Amid emergency initiatives aimed at coping with the Covid-19 emergency, Italy has taken two steps aimed at easing the modalities for concluding contracts online, both of which are particularly significant for the financial services sector.
It is worth reminding that banking and financial contracts under Italian law are valid only if entered in writing. Furthermore, (before these new measures) contracts entered into via electronic means could automatically be deemed as signed in writing only if signed via advanced electronic signature, qualified electronic signature or digital signature. Where other forms of electronic signature were used, the determination as being signed in writing would be subject to a case-by-case assessment of their security, integrity and immodifiability.
In summary the two new steps are:
· E-mail consent automatically deemed as written form for banking and financial contracts with retail clients
Law Decree no. 23 of 8 April 2020 (so called “Liquidity Decree”, containing mainly measures aimed at supporting liquidity for Italian businesses) simplified the modalities of taking out contracts for certain banking and financial services to retail clients by introducing equivalence between consent given via e-mail to written consent (provided certain requirements are met, including attaching a copy of an ID document).
The new measure is apparently aimed only at certain services (i.e. banking services such as accounts, and financing in any form, including guarantees, consumer credit, payment services), and it is questionable whether such provisions may be interpreted in a broader way as applicable in respect of other type of contracts that need to be entered into in writing under Italian law (e.g. for framework agreements for investment services).
These provisions are clearly marked as an emergency measure, and will therefore remain in force only during the emergency period connected to the current pandemic.
· Public digital ID can be used to sign documents electronically
On 23 March 2020, the Agency for Digital Italy, issued guidelines on signing documents through the so called Public Digital Identity System (Sistema Pubblico Identità Digitale or SPID), i.e. basically a single set of credentials, issued by a qualified provider after a formal identification, aimed at granting access to online services offered by any Italian governmental or public sector entity and/or by private providers who opted-in to avail themselves of this system and entered into an agreement with the Agency for Digital Italy to this end.
Following the technical steps laid down by these guidelines, it will be possible to use the same credentials to sign electronically any document, including contracts, and such documents will be deemed as signed in writing.
While at the moment SPID is scarcely used by private-sector operators, this innovation will introduce a new additional way to allow for online client onboarding and the conclusion of contracts, that is more widely available to retail customers than digital signature, and that new users can even obtain remotely during lock-down.
The guidelines implement a legislative amendment passed in the course of last year, independently from the current emergency, therefore this new modality will remain in place even after the emergency will be over.
The text of the guidelines is available here (in Italian).