Digitalisation Directive

The Official State Gazette of 9 May 2023 publishes Law 11/2023, of 8 May, on the transposition of European Union Directives on the accessibility of certain products and services, migration of highly qualified persons, taxation and digitalisation of notarial and registry actions; and which amends Law 12/2011, of 27 May, on civil liability for nuclear damage or damage caused by radioactive materials.

The amendments presented in this Law are motivated by the necessary transposition of Directive (EU) 2019/1151 of the European Parliament and of the Council of 20 June 2019, which amends Directive (EU) 2017/1132, known as the “Company Digitalisation Directive” or “Digital Tools Directive”.

The amendment to the Capital Companies Act (TRLSC) continues the process of digitisation of companies at European level. This mainly concerns the incorporation of limited liability companies with capital contributions entirely online, without the need to appear in person before a notary, as well as their subsequent or successive acts, the online submission of the documents required for these operations, the possibility of opening and registering a branch in another Member State entirely online and the operation of the commercial registers. All this by means of standardised standard forms, as is common in the European framework.

What is interesting with regard to the amendment of the Law on Notaries (LN) is the regulation of the electronic protocol, without the physical protocol disappearing, and the possibility of issuing authentic electronic copies authorised with an electronic signature, under the same conditions as paper copies, also allowing copies to be requested by electronic appearance in the notary’s electronic office, and providing these electronic copies with a CSV. Simple copies can be issued in the same way.

In line with the reform of the TRLSC is the introduction of the new Article 17 ter LN. It establishes the possibility of executing and authorising the deed by videoconference in certain legal acts or transactions, as indicated in the article itself. However, this system is configured on an optional basis, as the notary may refuse when the conditions laid down in the LN are not met.

The impact on the notarial and registry sphere is notable, being evident in that it affects the Land Registers, the Mercantile and Movable Property Registers, as well as the incorporation of companies and the Notaries Act.