DECREE-LAW NO. 126/2021, OF 30 DECEMBER 2021

The innovative framework which contributes to minimize social interactions and responds to the growing demand for online services.

On 4 April 2022 Decree-Law no. 126/2021, of 30 December 2021 will enter into force, which establishes the temporary legal framework applicable to the performance, through videoconference, of authentic acts, authentication of private documents and signature recognition, to which it will be attributed the same probative value as the acts performed in person, provided that the requirements set forth therein are complied with.

This is an innovative legal framework that will be in force for a period of two years, allowing citizens, companies and professionals, the latter including registrars, registry officers, notaries, Portuguese consular agents, lawyers and sworn paralegals (solicitadores) to perform acts, at a distance, which until now would have to be carried out in person, insofar that they are performed in national territory or, in the case of acts to be carried out by Portuguese consular agents, provided that the intervening parties are Portuguese nationals who are abroad or that the acts must produce its effects in Portugal, pursuant to Decree-Law no. 51/2021, of 15 June 2021, which approves the Consular Regulation.

The notaries, Portuguese consular agents, lawyers and sworn paralegals (solicitadores) will be allowed to carry out all of the acts within their competence under the referred legal statute, including, for instance, the authentication of private documents for purchase and sale or donation, with the following exceptions:

  • Wills and acts relating thereto.
  • Acts relating to facts subject to land registry that do not concern:
    1. Legal facts that determine the constitution, recognition, acquisition, modification or extinction of property rights, usufruct, use and housing rights, surface rights or easement.
    2. Legal facts that determine the constitution or modification of horizontal property.
    3. Promissory transfer or promissory encumbrance of real estate if real estate effectiveness has been attributed to it or the assignment of the contractual position arising from such fact.
    4. Mortgage, its transfer, modification or termination, transfer of the priority level of the respective registration and income consignment.

On the other hand, registrars and registry officials may only carry out by videoconference the acts relating to:

  • Special procedures for the transfer, encumbrance, and immediate registry of buildings under the in-person attendance framework (atendimento presencial único), governed by Decree-Law no. 263-A/2007, of 23 July 2007, in its current wording.
  • Proceedings of separation or divorce by mutual consent.
  • The procedures for certificate of inheritance, with or without registries involved.

It is important to mention that the performance of acts by videoconference established in the Decree-Law under analysis is optional and subject to the agreement of the intervening parties, who, in such case, will be notified to the email address indicated, with confirmation of the appointment for the act, of the hyperlink to the reserved area of the digital platform which, upon authentication, will allow access, on the scheduled day, to the videoconference session; of the platform’s operating rules and the conditions for holding the videoconference session, maintaining the intervening parties the right to be accompanied by a lawyer or sworn paralegal (solicitador), in person or remotely.

The digital platform where the sessions will take place will be made available by the Ministry of Justice and accessible at the electronic address, which authentication can be done through the Citizen Card, using the Citizen Card or Digital Mobile Key reader.

By accessing the digital platform through a reserved area, the intervening parties will be able to:

  1. Submit documents instructing the act to be performed
  2. Give consent for the audio-visual recording of the acts, which will be archived and kept by the managing entity of the digital platform for a period of 20 years and can only be made available later to the intervening parties by means of a court decision.
  3. Access videoconferencing sessions.
  4. Access the documents instructing the act and the acts to be formalized.
  5. 5. Demonstrate that the document to be formalized is in accordance with the intervening parties will.
  6. Access documents to be formalized, for qualified electronic signature
  7. Consult the history of the acts in which intervening parties were involved in the platform.
  8. Consult the payment of fees due to the Instituto de Registos e Notariado, I. P..

It should be stressed out that the capture of sound or image during the videoconference session cannot, under any circumstances, be deactivated by the intervening parties, otherwise the procedure will be interrupted by the professional and the act will not be completed.

Professionals may also have access to the following features:

  1. Schedule the performance of the acts and respective videoconferencing sessions, identifying the respective intervening parties.
  2. Manage the submitted instructional documents.
  3. View the identification elements of the intervening parties that are necessary for the verification of their identity by the professional, collected during the authentication procedure of the intervening parties in the digital platform.
  4. Manage videoconferencing sessions.
  5. Submit the documents to be formalized as well as the formalized documents.

Alike the procedure for performance of acts in person, in the acts carried out by videoconference, there will also be a reading and explanation aloud in the presence of each of the intervening parties, simultaneous or not, preceding the qualified electronic signature of the intervening parties and professional.

Once the act is completed, an electronic copy of the formalized document will be made available to the intervening parties, as well as the instructional and formalized documents will be available only for consult on the digital platform for 30 days.

Finally, we deem it is important to make a small note regarding an issue set forth in this Decree-Law that will certainly be a topic for discussion: protection and processing of personal data.

Indeed, as it is understandable, not only carrying out acts via videoconferencing implies the use of computerized means, but also some of the procedures established by the Decree-Law, such as, for instance, one of the means of identity verification of the intervening parties: the use of a biometric system for comparing face images collected electronically in real time with the face image contained in the information system responsible for the life cycle of the citizen’s card.

In this sense, the Decree-Law establishes that the matters relating to the protection and processing of personal data are subject to compliance with Law no. 58/2019 of 8 August 2019, of the EU Regulation 2016/679 of the European Parliament and Council, of 27 April 2016, and other legislation.

Inês Maltêz da Cunha

TFRA will update the information in this document whenever deemed necessary.

We draw your attention to the fact that the information contained in this document is of a generic nature and, therefore, does not exempt you from analyzing the specific case and consulting the legislation in force at any given time.

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