Legality of eSignatures in Portugal

Background

Electronic signatures have transformed authentication processes, enhancing the efficiency of finalizing agreements in Portugal, domestically and globally. These technological innovations facilitate swift, environmentally friendly signoffs that diminish paper consumption and quicken business dealings. Nevertheless, grasping the essential factors in incorporating electronic signatures within Portugal is crucial.

Both organizations and individuals should opt for a digital signing solution compliant with Portuguese regulations, particularly Decree-Law no. 12/2021. This legal framework affirms the equivalence of electronic signatures to wet-ink signatures in terms of legal validity. However, certain types of documents may still require wet-ink signatures, and legal requirements can vary by locale; hence, seeking legal counsel is recommended.

Ensuring the security of the digital signature procedure is paramount. The elected service must incorporate critical protective features such as encryption, verification protocols, and comprehensive audit trails to avert unauthorized access and uphold the integrity of documents. BoldSign is designed to provide these security assurances, aligning with compliance and security standards.

To summarise, although electronic signatures offer numerous advantages and are widely accepted, adhering to legal specifications, emphasizing security, and choosing a user-friendly platform is essential for their effective deployment in Portugal.

What is eSignature

An electronic signature is a collection of electronic data attached to, integrated within, or logically linked to other electronic data, confirming the supposed author’s identity. Such signatures are legally enforceable. For most documents, the signatures must be securely associated with the signatory and safeguarded against alteration or fraudulence. Fulfilling these conditions assures that electronic signatures are regarded with the same legal significance as handwritten equivalents.

Overview of electronic signatures in Portugal

Electronic signatures are considered just as valid as traditional wet-ink signatures; however, their use is subject to specific regulations spelled out in:

Decree-Law No. 12/2021¹
Regulation (E.U) No. 910/2014²

The regulation categorizes the signatures into three:

Simple Electronic Signature
Advanced Electronic Signature
Qualified Electronic Signature

Electronic signature use is not legally recognized for all document types. Some transactions are appropriate for e-signatures, while others are not. Below is a brief analysis and a summary table of these transactions.

An advanced electronic signature is an e-signature that fulfills the following requirements:

Identifies the holder as the author.
The inclusion thereof depends only on the will of the holder.
Created using means the holder can maintain under his exclusive control.
The link between the signature and the document is such that any alterations can be detected.

Summary analysis

Under the Portuguese Decree-Law No.12/2021 and Regulation (E.U.) 910/2014

Types of Signature	Unique features	Legal validity	Special consideration on the use
Simple Electronic Signature (SES)	N/A	Depends on evidentiary weight if disputed.	N/A
Advanced Electronic Signature (AES)	Uniquely linked to the signatory. Capable of identifying the signatory. Developed using a means that the signer can maintain under his sole control. Linked to be able to detect subsequent changes.	Valid unless the contrary is proven.	N/A
Qualified Electronic Signature (QES)	Meets the unique feature of an advanced electronic signature. Supported by a qualified certificate from a licensed certification authority. Created by a secure creation device.	Valid unless the contrary is proven.	Used to sign all documents required in law to be signed and by public bodies -especially where wet ink isn’t possible, and the use of e-signatures are permissible. [Article 3, 5, & 7] Electronic Invoice issuance (Article 12 of Decree-law 28/2019).

Public key infrastructure

Pursuant to the directive issued by the Council of Ministers, Resolution No. 171/2005, the Electronic Certification System was established along with the implementation of the Electronic Certification Entity of the State – Public Key Infrastructure, consequently, the State’s Common Certification Entity has been founded.

The National Security Cabinet Office has granted the accreditation as a provider of certification services. The accreditation status is documented and can be verified through the Trusted List of monitored/endorsed certification service providers, which is accessible on the website.

The Electronic Certification System offers secure electronic identity verification tools for electronic communications used by the Government (participants in the Government Information Network), the Sovereign Bodies (participants in the Legislative Process), and all branches of the Direct and Indirect Public Administration.

All services rendered by the Electronic Certification System, along with all the certificates it has issued, adhere to the existing laws governing electronic signatures and are fully recognized and accepted as valid. The Electronic Certification System -issued certificates enable a qualified electronic signature that carries legal evidentiary weight.

Other active, recognized trust service providers are³:

IP Registry and Notary Institute
Multicert – Electronic Certification Services SA
Digitalsign – Digital Certifier
Acin Icloud Solutions, Lda
Ama – Agency For Ip Administrative Modernization
Nos Comunicações, S.A.

Stay updated with the list by frequently reviewing the active trust service providers for each individual country within the European Union (Trusted List).

The scope and limitations of eSignature transactions

Electronic signature use is not legally for all document types. Some transactions are appropriate for e-signatures, while others are not. Below is a brief analysis and a summary table of these transactions.

Documents that can be signed

Digital signatures can be utilized to apply signatures and offer additional validating signatures on a wide range of documents, including:
(With standard electronic signature)

Legal Opinions
Offer letters
Public petitions
Memoranda & internal correspondences
Non-disclosure agreements
HR
End user agreements, etc.

