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New extension of the mandatory implementation of e-government
La Law 39/2015, of October 1, of Common Administrative Procedure of Public Administrations (LPACAP) It has introduced, as a novelty, the obligation of certain subjects to electronically interact with the Public Administrations in carrying out any procedure of an administrative procedure. Among the obliged subjects are legal entities (art. 14.2.a).
On the contrary, natural persons are not covered by this obligation, which can at any time choose the means of communication (electronic or not) that they want to use in their relations with the Administrations (art. 14.1). This exclusion would be consistent with the differences that may exist in access to electronic media in society as a whole (digital divide).
However, the Law is aware that there are certain groups within the field of natural persons who may have capacity in the use of electronic means. It is foreseen that this possibility of election may become an obligation by regulatory means, when those have (1) access and (2) availability of means for that purpose.
This is established by the LPACAP in a general way (art. 14.3) and also in a specific way, for the field of presentation of documents (art. 16.5) and electronic notifications (art. 41). That forecast is the same as the repeal set out Law 11/2007, of June 22, electronic access of citizens to public services (Art. 27.6).
At this point we ask ourselves whether or not based on Law 39/2015 the group of self-employed workers is obliged to use electronic means, as it already has, with nuances, in the tax or social security.
In this sense, it must first be borne in mind that in accordance with Art. 1.1 of the Law 20/2007, of July 11, on the Statute of self-employment, freelancers are generally defined as natural persons. With regard to the use of electronic means, neither the Statute, nor the Royal Decree 197 / 2009 who develop it, establish forecasts for the purpose.
On the other hand, it should also be borne in mind that freelancers are a collective sui generis. This fact has caused, for example, that in the area of social security and by means of regulatory rule (1) only obliged to receive electronic notifications and communications to certain self-employed workers, leaving the freelance workers own that do not have the status of entrepreneurs and those of the agricultural sector and the sea. In other words, in the use of electronic media, it seems that not the whole collective could be treated as a homogeneous whole.
However, in the tax field, the approved regulations did require the entire self-employed group to submit certain self-assessments and declarations (2) by electronic means and to receive notifications and electronic communications under certain circumstances (3). In other words, in tax matters, what determines the obligation to use electronic means is not, in the case of the self-employed, the type of subject, but the type of declaration and / or settlement to be submitted or the concurrent circumstances.
Lastly, we must keep in mind that in accordance with Law 39/2015, a regulatory norm that develops the provisions of its art is required. 14.3 to expand the subjects required to interact electronically in the field of natural persons.
In conclusion, considering that freelancers are generally defined as natural persons and that we are facing a heterogeneous group, we understand that for the purposes of Law 39/2015 and while there is no regulatory development, this group should to be considered as natural persons, while being able to opt for the use of electronic means in their relations with the Public Administrations, without prejudice to the provisions established for this purpose by the specific sectoral regulations.
(1) Order ESS / 485/2013, of March 26, which regulates notifications and communications through electronic means in the field of Social Security, dictated by developing art. 27.6 of Law 11/2007, of June 22, electronic access of citizens to public services.
Vine. art. 3 of Order ESS / 485/2013, in relation to art. 2 of Order ESS / 484/2013, of March 26, regulating the electronic data transfer system (RED) in the field of Social Security.
(2) Vine arts. 3 and 13 of Order HAP / 2194/2013, of 22 November, which regulates the general procedures and conditions for the presentation of certain liquidations and declarations (version modified by Order HAP / 2762/2015, of December 15).
(3) Vine art. 4.2 of Royal Decree 1363/2010, of October 29, regulating the cases of mandatory administrative notifications and communications by electronic means in the field of the State Agency of the Tax Administration