Electronic & Digital Signatures in Spain

Legislation

In Spain, electronic signatures are regulated in the local legal system via the application of Law 6/2020, of 11 November. This law regulates specific elements of electronic trust services and the Regulation (EU) No. 910/2014 of the European Parliament and of the Council, of 23 July 2014 (eIDAS), which covers electronic identification and trust services in electronic transactions in the internal market and repealing Directive 1999/93/EC.

It’s important to note that the Law 6/2020 has repealed Law 59/2003, of 19 December, covering electronic signatures, and alongside it the principles that are not compatible with the eIDAS Regulation, which is directly applicable. In so doing, any regulatory gaps that come about and that could lead to uncertain legal situations around electronic trust services are avoided. 

The three types of signatures that are covered:

Simple Electronic Signatures

According to Article 3 of the eIDAS Regulation:

• The term “electronic signature” means data in electronic form attached to or logically associated with other electronic data used by the signee for signature.

In simpler terms, a simple electronic signature is a signature that permits the signee to be digitally identified with their data, but offers a low level of security.

Advanced Electronic Signatures

In terms of advanced electronic signatures, Article 3 of the eIDAS Regulation offers the following definition: 

• That an “advanced electronic signature” really is an electronic signature that meets the requirements referred to in Article 26;

The requirements for this type of signature according to Article 26 of the Regulation are as follows:

• to be uniquely linked to the signee

• to enable the signee to be identified

• to be created using electronic signature creation data that the signee can use, both with a high level of confidence and under their exclusive control

• to be linked to the data signed by it in such a way that any modification of the data after the fact is detectable

Advanced electronic signatures offer a higher level of security, because they permit the signee to be uniquely identified with the electronic document in question, as well as the subsequent registration of the signature, plus acceptance by the signee, which all combine to avoid any subsequent modifications to the document.

 Qualified Electronic Signatures

On the subject of qualified electronic signatures, the eIDAS Regulation (Article 3) notes the following: 

• A “qualified electronic signature” is an advanced electronic signature that is created by means of a qualified electronic signature creation device and that is based on a qualified electronic signature certificate.

Further to this, a qualified electronic signature is a signature that is made with a qualified certificate, defined by the regulation as follows:

• An electronic signature certificate issued by a qualified trust service provider and which fulfills the requirements set out in Annex I.
  

• The qualified electronic signature carries all the same characteristics of the advanced electronic signature, since it is linked to the signee in a unique and non-transferable way. It is also linked to the document in such a way that it cannot be altered after signing. However, a qualified electronic signature differs from an advanced electronic signature in that it must be created by an electronic certificate that validates the signee’s identification. It must also be issued by a Certification Authority, meaning that it is both a secure and complete method of signing.
  

Considerations Regarding Electronic & Digital Signatures in Spain

A qualified electronic signature, or QES, is generated by way of a qualified electronic signature creation device (supported by a certificate issued by a qualified trust service provider). It carries the same validity as a handwritten or wet signature.

In order to be qualified as a QES and carry the same validity as a wet signature, an electronic document that is issued by a Certification Authority that identifies a person (who is natural or legal) is required.

The mission of this Certification Authority is both to validate and certify that an electronic signature matches a specific person or entity. Furthermore, it carries the required information to sign a document electronically as well as identify the owner of the signature along with their details, including their name, DNI (Spanish identification), signature keys and algorithm, expiration date, and the issuing body.

Documents considered valid with simple electronic signatures (SES) in Spain 

In Spain, simple electronic signatures are most commonly used and recommended for signing documents that carry very little or low risk in terms of legality. This could include documents like: 

• the general terms and condition of a website

• validation of employee leave or vacation days 

Documents considered valid with advanced electronic signatures (AES) in Spain

• employment contracts

• contributions

• commercial agreements

• property leases (when the contract does not exceed 6 years)

With only very rare exceptions to the rule, the majority of documents can be electronically signed in Spain. Electronic signatures are valid across all professions and sectors.

Documents considered valid with qualified electronic signatures (QES) in Spain

Documents that are only considered valid in Spain with qualified electronic signatures are usually limited to those dealings with public administration, such as with: 

• tax authorities 

• social security authorities
  

Documents that should only be signed with a wet signature in Spain

There are some notarized contracts that may not be signed electronically in Spain. These include: 

• contracts by which a party agrees to transfer or acquire encumbrances, or to modify or terminate rights to real estate

• the lease of real estate assets for six years or more, provided that this lease has a detrimental effect on third parties

• marriage settlements and amendments thereto

• assignment or waiver of inheritance rights

• powers of attorney

• assignment of shares or rights that arise from a document that has already been notarized

• corporate statutes (including, for example, the incorporation of legal persons) 

• the transfer of shares or rights deriving from a document that has already been notarized

• chattel mortgages and non-possessory pledges 

Helpful Resources

• Government of Spain: La Firma Electrónica

• Government of Spain: Base legal de la Firma Electrónica

This page is intended to communicate general information and does not constitute legal advice. While we have made every effort to ensure that this information is both accurate and up to date, it may not necessarily represent the most recent version of the legal topics in question. No action should be taken based on the information provided herewith and Smallpdf and its employees disclaim all liability relating to any actions that are or are not taken in reliance upon this information to the fullest extent permitted by law. In the case of any questions or uncertainty regarding the legality of electronic and/or digital signatures in your country or area, please consult your local laws or a legal professional for advice.