The Republic of San Marino, despite its status as one of the world’s oldest republics and a non-EU member state, has proactively positioned itself as a modern, digitally forward-thinking jurisdiction. Recognizing the imperative of cross-border interoperability and efficiency, the country has adopted a legal framework for electronic signatures and trust services that is largely modelled on and compliant with the European Union’s eIDAS Regulation (Regulation (EU) No 910/2014).
This alignment ensures that San Marino’s digital transactions are recognized and trusted globally, particularly within the EU, which is crucial for its trade and financial sectors. The cornerstone of local legislation is the principle of functional equivalence, which holds that a properly executed electronic document has the same legal weight as its handwritten counterpart.
San Marino employs a tiered approach to electronic signatures, where the legal validity and evidentiary weight directly correspond to the level of technological security and identity verification used. Businesses and citizens must therefore understand this hierarchy—Simple, Advanced, and Qualified—to ensure the legal enforceability of their digital agreements, especially those related to high-value transactions or mandatory written forms.
1. Legal Framework and Core Principles
The legal foundation for electronic signatures and digital governance in San Marino is primarily established by the Law on Electronic Documents and Digital Administration, No. 129 of 17 July 2018, which is often supplemented by subsequent decrees and executive regulations. This legislation defines the roles of certified entities, the technology standards, and the core legal principles governing digital interactions.
A. Foundational Legal Principles
The San Marino framework enforces two primary legal concepts that underpin the acceptance of electronic documents in legal proceedings:
i. Principle of Non-Prejudice: This mandates that a document or signature cannot be legally invalidated or deemed inadmissible in court simply because it is in an electronic format. The courts are required to evaluate electronic evidence based on its reliability and integrity, not its physical form.
ii. Principle of Legal Presumption (Qualified Signatures): The legislation explicitly grants the Qualified Electronic Signature (QES) the equivalent legal effect of a handwritten signature. Crucially, any document bearing a QES enjoys a legal presumption of authenticity and integrity. This shifts the burden of proof onto the challenging party to demonstrate that the signature is invalid or that the document has been tampered with.
A. The Three Tiers of Electronic Signatures
Mirroring the eIDAS model, San Marino’s law rigorously defines the three signature types based on their underlying security characteristics:
i. Simple Electronic Signature (SES)
● Definition: The most basic form, typically used to demonstrate assent but lacking high-level cryptographic safeguards.
● Examples in Practice: Typing one’s name at the end of a non-critical document, clicking an “Agree” button on a website’s terms of service, or a basic digital image of a signature.
● Legal Weight: Admissible as evidence, but holds the lowest probative value. The relying party must provide substantial additional evidence (e.g., audit trails, context, usage history) to prove the signatory’s intent and the document’s integrity. Suitable only for low-risk internal or informational exchanges.
ii. Advanced Electronic Signature (AES)
● Definition: A more secure signature that must meet stringent technical requirements, including being uniquely linked to the signatory, being capable of identifying the signatory, and detecting any changes to the signed data after the moment of signing.
● Examples in Practice: Signatures generated by commercial providers (like Flowmono or similar platforms) that employ dedicated signing keys, rigorous identification checks, and comprehensive tamper-evident sealing of the document.
● Legal Weight: Admissible and generally carries significant probative value in court due to its enhanced security features. However, it does not legally equal a handwritten signature and is often used for B2B contracts where both parties have established security protocols and trust.
iii. Qualified Electronic Signature (QES)
● Definition: The highest standard, defined as an AES that is created using a qualified electronic signature creation device (QESCD) and is backed by a qualified certificate issued by a local or internationally recognized Qualified Trust Service Provider (TSP). QES requires rigorous face-to-face (or equivalent remote) identity verification.
● Examples in Practice: Used for submitting annual corporate filings to the relevant Registry of Commerce, signing public contracts, or executing legally mandated “written form” requirements.
● Legal Weight: The QES possesses full legal equivalence to a handwritten signature. It is the only electronic signature type that satisfies mandatory statutory requirements for “written form” in the most critical legal acts. Its presumption of validity makes it the default choice for high-stakes transactions.
2. Documents That Can and Cannot Be Signed Electronically
The permissibility of using an e-signature in San Marino hinges on whether the law governing the specific transaction imposes a special, non-electronic form requirement (e.g., a public act or notarization).
