Energy acquisition under Royal Decree 88/2026: identification, information and ability to provide evidence

The adoption of Royal Decree 88/2026 of 11 February significantly strengthens the guarantees governing the contracting of electricity supply with consumers.

Although the Regulation governs various aspects of the electricity market, one of its most relevant implications for suppliers is related to customer registration processes, where standards are raised in three key areas:

• the identification of the contract holder,
• proof of the sending of the preliminary summary document, and
• the preservation of evidence of consumer consent.

In practice, the new regulatory framework shifts the focus from mere information to the consumer to the ability to legally justify each step of the contractual process.

1. Strengthening the principle of supply ownership

The Regulation is based on the principle that the supply contract is personal and must correspond to the actual user of the energy. This implies that suppliers must adopt mechanisms that allow for the proper verification of the identity of the applicant and their relationship with the supply point.

In this context, the Regulation requires that, in contracts with individuals, the supplier collects and retains information that allows for the correct identification of the user.

Furthermore, the Regulation introduces a significant time limit: the information used to identify the user must have been obtained no more than thirty days before the signing of the contract.

This requirement necessitates a review of remote contracting processes, particularly through digital, telephone, or intermediary channels.

2. Prior sending of the summary document and confirmation of its receipt

Royal Decree 88/2026 establishes that before formalising the contract, the consumer must receive a separate summary document from the contract, detailing the essential terms of the offer.

This document must be presented in clear and understandable language and must include information such as:

• the identity of the contract holder,
• the address and CUPS of the supply point,
• financial conditions of the offer,
• any penalties for early termination.

However, the really innovative element is that the regulation requires proof of the time at which the document was made available to the consumer.

In particular, the supplier must retain:

• proof of the time at which the document was sent, or
• where applicable, proof of the time at which the consumer read it.

This turns the summary document into a preliminary and mandatory step of proof in the contracting process.

3. Documentation that proves consumer consent

The Regulation states that the trader must retain, on a durable medium, certain documentation related to the contracting process. This documentation constitutes proof of the consumer's real consent.

The documents that must be retained include:

• information that allows the identification of the user,
• proof of the sending or reading of the summary document,
• the completed and signed contract by the consumer,
• where applicable, the complete recording of the call in which the contract was concluded by telephone.

Moreover, when the contract is concluded by telephone, the recording must be made available to the consumer upon request.

4. Recognition of the value of trust services

The Regulation also introduces a relevant provision from the perspective of electronic contracting: The obligation to retain identification information of the user will not apply when:

• the contract is signed using the consumer's electronic signature certificate, or
• the contract is confirmed by electronic means, including a certificate from a trusted third party.

This provision represents an explicit recognition of the value of trusted electronic services as mechanisms for verifying identity and consent in contracting processes.

5. A paradigm shift: from consumer information to the ability to demonstrate that the contract has been concluded

From a legal perspective, the most significant change introduced by Royal Decree 88/2026 is the following: while before it was enough to inform the consumer, now it is necessary to be able to demonstrate that each stage of the contractual process has been carried out correctly.

Providers must be able to demonstrate, in the event of a claim or dispute:

• who requested the contract,
• when the precontractual information was sent,
• when and how the terms and conditions were accepted,
• and what documentation proves consent.

This requires registration processes to allow for the retrospective tracking of the entire contract history.

The impact of Royal Decree 88/2026 is not limited to introducing new documentation requirements, but represents a shift towards robust contractual processes in terms of evidence, where each phase must be reliably verifiable at a later date.

In this context, trusted electronic service providers assume particular importance, as their solutions allow for the structuring of contracting processes that generate reliable electronic evidence of the contractual process.

In fact, the Regulation itself explicitly provides for the intervention of trusted third parties as a valid mechanism to verify certain elements of the contracting process, such as the identity of the user or the electronic confirmation of the contract.

Trusted electronic services allow, among other things:

• to verify the identity of the service provider,
• to certify the sending or access to the precontractual summary document,
• to obtain the consent of the consumer through electronic signature or other electronic acceptance mechanisms,
• to generate and retain verifiable electronic evidence of the contracting process.

Furthermore, it is worth noting that providers of trusted electronic services constitute a regulated sector, subject to supervision in accordance with the eIDAS Regulation and applicable national legislation.

For this reason, providers operating in Spain must be included in the official list of supervised providers, managed by the Ministry of Digital Transformation and Public Function. This register allows verification of which entities offer trusted services in the market and under what regulatory conditions.

The official list of supervised providers is publicly available at the following link: https://sedeaplicaciones.minetur.gob.es/Prestadores/Inicio.aspx

The use of these services allows providers to structure contracting processes in order to simultaneously meet the requirements of the new regulatory framework, reinforce the legal security of the process, and facilitate the verification of consumer consent in the event of a claim or dispute.

Comparison: traditional process vs process according to RD 88/2026

Informational note prepared by the Data Protection Department of ECIJA Madrid.