Due to the sanitary crisis caused by Covid-19, and the consequent recommendations to keep social distancing promoted by the World Health Organization and by the Governs of the countries affected by the pandemic, it became of the utmost importance to create solutions for the execution of contracts that would not entail the parties physical presence and their handwritten signatures. In this context of digital transformation, electronic signatures take on a particularly important role.

What is an electronic signature?

  • Electronic signature means data in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign an electronic document (Regulation (EU) No. 910/2014 of the European Parliament and of the Council, of 23 July 2014 or eIDAS Regulation).

This concept covers three types of electronic signature, with different legal effects: (i) simple/standard, (ii) advanced and (iii) qualified.
Simple/standard electronic signatures are the most basic out of the three types and include realities such as PIN or a click on online acceptance procedures.

An advanced electronic signature shall meet the following requirements:

    • it is uniquely linked to the signatory;
    • it is capable of identifying the signatory;
    •  it is created using electronic signature creation data that the signatory can, with a high level of confidence, use under his sole control; and
    • it is linked to the data signed therewith in such a way that any subsequent change in the data is detectable.

In turn, a qualified electronic signature shall meet the following requirements: (i) it is created by qualified electronic signature creation devices and (ii) it is accompanied by qualified certificates, pursuant to eIDAS Regulation.

Which documents can be electronically signed?

  • As a rule, any content in electronic form, namely text/ written documents, sound, visual or audiovisual recording, can be signed by means of electronic signature. In this sense, any contracts, agreements and documents of any kind such as commercial contracts, employment contract termination agreements, Form RC 3056, issued by the Directorate General for Social Security, to trigger the “simplified lay-off” regime and the forms for bank account opening can be electronically signed.
    However, when the law or the agreement establish the need for a handwritten signature, a qualified electronic signature shall be necessary in order the ensure the validity of the same as it is the only type of signature deemed equivalent to the handwritten signature.
    Thus, it is essential to assess the most suitable electronic signature for each individual document.

What is the probative effect of the electronic signatures?

  • In what concerns the qualified electronic signature, said signature is not only the only one which is deemed equivalent to the handwritten signature but also, provided that it is issued by certified entities accredited by a national authority (the GNS), the statements included in a document with such a type of signature shall be deemed proved (without prejudice to the right to argue that the document is false).
    In what concerns all other types of signatures, including the advanced electronic signature, while these shall not be denied legal effects and are admissible as evidence in judicial proceedings, the documents containing said signatures shall be freely assessed at the court’s discretion.
    The document signed with a qualified signature provides full evidence of the statements attributed to its signatory, under article 376 of the Civil Code and Decree-Law no. 290-D/99, of 2 August.

Can I use electronic signatures in cross-border transactions?

  • In case the governing law is the national law of an EU Member State, the provisions of the eIDAS Regulation shall apply, which foresees that the qualified electronic signature based on a qualified certificate issued in one Member State shall be recognised as a qualified electronic signature in all other Member States. Outside of this scope, a case by case analysis of the agreement, applicable law thereof and the parties’ countries shall have to be carried out.

Have any exceptional measures been taken in this regard?

  • Yes, the government approved a temporary and derogatory legal provision under Decree-Law nr- 12-A/2020, of 6 April, pursuant to which the scanned copy of a document shall have the same probative value and validity of an original document (with no need for the certification of copy thereof). In fact, while the validity and probative value of the signature itself (handwritten or electronic) is not modified, this new provision established a temporary equivalence of the scanned copy of a document and its original which may be very useful to companies in remote work circumstances.

 

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This information is being updated on a regular basis.

All information contained herein and all opinions expressed are of a general nature and are not intended to substitute recourse to expert legal advice for the resolution of real cases.