As you have been able to read in other articles published in our blog, the eIDAS regulation and the Spanish legislation that develops it foresees different ways of sending certified communications. In the case of a qualified provider, such as MailComms in the form of certified electronic delivery, the notifications sent through our systems or tools are accompanied by evidentiary value in court.
Articles 43 and 44 of the eIDAS regulations regulate the “certified electronic delivery service, as well as the legal effects of such service. This regulation applies in all countries of the European Union and is fully valid in the courts of those countries in the event of litigation. In fact, recital 22 of eIDAS states the following: “In order to contribute to the general cross-border use of trust services, it should be possible to use them as evidence in legal proceedings in all Member Statesˮ.
In the case of Spain, the regulations relating to certified electronic deliveries are as follows Law 6/2020, regulating certain aspects of electronic trust services. The text transfers to Spanish law some aspects of the electronic trust services established in the eIDAS, in addition to modifying article 326 of the Civil Procedure Law, where reference is made to the fact that, in the event of a challenge to a delivery sent through a qualified supplier, “the burden of verification shall be borne by the person who has lodged the challenge. If the result of such verification is negative, the costs, expenses and fees arising from the verification shall be borne exclusively by the person who has filed the challenge”.
The use of certified e-mail has also been ratified by the Supreme Court in the order issued by the First Chamber in appeal 855/2010, considering that when telematic notifications are managed by certification service providers, this guarantee of integrity is given:
[…] The legal situation is based on Article 162 of the Civil Procedure Law, which provides that the parties or the addressees of the acts of communication have electronic or telematic means at their disposal … that allow the sending and receipt of writings and documents, in such a way that authenticity is guaranteed … the acts of communication may be carried out by those means with the appropriate receipt receipt. Whose procedural rule is completed by Law 59/2003, of December 19, 2003, on electronic signature, which contemplates the recognized certificates (articles 11 and following) and the electronic signature devices and certification systems of certification service providers and electronic signature devices (from article 24 onwards) […].
Mailcomms Group’s accreditation as a qualified provider allows us to offer this level of legal reliability and extreme probative value in all communications certified through the different channels. And this includes not only online burofax but also email, SMS, Web and Whatsapp, all of them certified. These are possibilities in which we provide a certificate of integrity and authenticity of the contents, the identity of the sender and the recipient and the delivery, with the corresponding evidence. In short, to offer full legal guarantee to send reliable communications between senders and addressees in European Union countries.
What is the legal value of a certified notification whose recipient is outside the European environment?
In the event of litigation, it is not known what legal validity the international courts of countries outside the European Union may give to the receipt of a certified notification.
Firstly, with respect to countries outside the EU, it should be noted that each country has its own regulations. However, in recent years, the vast majority of States have made progress in regulating this type of communications, recognizing their legal validity. It is important to emphasize at this point that In general, the freedom of contractual form prevails, so that the parties are free to agree on the use of electronic signatures and/or reliable communications at the time of entering into agreements.
This is the case of Latin American countries or the United States (UETA, Uniform Electronic Transactions Act introduced by the National Conference of Commissioners of Uniform State Laws (NCCUSL) in 1999, and ESIGN, Electronic Signatures in Global and National Commerce Act in 2000). All of them have legislation in this area that recognizes the legal value of qualified foreign electronic signatures upon compliance with certain requirements. The use of a mature and internationally standardized technology, such as PKI, makes it possible to standardize the use of foreign electronic signatures in these territories, providing a reliable basis for legal proof.
Certified physical notifications. What happens with the burofax?
The entry into force of Law 43/2010 of December 30, 2010 on the universal postal service, users’ rights and the postal market meant the end of the Post Office operator in terms of the delivery of reliable private notifications (bureaufaxes). This standard allowed any other company to perform this function, as long as the delivery system and process could prove the following: the content of the shipment, sender, addressee and result of the shipment.
Both legislation and jurisprudence grant trust service providers, such as Grupo MailComms, the capacity of accreditation in the field of electronic notifications, according to the order of the Provincial Court of Madrid of December 5, 2006, while these providers ensure the integrity and authenticity of the communication, which is essential in cases of legal disputes.
In Spain, numerous rulings have confirmed the authenticity of the burofax when it is sent in accordance with the requirements established in the regulations. Courts of all jurisdictional orders have issued around 43,000 rulings in this regard during the last 5 years alone. 25,200 of these rulings are from civil matters, mainly pecuniary claims.
Specifically, MailComms Group has been named in two judgments for the relevance and implication that our accreditation as a qualified provider of electronic trust services has when considering as evidence both the documents that are sent and the delivery process. These are sentence 756/2022 of 19/10/2022 of the Provincial Court of Tarragona (Civil Section 1) and sentence 332/2021 of the Provincial Court of Barcelona, dated May 25, 2021. In this article we published on Linkedin a few days ago we told you more details.
International validity of the bureaufax and equivalent services
The burofax is a reliable and certified mailing service widely recognized in Spain. Thanks to this service, relevant documents and information are sent to recipients in the national territory but also to persons or companies domiciled in other countries.
As indicated for certified electronic deliveries, it is not known what probative value international courts might give to the bureaufax in the event of receipt in another country. In any case, there are countries that offer similar services to the Spanish burofax.
To give an example that we know well, due to our presence in your market, in Portugal there is the so-called “registered letter with acknowledgement of receipt”, provided for in the Portuguese law on the legal regime applicable to the provision of postal services.
Numerous Portuguese court rulings have granted full legal validity, equivalent to that of the Spanish burofax, to this service. For example, the North Central Administrative Court in its ruling 00325/10.7BEBRG, explains: “The notification by registered letter with acknowledgement of receipt is considered perfect as long as it is addressed to the address of the notified person, even if the notification has not been signed by the latter, and it is considered to have been made on the day on which the acknowledgement of receipt was signed”.
In conclusion
It is advisable to use certified services provided by qualified trustworthy electronic service providers, as they offer full legal guarantee for sending reliable communications between sender and recipient through different channels (certified email, bureaufax, SMS or WhatsApp). In addition, they certify the integrity and authenticity of the contents, the identity of the sender and recipient and the delivery, with the corresponding evidence.