eSignature Legality in Spain

E-Signature Legality Summary

As Spain is one of the Member States of the European Union (“EU”), the provisions of the EU Regulation No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market (the eIDAS Regulation) govern and are directly applicable in Spain. The eIDAS Regulation repeals Directive 1999/93/EC.

This Regulation, in its Chapter 3 “Trust Services” and under Section 4 “Electronic Signatures,” governs the use of electronic and digital signatures in the whole EU, including Spain.

Under Spanish law, electronic signatures are regulated by Law 6/2020, November 11 on certain aspects of Electronic Trust Services (“Spanish Law 6/2020”). This law complements the eIDAS Regulation in those aspects that have not been harmonized, such as the liability regime, or the sanctioning regime, among others. Furthermore, the Spanish Electronic Commerce Act 34/2002 establishes additional provisions regarding the enforceability of the agreements executed through electronic means.

Types of Electronic Signature

eIDAS makes a distinction between three types of electronic signatures: a simple “electronic signature,” an “advanced electronic signature” (AES), and a “qualified electronic signature” (QES).

A simple “electronic signature” means data in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign (Article 3.10 eIDAS).

An “advanced electronic signature” is an electronic signature that meets some additional requirements so that a higher level of trustworthiness can be met.

A “qualified electronic signature” or “digital” signature means an advanced electronic signature that is created by a qualified electronic signature creation device, and which is based on a qualified digital certificate for electronic signatures (Article 3.12 eIDAS). This digital certificate must be issued by a trust service provider that is on a trusted list of qualified trust service providers of an EU member state and the qualified electronic signature creation device must be certified by an EU member state. A “qualified electronic signature” is the only electronic signature level to have special legal status in EU member states, being legally recognized as the equivalent of a written signature (Article 25.2 eIDAS).

Spanish law does not define an electronic signature.

Documents That May be Signed Electronically

Spanish law 6/2020 does not contain any specified transactions that require use of an advanced or qualified electronic signature. Thus, generally, parties can use any form of electronic signature to create valid contracts that do not need additional warranties. From a practical perspective, it would be acceptable to use any kind of electronic signature for private documents.

Further Guidance

Transactions involving interaction with the Spanish authorities, such as government filings, likely would require additional guarantees and may require the use of QES.

Under eIDAS, only a qualified electronic signature has the equivalent legal effect of a handwritten signature. Non-qualified electronic signatures “only” benefit from the non-discrimination clause whereby the legal effect and admissibility of an electronic signature should not be refused as evidence in court solely because it is in electronic form or because it does not meet the requirements of a qualified electronic signature.

To help ensure reliability for any non-qualified electronic signature, parties can use authentication methods, a tamper-evident process, and an audit log. Parties can use consent to demonstrate that the parties agreed to proceed electronically, including to use the specific form of electronic signature at issue.

Case Law

The following case is an example of where Spanish courts addressed the use of electronic signatures:

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