On March 31, Royal Decree 203/2021, of March 30, was published in the BOE, which approves the Regulations for the action and operation of the public sector by electronic means.
According to its statement of reasons, the R.D. 203/2021 aims to improve administrative efficiency to make a fully electronic and interconnected Administration effective, increase the transparency of administrative action and the participation of people in the Electronic Administration, guarantee easily usable digital services and improve legal security.
The R.D. 203/2021 repeals Royal Decree 1671/2009, of November 6, which partially develops Law 11/2007, of June 22, on electronic access of citizens to public services, adapting the regulation of this matter to the framework contained in Law 39/2015, of October 1 and Law 40/2015, of October 1.
The most important points that are regulated in this Regulation are the following:
1) Right and obligation to relate electronically with Public Administrations.
The art. 3 of the Regulation reiterates the obligation (already included in article 14.2 of Law 39/2015) that legal entities have to relate electronically with Public Administrations. As for natural persons, in general the electronic relationship with Public Administrations is voluntary. However, mandatory regulations may be established by public administrations.for certain procedures and for certain groups of natural persons who, due to their economic, technical capacity, professional dedication or other reasons, it is proven that they have access to and availability of the necessary electronic means”.
2) Electronic General Access Point.
All Public Administrations must have an electronic General Access Point (PAGe), from where “Access to the services, procedures and information of the bodies, public organizations and entities linked to or dependent on the corresponding Public Administration will be facilitated.“The PAGe will have an electronic headquarters, through which it will be possible to access all the electronic headquarters and associated headquarters of the corresponding Public Administration.
In the scope of the state public sector, access to a personalized area called the Citizen Folder may be included in the PAGe, from which certain functionalities may be offered to the interested party or their representative, such as checking the processing status of the procedures in which they are interested, accessing their communications and notifications, knowing the data held by the state public sector (with the limitations established in the applicable regulations) or facilitating the obtaining of administrative certifications.
3) Electronic offices.
The R.D. 203/2021 regulates the creation and deletion of electronic offices, which constitute the electronic address available to citizens through telecommunications networks and whose owner is a Public Administration, or one or more public organizations or public law entities within the scope of their powers. Likewise, it is established that for technical or organizational reasons one or more associated electronic offices may be created, which will be considered an electronic office for all purposes. The minimum content of electronic offices is regulated, the minimum services that must be available, and the responsibility of the owner of the office or associated office regarding the “integrity, veracity and updating of the information and services within its jurisdiction that can be accessed through it.”
4) Administrative procedure by electronic means.
The R.D. 203/2021 regulates various issues related to the processing of the administrative procedure by electronic means.
Article 13 develops the possibility provided for in article 41 of Law 40/2015 that the electronic processing of an administrative action can be carried out in an automated manner.
On the other hand, the correction regime is regulated:
•In the case of a person obliged to interact electronically who has not used electronic means, he or she will be required to proceed with its correction within a period of 10 days. If this requirement is not met, your application will be considered abandoned or your right to the corresponding procedure may be declared waived. If it is a request for initiation, the date of correction will be considered the date of submission of the request.
•If the formats and standards that have been established to present a document are not met, the interested party will be required to correct the defect within 10 days, otherwise it will also be understood that they have withdrawn their request or that their right to the procedure has waived.
•If it is any other defect, the ten-day period may be extended for another five days both at the request of the interested party and at the initiative of the body when the provision of the required documents presents special difficulties, provided that they are not selective or competitive procedures.
5) Identification and authentication of Public Administrations and interested persons.
to. Electronic identification systems: will be admitted “electronic signature systems that comply with the provisions of current regulations on electronic signatures and are adequate to guarantee the identification of the interested parties and, where appropriate, the authenticity and integrity of the electronic documents” Specifically, article 15 establishes the electronic identification systems that administrations can use for their electronic identification and to guarantee the origin and integrity of electronic documents, as well as the identification and signature systems that interested persons can use. For the latter case, systems based on qualified electronic certificates of electronic signature issued by providers included in the “Trusted list of qualified trust service providers“, systems based on qualified electronic certificates of electronic seal issued by providers included in the “Trusted list of qualified trust service providers” and concerted key systems and any other system that the Public Administrations consider valid.
Likewise, they must contain as attributes, in the case of natural persons: name and surname, and their D.N.I., N.I.E. number. or N.I.F.; In the case of legal entities: the name and N.I.F. and the name and surname and D.N.I., N.I.E. or N.I.F. of the person acting as representative.
On the other hand, in the field of the General Administration of the State, there must be a platform for the verification of the validity and content of the qualified certificates admitted in the public sector, verification that can be carried out freely and free of charge.
b. Accreditation of representatives, Electronic Registry of Powers of Attorney and particular records of powers of attorney: Articles 32 et seq. regulate the accreditation of representatives who interact electronically with public administrations.
