eIDAS and ADR: keys to electronic proof of pre-negotiation in certain civil and commercial proceedings

1. Context and purpose 

On the occasion of the entry into force on 23 April 2025 of Organic Law 1/2025, of 2 January, on measures for the efficiency of the public justice service, the Madrid Courts of First Instance approved at their Meeting of 26 September 2025 some guiding criteria on the requirement to have attempted prior negotiation through an appropriate means of dispute resolution (ADR) before initiating civil judicial proceedings. The document clarifies, among other aspects, which means are valid for documenting prior negotiation activity, an issue of particular practical relevance in view of the doubt about the use of electronic communication and notification tools.

2. General principle: admissibility of electronic media

As a general principle, the judges in Madrid expressly recognise that the accreditation of the attempt to negotiate can be made by electronic means, provided that these enable the following to be demonstrated:

• The clear identification of the parties, so that the sender and the addressee of the communication coincide in the future as plaintiff and defendant.
• The effective formulation of an invitation or proposal to negotiate.
• The identity of the object negotiated with the object of the claim.
• The certain date of sending and receipt.
• Evidence of receipt by the addressee is generated, and mere forwarding is not sufficient.

Of all these criteria, it is the irrefutable proof of receipt by the other party of the invitation to negotiate that is the decisive element in proving compliance with this legal obligation. It is not enough to prove that a communication has been sent; it is essential to prove that it has been received by the addressee.

In the opinion of the courts, the lack of receipt by the addressee because, after it has been made available, the latter has rejected the communication or has not picked it up, is equivalent to its having been received.

On the other hand, non-delivery due to a lack of knowledge of the addressee's address, incorrect address or change of address will not be considered as valid in order to fulfil the requirement. In this way, the judges in Madrid rule out as valid generic mass mailings, unilateral communications that are not answered or those that do not allow verification of the availability and individualised receipt or the rejection of the notification by the addressee.

With regard to the means considered suitable for accrediting this requirement of admissibility, the document of the Madrid District Court explicitly mentions that it admits the use of burofax, "buromail", "buroSMS", email, SMS, WhatsApp and also opens a catch-all by indicating that "other means of instant messaging may be admitted as long as they offer proof of receipt, a trusted third party has intervened and the parties have stipulated them as the usual means of communication".

In this scenario, by indicating the intervention of a trusted third party, the judges, as could not be otherwise, are recognising as admissible the trusted electronic services of certified electronic delivery in accordance with Regulation (EU) No 910/2014 eIDAS, something which, on the other hand, is already recognised both by the eIDAS Regulation itself and by part of our own Civil Procedure Act.

But are these services admitted in their qualified and unqualified form? Certainly, the document analysed does not make this clear; however, in the following section we will analyse the matter.

3. Validity of electronic certified delivery services for the purpose of proving ADR 

Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2024 on electronic identification and trust services for electronic transactions in the internal market, as amended by Regulation (EU) No 1183/2024 of 11 April 2024 as regards the establishment of a European framework for digital identity (hereinafter eIDAS Regulation), regulates electronic certified delivery services (ERDS - Electronic Registered Delivery Services), distinguishing between two modalities:

• Qualified Electronic Registered Delivery Services (QERDS): Those services that are offered by an accredited and supervised Qualified Trust Service Provider, which guarantees the integrity of the data transmitted, ensures with a high level of reliability the identification of the sender and the identification of the receiver of the communication and the proof of the date and time of sending and receipt, as well as the eventual modification of the data, with legal effects equivalent to those of a certified postal notification with acknowledgement of receipt (articles 43.2) and article 44 of the eIDAS Regulation).
• Unqualified electronic delivery services (ERDS): they offer similar functionalities to the qualified service, but without the automatic recognition of enhanced legal effects that the Civil Procedure Act grants them, their probative value depending on the judicial assessment of the means used and the technical evidence provided (Article 43(1) of the eIDAS Regulation).

As established in Article 43 of the eIDAS Regulation, both modalities of the certified electronic delivery service are recognised as having legal effects and are admissible in the Spanish legal system as evidence in judicial proceedings of any nature, not only civil.

Likewise, Article 326 of the Civil Procedure Act recognises the differentiated evidentiary effectiveness that they possess. In this sense, qualified services have enhanced evidentiary effectiveness, because they enjoy legal presumption of accuracy and authenticity and their use reverses the burden of proof in the framework of dispute settlements. Whereas unqualified trust services have less probative value and their effectiveness depends on the quality of the technical evidence generated by the service .

In the light of the criteria of the Madrid Courts, it can be concluded that qualified electronic certified delivery services are fully valid and highly recommendable for proving compliance with the procedural requirement of ADR, given that:

• By design they comply with all the elements required by the judges and offer absolute certainty since they reliably identify the sender and recipient, guarantee the integrity of the content, unequivocally establish the exact time of sending and receipt by means of qualified time stamps and, most importantly, reliably accredit receipt.
• Their use guarantees a presumption of authenticity and veracity in accordance with art. 43.2 of the eIDAS Regulation and Spanish trust services regulations, which places them on a par with bureaufax or buromail.
• Moreover, their electronic medium satisfies the requirement that the documents must precede the demand and prove the effective receipt of the invitation to negotiate.

On the other hand, with regard to non-qualified certified electronic delivery services, even if this document does not contain an express pronouncement by the judges, they can also be considered valid, although their effectiveness will depend on the quality of the technical evidence generated by the service.

In particular, with regard to the guarantees offered on the identification/authentication mechanisms of the sender and the recipient with at least "substantial" levels of security and reliability in accordance with Implementing Regulation 1502/2015, as well as the use of time stamps, traceability records, logs, metadata and that the effective receipt by the recipient is demonstrated.

In both cases, we understand that the use of these services exceeds the threshold required by the Madrid judicial criteria, which require a means of accrediting the identification of the parties without specifying specific criteria in this regard, formulation, receipt and object of the negotiation, without limiting the format or imposing physical support.

4. Practical conclusion

The use of electronic means, and especially of qualified electronic certified delivery services, constitutes a fully valid and legally secure way of complying with the obligation to attempt pre-dispute settlement prior to bringing an action. Qualified services offer the highest degree of legal certainty, comparable to a bureaufax or notarial deed, by providing certified technical evidence with enhanced probative value in court.

Non-qualified services or ordinary electronic means (e-mail, instant messaging, online platforms) may also be admissible, provided that they guarantee the effective receipt and integrity of the content, preferably with the support of a trusted third party.

The use of qualified electronic certified delivery services is therefore highly recommended, as they meet all the requirements for ADR and provide legal certainty, European interoperability and full functional equivalence with traditional means, as well as a presumption of legality.

Information note prepared by the Privacy and Data Protection and Litigation Department of ECIJA Madrid.