A ground breaking change for enterprise digitalization


The entry into force on 14 September 2016 of the amendments and supplements to the Italian Digital Administration Code (DAC) - pursuant to Legislative Decree n. 179 of 26 August 2016 - introduces an "historical" turning-point in the digitalization of the enterprises active in Italy, setting out, also in our country, a principle of "technological neutrality" with respect to the electronic format of a document and, hence, simplifying the execution and the evidentiary value of agreements entered into at a distance.

The historical legacy of the "written form"

The Italian Civil Code and the rules applicable to the insurance and banking sector have traditionally considered the “written form” as a certification of guarantee and higher protection. However, such approach has generated serious problems in distance relationships.

In fact, before the recent changes, the DAC used to treat only qualified electronic signatures, advanced electronic signatures or digital signatures equal to hand-written signatures, with the consequence that a contract to be executed remotely (like, contracts for opening bank accounts or making investments) had to be signed through a system of qualified electronic signature provided by an accredited certification service provider.

As an alternative to the aforesaid solution, the client had to manually sign the agreement and send it via the postal service to the operator with an evident lengthening of the time needed for its execution.

What's new?

Art. 21, first paragraph, of the new version of DAC, provides that "any electronic document on which an electronic signature has been affixed meets the written-form requirement and, as far as its evidentiary value is concerned, can be freely assessed in courts given its objective characteristics of quality, safety, integrity and immutability".

The new provision specifies that, differently from the past, using a generic electronic signature - ie, any type of electronic signature and not only advanced or qualified electronic signatures or digital signatures - meets the written-form requirement, making it easier and simplifying the activity of the operators engaged in e-commerce as well as in the insurance sector.

Will the acceptance of unfair clauses (art. 1341 of the Italian Civil Code) be easier?

The change made to the DAC modifies also the scenario related to the acceptance online of the clauses set forth in art. 1341[1] of the Italian Civil Code, according to which if the parties have not negotiated the general conditions - as it happens in all cases in which a contract is executed with consumers - the unfair clauses (the so-called clausole vessatorie) are ineffective and, as such, cannot be enforced by the party who prepared the general conditions (i.e., the enterprise) against the other party (typically, the consumers, but also any enterprise which has not negotiated the agreement), unless the other party has specifically approved said clauses in writing.

The above provision hindered not only the regulated sectors mentioned above, but also the e-commerce sector as a whole, because the operators had to bear the risk of seeing the unconscionable clauses be held ineffective.

The new DAC has apparently removed the doubts endorsed by a specific trend in case law which was reluctant to accept the possibility for the aforesaid clauses to be signed electronically (including, through a point & click action). From now onwards in fact, such acceptance shall fully meet the written-form requirement and shall therefore be binding upon the same contracting party.

What are the consequences for the insurance and banking industry?

As to the insurance sector, in which the agreements must be in writing ad probationem, the express provision - according to which an e-document electronically signed meets the written-form requirement - has a positive effects for the insurance companies as they will be spurred to close their agreements directly in a digital format. Such new provision entails in fact the inversion of the burden of proof in legal proceedings. Since the written-form requirement is satisfied ex lege by simply applying an electronic signature, it shall now be up to the party which intends to challenge the "quality, security, integrity and immutability" of the e-document to give evidences.

As to the banking sector, the changes introduced to the DAC accelerate and simplify the process of digitization, enabling the banks to use e-documents - signed by way of a simple click - for all of the forms to be filled-in before the agreement is closed (such as, without limitation, anti-money laundering and privacy form), or when the same agreement is executed.

No amendments have instead been made to the rules governing bank agreements: for such agreements, in relation to which the written form ad substantiam is required, it has been confirmed that the relevant signatures must be "under penalty for the same to be deemed null and void, advanced electronic signatures, qualified electronic signatures, or digital signatures".

[1] Namely, clauses that set out, in favor of the party who has included them in the relevant agreement, limitations of liability, limitations on the power to withdraw from the agreement or to suspend its performance, or which impose time limits including forfeitures on the other party, restrictions on its right to raise exceptions, to freely execute agreements with third parties, to tacitly extend or renew the duration of the contract, arbitration clauses or derogations from the competence of courts (art. 1341, second paragraph, of the Italian Civil Code).