With the eIDAS Regulation on electronic identification and trust services, the European legislator introduced a uniform legal basis for electronic signatures (Regulation (EU) No 910/2014 of 23 July 2014). The regulation regulates different types of signatures and their technical requirements. It applies in all EU Member States and in the EU Economic Area, which aims to strengthen confidence in electronic transactions in the Single Market and promote the digital economy. The BGB contains many provisions that require the written form of certain contracts. According to § 126 BGB, the written form may be replaced by an electronic form, unless otherwise provided for by another law. However, if the electronic form is to replace the written form under § 126a, the electronic form must comply with the following conditions: But what types of signatures exist and what legal and procedural effects do they have in Germany and France? The electronic form, in turn, requires in accordance with § 126a Abs. 1 BGB that the declaration is provided with a qualified electronic signature (QES). However, this requires the certification of the system used for signature by the Federal Network Agency in accordance with Article 30 of the EU Regulation of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market (eIDAS Regulation). In addition, the Contracting Parties may also agree on SES, AES or QES in the above cases.
The same applies to unilateral legal declarations. In general, the use of electronic signatures is not very common in Germany, but it is increasing. Certificate-based digital signatures are not often used in legal transactions due to high costs and technical effort, but their use is increasing in the economy. According to the eIDAS regulation, there are three different types of electronic signatures. A standard electronic signature (SES) is a signature that is typed or scanned. With this type of signature, there is no obvious proof of who signed the document. Finally, it should be noted that the electronic form is also excluded when an employer`s employment reference is issued (Article 109(3) of the Law on Trade Regulation). For reasons of sustainability, we are doing without more and more paper. Indoor service obligations and travel bans related to the coronavirus pandemic make handwritten signatures impractical.
Electronic signatures are a simple alternative to conventional signatures and are becoming increasingly important in business and legal transactions. An electronic document signed with a qualified electronic signature constitutes complete proof that the declaration was made by the holder of the signature key, provided that the qualified signed electronic document itself is authentic. According to the German Code of Civil Procedure, an electronic signature qualified as “prima facie” offers proof of authenticity. The opponent of the evidence can only refute this hypothesis by citing facts proving that the statement was not made with the will of the holder of the signature key. Employers are advised to look very carefully in all cases to ensure that any simplification proposed by the introduction of digitised procedures is effective. It is worth not acting in haste and carefully checking whether and, if so, in what form electronic signatures can be used in labour law. The probative value of different types of electronic signatures depends on their respective levels of security and reliability. In order to ensure effective enforcement, Germany has also adopted a law implementing eIDAS, the Trust Services Act (VDG), which aims to facilitate the use of electronic trust services in Germany. The law entered into force on 29 July 2017. Most of the relevant German national regulations can be found in the German Civil Code (BGB). German law contains many provisions that stipulate certain formal requirements, in particular the “written form”.
The written form is required, for example, according to the Civil Code for the termination of a rental contract, the notification of an assignment of rights or the assignment of rights on a mortgage. The BGB contains various “forms” for which certain types of declarations must be available to be valid, for example (i) “written form”, (ii) “text form” and (iii) “agreed form”. The BGB stipulates that the written form may be replaced by the electronic form, unless the statutes lead to a different result. Among the most important laws in Germany that regulate the use of electronic signatures are: A simple electronic signature, called simple electronic signature, SES, can be created without much effort. As a result, the signing process is not particularly protected and the level of security is low. Examples of SES include scanned signatures inserted into a PDF file or signatures created with an electronic pen on a tablet. Since eIDAS was founded by the European Union (“EU”), it has direct effect in Germany. The procedural rules and the accompanying detailed rules were introduced into German law by the eIDAS Implementing Act.
The existing rules for electronic signatures, which were established by the so-called Signatures Act, which was established before the publication of eIDAS, have been abolished. Under French law, the parties are free to determine the form of their contract, i.e. the manner in which it is signed, within the limits of the law (Art. 1102 Civil Code, abbreviated “Cciv”). Thus, the conclusion of a contract by electronic signature is also permitted (Art. 1174 Cciv). According to art. 1174 Kkv, the electronic signature even meets the legal requirement of the written form. The prerequisite is that an authorized identification procedure has been used, that the signatory can be correctly identified and that the integrity of the document is guaranteed (Art. 1174 in conjunction with 1366, 1367 Cciv). Special characteristics apply to two categories of documents: according to Art. 1175 Cciv, documents in the field of family law and inheritance for which a “private signature” is required cannot be signed with an electronic signature.
This does not apply if the previously signed electronic document is countersigned by the parties` lawyers in their presence and a copy is deposited with a notary. Documents in the field of securities and real civil and commercial law can only be formally submitted with an electronic signature from 1 January 2022. It remains to be seen whether the tolerance and spread of electronic signatures in legal transactions will eventually reach large groups of consumers. At least in the modern business world, the qualified electronic signature is already a solid replacement and largely equivalent to the handwritten signature. Disclaimer: The information on this page is intended to help companies understand the legal framework for electronic signatures. However, Adobe cannot provide legal advice. You should consult a lawyer on your specific legal issues. Laws and regulations change frequently, and this information may not be current or accurate. To the fullest extent permitted by law, Adobe provides this material “as is”. Adobe disclaims all representations or warranties of any kind, express, implied, or statutory, with respect to this material, including any representations, warranties, or warranties of merchantability, fitness for a particular purpose, or accuracy.
Due to the fact that electronic signatures are not common in Germany, judges are usually not very familiar with the laws around them. However, on the basis of the Law on the Promotion of Electronic Legal Relations with the Courts, it is customary for civil actions to be filed electronically via the new beA infrastructure. Unqualified electronic signatures benefit “only” from the non-discrimination clause, which provides that the legal effect and admissibility of an electronic signature should not be rejected as evidence in court solely because it is in electronic form or because it does not meet the requirements of a qualified electronic signature. For simple electronic signatures and advanced electronic signatures, there are no special privileges with regard to the burden of proof or the evaluation of the evidence. To ensure the reliability of unqualified electronic signatures, parties may use authentication methods and an audit log. The eIDAS Regulation recognises simple, advanced and qualified electronic signatures. Only the latter may comply with the written form requirement of § 126 (i.V.M. § 126a) BGB: In practice, this is often more difficult for the employee to determine than to obtain a simple wet signature. A QES typically requires a hardware device, such as a smart card, that generates a certificate and a corresponding card reader. Due to its high (technical) requirements, QES is only used in certain cases. In Germany, all lawyers have a specific lawyer`s postal account that meets the requirements of QES (the lawyer`s special electronic mailbox – “beA”).
Every lawyer in Germany is required to establish and maintain such a beA. These beAs can be used, among other things, to communicate electronically with the courts and/or authorities or to deliver letters to other lawyers. For other users, DocuSign Inc. also offers QES services. Electronic signatures are recognized as legally binding worldwide. Learn more about the legality of electronic signatures in different countries in this guide. In addition to these principles, the legal processing of electronic signatures is determined by national law. The DocuSign Electronic Signature Legality Guide is the result of legal research on laws and practices related to electronic signatures on a country-by-country basis.
