Document signing in international transactions:  Validity of electronic signatures in Spain

Current European legislation defines three types of electronic signatures:        

• Standard electronic signature (SES); 
• Advanced electronic signature (AES); and 
• Qualified electronic signature (QES).

SES is defined as electronic data attached to, or logically associated with, other electronic data (e.g. a document) that the signatory uses to sign. Examples of SES could be the pin code of a credit card, clicking “accept” on a web page or a scanned-and-pasted handwritten signature.

AES is defined as an electronic signature uniquely linked to the signatory, allowing their identification, and created using signature creation data that the signatory can use under their sole control with a high level of confidence. It is linked to the signed data in such a way that any subsequent modification of the data is detectable. Examples include a biometric signature on mobile devices, or signatures using apps which, in order to collect the signature, send the user a code or a link to their specific phone number or email address.

QES is a more stringent form of AES. Essentially, it is an AES that includes a qualified digital certificate and has been created using a qualified signature creation device (QSCD). This certificate must be issued by a European Union Trust Service Provider (TSP). Examples in Spain may include the electronic identity card, or an electronic certificate issued by the Fabrica de Moneda y Timbre.

Services like Docusign or Signaturit provide the option to use either AES or QES. 

The use of electronic signatures is legally valid in Spain for the majority of legal acts and contracts. However, contracts related to family law or succession matters are excluded. For legal acts requiring the involvement of judicial bodies, notaries, property and commercial registrars, or public authorities, the applicable specific legislation in force at any given time shall prevail.

Among the three types of electronic signatures regulated under the applicable legislation, only the QES is recognized as equivalent to a handwritten signature. The AES and SES also have legal validity. However, if their authenticity or the integrity of the signed document is challenged, available means of proof must be used to substantiate their validity.

In summary: the electronic signature is legally valid in Spain for most acts and contracts, but the use of a QES, or at minimum an AES, is recommended if the document or contract is important.

---

Jordi Pallarès Vinyoles is a Partner of VILAR RIBA, and Head of the firm’s Litigation and Criminal Law departments, as well as the Private International Law department. He has broad professional experience. He has acted as an arbitrator and is also officially qualified as a mediator and bankruptcy receiver.