Public administrations may generally or specifically authorize natural or legal persons authorized to carry out certain transactions by electronic means on behalf of the interested parties.
Likewise, the Electronic Registry of Powers of Attorney of the General Administration of the State is regulated: the general powers granted will be registeredapud act, in person or electronically, the powers to act before the General Administration of the State or before a public body or entity under Public Law linked to or dependent on it that does not have a particular electronic registry of powers and the powers granted to carry out certain procedures and actions specified in the power before the bodies of the General Administration of the State or before a public body or entity under public law linked to or dependent on said Administration that does not have the aforementioned particular registry.
Without prejudice to this general registry of powers, each public body or public law entity linked to or dependent on the General Administration of the State may have a particular registry of powers.
6) Electronic records.
Public Administrations will have electronic records for the reception and forwarding of requests, writings and communications. These records must be fully interoperable. Thus, each Administration will have a General Electronic Registry. Public bodies and public law entities linked to or dependent on each Administration may also have their own electronic registry that is fully interoperable and interconnected with the General Electronic Registry of the Administration to which they are linked or on which they depend.
Public Administrations may determine the formats and standards to which the documents presented must comply as long as they comply with the provisions of the National Interoperability Scheme and the applicable regulations.
When the size of the registered documents exceeds the capacity determined for the Registry Interconnection System (SIR), the referral to the Administration or body to which they are addressed may be replaced by the making available of the documents, which will be previously deposited in a file exchange repository.
7) Electronic communications and notifications.
to. Notifications by electronic means: will be carried out by appearing at the electronic headquarters or associated electronic headquarters, through the single Enabled Electronic Address or through both systems, as provided by each Administration, public body or linked or dependent public law entity. If both systems are used, for the calculation of deadlines and other legal effects, the date and time of access to the content or the rejection of the notification by the interested party or their representative in the system in which it occurred first will be taken. Notifications at the state level must be carried out through the single Enabled Electronic Address. Likewise, in a complementary manner, it may be notified at its electronic office or associated electronic office.
Even if it is an interested party who is not obliged to interact electronically with the Public Administrations or who has not communicated that notifications are being made by electronic means, his or her voluntary appearance or that of his or her representative at the electronic headquarters or associated headquarters or through the single Enabled Electronic Address, and the subsequent access to the content of the notification or the express rejection of it will have full legal effects.
b. Cases of succession in a procedure: the person or entity that succeeds the interested party in a procedure whose existence is known will have the obligation to communicate the succession to the Public Administration to which its processing corresponds, within a period of 15 business days from the day following the effective date of the succession or from the registration of the death in the Civil Registry, in the case of the death of a natural person. If the successor person or entity makes the communication after said period, the defects in the notification practice that arise from this non-compliance, and that have been made prior to said communication, will be attributable to the interested party.
c. Informative notice: in the event that an electronic device or email address has been communicated to the Administration, regardless of whether the notification is made on paper or by electronic means, it is established that the administration will send the interested party or, where applicable, their representative, a notice informing them of the notification being made available either at the single Enabled Electronic Address, or at the electronic headquarters or associated electronic headquarters of the Administration, or Body or Entity or, where applicable, in both. This notice is merely informative and failure to comply with it will not prevent the notice from being considered fully valid.
When the interested party is a subject obliged to interact by electronic means and the Administration issuing the notification does not have electronic contact information to carry out the notification of its making available, in procedures initiated ex officio the first notification made by the Administration, agency or entity will be made on paper.
Administrations may create electronic contact databases for the practice of making notifications available in their respective scope.
8) Other provisions.
to. Situation of the electronic offices and electronic sub-offices at the state level existing at the entry into force of the R.D. 203/2021 (D.A.6ª): they become associated electronic headquarters of the electronic headquarters of the General Administration of the State, which is the headquarters of the General Electronic Access Point (PAGe) of the General Administration of the State, without the need to modify its creation instrument. The existing electronic sub-offices will also become associated electronic offices. The electronic headquarters of linked or dependent public organizations or public law entities will maintain their nature as electronic headquarters. The electronic sub-offices will become associated electronic offices.
b. Destruction of documents in non-electronic format.(D.T.1ª): Two years have passed since the entry into force of the R.D. 203/2021, documents in non-electronic format that are in the registration assistance offices and of which an electronic copy has been obtained may be eliminated in the terms established in R.D.203/2021.
c. Existing internet portals (D.T.2ª): within a maximum period of one year from the entry into force of RD 203/2021, a Resolution of the Secretary General of Public Function will be published in the PAGe of the General Administration of the State, which will include the list of active internet portals of the General Administration of the State and the public bodies or public law entities linked to or dependent on it.
The R.D. 203/2021, of March 30, approving the Regulations for the action and operation of the public sector by electronic means, came into force on April 2, 2021.
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The content of this Alert is for informational purposes only. Any decision or action based on its content must be subject to appropriate professional advice.
