Contributor: Augusta Abogados, S.L.P.
Author: Sergio Giménez Binder / Laia Malet Pérez
1. Is there specific legislation in Spain ruling the using of documents (such as Leases, Security Agreements, Mortgages, Lease Assignments, Novation and IDERAs) executed with the use of digital platforms or any electronic signatures by the local Aviation Authority?
In general terms, aircraft transaction documents are still being signed and executed in the traditional manner (i.e., handwriting). In fact, the regulations of the Spanish Aircraft Registry specifically request that signatures be legalized by a notary public. Digital signatures are also permitted, but only for so long as they are “advanced and qualified digital signatures”, i.e., those which have been awarded by certain Spanish official bodies. Normally foreign parties do not have this kind of signature. As a result, documents executed through public platforms that are not officially accepted by the Spanish authorities would not be acceptable.
2. If your answer to (1) is yes, is there any specific requirement for the validity of such signatures, such as completion with a specific cryptographic platform developed by any local institute of technology?
The Spanish Aviation Agency AESA has developed its own platform, which enables citizens to communicate with AESA and vice versa. This platform is used in connection with regulatory issues such as AESA inspections, fines, etc. and also for passenger claims. Documents relating to the registration of aircraft are also filed with the help of this platform. However, it does not allow for transaction closings.
Generally speaking, Regulation (EU) No. 910/2014 of 23 July 2014 on electronic identification and trust services for electronic transactions (“eIDAS Regulation”), which is in force for Spain, establishes the legal framework for electronic identification and trust services, including electronic signatures and the conditions for mutual recognition among EU Member States. The Regulation provides for a pan-European level public key infrastructure for the identification and authentication of electronic signatures in public services. The Spanish Act 6/2020 enacted certain detailed provisions of the eIDAS Regulation, providing for a legal framework in Spain for the use of electronic signatures and recognition of their legal validity.
3. Does the Aviation Authority in Spain use an electronic register for Aircraft Documents or Aircraft Lease Documents (including Leases, Security Agreements, Mortgages, Lease Assignments, Novation and IDERAs)?
As mentioned above, the Aircraft Registry operated by AESA is nowadays an electronic register. The main rules governing this Registry are to be found in its Regulations (contained in Royal Decree 384/2015); the electronic aspects are governed mainly by the Act 39/2015 on the Common Administrative Procedure of the Public Administrations (“LPACAP”) and Royal Decree 203/2021, of 30 March, which approves the Regulation of action and operation of the public sector by electronic means (“RD 203/2021”).
4. If your reply to question 3 is yes, is it possible to upload electronic files for registration, such as Leases, Security Agreements, Mortgages, Lease Assignments, Novation and IDERAs with the Aviation Authority in Spain?
Spain has a dual registration system. In general terms, aircraft transaction documents must first be filed with the Central Movable Assets Registry. This Registry only accepts paper documents for the time being. Once the transaction documents have been cleared by the Movable Assets Registry, they must be filed with the Aircraft Registry. As indicated above, this is done electronically through AESA’s platform. To this end, the documents are submitted as PDF files.
5. Do the courts of Spain consider valid and enforceable documents executed by the use of some type of digital signature or certification even if not registered (or registrable) with the local Aviation Authority?
The eIDAS Regulation ensures legal equivalence between a qualified electronic signature and a handwritten signature but allows Member States to determine the effects of other (non-qualified) electronic signatures and of trusted electronic services in general. For this purpose, the Act 6/2020 establishes a clear evidentiary advantage when electronic documents contain qualified electronic signatures issued by service providers listed in the “Trusted List of Qualified Service Providers of Electronic Services.”
Article 3 of the Act 6/2020 establishes the legal evidentiary effectiveness of private electronic documents when their authenticity is not contested by the party to whom they are addressed, in accordance with the Civil Proceedings Act.
For evidentiary purposes, the Spanish courts distinguish between the effectiveness of documents that have been signed by means of an electronic certificate issued by a non-qualified trust service and those signed by means of an electronic certificate issued by a qualified electronic trust service, which is included in the “Trusted List of Qualified Trust Service Providers.” Generally speaking, the burden of proof lies on the challenging party where qualified signatures have been used; where the dispute relates to the authenticity of a non-qualified signature, then the party that used such signature must prove its authenticity.
