Are e-signatures legal, admissible, and enforceable in Spain?
- Regulation (EU) No 910/2014 on electronic identification and trust services for electronic transactions in the internal market (eIDAS).
- Electronic Signature Act (59/2003), of 19 December 2003 (note that the Spanish Parliament is currently negotiating the approval of a new Electronic Signature Act, that will align domestic legislation with the eIDAS and repeal the 59/2003 Act, otherwise known as the Spanish e-Signature Bill or Spanish e-Signature Act.
- Civil Procedure Act (1/2000), of 7 January 2000 (Spanish Civil Procedure Act).
- Electronic Commerce and Information Society Act (34/2202), of 11 July 2002 (Spanish e-commerce Act).
- Royal Decree 1553/2005, of 23 December 2005, regulating the issue of the national identity document and its electronic signature certificates (Spanish eID Act).
Types of electronic signatures:
The eIDAS recognizes three types of electronic signature: (i) simple e-signature (SES), (ii) advanced e-signature (AES), and (iii) qualified e-signature (QES). SES can be any form of electronic message associated with a natural person (this can include typed signatures, e-mail blocks, etc.). AES is an electronic signature uniquely associated with an individual, capable of identifying the individual, created using means that the signatory can maintain under his sole control, and linked to data, so that any subsequent change in the data is readily identifiable. QES is generated by a qualified electronic signature creation device (backed by a certificate issued by a qualified trust service provider), and has the same validity as a handwritten signature.
Validity, admissibility and enforceability:
SES, AES and QES are legal, admissible, and enforceable in Spain, although only QES has the status of handwritten signatures. The main difference between each of them is their probative value, according to the Spanish e-Signature Act and the Spanish Civil Procedure Act. As for the SES and AES, the probative value is lower, because their way of proving its authenticity if the signature is challenged is more burdensome. Proving the authenticity of SES and AES is usually done by means of an expert witness report. On the contrary, proving the authenticity of QES is easier, because the party providing the challenged signature only has to prove that the signature was carried out by means of a qualified certificate and that it complies with the rest of the requirements foreseen for QES. Note that the burden of proof always lies on the party providing the e-signature. However, the burden of proof will change according to the upcoming Spanish e-Signature Bill, which establishes that such burden lies on the challenging party if the signature is a QES.
Under Spanish law there are, in general, no mandatory requirements to enter into agreements in any particular form (the so-called "libertad de forma"). In general, it suffices that the three essential elements of an agreement exist, i.e., object, consent, and legal cause. However, there may be cases where the applicable regulations require a written agreement. In these cases, note that the Spanish E-commerce Act expressly confirms that such written agreement requirement would be fulfilled also if the contract is e-signed.
Relevant case law:
- Decision of 15 February 2011 (Supreme Court). This decision clarifies that an electronic signature duly reviewed and authorized by a Public Notary cannot be challenged afterwards by a Public Registrar.
- Decision of 2 February 2011 (Pontevedra Court of Appeal) and Decision of 25 February 2008 (Cadiz Court of Appeal) expressly confirm differences between the different types of electronic signatures in terms of probative value.
Are there certain documents that cannot be e-signed in Spain?
1. Declarations and contracts that require notarization can be e-signed, but in practice many public notaries are reluctant to accept e-signed documents. Property or corporate registrars used to be reluctant too.
As a matter of practice, some notaries are already admitting electronic signatures on the private documents they attest to but usually require a QES. A notarization is required in, among others, the following cases:
- Contracts by which one party agrees to transfer, acquire encumbrance, modify, or terminate rights over real estate assets;
- Lease on real estate assets for six years or more, always provided that such lease has a detrimental effect for third parties;
- Marriage agreements and its modifications;
- Assignment or waiver of inheritance rights;
- Powers of attorney;
- Assignment of shares or rights derived from a previously notarized document;
- Corporate articles (i.e., including the incorporation of legal entities)
- Chattel mortgages and non-possessory pledges.
2. Declarations and contracts cannot be e-signed where this is expressly excluded by statutory law. This applies, among others, to the following cases:
- Family-related declarations and agreements;
- Succession-related documents and agreements.
Does local regulation govern the use of digital IDs and/or certificates for e-signatures in Spain?
The Spanish eID Act regulates the use of the electronic ID card in Spain. As for electronic signatures, this Act foresees that adults (people over 18 years) can use their eID to prove their identity electronically and to carry out electronic signatures. Minors can only use the eID to prove their identity electronically. Signatures carried out by means of the eID are QES, and therefore have the same validity as a handwritten signature.
Note that the Spanish e-Signature Bill will modify the foregoing, because it will not differentiate between adults and minors when it comes to the ability of using the eID to prove their identity and to carry out e-signatures.
Certificates for e-signatures:
There are provisions applicable in Spain in relation to this matter, although they apply within the entire European Union.
The eIDAS Regulation, which is directly applicable in Spain, provides for the general legal framework for qualified trust services. Among other things, the eIDAS Regulation governs the application procedure for trust service providers to obtain the status of a qualified trust service provider (Art. 22) and the requirements applicable to the same (Art. 24).
According to the eIDAS Regulation, qualified electronic signatures can only be created using ”qualified certificates for electronic signatures” which again can only be issued by qualified trust service providers (Sec. 3 No. 12, 15, 17 eIDAS Regulation).
Requirement to use QES:
Spanish regulations very rarely require using QES to sign documents, but there is a case: according to article 17 of Royal Decree 1065/2015, of 27 November 2015, lawyers are obliged to sign their statements, claims, suits, defences, and any other judiciary documentation they need to file with the courts using QES.
Does local law provide certification bodies / trust services that users of e-signatures should be aware of in Spain?
The Ministry of Economic Affairs and Digital Transformation is the body responsible for, among other things, the supervision of qualified trust service providers, including the maintenance of "trusted lists" of qualified trust service providers (see Art. 22 eIDAS Regulation) and handling notification of the intention to obtain the status as a qualified trust service provider.
Further information can be found at https://sedeaplicaciones.minetur.gob.es/Prestadores/Inicio.aspx (in Spanish).
*DISCLAIMER: The information contained in this guide is for information purposes only, provided as is as of the date of publication and should not be relied upon as legal advice or to determine how the law applies to your business or organization. It is recommended that you seek guidance from your legal counsel with regard to law applying specifically to your business or organization and how to ensure compliance. OneSpan does not accept liability for the contents of these materials or for third parties materials.
Last updated: November 2020