eSignature Legality Guide

The eIDAS Regulation distinguishes between three categories of electronic signatures: a basic “electronic signature,” an “advanced electronic signature” (AES), and a “qualified electronic signature” (QES).

A basic “electronic signature” refers to electronic data that is attached to or logically linked with other electronic data and is used by the signer to sign (Article 3.10 eIDAS).

An “advanced electronic signature” is an electronic signature that fulfills additional criteria to provide a higher level of security and trust.

A “qualified electronic signature” (also called a “digital” signature) is an advanced electronic signature created using a qualified electronic signature creation device and based on a qualified digital certificate for electronic signatures (Article 3.12 eIDAS). The certificate must be issued by a trust service provider listed as qualified in an EU member state, and the signature creation device must be certified by an EU member state. Only the qualified electronic signature has a special legal status in EU countries, being legally equivalent to a handwritten signature (Article 25.2 eIDAS).

There is no specific definition of electronic signature under Spanish law.

Spanish Law 6/2020 does not specify any transactions that must be signed with an advanced or qualified electronic signature. Therefore, in general, parties are free to use any type of electronic signature to execute valid contracts that do not require extra assurances. In practice, any form of electronic signature is typically acceptable for private documents.

When dealing with Spanish authorities, such as for government filings, additional safeguards may be necessary and the use of a QES may be required.

According to eIDAS, only a qualified electronic signature is considered legally equivalent to a handwritten signature. Other types of electronic signatures are protected by a non-discrimination rule, meaning their legal effect and admissibility as evidence in court cannot be denied solely because they are electronic or do not meet the requirements for a qualified electronic signature.

To enhance the reliability of non-qualified electronic signatures, parties may use authentication procedures, tamper-evident processes, and audit trails. Consent can also be used to show that all parties agreed to use electronic means and the specific type of electronic signature involved.

Below is an example of a case where Spanish courts have considered the use of electronic signatures:

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