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The global health crisis and the consequent lockdown due to the COVID-19 pandemic have called into question the workings of some of the most basic processes, such as e-signature of documents of companies and administrations, which are promoting the use of electronic systems to provide the greatest possible legal reliability. Establishing adequate electronic mechanisms to perform certain recurrent acts in the day to day of companies, including notarizing, authorizing, and recording notarial documents, with flexibly and with no travel, is particularly relevant.

We highlight that this need is shown in the framework of the final approval phase of the draft bill of the Act Regulating Certain Aspects of Electronic Trust Services, after the Council of Ministers agreed to present it to the Cortes Generales in February. It supplements some aspects of Regulation 910/2014 of the European Parliament and of the Council of July 23, 2014 on electronic identification and trust services for electronic transactions in the internal market (the “eIDAS Regulation”), as we explained in previous posts in this Blog.

In view of the above, it is not surprising that the General Council of Notaries is currently studying establishing a platform allowing companies and individuals to sign some notarial documents electronically, complying with all the technical and security guarantees, as well as the data protection regulations, as it communicated in its publication of April 20. Notaries would thus be in a position to remotely authorize some processes or transactions with no need to travel, such as executing deeds for financing to companies and individuals, as well as wills in case of epidemics, special powers of attorney, revocation of powers and corporate acts.

It is not an isolated case; in other EU countries such as Estonia, the possibility of signing notarial acts remotely and identifying people via “video bridge” has also recently been approved (as reported in the following statement). In Estonia, citizens with electronic identity documents or residence cards (including mobile identification systems) can also use those means to be identified and sign notarial documents electronically.

All these measures have arisen in view of the current situation, but we must remember that Directive (EU) 2019/1151, of June 20, 2019, amending Directive (EU) 2017/1132 as regards the use of digital tools and processes in company law (the “Directive”) is awaiting transposition. That Directive, which must be transposed⁠— in general and despite some exceptions⁠— by August 1, 2021 at the latest, establishes proceedings to incorporate companies online, registering branches and submitting documents and information online, as well as recognizing the use of electronic means of identification in accordance with the eIDAS Regulation.

We will continue to report on how all these proposals develop and their final approval through the appropriate legal channels.  

Authors: Ana Sánchez, Pedro Méndez de Vigo and Claudia Morgado

This post is also available in: Español



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