In this article, the Corporate and Commercial Department of Belzuz Abogados S.L.P. – Sucursal em Portugal, provides an overview of the national and European legal framework in force for the electronic signature, considered an instrument with an increased demand, that can be used for practicing several acts, specially within the current and vulnerable context where the multiple circulation restrictions on one hand, and the mandatory teleworking regime on the other, make it difficult - if not impossible - to sign in person and handwritten (hitherto the more common and used instrument in Portugal) certain acts and documents.
The Portuguese legal system already foresees and provides alternatives that allow the remote signature of documents, maintaining the respect by the legal value of the said documents. In addition, the European Union has a detailed regulation about this matter, namely on the Regulation (EU) n.º 910/2014 of the European Parliament and the Council of 23 July 2014, on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC (the "Regulation").
The Regulation defines the electronic signature as the data in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign. For its part, the Decree-Law n. º 290-D/99 of August 2nd, which approved the Legal Regime for Electronic Documents and Digital Signatures (the "Legal Regime of Electronic Signatures") foresees the existence of two kinds of Electronic Signatures:
i. Simple Electronic Signature ("SES") – it consists of the result of an electronic processing which may be the subject of individual and exclusive rights and which it is used to acknowledge the authorship of an electronic document. It is used for less solemn acts, for which the law does not require any special form, since it merely manifests an acceptance of a will, without absolute security on the signed document’s validity or in the identification of the respective holder. SES is most often used on the online acceptance processes (by clicking on the option "I have read and accepted the conditions of purchase and sale online");
ii. Advanced Electronic Signature ("AEE") – this type of electronic signature translates into greater legal certainty, as it is uniquely associated with the respective signatory (trough a digital key), who controls and declares the express agreement with its content, being possible to identify the signatory, and also because any subsequent data amendment will be easily detectable by the respective signatory.
iii. Qualified Electronic Signature ("QES") – the advanced electronic signature also includes this type of signature, constituting, in practice, the signature generated through a certificate developed, issued and validated by a duly accredited entity, which provides full proof of the statements attributed by the respective signatory (as an example, the lawyers enrolled in the Bar Association have a digital certificate assigned, enabling them to sign, present and submit remotely certain documents or acts). The Portuguese law recognizes the document signed with this electronic signature type, the probative power of a private document, signed hand, providing full proof as to the statements attributed to its author. In addition, for all acts for which the law requires the form of a written and signed document, they can be signed using this type of electronic signature (lease agreements, bank and civil loans up to 25,000.00 €, among others). To use this signature instrument, the applicant must obtain the signature creation and verification data and request the respective certificate from the accredited entity.
Finally, we also hereby draw your attention to the exceptional and temporarily provisions in the face of the current epidemic situation, foreseen in the Decree-Law n.º 12-A/2020 of April 6th, whereas the simple scanned copies and photocopies have the same evidential value and validity as an original document, unless the person to whom the respective scanned copies and photocopies are presented to, requires the exhibition of the correspondent original document.
The Corporate and Commercial Department of Belzuz Abogados S.L.P. – Branch in Portugal has lawyers who have been following the legislative amendments and updates, within the current context brought by COVID-19, being fully available to advise companies and individuals in the definition of solutions and alternatives capable of facing the verified challenges and promoting the continuity of the economic and contractual activity, by the contacts available on our website.
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Corporate and Commercial Department