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eSignature Legality in Italy

Classification of Law – Civil Law

Civil law systems are based on concepts derived from old Roman law, distinguishable by their reliance on having a comprehensive set of rules and principles codified and easily accessible to both citizens and legal professionals. Codified laws are regularly revised to reflect the current environment, and have stronger emphasis in civil law countries than any precedent set by earlier court cases. Civil law countries cover more than 65% of world’s legal system, including the majority of continental Europe, Central and South America, the Middle East, Asia and Africa.

eSignature Legality Summary

Under Italian law, a written signature is not necessarily required for a valid contract – contracts are generally valid if legally competent parties reach an agreement, whether they agree verbally, electronically or in a physical paper document (Sec. 1321 of the Italian Civil Code). To prove a valid contract, parties sometimes have to present evidence in Court. Leading digital transaction management solutions can provide electronic records that are admissible in evidence under Section 2697 and Section 2702 of the Italian Code of Civil Procedure, to support the existence, authenticity and valid acceptance of a contract.

In addition, Regulation (EU) No 910/2014 on electronic identification and trust services for electronic transactions in the internal market (the “eIDAS Regulation”) came into force on 1 July 2016. The eIDAS Regulation repealed and replaced the e-Signatures Directive (1999/93/EC) and is directly applicable in the 28 member countries of the European Union.

The eIDAS Regulation is technology neutral and defines three types of electronic signature (SES, AES, QES). Article 25(1) provides that an electronic signature shall not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in an electronic form or does not meet the requirements of a QES. Articles 25(2) and (3) give a QES the same legal effect as a handwritten signature and ensure that a QES recognized in one Member State of the EU is also recognized in other Member States. Finally, Recital 49 allows national law to set requirements regarding which type of electronic signature may be required in which circumstances.

Use Cases for Standard Electronic Signature (SES)

Use cases where an SES is typically appropriate include:

  • HR documents, such as regular employment contracts, non-disclosure agreements, employee invention agreements, privacy notices
  • commercial agreements between corporate entities, including non-disclosure agreements, purchase orders, order acknowledgements, invoices, other procurement documents, sales agreements, distribution agreements, service agreements
  • consumer agreements, including new retail account opening documents, sales terms, services terms, software licenses, purchase orders, order confirmations, invoices, shipment documentation, user manuals, policies, but excluding consumer loan agreements
  • software license agreements
  • licenses of intellectual property, including patent, copyright and trademark
  • intangible property transfers, including patent and copyright assignments

Use Cases for Other Types of Electronic Signature (e.g. Digital Signature, AES[1], QES[2])

Use cases where an electronic signature other than SES may be required include:

  • QES – contracts that transfer real estate properties’ ownership
  • QES – contracts that constitute, modify or transfer the right of usufruct of real estate properties, surface rights, the right of the grantor or tenant
  • QES – contracts that constitute or modify the right of use and the right to housing
  • QES – contracts for the enfranchisement of the fund leased
  • QES – contracts for anticresi
  • QES – leases of real estate properties for a period longer than nine years
  • QES – contracts for the corporation or association with which the parties confer the fruition of real property right for a period longer than nine years or for an indefinite period
  • QES – acts of division of real estate property rights

Use Cases That Are Not Appropriate For Electronic Signatures

Use cases that are specifically barred from digital or electronic processes or that explicitly require handwritten (e.g. wet ink) signatures or formal notarial process.

  • Formal notarization – contracts to purchase or transfer real property, or rights relating to it (Sec. 1350, Italian Civil Code)
  • Formal notarization – certain contracts disposing of corporate assets (Sec. 1350, Italian Civil Code)
  • Formal notarization – settlement agreements relating to disputes over the transfer of real property or disposal of corporate assets (Sec. 1350, Italian Civil Code)
  • consumer loan agreements

[1] An AES is an “advanced electronic signature”, a type of electronic signature that meets the following requirements: (a) it is uniquely linked to the signatory; (b) it is capable of identifying the signatory; (c) it is created using means that are under the signatory’s sole control; and (d) it is linked to other electronic data in such a way that any alteration to the said data can be detected.

[2] A QES is a specific digital signature implementation that has met the particular specifications of a government, including using a secure signature creation device, and been certified as ‘qualified’ by either that government or a party contracted by that government.

Local Technology Standards

As a Tiered eSignature Legal Model country, Italy supports the concept of a QES (Qualified Electronic Signature), requiring independent accreditation for those signatures by an approved certification body. While QES is only legally required for limited types of transactions, as previously discussed, Italy as a member of the European Union, follows ETSI (European Telecommunications Standards Institute) standards to define the technical requirements for a QES. In compliance with the EU Directive 1999/93/EC on Electronic Signature, Italy maintains a publicy accessible listof supervisory bodies for qualified certificated providers together with other countries in the European Union. Italy also has the distinction of allowing for fully remote (i.e. non-card based) qualified electronic certificates, which opens up additional cloud and mobile-based QES signing scenarios.