eSignature Legality in Portugal

eSignature Legality Summary

Under Portuguese law, a written signature is not necessarily required for a valid contract - contracts are generally valid if legally competent parties reach an agreement, whether they agree verbally, electronically or in a physical paper document (Article 219. Portuguese Civil Code and Article 3., n. 4 of the Electronic Signature Decree-Law). To prove a valid contract, parties sometimes have to present evidence in court. Leading digital transaction management solutions can provide electronic records that are admissible in evidence under Article 368. of Portuguese Civil Code, to support the existence, authenticity and valid acceptance of a contract.

In addition, Regulation (EU) No 910/2014 on electronic identification and trust services for electronic transactions in the internal market (the “eIDAS Regulation”) came into force on 1 July 2016. The eIDAS Regulation repealed and replaced the e-Signatures Directive (1999/93/EC) and is directly applicable in the 28 member countries of the European Union.

The eIDAS Regulation is technology neutral and defines three types of electronic signature (SES, AES, QES). Article 25(1) provides that an electronic signature shall not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in an electronic form or does not meet the requirements of a QES. Articles 25(2) and (3) give a QES the same legal effect as a handwritten signature and ensure that a QES recognized in one Member State of the EU is also recognized in other Member States. Finally, Recital 49 allows national law to set requirements regarding which type of electronic signature may be required in which circumstances.

Use Cases for Standard Electronic Signature (SES)

Use cases where an SES is typically appropriate include:

• commercial agreements between corporate entities, including non-disclosure agreements, purchase orders, order acknowledgements, invoices, other procurement documents, sales agreements, distribution agreements, 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, policies, but excluding consumer loan agreements

• software license agreements

• licenses of intellectual property, including patent, copyright and trademark

• intangible property transfers (e.g., patent and copyright assignments)

• submissions for public tenders.

Use Cases for Other Types of Electronic Signature (e.g. Digital Signature, AES

Use cases where an electronic signature other than SES may be required include:

• AES - Issue of invoices (Article 3. Decree-Law n. 196/2007)

• AES - IP Licenses and Transfers (Decree-Law n. 36/2003)

• QES – supported urban lease (Article 18, Law n. 81/2014)

• QES – rural lease (Article 27, Decree-Law n. 294/2009)

• QES – public contracts (Public Contracts Code and Law n. 96/2015)

Use Cases That Are Not Typically Appropriate for Electronic Signatures or Digital Transaction Management

Use cases that are specifically barred from digital or electronic processes or that include explicit requirements, such as handwritten (e.g. wet ink) signatures or formal notarial process that are not usually compatible with electronic signatures or digital transaction management.

• contracts to purchase or transfer real property (Article 875. Portuguese Civil Code)

• contracts of surety (Article 627. Portuguese Civil Code), if this is required form to the principal obligation

• consumer loan agreements above € 25.000,00 (Article 627. Portuguese Civil Code)

• stand-alone promises to fulfil an obligation (Article 413. Portuguese Civil Code)

• stand-alone acknowledgements of debt (Article 458., n. 2 Portuguese Civil Code)

• certain contracts governed by family law, such as pre-nuptial agreements

• certain contracts governed by the law of succession, such as contracts of inheritance (Article 2028., n. 2 Portuguese Civil Code), contracts waiving inheritance (Article 2063. Portuguese Civil Code), inheritance sales (Article 2126. Portuguese Civil Code)

• lease agreement and termination of residential lease agreements

• the articles of incorporation of a company and the assignments of shares of a company with limited liability (and Article 4–A, 7, and 228 Code of Commercial Companies)

• mortgage (Article 688. Portuguese Civil Code)

• termination of employment agreements

• communication concerning the Legal regime of Urban Planning and Building (Article 8-A Law n. 60/2007)

• communication on the beginning of activity and real estate transactions before the Portuguese supervisory authority - InCI - Instituto da Construção e do Imobiliário - (Law n. 25/2008, in conjunction with the RegulationNo 282/2011)

[1] An AES is an “advanced electronic signature”, a type of electronic signature that meets the following requirements: (a) it is uniquely linked to the signatory; (b) it is capable of identifying the signatory; (c) it is created using means that are under the signatory’s sole control; and (d) it is linked to other electronic data in such a way that any alteration to the said data can be detected.

[2] A QES is a specific digital signature implementation that has met the particular specifications of a government, including using a secure signature creation device, and been certified as ‘qualified’ by either that government or a party contracted by that government.

Local Technology Standards

As a Tiered eSignature Legal Model country, Portugal supports the concept of a QES (Qualified Electronic Signature), requiring independent accreditation for those signatures by an approved certification body. While QES is only legally required for limited types of transactions, as previously discussed, Portugal, as a member of the European Union, follows ETSI (European Telecommunications Standards Institute) standards to define the technical requirements for a QES. In compliance with the EU Directive 1999/93/EC on Electronic Signature, Portugal maintains a publicly accessible list of supervisory bodies for qualified certificated providers together with other countries in the European Union.