Important reform by Law 11/2023, of 8 May, which allows notarial authorisation by videoconference
An important reform of the notarial law is approved, concerning notarial authorisation by videoconference for numerous commercial transactions and on notarial electronic protocol and notarial electronic copies. We present it below.
Law 11/2023, of 8 May, on the transposition of European Union directives on the digitalisation of notarial and registry actions
An important Law has been published in the BOE: 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.
Title IV of the law is the one that affects notarial legislation.
This is an important law that transposes the Directive (EU) 2019/1151 of the European Parliament and of the Council, which amends Directive (EU) 2017/1132 as regards the use of digital tools and processes in the field of company law. And, by transposing or developing the EU Directive, it introduces an important reform in the regulation of the Notariat.
Currently this regulation has been approved by both legislative Chambers but is pending publication in the BOE. The texts and comments made are based on the draft law published on the Senate website as approved.
Issue authorised and simple electronic copies
The main changes in the notarial field of the Law 11/2023, of 8 May are as follows:
It is permitted to issue authorised electronic copies and simple copies to all those with a legitimate interest, furthermore, in the authorised digital copies the notary will insert a secure verification code in the authorised electronic copy, according to the wording of the new article 31 LN.
This results from paragraph 3 of article 17 bis of the Notarial Law, which is drafted as follows:
"3. The notary may issue authorised copies with their qualified electronic signature under the same conditions as paper copies, with the indication at the foot of the copy of the recipient, after verifying their legitimate interest. The authorised copy will be sent through the notarial electronic headquarters. Likewise, a simple electronic copy with mere informational value will be sent, incorporating the notarial electronic headquarters' electronic seal with a reliable timestamp."
Notarial authorisation by videoconference in acts and transactions, especially commercial ones
Law 11/2023, of 8 May allows notarial authorisation by videoconference in various acts and legal transactions, especially of a commercial nature.
The following amendment to the Notaries Law is extremely important:
“Article 17 ter. 1. The granting and authorisation may be carried out via videoconference as a means for the exercise of the notarial public function, in the following acts or legal transactions:
- Commercial policies. In this case, the submission of the policy by the credit institution to the notarial electronic headquarters will imply its consent to the documented transaction, unless otherwise provided in the text of the policy.
- The incorporation of companies, appointments and commercial powers of attorney of all kinds provided for in commercial legislation, as well as the granting of any other corporate act, provided that if it contains contributions from the partners to the share capital, these are monetary. If you want to know more about this topic, you can read the following article:
- Powers of procedural representation, for actions before public administrations, as well as electoral powers, and powers for specific acts. It will not be possible to authorise general or preventive powers by videoconference.
- The revocation of powers, except for general preventive ones.
- Payment letters and guarantee cancellations.
- Minutes of general meetings and those of strict reference.
- Certificates of signature legitimisation.
- Wills in a declared epidemic situation while the confinement obligation lasts.
- Declarations of new construction without termination of co-ownership, nor property adjudication, and the division of horizontal property. Learn more about the latter:
- Conciliation, unless the notary considers the physical presence convenient for the proper completion of the procedure.”
Regarding this amendment by Law 11/2023, of 8 May some comments must be made. Notarial authorisation by videoconference is admitted for the majority of commercial notarial acts and in the case of policies, the financial institution’s appearance is not required if it sends the policy to the notarial electronic headquarters.
Furthermore, it is enabled that, by government decree and not by law, the electronic notarial authorisation of any other act or transaction may be determined in the future if it is in accordance with its nature.
The rest of the new article 17 of the Notarial Law regulates the notarial electronic headquarters and, among other matters, establishes that the Notary must show the document to the grantor in the case of notarial authorisation by videoconference. Also, if the grantor does not have an electronic signature, they may be provided with one electronically.
The electronic notarial appearance is regulated
Law 11/2023, of 8 May adds a section 2 to article 23 of the Notarial Law, which regulates electronic notarial appearance. From this new article 23.2, the following partial extract of the article stands out:
“The interested party may, through electronic appearance:
- Provide the necessary background for the subsequent authorisation of a notarial public document.
