Name of the law and reason for its approval:

Law 11/2023, of May 8, transposing European Union directives on the accessibility of certain products and services, migration of highly qualified individuals, taxation, and the digitalization of notarial and registry procedures; and amending Law 12/2011, of May 27, on civil liability for nuclear damage or damage caused by radioactive materials.

As a result of the need to transpose into Spanish domestic law the Community Directive Directive (EU) 2019/1151 on the use of digital tools and processes in the field of Company Law, the Government approved on May 8 Law 11/2023 called digital tools for notaries and registrars. In Europe, the possibility of creating a company from home by any citizen of the Union was considered essential, and Spain has been one of the countries that has taken the longest to comply with European regulations.

The area of ​​the Law that most interests us is the notarial one and this Law introduces the following new features:

• Regulate an electronic protocol that reflects the matrices of public instruments, we will no longer only have those big books (protocol) where we keep all the contracts, minutes and deeds signed by clients, but at the same time there will be an electronic protocol (in the cloud) guarded by the General Council of Notaries of all documents signed by Spanish notaries.
• The possibility of motivated digital consultation of a general computerized single index by the General Council of Notaries and public administrations, a very useful tool for notaries and administrations for the control of money laundering, prevention of tax fraud, etc.
• Allow the granting of certain instruments via videoconference and electronic appearance.
• And provisions regarding security and archives.

Of all this, what has generated the greatest interest among citizens is the possibility of signing remotely with your notary via videoconference..

The first thing we must ask ourselves is:

What types of documents will I be able to sign remotely with my trusted notary?

The notarial signature may be carried out via videoconference in certain assessed cases, but which may be expanded by regulation in the future:

1. Commercial policies. (That is, all types of personal loans, lines of credit, guarantees, pledge of funds or deposits in guarantee, confirming, factoring or discounting of invoices...) Of course, in no case loans with mortgage guarantee, (mortgages) which will continue to have to be signed in person in front of the notary.
2. The constitution of commercial companies, appointments and commercial powers of attorney, as well as other corporate acts provided that, if there are contributions, they are monetary. If the contributions to the company are non-monetary, for example real estate, the signature must also be made in person.
3. Powers of attorney for procedural representation (powers of attorney for lawsuits) or before the Administrations, electoral powers and for specific acts. It does not apply to general or preventive powers, as they are much more delicate powers that require the notary to make a much more exhaustive judgment of the sufficiency of the powers.
4. Revocation of powers, except for “preventive general” ​​(both their granting and revocation require physical presence before a notary).
5. Payment letters and cancellations of guarantees. (Typical mortgage cancellations can also be done remotely).
6. The minutes of the general meeting and those of reference in the strict sense. (This is one of the documents that since COVID could already be done by videoconference, in fact, it was the first document to be signed by a notary remotely).
7. Signature legitimation witnesses. (digital signature compulsions).
8. Wills while there is confinement due to epidemic. Therefore, not in any normal situation but exclusively in situations of declared epidemic and with a ban on leaving the population.
9. Declarations of new construction without termination of condominium, nor award of ownership, and the division of horizontal property.
10. Conciliation, unless the notary considers physical presence convenient.
11. Other legal acts and transactions permitted by regulation. Therefore, in the future, the number of documents that could be signed by videoconference could be expanded.

It is important to note that signing before a notary by videoconference is still an option for citizens, without it being mandatory in any case, being one more alternative to facilitate and bring the notarial function closer to everyone.

Procedure to be able to sign with your notary by videoconference:

• The grantor will access the application open in the notary's electronic office, the so-called Citizen's Notary Portal, identifying themselves. If they do not have an electronic signature, they will be provided with one free of charge for specific use for the grant.
• During the granting ceremony, the notary must show the document to the person appearing through the platform, so that they can exercise their right to read it, without prejudice to the alternative reading by the notary and the advice they must provide on its content.
• The notary will authorize the document with his qualified electronic signature.

Electronic attendance

It has a broader scope than that of granting titles by video appearance, and can also:

Acts. Interested parties may, through electronic appearance:

1. Provide background information for subsequent authorization of a notarial document.
2. Grant electronically the acts or legal business that is determined, the own Signature of the document by videoconference.
3. Request simple or authorized copies after assessing your interest.
4. Request identification of the notarial documents in which you have intervened to then request authorized electronic copies. It does not provide for simple copies.

Procedure:

• Those interested to sign by video conference may appear electronically in the electronic notarial office, known as the Citizen Notary Portal, identifying themselves in accordance with the article 9 LPAyPAC DNI, NIE..., having to provide your phone, email and, if applicable, your representative.
• You will be able to exercise your right to choose a notary in accordance with applicable legislation, that is, YOU are the one who chooses the notary, videoconferencing does not change anything in this regard.
• The notary's electronic office must allow... “the assessment of their legal capacity, ensuring electronic immediacy”. As a notary my work does not change I continue to have to assess the capacity of the person signing, provide advice and information in reading the instrument and collect the informed consent of the parties involved who will provide it instead of through a handwritten signature on paper for an electronic signature through a recognized electronic certificate.
• The notary must check the documentation sent for its identification by the grantor, in fact he will previously deal with police files to avoid any type of fraud and will archive an electronic copy only if required by the legislation on the prevention of money laundering and terrorism.

In the end, the signing procedure will not differ much from any type of videoconference that for work reasons we are forced to have almost every day in our companies or with clients, with the specialty that it will be done through a secure environment belonging to the General Council of Notaries, the aforementioned Citizen's Notarial Portal, the notary will be the administrator of this videoconference and will give way to each of the grantors if there are several and finally the documents will be signed.

I understand that there are many questions on the subject, such as whether it can be signed from different locations than the notary's, the answer to which is affirmative, in fact, it can be signed even while residing abroad outside the national territory.

It could also be signed by some grantors physically in the notary's office and by others by videoconference.

In summary, although everything now seems very new and there are many doubts about its application, the objective of this videoconference before a notary is to bring the public notarial service closer to all citizens and facilitate its access by offering an agile and effective alternative that unfortunately was not available in the recent pandemic suffered in 2020.

At Notaria de Blas, we are ready and prepared to offer this service to all our clients and will be happy to inform and assist you with anything you need.

An affectionate greeting.
Antonio Díez de Blas.