Timbre electrónico notarial
Introduction
The evolution of the Spanish Notarial system has reached a turning point with the entry into force of Law 11/2023, of 8 May, which transposes European Union Directives regarding the digitalisation of notarial and registry procedures. This legislation not only represents a technological advancement, but also a reconfiguration of the foundations upon which preventive legal certainty in Spain is based. The transition from paper-based records to a digital environment has brought with it the need to adapt long-standing tax concepts, such as the Stamp Duty on Documented Legal Acts (AJD) in its fixed-fee modality, to the reality of bits and digital files.
This article aims to examine the practical and legal aspects of the new “electronic stamp”, recently regulated by Order HAC/305/2025, of 27 March, and to analyse how this regulation impacts the daily operations of notary offices, the taxation of the parties involved, and the very nature of public documents.
The Electronic Protocol: A New Document or a Digital Reflection?
One of the pillars of the reform is the amendment of Article 17 of the Notarial Act, which establishes the creation of the electronic protocol. According to section 2 of that provision, the originals of public instruments shall have a digital counterpart under the authority of the notary, and these instruments incorporated into the electronic protocol shall likewise be regarded as originals or protocol records.
However, an important doctrinal debate arises: are we witnessing the creation of new types of documents or merely a duplication of formats? While Order HAC/305/2025 refers to the creation of “new documents or instruments” (the electronic original record folio and the electronic authorised copy folio intended for third parties), the prevailing opinion maintains that the law simply introduces a digital version of the protocol that already existed. It is essential to note that, pursuant to Article 17.2 of the Notarial Act, in the event of any discrepancy between the content of the paper original and the electronic protocol, the paper version shall prevail. This hierarchy highlights that the electronic document is born as a reflection of the physical one, albeit with full validity for legal transactions.
The integrity of this electronic protocol remains under the custody of the notary, but it is deposited in encrypted form with the General Council of the Notariat, which must adopt the technical measures necessary to guarantee its integrity and prevent any manipulation. This dual-support system seeks to combine the efficiency of digitalisation with the historical guarantee provided by paper preservation.
The Electronic Authorised Copy and the Concept of “Third Party”
The regulation of the electronic authorised copy has undergone significant development. Article 17 bis of the Notarial Act allows the notary to issue authorised copies with a qualified electronic signature under the same conditions as paper copies. However, Order HAC/305/2025 introduces a distinction that is not expressly included in the law: the “electronic authorised copy intended for a third party”.
This concept has attracted criticism due to its apparent lack of legal basis, since Law 11/2023 does not distinguish between recipients for the purposes of the nature of the document. The purpose of this distinction in the Order appears to be purely revenue-related, aimed at justifying the application of the electronic stamp to copies that are not addressed to other notaries, registrars or public administrations (which already had a consolidated electronic transmission regime under Law 24/2001).
It is important to remember that, according to Article 31 of the Notarial Act, the notary must include a Secure Verification Code (CSV) in the electronic authorised copy. This technical tool allows the grantor or the third party to verify the authenticity and integrity of the document through the Notarial Electronic Office, ensuring that the digital document in circulation is a faithful reflection of the original record held in custody.
The Taxation of the Electronic Stamp: The Fiction of the Folio
The most innovative and practical aspect for citizens is the application of the fixed AJD fee to electronic documents. The Directorate-General for Taxes, in its report of 29 November 2023, confirmed that deeds, notarial records and certifications, whether issued on paper or in electronic format, are subject to this tax.
Amounts and Legal Fiction
State and regional legislation sets the stamp duty amount at 15 euro cents per folio, with the exception of Álava, where it rises to 30 cents. Here lies the great paradox: a digital file has no folios. To overcome this technical obstacle, a legal fiction has been created: the number of electronic folios will be calculated as if the document were printed on paper using the standardised format.
Taxpayer and Cost Allocation
According to Article 29 of the Consolidated Text of the ITP and AJD Act, the taxpayer liable for the tax is the person granting the document. In notarial practice, this is reflected in two separate items on the invoice:
The stamp duty amount (€0.15 or €0.30 per folio): it is included in the notarial invoice as a disbursement. As it is a tax collected by the notary on behalf of the Administration, VAT does not apply to it.
The cost of generating the stamp (€0.01 per folio): this is a fee charged by the National Mint and Stamp Factory (FNMT) to the General Council of the Notariat for the technical management of the system. This amount will be included in the notarial invoice as a notary’s expense and is therefore subject to VAT.
This breakdown is essential for transparency towards the client, who must understand that they are paying both the tax and the cost of the technological service that enables the immediacy of the digital document.
Security and Case Law in the Digital Environment
The implementation of these systems has not been free from litigation. Case law has had to validate the mandatory use of electronic means and the standing of professional bodies to challenge or defend these regulations. For example, the Supreme Court Judgment 64/2009 already addressed the standing of professional associations in relation to reforms of the Notarial Regulations, emphasising that the incorporation of information technology seeks to enhance «preventive legal certainty» and improve productivity.
Likewise, the Judgment of the High Court of Justice of the Canary Islands 176/2014 highlighted that the Tax Administration has the authority to determine the cases in which electronic filing is mandatory, which is consistent with the current requirement for notaries to submit indexes and information with tax implications in an automated manner, as provided for in Article 17.3 of the Notarial Act.
Regarding access to information, the Resolution of the Directorate-General for Legal Security and Public Faith of 4 October 2022 recalls that the confidentiality of the notarial protocol is the general rule, and that access to copies (whether physical or electronic) always requires proof of a legitimate interest.
Conclusion
The arrival of the electronic stamp and the digital protocol is not merely a change of format, but a necessary adaptation of the Notarial system to the information society. Although regulations such as Order HAC/305/2025 introduce legal fictions such as the “electronic folio” or debatable figures such as the “copy for third parties”, the ultimate objective is to ensure that public faith continues to be the stronghold of legality in a globalised and digital world.
For legal professionals, the key lies in the proper management of these new costs and in making use of tools such as videoconferencing (regulated under Article 17 ter of the Notarial Act) for corporate acts or powers of attorney, always under the premise that technology serves the law and not the other way around. Legal certainty, now also in electronic format, remains the supreme value that the notary must safeguard, ensuring that every bit of information enjoys the same presumption of authenticity and integrity as the stamped paper of the past.
