Acts 39/2015 and 40/2015 will enter into force on October 2, reforming the regulation of the public legal system and introducing important new requirements for companies in their relations with Spanish government bodies.
Under the reforms, all legal entities - regardless of their size - and their representatives will be obliged to deal electronically with public administration bodies.
This introduces certain obligations for all companies, particularly regarding their identification and representation to government bodies, the submission and electronic signature of their administrative applications or appeals, powers of attorney to deal with government bodies and electronic receipt of administrative notices, all of which raise material technological and organisational challenges.
October 2, 2016: entry into force of regulations governing electronic administration provided for in Acts 39/2015 and 40/2015, excluding certain factors, which have been postponed until October 2, 2018.
October 2, 2018: entry into force of regulations governing electronic registration of powers of attorney, electronic registration, electronic general access point and single electronic file.
COMPANIES' OBLIGATION TO INTERACT ELECTRONICALLY
From October 2, all legal entities (among other persons), regardless of their size, and their representatives will be obliged to deal electronically with public adminstration bodies.
This means that the submission of documents to government bodies by companies or their representatives, as well as the receipt of notice, must be carried out electronically.
Individuals can deal with the government electronically or on paper, except where they are obliged to use one form, and they may change their chosen manner of interaction at any time.
IDENTIFICATION AND ELECTRONIC SIGNATURE
To substantiate their identity and intent to the government, companies must have one of the accepted electronic identification and signature systems.
In general, the new regulation provides for acceptance of systems based on concerted passwords, electronic certificates of signature or stamp issued by providers figuring on the “List of trusted certification service providers” (https://sede.minetur.gob.es/Prestadores/Paginas/Inicio.aspx), which includes the Spanish Mint (“FNMT”), and any other system considered valid by the Spanish government bodies.
Under the provisions of Regulation (EU) 910/2014 of the European Parliament and the Council, of July 23, 2014, Member States must accept systems based on certificates issued by providers included on the trusted lists of other EU Member States. It also establishes specific conditions for certificates issued by third-party states to qualify as equivalent.
In practice, to deal with government bodies, companies must have the corresponding electronic certificates. At the end of this Legal Flash, we look at some practical issues involved in obtaining these certificates and their validity.
The new regulations introduce the possibility of power of attorney for electronic representation and announce the creation of electronic registries of powers of attorney by different government bodies.
They also regulate the types of powers of attorney that may be registered, namely general powers of attorney to deal with any government body, general powers of attorney to deal with a specific government or official body, or specific powers of attorney to deal only with the formalities specified in the power of attorney.
In that regard, the regulations also provide for approval of standard powers of attorney with a renewable term of up to five years.
However, the provisions concerning the electronic registry of powers of attorney will not enter into force until October 2, 2018.
The reforms introduce significant new requirements regarding the regulation of notice to companies:
- In general terms, notice must always be given electronically, except in specific cases: where (i) notice is accompanied by items that cannot be converted to electronic format, (ii) it contains means of payment, (iii) it results from the interested party addressing the registry voluntarily, or (iv) notice must be submitted personally by a civil servant to ensure the efficacy of the administrative action.
- Therefore, notice must generally be given by accessing the electronic site of the government or official body involved, via the specified electronic address, or by both means, as decided by each government body. It is planned that access to notice will be possible through the government body’s electronic general access point, which will serve as an access portal. However, the provisions concerning that general access point will not enter into force until October 2, 2018.
- Electronic notice takes place when the company opens the file. If electronic notice is obligatory or has been chosen by the interested party, it will be considered to have been rejected if 10 calendar days pass from delivery of the notice and access has not been gained to its content, which implies that the formality was carried out, with no new notice required.
- Email will not serve as means of notice, although it is planned that announcement of notice may be sent by email or to electronic devices, if practicable, advising the recipient that electronic notice has been given. However, failure to make such announcement will not prevent the notice from being considered fully valid.
CALCULATION OF DEADLINES FOR ELECTRONIC REGISTRIES
The reforms introduce material new requirements regarding terms and deadlines:
- They introduce the calculation of terms in hours (although its practical application will be limited).
- They declare Saturdays as non-business days.
- They establish specific rules concerning electronic registries. Electronic registries allow submission of documents every day of the year around the clock. However, submission on a non-business day will be considered to have been made at the start of the followinf business day, except where a rule allows submission on a non-buswiness day. Each government body's electronic registry site will determine which days are considered non-business days.
DIGITALIZATION OF ADMINISTRATIVE PROCEDURE
The new regulations include other examples of digitalization of administrative procedure:
- Each government body will keep an electronic general registry, which will include all documents submitted.
- Dossiers will be kept in electronic format.
- An electronic file will be created for completed proceedings.
- Administrative reports will be issued by electronic means.
- Possibility of public announcement via electronic means.
- Records of proceedings and resolutions will be set out electronically.
WHAT IS AN ELECTRONIC CERTIFICATE?
It is an electronic document issued by a certification authority that validates and certifies that an electronic signature corresponds to a specific person or entity.
- FNMT: http://www.cert.fnmt.es/certificados
- Other Spanish certification authorities: http://firmaelectronica.gob.es/Home/E mpresas/Autoridades-Certificacion.htm
CERTIFICATION FOR COMPANIES
Certification authorities issue different types of electronic certificates for companies, with differing characteristics depending on their use. In addition to certificates for individuals, the FNMT issues certificates of representation to sole or joint and several directors of legal entities or of entities with no legal personality.
Consult in each case. As a rule: the company’s corporate registry certificate, documents substantiating the representative’s identity and status, and request code.
HOW TO OBTAIN THE CERTIFICATE
For FNMT certificates:
- Application for certificate via the Internet.
- Request code submitted by email.
- Substantiation of identity by appearing at a National Tax Administration office or a Spanish Consulate abroad and presenting the pertinent documents. Substantiation is not required for certificates for sole of joint and several directors with electronic ID cards or individual certificates issued by the FNMT.
- The National Tax Administration requires appointments to be made in advance. While appointments are now being given at short notice, it is advisable to plan for possible delays.
- Downloading of the certificate.
VALIDITY AND RENEWAL
The term of validity for certificates depends on their type, but will not exceed five years. Certificates issued by the FNMT are valid for 36 months and can be renewed during the 2 months preceding their expiry.