Electronic Signature Laws & Regulations - Spain

In Spain, electronic signatures are commonly used, especially in technology-driven companies or digital environments. Additionally, use of certificate-based digital signatures, specifically Qualified Electronic Signatures (QES), may be mandatory to conduct certain administrative procedures or formalities conducted with the Spanish Administration.

Next to the eIDAS Regulation, key laws regulating electronic signatures in Spain include the following.

1. Spanish Law 39/2015 on Administrative Proceedings (Administrative Proceedings Act).
2. Spanish Law 6/2020 on certain features of e-Trust Services, which repeals former Spanish e-Signature Act 59/2003. Rather than overlapping with (and sometimes conflicting with) the eIDAS regulation, as the former law did, the new law confirms all eIDAS provisions and focuses instead on regulating some peripheral matters like the lifespan of certificates, obligations of service providers, supervision and control of service provider operations, and penalties for infringement.
3. Spanish Civil Code, Article 1278 which establishes the general principle of the freedom of forms for contracts meaning that no specific form is generally required in order for a contract to be valid.

Spanish law aligns with the eIDAS Regulation on the definitions of the different types of electronic signatures and in terms of the evidentiary weight given to qualified and non-qualified electronic signatures. Accordingly, a QES has the equivalent legal effect of a “wet” signature, thus any document signed using a QES is considered as having the same evidentiary value as one signed with a handwritten signature. However, documents signed with non-qualified electronic signatures (such as basic or advanced) will not be refused as evidence in court solely because they are provided in electronic form.

Special Considerations

Transacting with public sector entities

It is common for government entities in Spain to use electronic signatures for certain procedures and formalities. For example, documents related to lawsuits are electronically signed and then submitted to LexNET Justicia. And, any response to a notification issued by a public authority is also filed via electronic means, which in turn requires the response to be electronically signed as well.

According to the Administrative Proceeding Act, the following organizations and professions must use electronic means and a QES when conducting administrative procedures or formalities with the Spanish public authorities or government entities:

1. Legal entities;
2. Entities without legal personality;
3. Professions for which membership is compulsory to interact with the Public Administrations, such as a notary, or land and corporation’s registry;
4. Those who represent a party who is obliged to have an electronic relationship to interact with the Spanish authorities/government entities such as an attorney or proxy;
5. Relevant public administration employees who manage procedures electronically for a public administration or government entity

These electronic means (or interactions) include accessing certain areas of the Spanish Administration websites and signing documents submitted to electronic registries of the relevant public administrative entity.

Additionally, some public sector entities require a QES created using a digital certificate issued by a specific trust service provider such as Fábrica Nacional de Moneda y Timbre (FNMT) to conduct certain formalities or proceedings. Examples include the filing of writs or communications related to Data Protection Officer appointments.

Use cases that generally require a traditional signature

From a commercial and technology law standpoint, there are in principle no use cases in Spain that require a traditional signature as QESs are equivalent to wet signatures and, therefore, any electronic agreement or document shall be considered valid and binding if signed or executed with a QES.

The general rule in Spain is that no specific form is required to create a binding contract. However, as certain documents/contracts must be executed in the form of a public deed, there are some exceptions including:

1. Acts or contracts whose purpose is the creation, transfer, amendment or extinguishing of property rights over real estate;
2. Leases over the same property for six or more years, provided that they shall be effective against third parties;
3. Pre-nuptial agreements and subsequent amendments;
4. The assignment, rejection and waiver of inheritance rights or those pertaining to the marital partnership;
5. The power of attorney to marry, the general litigation power of attorney and any special powers of attorney which are to be submitted to a court; the power of attorney to administer property;
6. Any other power of attorney whose purpose is an act to be drafted in a public deed or acts to be filed before a public registry; and
7. The assignment of actions or rights arising from an act which is set forth in a public deed.

Further exceptions to the principle of freedom of form of contracts established in Art. 1278 CC may be found in specific regulations , such as the Spanish Insurance Agreement Act which specifically requires insurance agreements to be executed in written form. 

The fact that a document or contract must be drawn up and executed in a public deed does not necessarily mean that said public deed cannot be electronically signed or executed, since, according to Article 17 bis of the Spanish Law on Notaries Public enacted in 1862, public deeds do not lose their validity merely because they are drawn up in electronic form.