Cases where only qualified electronic signature and wet-ink signature are authentic

Under Article 25 of the eIDAS⁴, qualified electronic signatures are deemed to bear the same legal validity granted to wet-ink signatures. As such the following can only be signed in either wet ink signature or qualified electronic signature

Rental contracts⁵
Rural lease transactions⁶
Electronic invoice issuance⁷
Public procurement ( public contracts concluded by entities operating in water energy, transport & postal services sectors)⁸
Invoices and other fiscally relevant documents
Transactions legally required on lease contracts⁹ – relating to the termination and amendment of the lease contract, the updating, amendment, and deposit of rent, the carrying out of conservation and recovery works and improvements, and the exercise of the right of preference

Exempted transactions

The Portuguese regulation on eSignature lacks an express provision on what class of transactions will not be completed by electronic signature. In practice, certain transactions cannot be completed using an electronic signature. Caution should, therefore, be taken when dealing with:

Wills
Codicils and other testamentary documents¹⁰
Contracts to purchase or transfer real property¹¹
Promises to fulfill an obligation
Promissory note¹²
Certain transactions governed by the law of succession, such as contracts of inheritance¹³
Consumer loan agreements above € 25.000,00¹⁴
Suretyship¹⁵
Contracts of surety¹⁶
Contracts waiving inheritance¹⁷
Article of incorporation
Employment contracts

Summary of the scope and limitations of eSignature transactions

Permissible Transactions		Exempted transactions
Any type of eSignature	Qualified eSignature	Wills Codicils and other testamentary documents Promissory notes Contracts to purchase or transfer real property Promises to fulfill an obligation Certain contracts governed by the law of succession, such as contracts of inheritance.
Legal Opinions Offer letters Public petitions Memoranda and Internal correspondences Non-Disclosure agreements Purchase orders HR Private Procurement Employee onboarding End User Agreements, Etc.	Electronic invoices and other fiscal documents Public procurement Transactions legally required on lease contracts Rental contracts Rural lease transactions Delivery of the debt certificates Signing through the government portal - Autenticação.gov

Temporary measures taken post COVID-19

To address the challenges posed by the COVID-19 pandemic, the government issued Decree Law No. 126 of 2021¹⁸, introducing temporary measures to ensure the continuation of legal transactions by registrars, justice officials, notaries, lawyers, and solicitors. These measures include provisions for remote execution/creation of authentic acts and signature recognition, granting them the same legal weight as in-person transactions, provided specific conditions are met. This decree-law is set to run for two years, elapsing on April 4th, 2024 after which an assessment shall be done to consider an extension.

The Ministry of Justice has launched an electronic platform, managed by the Institute for Registration and Notary Affairs, I.P., to facilitate these transactions. The platform offers videoconferencing, document management, and identity verification services. Users must authenticate themselves via secure methods on autenticacao.gov.pt19 to access the platform’s restricted areas.

After reading and explaining the document, the participant signs it using a qualified electronic signature, and submits it on the platform. Then, the professional signs the document also using a qualified electronic signature.

This is, however, with the exclusion of (which has to be done in-person):

Wills and acts relating thereto²⁰.
Acts relating to facts subject to land registration that do not relate to:
1. Legal facts that determine the constitution, recognition, acquisition, modification, or extinction of rights of property, usufruct, use and housing, surface, or easement.
2. Legal facts that determine the constitution or modification of horizontal property.
3. Promise to sell or encumber properties if it has been given real effectiveness or the assignment of the contractual position arising from this fact.
4. Mortgage, its assignment, modification, or extinction, the assignment of the priority level of the respective registration, and the assignment of income.

To ensure an electronic signature’s validity while complying with legal requirements. An individual should be able to adopt best practices such as:

Establishing the legitimacy and authorization of the signatory: This involves implementing stringent procedures to authenticate the identity of individuals signing on behalf of themselves or an entity. For businesses, this step may include verifying the individual’s position within the company and their delegated power to sign documents, ensuring they have the proper authorization to enter into binding agreements on the company’s behalf.
Obtaining clear and unambiguous consent to the use of electronic signatures: It is critical to secure informed consent from all parties involved before utilizing electronic signatures. This means explaining the implications of an electronic signature, how it will be used, and the legal equivalent to a handwritten signature, thereby ensuring that all parties are fully aware and agreeable to the electronic signing process.
Ensuring the integrity of the signed document post-execution: Once a document has been signed electronically, measures must be taken to safeguard it from any unauthorized alterations. This entails using digital tools that lock the document’s content and track any attempts at modifications, thereby maintaining the document’s integrity and ensuring it remains legally enforceable.
Maintaining a detailed log of the electronic signing activity: Keeping a robust and transparent audit trail is essential for validating the signing process. This record should include timestamps, I.P. addresses, signer authentication methods, and any other relevant information that documents the entire signing event. Such records are crucial for providing evidence of the signing process’s legitimacy and can be invaluable in the event of a legal dispute or audit.

