaced by Spanish Law 6/2020 in conformance to eIDAS to set out regulatory mechanisms for Trusted Service Providers within the Spanish jurisdiction.
Governing Regulation:
The introduction of eIDAS in July 2016 has facilitated in the standardization of rules, procedures and regulations pertaining to E-Signatures across the European Union’s Member States. Spain, being a Member state, enacted this law within its jurisdiction in 2016. Additionally, Spanish Law 6/2020 sets out provisions for Trusted Service Providers (TSPs) and their function of providing certification for QESs.
Key Elements of a Valid Electronic Signature:
eIDAS recognises three types of electronic signatures, i.e. simple, advanced, and qualified.
Simple Electronic Signature: A simple electronic signature must meet the following three basic requirements for signing:
- Used by the person related to the signature
- Used in a fashion that demonstrates the intent of the signer
- Associated with the document or data the signer intended to sign
Advanced Electronic Signature: An advanced electronic signature goes beyond the essential e-signature by tying authentication to the signature and thus the document. An advance electronic signature, in addition to complying with the requirements of an SES, must also require to be:
- Associated with the person using the signature
- Able to spot the signer
- Created in a way that the signer is confident it’s under their sole control
- Linked to the document, so any changes made afterward are identifiable
Qualified Electronic Signature: A qualified electronic signature is a complicated electronic signature that also requires a private digital certificate additionally to all or any other standard requirements. Qualified electronic signature must comply to the requirements of both electronic signatures and advanced electronic signatures, and also be:
- Created employing a professional electronic creation or signature creation device.
- Supported by qualified certificate (issued by knowledgeable trust service provider)
- Like a sophisticated e-signature, it is recognized as a handwritten signature. A QES requires no additional evidence by the court if the validity of the same is questioned during a dispute.
- A qualified e-signature reverses the burden of proof that generally is created during a digital transaction. With qualified e-signature, the signer must produce the digital certificate used to authenticate the signature.
Electronic Signatures and Transacting with The Government:
Electronic signatures are often used by government authorities in Spain for certain processes and filings. Additionally, under the Administrative Proceeding Act, business organizations must use QES for any transactions concerning administration processes or filings with government authorities in Spain.
Documents than can be eSigned in Spain:
- Commercial agreements between corporate entities
- NDAs
- Procurement documents,
- Sales agreements
- Consumer agreements
- Purchase and sales contracts
The COVID-19 pandemic has radically changed our lifestyles and how one conducts business. Most non-essential companies have established completely remote work setups. This “new normal” has concentrated more attention on electronic means of transactions. The “new normal” in the age of Covid-19 proceeds to facilitate the use of eSignatures.
Documents than cannot be eSigned in Spain:
- Documents requiring notarization
- Tax related documents
- Mortgage documents
- Prenups
- Power of Attorneys
DISCLAIMER
Certinal is making available the information and materials in this article for informational purposes only and is meant to help companies understand eSignature’s application in a legal framework. Laws change rapidly and Certinal makes every reasonable effort to keep the content of this article current, hence Certinal makes no claims or representations that the information contained in this article is true, accurate, correct, or current. The law is different from jurisdiction to jurisdiction, and even similar laws may be interpreted differently in different courts or in different places. Since these factors differ according to individuals and businesses, Certinal is not liable for any consequence of any action taken by any third party relying on material/ information provided under this article. The contents hereof should not be construed as legal advice in any manner whatsoever. In cases you require any assistance; you must seek independent legal advice.
