Implementation of electronic means in the Public Administration and the Courts, and the compulsory electronic signature for businesses and professionals

Written on 22 Jan 2016

The recent and significant legislative reforms which will most affect the everyday life of people dealing with Public Administrations will be those linked to electronic means: electronic administration and justice.

It is well known that the past year has been tumultuous as regards legislative reforms. Some of them have material significance, such as the reform of the Criminal Code, the Protection of Public Safety Act or the new Forestry Act, to name a few. However, much of the work carried out has been devoted to orchestrating the major overhaul of the procedures and directions to be followed before and by public administrations, in particular that related to the necessary digitalisation.

For years now various regulations providing for the use of electronic means in relations with the authorities have timidly and progressively begun to be adopted, their use being a right as much as a possibility, but whose exercise has not always been facilitated, or even made possible, by the authorities. The overhaul that occurred in the latter half of 2015 has made it, through legal requirement, an obligation for certain persons.

In this regard, Law 39/2015, of 1 October, on the Standard Administrative Procedure of Public Administrations Act (now known in the field as “the PACA” and is one of the two which will replace our tired Law 30/1992), provides that legal persons (i.e. all companies) and entities without legal standing (such as joint ventures or those with joint ownership) must interact electronically with public sector bodies and institutions. For private individuals, this will remain a right, with exceptions, as in the case of the compulsory unionisation of professionals. 

This legal stipulation, which will enter into force on 2 October 2016, inextricably assumes that persons so obliged should be able to obtain and use the means of identification and electronic signature required, just as public sector bodies should possess the relevant technical means, since new electronic accreditation systems, various types of electronic registries, interoperable between Administrations and the issuing of a receipt for each document filed, have been established. In fact, the complexity, investment and, ultimately, necessary efforts have made that a greater vacatio legis for certain developments and some records have been established.

It is precisely this challenge that presently faces the judicial administration, given that in this case, the roll out date was 1 January: from this date, all legal practitioners as well as judicial and public prosecutors’ bodies and offices, are required to use existing electronic systems for the presentation of papers and documents and to carry out communications and notifications in accordance with Law 42/2015, of 5 October, amending Law 1/2000, of 7 January, on Civil Procedure. To this end, the Ministry of Justice has been working on developing the platform LexNET, whose regulation was released last 27 November (Royal Decree 1065/015).

Unavoidably, these telematics systems also require methods of identification and digital signature to ensure the identity of the parties on the one hand and, on the other, the authenticity and reliability of electronic documents. All of this has led to a recent surge of so-called “legal practitioners” turning to their professional bodies to process and learn to manage their electronic signature, without which their papers and documents are worthless in proceedings initiated as of 1 January.

Slowly but surely, digitalisation is coming to the world of Public Administration.