How does BoldSign help

The following elements of compliance available within BoldSign can be used to comply with the Portuguese eSignature laws:

Secure and unique signing link: A secure and unique link to sign a document is sent directly to the signer’s email address. This helps ensure that the document is only accessed by the intended signer and cannot be tampered with.
Password protection: Senders can specify a password that needs to be entered before viewing and signing a document. This adds a layer of security to the signing process.
Audit trail: The IP address of the signer and timestamps for all significant events in the signing process are recorded in an audit trail. This provides a record of who signed the document, when, and where.
Digital signature: The final document is digitally signed with an AATL-compliant certificate. This ensures that the document cannot be tampered with without invalidating the signature.
Consent: Signers are asked to confirm their intent to sign electronically and informed that they could opt out. This ensures that the signer is aware of the implications of signing electronically and has consented.
Custom terms: Get your signers to agree to a custom set of terms. This can be useful to ensure additional security or that the signer understands the terms of the document.
QES compliance: BoldSign offers fully compliant qualified electronic signatures (QES) that are simple, secure, and legally binding across the EU. QES guarantees that your essential documents are protected with the highest level of e-signature security, giving you peace of mind in your digital transactions. Using BoldSign, you can confidently manage your important documents while ensuring compliance with EU regulations.

Disclaimer: The information on this page is intended to help businesses understand the legal framework of electronic signatures for this particular country.

However, Syncfusion’s officers, directors, stockholders, affiliates, attorneys, accountants, employees, or agents cannot provide legal advice. You should consult your personal attorney regarding your specific legal questions. Laws and regulations change frequently, and this information may not be current or accurate. To the maximum extent permitted by law, Syncfusion provides this material on an “as-is” basis. Syncfusion disclaims and makes no representation or warranty of any kind with respect to this material, express, implied, or statutory, including representations, guarantees, or warranties of merchantability, fitness for a particular purpose, or accuracy.

Syncfusion makes no warranties of any kind, including but not limited to respect to the information or the product, whether express, implied, statutory, or otherwise. To the maximum extent permitted by law, Syncfusion disclaims all conditions, representations, and warranties, whether express, implied, or statutory, with respect to this information without limitation any implied warranty of merchantability, fitness for a particular purpose, accuracy, or currentness of this information.

Syncfusion nor their officers, directors, stockholders, employees, affiliates, attorneys, accountants, or agents shall be liable for indemnification, nor does this create an express or implied, contractual or statutory, equitable or otherwise, under this Agreement. The officers, directors, stockholders, affiliates, attorneys, accountants, or agents will not have any liability in any form.

BIBLIOGRAPHY

Statutes

Decree Law No. 126/2021
Decree-Law No.12/2021
Portuguese Civil Code
Law No. 96 of 2015
Decree-Law No. 294 of 2009
Custom terms: Getting your signers to agree to a custom set of terms. This can be useful to ensure additional security or that the signer understands the terms of the document.

External Sources/Websites

¹Decree-Law No. 12/2021 ² Regulation (EU) No 910/2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC ³European Commission (eIDAS Dashboard) “Trusted List Portugal – Trust Servce Provider Accessed on 11th April 2024 ⁴ Regulation (EU) No 910/2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC, S. 4, Art. 25 ⁵Decree Law 81 of 2014 Establishing the new supported rental regime for housing. Art. 18 ⁶Decree Law No. 294 of 2009 establishing the new rural rental regime. Art. 27 [Decree-Law 294/2009 (tretas.org)] ⁷Ibid – Law 96/2015 Regulates the provision and use of electronic public procurement platforms and transposes Article 29 of Directive 2014/23/EU , Article 22 and Annex IV of Directive 2014/24/EU and Article 40 and Annex V of Directive 2014/25/EC , of the European Parliament and of the Council, of February 26, 2014, repealing Decree-Law No. 143-A/2008 , of July 25 [https://diariodarepublica.pt/dr/detalhe/lei/96-2015-70025051] ⁸ Law No.96/2015, as read with Article 40 and Annex V of Directive 2014/25/E.C. ⁹ Decree-Law no. 294/2009 Art. 27 ¹⁰ Decree Law No. 126/2021, Article 1, Clause 3 as read with the Civil Code Articles 2204 to 2206 [https://www.wipo.int/wipolex/en/text/421354] ¹¹ Portuguese Civil Code – 875 ¹² CÓDIGO CIVIL (aprovado pelo Decreto-Lei n.º 47344/66, de 25 de Novembro, e alterado pela Ley n.º 150/2015, de 10/09) – Art 458 ¹³ Articles 2028, 2063 & 2126 Portuguese Civil Code ¹⁴ Ibid, 627 ¹⁵ Ibid ¹⁶ Ibid ¹⁷ Ibid. Art 2063 ¹⁸ Decree Law No. 126/2021 ¹⁹ Autenticação.gov. (n.d.). Identificação, autenticação e assinatura digital do Estado Português. ²⁰ See footnote 7 above

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