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The digitalization of businesses might find a major help thanks to new Italian regulations considerably lightening the requirements applicable to electronic signatures.
The previous obstacle to digitalization
A considerable issue in the process of digitalization that banks, insurance companies as well as any other business are running in Italy was given by the requirement of a “written document” which is prescribed
- for not only the most relevant agreements, including banking and insurance agreements from the very basic such as the opening a bank account to the complex investment arrangements, but also
- for any kind of agreement based on standard terms – including consumer agreements – in order to approve the so called “one-sided clauses” that otherwise are not enforceable against the party that has not drafted the agreement (i.e. the consumer/client in most of the circumstances).
According to the provisions in place up until recently, the requirement of the written document could be satisfied only by an electronic document where a digital/qualified/advanced signature is placed. This is a type of signature that is now regulated by the EU Regulation on Digital Signatures and is based on qualified certificates which oblige to rely on a third party certification entity and to comply with strict requirements.
The circumstance referred above was creating major issues not only in the banking and insurance sectors in case of remote or digital contractualization of customers, but also in case of e-commerce platforms. As a result, businesses were either providing all their customers with a digital signature at their cost or taking the risk of having their contracts challenged.
The new provisions on electronic documents
The provisions recently approved prescribe that the requirement of the “written document” might be met by an electronic document executed by a mere “electronic signature“ which might be of any kind, including a point and click if adopted after an adequate process of identification.
Italian laws on the matter still prescribe that the evidentiary value of the electronic document shall be freely assessed by the court. Therefore it still keeps a level of uncertainty around the scope of applicability of the provision and the assessment shall be performed on a case by case basis, taking into account of the type of electronic signature that is used. Also, there are types of contracts for which the requirement of the execution by means of a digital/qualified/advanced signature remains.
All in all, this is a major improvement, but there is no answer that fits all the purposes and a detailed review of the applicable scenarios will be still necessary.
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