Law 6/2020 of 11th November which regulates certain aspects of the electronic trust services (LSEC), complements Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23rd July 2014 on electronic identification and trust services for electronic transactions in the internal market (applicable since 1st July 2016) in those aspects that the latter has not aligned and which are left to the discretion of the Member States.

Pursuant to EU Regulation 910/2014 – of direct application in Member States-, (i) electronic identification and (ii) electronic trust services were regulated in one single legal tool:

(i) in the area of electronic identification, the Regulation established the mutual acceptation of  the access to online public services, of national systems of identification communicated to the European Commission on the part of the Member states, with the purpose of facilitating the secure interaction by electronic means with the Public Administration and their utilisation for carrying out cross-border procedures.

(ii) Where electronic trust services are concerned (which may be, in addition to the electronic signature, the electronic seal of a legal entity, the qualified signature and seal validation service, the qualified signature and seal preservation service, the electronic time-stamping service, the certified electronic delivery service and the web authentication certificate issuing service), the Regulation attributed unique evidentiary relevance to electronic documents for the production or communication of which a qualified trust service is used, consistent with the high supervision and security requirements of such electronic trust services as compared to non-qualified services.

Along these lines, Article 3 of the LSEC, on the legal effects of electronic documents, establishes that:

  1. Public, administrative and private electronic documents have the legal value and effectiveness corresponding to their respective nature, in accordance with the applicable legislation.
  1. As regards private electronic documents, their evidentiary value will depend on whether a qualified or unqualified trust service has been used.
    • If a qualified trust service has been used: it will be presumed that the document meets the characteristic in question and that the trust service has been properly provided if it was, at the relevant time for the purposes of the discrepancy, on the trusted list of qualified providers and services. If the electronic document is nevertheless challenged, the burden of verification shall be on the party who has presented the objection. If said verification ends in a negative result, the costs, expenses and fees arising from the verification will be exclusively borne by the person who has filed the objection. And if, in the opinion of the court, the challenge was negligent, it may also impose a fine ranging from Euro 300 to 1200 (article 326.4 of Law 1/2000, of 7th January, on Civil Procedure (LEC) added by the Second Final Provision of the LSEC).
    • On the other hand, if an unqualified trust service has been used: when the party whose interest in the effectiveness of an electronic document requests it or its authenticity, integrity, accuracy of date and time or other characteristics of the electronic document are contested, the party who has submitted it may request an expert comparison of handwriting or propose any other means of proof that is useful and relevant to such effect (Article 326.3 of Law 1/2000, of 7th January, on Civil Procedure (LEC) amended by the Second Final Provision of the LSEC).

In Spain, the organism responsible for establishing, maintaining and publishing the trusted list with information relative to qualified trusted service providers subject to the aforementioned Law, together with the information related to the qualified trusted services which they provide, is the Ministry for Economic Affairs and Digital Transformation.

 

 

Carla Villavicencio

Vilá Abogados

 

For more information, please contact

va@vila.es

 

30th July 2021