E-Signature Regulations

Does your jurisdiction maintain a list of trusted entities to qualify e-signatures?

Currently active trust service providers:

a. CEGER – Centro de Gestão da Rede Informática do Governo;
b. ACIN iCloud Solutions, Lda:
c. Instituto dos Registos e do Notariado I.P.;
f. DigitalSign – Certificadora Digital
g. MULTICERT – Serviços de Certificação Electrónica S.A.

The updated list of trust service providers can be consulted at: https://webgate.ec.europa.eu/tl-browser/#/tl/PT

In Portugal, the Gabinete Nacional de Segurança (GNS) is the Supervisory Entity of the State Electronic Certification System, and its main function is to supervise the qualified trust service providers established in the national territory, ensuring that qualified trust services provided by them meet the established requirements, but also the function of managing the national trust lists.

Please provide a quick overview of the law, i.e., types of contracts that qualify for use with e-signature.

The Decree-Law in question implements the concepts and definitions stated in the Regulation consolidates existing legislation on the validity, effectiveness and probative value of electronic documents and sets out the rules applicable of the State Electronic Certification System (SCEE), which aims to assure the unity, the integration and effectiveness of the strong digital authentication systems in the electronic relations of individuals or legal entities with the State and among public entities.

These rules are applicable to natural persons or representatives of a legal person, public or private, regarding:

a. electronic documents drawn up by private individuals and Public Administration;
b. electronic identification schemes notified by Member States of the European Union.

As a general legal principle, under Portuguese law contracts are valid if the interested parties reach an agreement, whether said agreement is reached verbally, electronically or through a traditional physical document. Therefore, in general, contracts are deemed as valid even if concluded electronically and it is accepted that electronic signatures possess legal value (with the exceptions set forth in Point 3. below).

In face of the nature of the agreement or document to be signed and the applicable legal provisions, the parties must assess which type of electronic signature must be used (Simple, Advanced or Qualified, as laid out in Regulation (EU) no. 910/2014).

Not withstanding, the qualified electronic signature is the only type deemed equivalent to the handwritten signature, creating an additional legal presumption that (a) the person who affixed the qualified electronic signature is the holder of the signature or is a sufficiently authorized representative of the legal person in question; (b) the qualified electronic signature has been affixed with the intention of signing the electronic document and (c) the electronic document has not been modified since the qualified electronic signature was applied to it.

Please find below a non-exhaustive list of type of contracts that can be executed by electronic signature:

a. Commercial agreements;
b. Lease agreements;
c. Loan agreements up to EUR 25.000,00;
d. License agreements and software and Intellectual Property related agreements, including
IP rights assignment;
e. Labor agreements (if the employee waives the right to sign a physical contract) and
related acts, although certain rights to be exercised under a labor agreement will not
assume an immediate binding nature if the signatures are not subject to notarization;
f. Donation of movable property;
g. Submission of bids for public tenders.

What is the legality of e-signatures in your jurisdiction? Are there key exceptions?

In general, any agreements that are subject to public registry or that must be executed before a Notary are incompatible with its execution as an electronic document and application of electronic signature therein and therefore require the use of a handwritten signature.

Please find below a non-exhaustive list of type of contracts barred from execution by electronic documents and electronic signature:

a. Contracts that require the intervention of a Notary, given specific formalities on archiving
documents that are incompatible with electronic documents;
b. Contracts to purchase or transfer real estate property, with the exception of lease
c. Loan agreements over EUR 25.000,00;
d. Contracts governed by family law (e.g. pre-nuptial agreements) or succession law (e.g.
wills, contract to waive inheritance rights);
e. Mortgage or any surety contracts granted by persons outside the scope of their
professional activity;
f. Articles of incorporation of a company;
g. Contract that requires the intervention of courts, public entities or others parties who
exercise public powers, with the exception of public contracts governed by the Public
Procurement Code;

Nonetheless, the Portuguese Government has approved a bill allowing Notaries to perform certain acts, namely real estate property transfer, by electronic means (e.g. videoconference) which could pave the way for a consistent implementation of electronic documents and signature. However, said diploma is not yet in force and is already being disputed by several professional associations. Therefore, we do not envision a dramatic change on the e-signature legal landscape on the foreseeable future.

What is the e-signature law enforceable in your jurisdiction?

The recently enacted Decree-Law no. 12/2021 of February 9th implemented into national law Regulation (EU) no. 910/2014, on electronic identification and trust services for electronic transactions in the internal market.

Final Note: This information was drawn up in August 2021, being of a general nature and not intended to substitute expert legal advice.

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