A. Documents Generally Permitted for Electronic Signing (QES Recommended/Required)
The QES is necessary whenever the law requires a plain “written form” for validity, offering the highest level of legal security and dispute avoidance.
| Document Type | Invoices, purchase orders, internal memoranda, and acceptance of digital terms and conditions. | Required Signature Tier |
| Corporate Filings | Annual financial statements, tax declarations, filings with the Central Bank of San Marino, and registration of changes at the Registry of Companies. | QES (Mandatory for official submissions) |
| Commercial Agreements | Service agreements, commercial lease agreements, supply contracts, non-disclosure agreements (NDAs), and standard loan agreements (if not secured by real property). | QES |
| Employment Relations | Individual employment contracts, termination notices, internal policies, and collective bargaining agreements. | QES |
| Public Administration | Communication between citizens/businesses and public bodies (e.g., permits, authorizations, formal requests), provided the public body’s system accepts it. | QES/Digital ID |
| Internal & Low-Value Documents | Invoices, purchase orders, internal memoranda, acceptance of digital terms and conditions. | SES/AES (QES for high-stakes) |
B. Documents Generally Prohibited or Highly Restricted (Mandating Paper/Notarization)
Electronic signatures, even the Qualified type, cannot replace physical signatures when the transaction’s governing law explicitly mandates a solemnized form, verification by a public notary, or specific physical instrument delivery. These exceptions are in place to safeguard the public interest, certainty of ownership, and vulnerable parties.
Prohibited and Restricted Categories Include:
i. Real Property Transactions: Contracts for the transfer of ownership of real estate, the establishment of mortgages, or other real rights require a public act and subsequent transcription in the property registers, necessitating physical intervention of a notary.
ii. Wills and Testamentary Acts: Documents concerning succession and last wills remain highly regulated and typically demand a specific, traditional paper form to ensure the integrity and intentionality of the testator.
iii. Formal Family Law Acts: Certain matrimonial property conventions or legal declarations regarding legal capacity often require notarized deeds.
iv. Specific Negotiable Instruments: While modern laws often permit digital equivalents, the traditional creation of certain paper-based financial instruments (like the cambiale or promissory notes) may still require a physical signature to meet technical circulation requirements.
v. Legal Acts Requiring Public Certification: Any legal transaction where the law requires the document to be notarially solemnized (i.e., drawn up by a notary public) or where signatures must be certified by a notary cannot be completed solely with an e-signature.
3. Notable Changes and Practical Implementation
San Marino’s commitment to digital transformation has led to continuous legislative updates and technological rollouts since the core 2018 Law.
A. Implementation of the San Marino Digital Identity (ID)
A significant development is the introduction and widespread acceptance of the national Digital Identity (SM-ID). This identity system is tightly integrated with the Qualified Electronic Signature infrastructure. The SM-ID allows citizens and residents to securely authenticate themselves to public services and private entities and serves as the primary mechanism for generating QES through secure, cloud-based environments. This move has drastically reduced the reliance on physical smart cards or USB tokens, boosting administrative efficiency.
B. Legislative Interoperability with Italy and the EU
Given its location, San Marino places high importance on cross-border recognition. The legislation explicitly provides for the acceptance of Qualified Electronic Signatures and electronic identification schemes from other jurisdictions, provided they are recognized under equivalent standards (i.e., the eIDAS framework for EU states). This high degree of interoperability facilitates rapid, legally sound digital commerce with its largest trading partners.
C. Centralized Regulatory Oversight
Unlike some distributed models, San Marino typically maintains a strong centralized regulatory authority, often through the State Secretariat for Finance and Budget or a dedicated body like the Authority for Digital Innovation, which oversees the accreditation and supervision of Trust Service Providers (TSPs). This concentrated oversight ensures strict adherence to security and procedural standards required for QES issuance.
D. The Shift to Digital Corporate Governance
The government has implemented several initiatives, making the use of electronic documents and QES mandatory for communication with most government agencies. For example, submission of incorporation documents, annual declarations, and most fiscal reporting must be done digitally using a QES, pushing the entire commercial ecosystem towards paperless operation and reducing bureaucratic processing times significantly.
Disclaimer
The information on this site is for general information purposes only and is not intended to serve as legal advice. Laws governing the subject matter may change quickly, so Flowmono cannot guarantee that all the information on this site is current or correct. Should you have specific legal questions about any of the information on this site, you should consult with a legal practitioner in your area.
References
1. Law on Electronic Document and Digital Administration, No. 129 of 17 July 2018. (The foundational San Marino legislation).
2. Executive Decree No. 136 of 18 September 2018. (Implementing regulations related to Qualified Trust Service Providers and technical standards).
3. Regulation (EU) No 910/2014 (eIDAS Regulation). Official Journal of the European Union. (The EU standard used as the reference model for San Marino’s legislation).
4. Codice Civile della Repubblica di San Marino. (The Civil Code, which defines the general requirements for contract validity and form).
5. San Marino Authority for Digital Innovation (AIDA). Official publications and guidelines on the use of the SM-ID and QES certificates.
6. Legge Qualificata No. 184 del 2017.