6. Is it possible to upload lawsuits, pleadings, and procedural documents electronically in Spain?
Yes, it is not just possible but required nowadays. The Civil Proceedings Act obliges all legal professionals to use the existing telematic or electronic systems in the Administration of Justice for the submission of pleadings, whether or not it initiates legal proceedings, and other documents, in such a way that the authenticity of the submission is guaranteed and there is a reliable record of the full submission and receipt, as well as the date of submission.
The submission of writs or documents by telematic or electronic means must be carried out by means of a recognised or qualified electronic signature, in accordance with the provisions of Law 18/2011, of 5 July, regulating the use of information and communication technologies in the Administration of Justice.
The Spanish Ministry of Justice has established a specific system for these purposes called Lexnet (LexNET Justicia), and certain regions in Spain with authority to legislate on this topic have implemented their own platforms (EJusticia, Vereda, Avantius, Justizia).
7. Do the courts of Spain accept procedural documents executed digitally? Is there any specific certification required? Does Spain make any distinction between official digital signatures and private digital signatures?
As explained in the previous point, all procedural documents must be submitted through one of the official platforms, such as Lexnet.
8. Are there any formal requirements for the validity of documents executed by digital signatures? Ex.: Does the consent of the parties to digital signatures have to be expressly referred to in the agreement?
There is no specific provision in this respect. It is generally understood that parties tacitly agree to using digital signatures when both use them or where one party does not object to this. The main exception would be those types of transactions or documents that, by virtue of imperative legal provisions, require a certain form (such as notarial documents and the like).
9. Can foreign entities not located in Spain execute Lease Agreements or any Finance Documents with digital signatures to be filed for registration with the Aviation Authority in Spain? Are there any other formalities required?
In addition to the remarks made in the previous points, AESA’s Resolution of 3 November 2021 contemplates a specific procedure so that non-Spanish companies and citizens may obtain an official digital signature that enables them to interact with AESA’s platform. This system is styled e4F (eSignature for Foreigners). However, as mentioned previously, the system does not allow for the execution of transaction documents.
10. Does the Aviation Industry in Spain usually use digital tools such as blockchain technology for the purpose of control of Aircraft Documents in substitution of printed paper Aircraft Documents?
Due to the restrictions described in the previous paragraphs, blockchain technology is not yet widely spread in connection with transaction documents. As far as aircraft documents are concerned, AESA began only recently to accept electronic documents, but there are still a number of restrictions that impair the use of these new technologies.
11. Are there any Notary or Apostille requirements in Spain? If so, do they apply to electronically executed documents, and how does this affect the possibility of electronic execution and delivery of aviation documents?
Public and private documents accrediting the acquisition of ownership or possession of the aircraft for registration in the Aircraft Registry, when granted in foreign territory, must be legalized with the Apostille provided for in 1961 The Hague Convention. Where the country involved is not a party to the Convention, then other more traditional systems must be followed, such as legalization through diplomatic channels.
a. Has Spain implemented the e-Apostille program?
The need to adapt the Apostille to technological means has been implemented in the Spanish legal system by Order JUS/1207/2011, which creates and regulates the Electronic Register of Apostilles of the Ministry of Justice and regulates the procedure for issuing Apostilles in paper and electronic format.
All Apostilles issued by the competent authorities in Spain in both paper and electronic format are filed centrally and automatically in the Register, and the validity of the Apostilles issued can be verified by means of a verification code (CSV).
The aforementioned Order JUS/1207/2011 establishes that original documents originally issued by the General State Administration and the Administration of Justice in electronic format and digitized electronic copies of documents issued in paper format, made by the competent officials, may be subject to electronic Apostille, being these documents of a public nature, such as administrative or judicial documents. With regard to notarial documents, the Order states that documents authorised by a notary and private documents whose signatures have been authenticated by a notary may only be apostilled on paper.
The said Order also states that electronic Apostilles validly issued by the authorities of the other Contracting States of the 1961 The Hague Convention will be fully valid in Spain.