Electronic Signatures in Commercial Contracts in Italy: What foreign business should know
Avv. Mariaelena Giorcelli
Redattore
In the context of international commercial contracts, conclusion of contracts usually occurs with parties being located in different jurisdictions. Although most commercial contracts do not require the written form for their validity, the use of digital tools to conclude a contract and particularly electronic signature can enhance legal certainty and significantly reduce risks of possible challenges on the authenticity or integrity of the signature. It is therefore important for foreign companies operating with Italian partners to be aware of the Italian legal framework on electronic signatures.
1. The Legal Framework: EU and Italian Law
The legal framework on electronic signatures is primarily based on EU Regulation No. 910/2014 on electronic identification and trust services for electronic transactions in the internal market (s.c. eIDAS Regulation), which aims to ensure interoperability and mutual recognition of electronic identification and trust services across EU Member States. It has to be noted that, outside the EU, an important role in creating a legal framework on e-signatures is played by Uncitral Model Law on Electronic Signatures (2001) which has been adopted in 40 States and a total of 42 jurisdictions[1] and which has also indirectly influenced the eIDAS Regulation.
The eIDAS Regulation distinguishes between:
- Simple Electronic Signature (SES): any 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 example: scanned signature, click to sign).
- Advanced Electronic Signature (AES): an electronic signature which is a) uniquely linked to the signatory; b) capable of identifying the signatory; c) created using electronic signature creation data that the signatory can, with a high level of confidence, use under his sole control; and d) is linked to the data signed therewith in such a way that any subsequent change in the data is detectable (for example: one time password -otp-).
- Qualified Electronic Signature (QES): an advanced electronic signature that is created by a qualified electronic signature creation device, and which is based on a qualified certificate for electronic signatures.
Under the eIDAS Regulation only Qualified Electronic Signature is recognized as having equivalent legal effect of a handwritten signature. The eIDAS Regulation leaves it to the Member States to define the legal effect of the advance signature and of simple electronic Signature SES. Consequently, not all Member States consider the advance signature as having the same legal effect of handwritten signature (for example, Germany does not recognize advance signature as handwritten signatures), while most Member States do not recognize such legal effect to the simple electronic signature.
Italy has implemented the eIDAS Regulation through Legislative Decree No. 82 dated March 7, 2005 (Digital Administration Code). Likewise the eIDAS Regulation, the Italian Digital Administration Code distinguishes between qualified electronic signature (QES), advanced electronic signature (AES), and simple electronic signature (SES).
In addition, the Italian Digital Administration Code (art. 24) provides for a specific type of qualified signature (QES) which is called “digital signature”: it’s a qualified electronic signature that uses a qualified certificate and an asymmetric cryptographic key system.
Only qualified electronic signatures (and therefore also digital signature) and advance electronic signatures are considered by Italian law as having the same legal effect as handwritten signature.
In Italy, digital signature is the type of qualified signature mostly used by business operators. In fact, while there is no express legal obligations for businesses to have a digital signature, this type of signature is required to sign official documents to be addressed to the Chamber of Commerce where the business is registered (e.g. to register company changes) and to deal with the public administration. Therefore, almost any company has a digital signature.
Simple electronic signatures are recognized by Italian law but its probative effect, in case of dispute, will be discretionally considered by the judge.
2. It's a matter of probative value
When the type of electronic signature make difference in commercial contracts?
As indicated before most commercial contracts do not require a written form and/or its signature for their validity. However, Italian Courts often have to deal with the challenges to the signature made on a commercial contract.
It is therefore useful to know that Italian law recognizes all three types of electronic signatures, but attributes to each of them different probative value.
All contracts signed with QES (including digital signatures) and AES have a full probative values. This means that the contract signed with such signatures is considered to provide full proof, unless challenged as false, of the origin of the statements from the person who signed it, if the person against whom it is produced recognises the signature or if it is legally considered recognized (art. 2702 of Italian Civil Code).
Furthermore, Italian Digital Administrative Code establishes that: ‘the use of a qualified or digital electronic signature device is presumed to be attributable to the holder of the electronic signature, unless the latter provides evidence to the contrary”. The burden of proof in case of disownment is therefore on the signatory party and not on the party that received the document signed with a QUEs. This makes an important difference in avoiding long dispute over the authenticy of the signature which very often occurs when the original signed document is not submitted by the other party (Trib. Matera 1 October 2025).
The main legal risk associated with using electronic signatures is the risk of disownment, which in a court proceeding can be made by a simple statement of disownment and it is not so uncommon in Italy to occur. If, in a dispute the party that signed the contract denies authorship, the following consequences will apply:
- if the contract was signed with a qualified signature, the party denying authorship will have the (extremely difficult) burden of submitting evidence of its statement;
- if the contract was signed with an advance signature, the party that has submitted the contract signed by other party will have to provide technical and circumstantial evidence to prove the signature’s authenticity. Proof that should be not difficult to retrieve, considering that the advance signature technically identifies the signatory.
- If the contract was signed with a simple electronic signature, the party that has submitted the contract will have to provide the evidence to prove the signature’s authenticity (which is impossible unless the party has a handwritten copy. Of course such signature will meet the written form requirement but its relevance will be discretionally evaluated by the judge and therefore offers less certainty.
Litigation over simple signature can be costly, time-consuming, and uncertain, particularly when involving international parties or contracts of significant value. In contrast, a contract signed with a qualified electronic signature enjoys a presumption of validity under both Italian and EU law and can withstand challenges with greater ease.
Conclusion
While a handwritten signature scanned into a pdf (i.e., a simple electronic signature) fulfils the written form and may suffice for certain low-risk transactions, it carries legal uncertainty and can be easily contested or disowned. Qualified electronic signatures (digital signatures) and advanced electronic signatures are strongly recommended in cross-border contracts if you want to avoid disputes regarding the authenticity or integrity of the signature. Many platforms such as AdobeSign, DocuSign are authorized to issue advanced and qualified signatures across the European Union, however, advance and qualified signature may be provided only as an optional function and therefore parties should check that such function is available.
[1] Afghanistan 2020, Antigua and Barbuda 2013, Barbados 2001, Bhutan 2006, Botswana 2014, Cabo Verde 2003, China 2004, Colombia 2012, Costa Rica 2005, Gambia 2009, Ghana 2008, Grenada 2008, Guatemala 2008, Honduras 2013, India 2009, Jamaica 2006, Libya 2022 Madagascar 2014, Maldives 2022 Mexico 2003, Nicaragua 2010, Oman 2008, Papua New Guinea 2022, Paraguay 2021, Peru 2000, Qatar 2010, Rwanda 2010, Saint Kitts and Nevis 2011, Saint Lucia 2011, Saint Vincent and the Grenadines 2007, San Marino 2013, Saudi Arabia 2007, Thailand 2001, Timor Leste 2024, Trinidad and Tobago 2011, Uganda 2011, United Arab Emirates 2006, United Kingdom of Great Britain and Northern Ireland: Anguilla 2006, British Virgin Islands 2021, Montserrat 2009, Viet Nam 2005, Zambia 2009, Bhutan 2006.
Avv. Mariaelena Giorcelli