Electronic & Digital Signatures in Italy

Legislation

When it comes to Italian law, a handwritten or wet signature isn’t necessarily needed for a contract to be valid. Contracts are generally seen to be valid in the case that parties who are legally competent reach an agreement, be it verbal, electronic, or on a paper document. In order to prove that a contract is, in fact, valid, parties may have to present evidence in court. 

Further to this, the eIDAS Regulation came into play on 1 July 2016 and the Italian Legislative Decree No. 82, which was dated 7 March 2005 (also known as the Italian Digital Administration Code or CAD) was updated to implement the eIDAS Regulation. The eIDAS Regulation both repealed and replaced the e-Signatures Directive (1999/93/EC) and is directly applicable in the 28 Member States of the European Union (EU).

Even though the CAD is mainly in existence to regulate public administration, there are some of its provisions (including the ones relating to electronic signatures and documents) that also apply to individuals and businesses. It should also be noted that there are other regulations that govern electronic signatures in Italy beyond the CAD and eIDAS regulations. They are as follows: 

• Presidential Decree of the 22 February 2013: Technical rules on advanced electronic signatures, qualified electronic signatures, and digital signatures

• Agenzia per l’Italia Digitale (AgID): Technical rules and recommendations relating to the generation of qualified electronic certificates, qualified electronic signatures and seals, and qualified electronic time stamps

• Technical rules for the electronic signature of documents pursuant to article 20 of the CAD: This regulates how service providers (both public and private) can use the Italian Public Digital Identity System to sign documents electronically

Electronic Signing of Documents in General

The eIDAS Regulation, as in other EU Member States, classifies three different types of electronic signature, including simple electronic signatures (SES), advanced electronic signatures (AES), and qualified electronic signatures (QES). eIDAS says that electronic signatures should not be denied any legal effect or evidential admissibility in a legal setting, based only on the fact that it is in electronic format or doesn’t measure up to the requirements of a qualified electronic signature. A QES is assigned the same legal weight as a handwritten or wet signature and the law dictates that a QES that is recognized in one EU Member State should also be recognized in others. 

These are the four different types of electronic signatures that are available and permissible in Italy: 

Simple or “Standard” Electronic Signatures

These signatures are structured by way of the use of various technologies, like the link between a username and a password, or a scanned ink or handwritten signature. 

Advanced Electronic Signatures

This type of signature is structured by way of using token devices (or one-time password tools) and graphometric signing systems. 

Qualified Electronic Signatures

This is the strongest type of electronic signature and is based on a qualified certificate that is issued by a certifier that is accredited. The QES is structured by way of a QES device (either like a token device or other two-factor authentication tools).    

Digital Electronic Signatures

This type of electronic signature is particular to Italy and is a type of QES that is structured by way of an asymmetric key system, carrying public and private keys. This type of signature is also referred to as a DES.

Considerations Regarding Electronic & Digital Signatures in Italy

For the most part, the CAD makes reference to the electronic signature types that are provided for by the eIDAS Regulation. Even so, the CAD introduced the idea of a digital signature as a type of qualified electronic signature, or QES, that is based on a double cryptographic key. A digital signature in this instance, then, is cryptographically attached to the document in question, supporting the verification of the electronic document’s origin and authenticity. This type of digital signing uses an asymmetric cryptographic process like public key infrastructure, or PKI, which is managed by way of a regulated qualified trust service provider. 

Provision is also made by the CAD for another type of electronic signature involving the usage of a Public Digital Identity (SPID) of an Italian citizen. With this, an Italian citizen can make use of their SPID in order to sign documentation and also be identified with public or private service providers that fall within the same framework. This kind of signature is seen as equivalent to a qualified electronic signature. 

QES, (including digital signatures), e-signatures concluded with the SPID of an Italian citizen, as well as the AES are considered to carry the same legal weight as an ink or handwritten signature in Italy. Further to this, it is only documents that are signed using AES, QES, or DES that are permitted to be used as evidence when it comes to legal proceedings and with the same legality weight as a handwritten or wet signature. 

Business-to-Business Agreements

AES, DES, or QES may be used to validly conclude most private business transactions. That said, only DES and QES may be used for certain agreements or deeds that have public connotations, which includes those that require the notary public to intervene.

Business-to-Consumer Agreements 

It should be noted that for business-to-consumer agreements, both banks and private companies may use e-signing processes that are within online banking or e-commerce software to formalize these agreements that are subject to certain laws and regulations. 

Currently, fintech companies offer video platforms that permit trade and banking market participants to release an AES to customers on their own, or a QES by way of intermediation by an operator of a qualified certification service provider that is enrolled in a supervised EU-trusted list. 

Documents considered valid with simple electronic signatures (SES) in Italy

The following documentation is considered valid in Italy with a simple electronic signature or SES: 

• human resource (HR) documents, like standard employment contracts, NDAs, employee invention agreements, and privacy notices

• commercial agreements between corporate entities, including NDAs, purchase orders, order acknowledgements, invoices, other procurement documents, sales agreements, distribution agreements, and 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, and 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

Documents considered valid with advanced electronic signatures (AES) in Italy

Most private commercial business transactions and contracts enjoy valid execution or conclusion with the use of AES. 

Documents considered valid with qualified electronic signatures (QES) in Italy

• contracts transferring real estate properties’ ownership

• contracts constituting, modifying, or transferring the right of usufruct of real estate properties, surface rights, the right of the grantor or tenant

• contracts that constitute or modify the right of use and the right to housing

• contracts for the enfranchisement of the fund leased

• contracts for anticresi

• leases of real estate properties for a period longer than nine years

• 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

• acts of division of real estate property rights

Documents considered valid with digital electronic signatures (DES) in Italy

The digital electronic signature or DES may be used in all signing situations with the required evidentiary value. The DES may only be disallowed when it is proved that a document was not, in fact, signed or the subscriber carries the burden of proof. 

Documents that should only be signed with a wet signature in Italy

• wet or handwritten signatures should be used in documents for formal notarization, including: 

  • contracts to purchase or transfer real property, or the rights that relate to it

  • certain contracts disposing of corporate assets

  • settlement agreements that relate to disputes over the transfer of real property of disposal of corporate assets 

• consumer loan agreements

There are several provisions in the Italian Civil Code that need certain contracts to be concluded in the written format. The financial services sector, for example, might require the conclusion of certain agreements in the written form. Should an agreement need to be concluded in the written format, it may also be executed by way of an AES, DES, or QES. That said, if the signature is electronic, but not concluded by way of an AES, DES, or QES, then its suitability stands to be freely assessed by the court to ascertain whether it meets the written form requirement that is based on the electronic signature’s security and integrity.

Should the written format not be legally necessary, then the parties involved may select to use an electronic signature as well as the type they will use to conclude the contract or agreement.

As long as the necessary formalities are adhered to, Italian law does not go so far as to specify any particular agreements or documents that may not be concluded in the electronic format. Moreover, when it comes to processes and workflows, Italian law does not specify which may not be replicated electronically. 

This page is intended to communicate general information and does not constitute legal advice. While we have made every effort to ensure that this information is both accurate and up to date, it may not necessarily represent the most recent version of the legal topics in question. No action should be taken based on the information provided herewith and Smallpdf and its employees disclaim all liability relating to any actions that are or are not taken in reliance upon this information to the fullest extent permitted by law. In the case of any questions or uncertainty regarding the legality of electronic and/or digital signatures in your country or area, please consult your local laws or a legal professional for advice.