Due to the ongoing healthcare emergency caused by COVID-19, signing documents is one of the many activities that became more complex as a result of the extended lockdown period.
Before the current restrictions, signing a contract by exchange of correspondence was not particularly difficult to implement, while in the current emergency scenario printing, signing and scanning a document, and later on, parceling the original document is not convenient for everyone away from the offices.
Therefore, this period seems to be the perfect opportunity to (finally) commence using the various IT solutions that our legislation offers for the electronic signing of documents; especially in Italy, these options have so far found few practical implementation, perhaps with the exception of companies that have legal relations with the public administration.
Italian law is based on the formality freedom principle: Italian Civil Code does not require the written form for the valid conclusion of deeds and agreements, except for certain cases requiring the written form (so-called "ad substantial").
IT solutions for electronic documents signing
Electronic signature is regulated at both European Union and national level, more specifically:
• The eIDAS Regulation (Regulation (EU) No 910/2014) establishing a legal framework for electronic signatures and electronic documents, sets out the fundamental and general legal principles and is directly applicable in Italy and in the other Member States of the European Union; and
• The Digital Administration Code or CAD (Legislative Decree no. 82 of 7 March 2005, as subsequently amended) and its implementing provisions, regulates at national level the use of electronic signatures and the related legal effects.
The eIDAS Regulation, whose definitions are recalled by the Digital Administration Code, distinguishes three types of electronic signature: electronic signature, advanced electronic signature and qualified electronic signature.
• Electronic signature: it is the simplest type of electronic signature, that does not require third parties to provide advanced or qualified electronic signature solutions. The eIDAS Regulation defines it as a set of data in electronic form, attached to or connected by logical association to other electronic data and used by the signatory to sign. An example of an electronic signature is the photo-reproduction of the signature on an electronic document.
• Advanced electronic signature: it is an electronic signature which meets the following requirements (i) it is linked solely to the signatory; (ii) it can identify the signatory; (iii) it is created by means of electronic signature creation data with a high level of security, that the signatory can use under his sole control; (iv) it is linked to the signed data in such a way as to allow the identification of any subsequent changes to such data.
• Qualified electronic signature: it is an electronic signature that meets the same requirements as an advanced electronic signature and in addition (i) it is created by a qualified electronic signature creation device; (ii) it is based on a qualified certificate for electronic signatures issued by a qualified trust service provider.
In addition to the electronic signatures listed above, the Digital Administration Code regulates the so-called "digital signature", that is a particular type of qualified electronic signature based on a system of cryptographic keys, including a public and a private one, each connected to each other, which allows the owner of an electronic signature through the private key, and a third party through the public key, respectively, to display and verify the origin and integrity of a digital document or a set of electronic documents. Before the eIDAS Regulation came into force, the digital signature was already used in Italy and nowadays it is the most widely used type of qualified electronic signature in Italy.
The eIDAS Regulation provides that a qualified electronic signature has equivalent legal effects to a handwritten signature and that an electronic signature (not qualified nor advanced) cannot be denied legal effects for the sole reason of its electronic form or because it does not meet the requirements for qualified electronic signatures (so-called "non-discrimination" principle of electronic documents).
Italian law is based on the formality freedom principle: Italian Civil Code does not require the written form for the valid conclusion of deeds and agreements, except for certain cases requiring the written form (so-called "ad substantiam" written form). More specifically, Article 1350 of the Italian Civil Code lists the deeds and the agreements requiring the written form (notarial deed or agreement or private agreement). These deeds and agreements can ideally be divided into two groups:
• Those listed analytically from No. 1 to No. 12 of Article 1350 of the Italian Civil Code, specifically relating to real estate transfer of ownership or transfer of rights to the same, as well as real estate lease agreements with a duration of more than nine years;
• Those referred to in No. 13 of Article 1350 of the Italian Civil Code, which generically refers to all other deeds and documents requiring written form under Italian law, including, by way of example, bank agreements, agreements with the Public Administration and employee non-competition agreements.
Notwithstanding the following about the probative effect, whenever the deed or agreement does not require the written form ad substantiam, in order to be validly executed, any form of expression of consent may be used, therefore including the simplest form of electronic signature.
On the other hand, if the deed or agreement requires the written form, under penalty of nullity, it is necessary to verify the content of the document. In this regard, the Digital Administration Code provides that:
• Except in the case where it is necessary the notarial authentication, the deeds and agreements listed from No. 1 to No. 12 of Article 1350 of the Italian Civil Code may be signed under penalty of nullity by qualified electronic signature or digital signature;
• Deeds and agreements pursuant to No. 13 of Article 1350 of the Italian Civil Code may be signed under penalty of nullity by advanced electronic signature, qualified electronic signature or digital signature.
The eIDAS Regulation provides that the admissibility of an electronic signature cannot be denied as evidence in legal proceedings for the sole reason of its electronic form.
The Digital Administration Code specifically regulates the electronic documents' probative effect, providing in particular that:
• The electronic document meets the requirement of written form and has the effect provided by article 2702 of the Italian Civil Code if it has been signed by a digital signature, qualified electronic signature or advanced electronic signature. Therefore, in such cases electronic documents provide, until a false report is filed, full proof of the declarations’ origin of the person who signed them, equivalent to a "handwritten" document signed with a handwritten signature;
• All cases not included in the previous point (such as electronic signature other than digital signature, qualified electronic signature or advanced electronic signature), the suitability of the electronic document to meet the requirement of written form and its probative force are freely assessable in court, in accordance with Article 2712 of the Italian Civil Code, in relation to the security, integrity and unchangeability features;
• Qualified electronic signature device or digital signature device shall be reliably attributed to the owner of the electronic signature, unless he provides evidence to the contrary.
The Digital Administration Code also regulates a procedure for the electronic documents creation, that does not require an electronic signature and, subject to certain conditions, has the same legal and probative effect of an advanced signature.
In fact, the Digital Administration Code provides that the electronic document meets the requirement of written form and has the effect provided for by Article 2702 of the Italian Civil Code even when drafted, after computer identification of its author, through a process that meets the requirements set by the Digital Italy Agency (AgID) pursuant to Article 71 of the CAD, in such a way as to ensure the security, integrity and unchangeability of the document and, clearly and unequivocally, its referability to the author.
However, it should clarify that the eIDAS Regulation does not include this perfection method and, consequently, does not benefit the principle of "non-discrimination" of electronic documents at Communitarian level.
Below it is given a comparative table to summarise how electronic documents are processed and their legal implications, both in terms of agreement validity and effect of the evidence.