Implementing the electronic signature on notarial instruments : a comparative study

Abstract

In today’s fast-paced world, almost anything may be achieved instantly, primarily due to continuous technological developments. The electronic signature (e-signature) is an advancement that has paved the way to executing several business transactions electronically. It is a substitute to the wet-ink signature, at the same time it widens the options available to Notaries in the execution of notarial instruments, by providing the option of signing documents virtually. The professional services sector is one of several types of businesses benefitting from such electronic transactions. Indeed, the notarial field too cannot escape this modernisation, and in fact a number of European Member States are actively implementing communication systems between Notaries, public administration departments and clients via electronic channels. The e-signature allows for cross-border transactions, or where the parties to a contract may not be present at the same time before the Notary. The convenience of concluding notarial transactions at a distance, thus saving time as well as travelling expenses has become a priority. Indeed, this is reflected in the fact that several European countries already administer public registers in electronic form. In France, the notarised act is signed electronically. In Italy, although some notarial instruments are still signed in wet-ink, they are nonetheless all sent to the public administration departments electronically, after being authenticated by the Notary. By 2007, Civil Law Notaries were already investing in the implementation of e-signature infrastructures, when only a few years before, the advancement of such technologies was almost considered a threat.4 The e-signature enables the completion of documents that can be transferred over the internet with merely any risk of forgery. European Union Member States were encouraged to implement the e-signature with the coming into force of European Regulation No 910/2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC. This Regulation has created a European legal framework for the acceptance of the e-signature. Italy and France both recognised the e-signature earlier through other regulations, which were later standardised through the eIDAS Regulation. The main aim of this professional report is to examine the provisions of the eIDAS Regulation regarding the legal validity of the e-signature in the performance of notarial instruments, and how these regulations are being implemented by European Member States’ following the civil law system. The study will focus on state practice in this area in two European Union Member States, namely France and Italy. Consequently, their respective laws and regulations on the legal validity of the e-signature will be examined and compared. More specifically, the report will attempt to answer the following main research question: What would be the advantages and obstacles for the implementation of the e-signature in the performance of notarial instruments in Malta? Yet, the system comes with a price tag, as it requires an investment in technological resources to enable it to run efficiently, whilst also securely. Aims and Objectives Covid-19 lockdown and self-isolation restrictions have raised a number of issues in civil law states like Malta, where the e-signature has not yet been given the same legal effect as the wet-ink signature for use on notarial instruments. In fact, last year an assessment of the current laws was conducted for the purpose of establishing whether the electronic signature may be implemented by Notaries to execute promise of sale agreements and mandates in relation to acquisition of property. Indeed, the pandemic has brought more awareness on the need to reform this tradition, thus compelling both civil and common law jurisdictions to speed up the process of adopting the relevant laws and regulations to adapt to contemporary needs posed by the stay-at-home restrictions and social-distancing mandates. This professional report will look at two States, namely Italy and France, selected purposely from the civil law family to match with Malta. Unlike Malta, they have been implementing the e-signature on notarial instruments for a number of years. Thus, the aim is to learn by analysing the systems of both States, which have been up and running and in continuous development. This, in an attempt to provide the Maltese notarial field with the knowledge and expertise gained by other Notaries who have been actively making use of digital technologies in the exercise of their profession. A previous study on electronic notarisation (e-notarisation) focussed on the national laws of a number of European Member States to determine whether they allow the electronic signing of notarial instruments. It then also examined the amendments that the Maltese legislator would be required to make to national law, should it be made possible for the Maltese Notary to execute his functions electronically. The aim of this study on the other hand, is to examine how a notarial instrument may be signed electronically. This, with the aim of providing the Maltese notarial field with different practices adopted by Italy and France in the implementation of the e-signature on notarial instruments. The study will also attempt to provide insight on the required infrastructure for such a system to function safely and securely. This report adopts a comparative research methodology. It involves some analysis of primary sources which include national and international legal frameworks. The analysis is supplemented by information from secondary sources such as articles from international law journals and research papers. Official websites of Notaries of Europe, such as Notaires de France, Notaries of Europe and the Consiglio Nazionale del Notariato. These have been of fundamental importance, as they provide the latest and most reliable information in relation to the topic, which is in continuous development Section 1 will examine the electronic notarial instrument by looking at the eIDAS Regulation, the European legal framework whose aim is to create uniformity amongst European Union Member States in relation to the legal validity of the e-signature. Therefore, the relevant provisions to this effect will be analysed. The study will then move on to explain the role and functions of the Italian Notary. Subsequently, the Italian laws and regulations in relation to the e-signature will be examined, after which a detailed analysis of the process of signing an Italian notarial instrument electronically will be given. A similar overview about France will follow, which includes the role of the French Notary, and an examination of the laws regulating the electronic notarial instrument, which is in line with the eIDAS Regulation. The section will then move on to give detail on the technological requirements for the system to operate and the steps involved. Section 2 will look at the notarial field in Malta, the role of the Maltese Notary and the formalities for the execution of the notarial instrument. Nonetheless, the highlight is the fact that the electronic signing of public deeds is not yet legally permitted under Maltese law. Subsequently, the study will look at the relevant provisions from the Electronic Commerce Act, Chapter 426 of the Laws of Malta (EC Act), as well as the recent amendments through Act No.XXXIII of 2021, to examine what is permissible under Maltese law and whether these latest amendments allow Notaries to exercise any of their functions electronically. The conclusion will present and tie together the main findings of the report, and provide an answer to the third research question. Where possible, recommendations to the Notarial Field on the subject of the implementation of the e-signature on notarial instruments will also be provided.