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Dec 1, 2023

An improvement to the life of businesses: relationships with notaries

Provision is made for the completion of certain acts to be 100% online, without the need for physical presence.

Following a previous European Mandate, the Law 11/2023 dated 8thMay, which transposed several European Union Directives, and which required alignment with civil and commercial regulations in general, including the ‘Ley de Sociedades de Capital’ (Corporate Enterprises Law) or the well-known laws such as 'Crea y Crece' and the Startup Law, changed a law that was largely archaic. This change concerns the Notary Law (dating back to 1862, although it has been modified with time) to enhance the world of notaries, allowing space for a significant improvement in terms of digitisation and simplification of associated bureaucracy.

On the 8th of November, various measures came into effect, resulting in a clear approach from our neighbouring countries. Rather than the need to physically travel to the notarial headquarters, the completion of certain acts can now be done via 100% online methods, with a simple ‘appearance’ before the notarial electronic headquarters being sufficient. Distancing ourselves, without acrimony or reproach, from the deeply rooted formalities of notaries to one characterised with efficiency and levelling the playing field in terms of competitive conditions.

From today, traditional paper copies can be replaced by digital copies, issued with the qualified electronic signature of notaries (an electronic seal that also identifies the time and date), providing the legal and technical security offered by the notarial electronic headquarters. Although this is a significant change, the option to visit the notary in person will still be available.

What legal transactions will be impacted by this change? Focusing on the predominantly corporate aspect, we would emphasise:

  1. The establishment of companies and the undertaking of subsequent acts, aimed at their respective establishment.
  2. Registration of branches in EU member states.
  3. Application to the Commercial Registry for the registration of dissolution, liquidation, termination of companies, appointment of liquidators, closure of branches and, in general, cancellation of registration entries.
  4. Appointments and commercial authorisations as stipulated by the law, and completion of any other corporate action, on the condition that, if it involves contributions from partners to the share capital, they are in cash
  5. The revoking of powers, except for general preventive ones.
  6. General meetings and the corresponding minutes
  7. Signature verification certificates/testimonies
  8. Commercial policies (the submission of the policy by the credit institution to the notarial electronic headquarters will imply consent to the documented transaction unless stated otherwise in the policy text).

While we have focussed on improvements of corporate and commercial matters, the amendment will also cause alterations to other aspects of civil law, such as granting powers of attorney for procedural representation, for actions with the Public Administration, electoral powers and for specific acts (general or precautionary powers cannot be authorised through video conferencing), as well as payment letters and cancellations of guarantees.

However, if the list of legal transactions were exhausted, then a significant progressive step forward, as consequence of this change, would have been made. But, as it stands, this is not the case. The legislator has predicted the possibility of incorporating new acts under the legislation, by means of regulation (i.e., that catch-all drawer used by the legislator when their work is not concluded at the time of the publication of higher-ranking norms).

In quantitative terms, the General Council of Notaries estimates that 3,200,000 notarial documents can be authorised and signed online, resulting in a combined savings of £17,000,000 in paper and travel expenses. Unfortunately however, only notaries will benefit from these savings, as notarial fees will not reduce proportionately.

In any case, this puts an end to tedious procedures, replacing the nineteenth-century ritual that has previously prevailed and which are merely formalities, with one that is more in tune with their idiosyncrasy. Nonetheless, there are worries that this change is simply trading one set of problems for another’, especially with regard to the whether the Commercial Registries are equally efficient.

Further information

For questions related to the topics raised in this article, please contact Ignacio Arce Orejas


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