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2.3 Electronic signature

The Electronic Signature Law 59/2003 of December 19 aims to promote more widespread use of electronic signatures as an instrument that generates trust and security in telematic communications, thereby contributing to the development of e-commerce and of the “e-government.”

“Electronic signature” is defined by the Law as a set of data, in electronic form, attached to or associated with other electronic data, which can be used as a method for identifying the signatory. A separate class of electronic signature is the “advanced electronic signature,” which is recognized as a signature which permits the signatory to be identified and the integrity of the data signed to be verified, since it is linked exclusively to the signatory and to the data to which it relates and since it has been created by means that the signatory can keep under his sole control.

The Law includes the concept of “recognized electronic signature”, defining it as an advanced electronic signature based on a certificate recognized and generated through a secure-signature-creation device.

Under the referred Law, both individuals and legal entities can act as signatories. In this way, the Law aims to encourage the placing of orders and issuing of invoices by telematic means, while at the same time safeguarding legal certainty for the entity holding the electronic signature and for the third parties who have dealings with it. However, electronic certificates of legal entities will not alter civil and commercial legislation as regards the provisions governing the concept of the hierarchical or voluntary representative.

Furthermore, the Electronic Signature Law regulates the activity of certification service providers issuing certificates that link signature verification data to a certain signatory. The Government also has a service to publicize information on the certification service providers operating in the market.

Furthermore, in order to be able to offer their services, certification service providers must arrange liability insurance of at least €3 million to cover any risk of liability for damage or loss.

Lastly, Electronic Signatures Law 59/2003 contains provisions regulating the electronic national identity card, which is defined as a recognized electronic certificate intended to popularize the use of secure electronic instruments capable of conferring the same integrity and authenticity as currently surround communications on physical medium.

On the 28th of August 2014 the European Regulation on Electronic Signature was published in the Official Journal. This Regulation came into force on the 17th of September of the same year and it is obligatory since the 1st of July 2016. The Directive 1999/93/CE was then automatically repealed. There has been no explicit derogation of the mentioned national law, therefore both regulations live together, and the European Regulation shall prevail over the national law in case of conflict.