- Electronically grant the acts or legal transactions that are determined.
- Request that a simple or authorised copy be issued, subject to an assessment of their interest.
- Request, upon accreditation of their legitimate interest, that the notarial public documents in which they may have been involved be identified.”
A CSV is regulated for electronic copies
Law 11/2023, of 8 May also modifies article 31 of the Notaries Act to regulate the secure verification code. In summary, the content establishes that the CSV will accompany the authorised electronic notarial copies and that it will allow the grantor or any third party to whom the code has been delivered, through the notarial electronic headquarters, to have permanent access to the verification of the authenticity and integrity of the authorised electronic copy of the notarial document, as well as to know the subsequent notes of legal modification and coordination with other public instruments.
Furthermore, the new paragraph 4 of article 31 of the Notaries Act regulates how the Notary must act in cases where there is no CSV: “If a secure verification code is not available, the notary legally responsible for the protocol will assess the legitimate interest of the applicant, granting the requested access if deemed sufficient. Otherwise, and with reasons, they will deny it, and their decision may be appealed before the Directorate General for Legal Security and Public Faith. If requested by the grantor, the notary may also provide an informative transcript of the original deed or authorised act or the intervened policy, to which the secure verification code will be added, which will in any case be sent through the notarial electronic headquarters.”
Custody of electronic and physical protocols and the General Protocol Archives
In addition to all these new developments, there are some regulations that affect the notarial field regarding the custody of electronic and physical protocols and the General Protocol Archives.
General Archive of Protocols
From the reform introduced by Law 11/2023, of 8 May the new article 37.1 of the Notaries Law also stands out: “37. 1. In each Notarial Association a General Archive of Protocols shall be established in which those protocols and registers of commercial operations and index books, which are at least five years old, shall be kept in an orderly manner.”
Its contrast with the repealed article 37 stands out:
"Art. 37 of the Organic Law of Notaries: There shall be in each Court, and under its supervision, a general archive of public deeds. These archives shall be formed with the protocols of the Notaries included in the respective territory of each Court that are more than 25 years old."
Custody of Physical Protocols in the Archives of Notarial Associations
This could lead to more physical protocols being delivered to the Archives of the Notarial Associations, which surely makes sense in an increasingly electronic world.
And alongside this reduction of the minimum mandatory time for Notaries to keep the physical protocol, if it is ultimately determined as such by the Notarial Associations, it is clarified that the custody of the notarial electronic protocols is indeed twenty-five years.
Custody of Electronic Protocols
Thus, says the new article 37 section 3 of the Notaries Act:
"The files relating to the protocol in electronic format shall be sent after twenty-five years from the authorisation or intervention of the original deed, act or policy to the General Protocol Archives of each College. It is the responsibility of the General Council of Notaries to adopt the technical measures to guarantee the integrity of said format, as well as its transfer or dumping to a new type and access to it by those entitled. Likewise, such measures must allow the practice of notes in them, in accordance with the notarial legislation in force."
Entry into force of the reform of Law 11/2023, of 8 May
Law 11/2023 comes into force six months after its publication, so that notarial documents may be authorised by videoconference from 8 November 2023. Until then, notarial technological systems must be developed and adapted to the new requirements introduced by law 11/2023.
JLA Notaries, technology and digitalisation
We hope this blog has been interesting to you, as it is a reform that will bring changes such as greater digitalisation of the Public Administration in general and of Notaries in particular. It represents significant paradigm shifts in notarial practice which, with the appropriate technological developments, and ensuring preventive legal security, will allow the acceleration of new, more electronic ways of working in the notarial public service.
At JLA Notarios we incorporate technology into all procedures to facilitate processes, processing times and minimise visits to our notary office on the Diagonal in Barcelona, so changes such as notarial authorisation by videoconference are more than welcome, especially in the commercial field. If this applies to you, you can read the following article:
Check our Notarial Services and get in touch with us if you need assistance with any of them. To do so, you can call us at 931591762, fill in the contact form on our website or write to us at: bcn@jlanotarios.com.
