BY ANA FERNÁNDEZ TRESGUERRES

That the appropriate regulation of the electronic notarial deed in Spain cannot be postponed is amply demonstrated internationally.

The absence of notarial action in this area is a gap which, if it is not filled, will be filled by other solutions similar to those in states which are not familiar with the continental notary's office. In particular, this will be done by means of responsible declarations under electronic signature of individuals with or without the assistance of a lawyer.[1]

The electronic notarial deed has various applications in the international sphere. Some of these are regulated and others are simply the result of logical international contractual and commercial activity, in which, in order to exist, it is necessary to demonstrate its usefulness.

Among the former, we can cite two areas.

1. In relation to conventional activity, the project stands out for E-apostilleThe Hague Conference, an initiative of the Hague Conference since 2004[2]. This project, of which the Spanish delegation at the Conference was a pioneer, did not gain the confidence of our authorities at the time (1st international forum and -apostille).

The historic opportunity to participate in the initial pilot projects with the corresponding leverage was lost.

The persistent refusal to provide a copy or the transmission of a notary's certificate, which is not known to the notarial authorities, also prevented the implementation of electronic notarial activity in Spain. In addition to the non-existence of specific notarial applications, the reasons for this refusal included the purely economic reason of the source of income from paper-based apostilles. Obviously none of these reasons are to be regarded as acceptable.

To date, the Spanish notary's office has not created and does not possess a e-registre not a e-apostille notarial. It does not participate in the Spanish regulation (Royal Decree 1497/2011 of 24 October; Order JUS/1207/2011 of 4 May). It is not possible to electronically apostille a notarial document by a notarial authority.

Whoever needs it should go to the High Courts of Justice with their authorised copy and it will be these authorities who will electronically apostille it by means of a mere PDF with no guarantee of integrity.

The immediate publication of the European instrument on the circulation without legalisation of certain public documents (essentially related to civil status) extends the abolition of the apostille between Member States. The inclusion in its scope of company representations and title deeds has been postponed to a later date, within a maximum of 10 years.

Verification that the document is formally authentic will be done by a national authority, in the IMI system, currently in place for other applications.

The need to create and develop the electronic notarial apostille is unavoidable in order to establish an electronic notarial apostille. status quo prior to the future amendment of the Regulation, providing for the highest degree of legal certainty in order to facilitate IMI activity.

It is a service to the users of Spanish notaries that should have been in place for years.

Moreover, in the context of the European Union, there is no need for an endorsement in the field of regulations.[3]

2. A second application, this time strictly European, arises from the implementation of the Regulations in the area of civil justice.

The evolution from Regulation (EU) No 44/2001 to Regulation (EU) No 650/2012, the last one to enter into application, is remarkable. After the Lisbon Treaty, comitology action - the implementation of basic regulations - was given a proper legal basis. The need to adapt the previous instruments to this committee action within the Commission, from which the implementing regulations emerge, has motivated the interest in e-justice/e- codex to develop, by consensus, concrete applications that avoid the difficulties and rigidities of the basic rules[4] (approval of proposals, co-decision, limitation of actions on the protection of personal data, subsidiarity and proportionality of actions...) hence the Committee e-justice as in the field of Company Lawlimit legislative actions by developing electronically the applications already approved in the basic actions.

These electronic actions for public documents require the concurrence of advanced electronic signature and security of origin of the Authority.

A clear example will be the European succession certificates in electronic form, the implementation of which necessarily requires the incorporation of the electronic notarial deed into the daily work of notaries in order to prevent its specifications being born exclusively out of the international context.

Regulation (EC) No 1397/2007 (notifications) under evaluation for amendment will also incorporate electronic notifications.

Leaving aside the analysis as to which notaries do and do not carry out these notifications - in Spain notaries do notify with legal effect - it would be essential: firstly, the communication by the Ministry of Justice that notaries have to be incorporated into the transfer authorities (CJEU C-14/08 of 25 June 2009, Roda Golf& Beach Resort); second, the determination of the effects of these international notifications within the scope of Law 15/2015 of 2 July 2015.

3. Finally, at the national level, it is worth mentioning the context of Law 29/2015 on international legal cooperation in civil matters. This Law is neutral in the technological aspect. It neither regulates nor prevents this format in notifications; documents or resolutions whose effects in Spain it establishes, in the absence of a special international or national rule.

The existence of the electronic document will make it possible, in the non-regulated area in the European Union, for notaries to cooperate more closely with one another in order to unfold The European Commission's strategy of fragmenting the effectiveness of the public document according to the instrument to be dealt with presents major problems in the areas reserved for the public document, and the European Commission's strategy of fragmenting its effectiveness according to the instrument to be dealt with presents major problems in the areas reserved for the public document. lex foricivil, procedural and registry law[5].

[1] Vid. Sur la justice du XXIe. Siècle. www.gouvernement.fr/les actions.

[2] Vid. www.hcch.net

[3] The question arises whether it is necessary for ancillary notarial instruments such as powers of attorney for litigation or inheritance in the contexts of Regulations (EU) No 1215/2014 -Brussels I Recast- and 650/2012 -successions-....

[4] So only in the area of insolvency (Regulation (EU) No 2015/848) the technique of annexes is replaced by implementing regulations.

[5] Study on the evidentiary effects of the notarial authentic instrument in the Member States, in the context coordinated by the University of Aberdeen, available at www.europarl.europa.eu/RegData/etudes/STUD/2016.