Paper is increasingly being dispensed with for reasons of sustainability. Home office obligations and travel bans in connection with the Corona pandemic are making handwritten signatures impractical. Electronic signatures are a simple alternative to traditional signatures and are increasingly important in business and legal transactions.
Electronic signatures can facilitate correspondence and thus also contractual transactions - be it to identify the sender of an e-mail or to bring about the conclusion of a contract. Despite certain reservations, the qualified electronic signature offers a suitable alternative for complying with the legal requirement for written form. In some cases, electronic signatures also have special probative value in court.
But what types of signatures are there and what are their legal and procedural effects in Germany and France?
European regulation on signature types
With the eIDAS Regulation on electronic identification and trust services, the European legislator has introduced a uniform legal basis for electronic signatures (Regulation (EU) No. 910/2014 of July 23, 2014). The regulation governs different types of signatures and their technical requirements. It applies in all EU member states and the EU economic area, which is intended to strengthen trust in electronic transactions in the internal market and promote the digital economy.
Three signature types are distinguished: The simple electronic signature, the advanced electronic signature and the qualified electronic signature. The signature types differ in their requirements and their level of security.
Different requirements for signatures
A simple electronic signature, the so-called signature électronique simple, SES, can be created without much effort. Accordingly, the signature process is not particularly protected and the security level is low. Examples of SES are scanned signatures inserted into a PDF or signatures made with an electronic pen on a tablet.
An advanced electronic signature, known as signature électronique avancée, AES, provides a higher level of security. It uses electronic signature creation data over which the signer has sole control. The AES is characterized by the fact that the recipient can identify the signer and clearly assign the signature to the signer. It is also protected against subsequent changes.
A qualified electronic signature, the so-called signature électronique qualifiée, QES, has the highest level of security. For this reason, only the QES is fully equivalent to the handwritten signature. In addition to the requirements that are also placed on an AES, a qualified certificate is also required, by which the signatory must confirm his identity. The individual certificate is then linked to the signature creation data. Both the certificate and the signature creation device may only be offered by trusted, certified services. The individual EU member states provide corresponding lists of the trust service providers they recognize. The individual lists as well as helpful EU search engines can be accessed here.
QES are required, for example, as part of the special electronic lawyer's mailbox for submitting pleadings to court. QES can also be generated completely cloud-based. In this case, no additional hardware besides a computer, tablet or cell phone is required. The corresponding service is provided by certified cloud-based providers, such as DocuSign.
Legal effect of electronic signatures
According to the eIDAS Regulation, SES and AES may not be denied legal effect and admissibility as evidence in legal proceedings solely because they are available in electronic form. QES have the same legal effect as handwritten signatures anyway. Moreover, QES based on a qualified certificate issued in one Member State must be recognized as QES in all other Member States.
Apart from these principles, the legal treatment of electronic signatures is determined by national law.
Status quo in France: substantive law
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 Code civil, or "Cciv" for short). Thus, the conclusion of a contract by electronic signature is also permitted (Art. 1174 Cciv). According to Art. 1174 Cciv, the electronic signature even fulfills the legal requirement for the written form. The prerequisite is that a permissible identification procedure has been used, the signatory can be properly identified and the integrity of the document is guaranteed (Art. 1174 in conjunction with 1366, 1367 Cciv).
Special features apply to two categories of documents: According to Art. 1175 Cciv, documents in the area of family and inheritance law, for which a so-called "signature privée" is required, cannot be signed using an electronic signature. This does not apply if the previously electronically signed document is countersigned by the parties' attorneys in their presence and a transcript is deposited with a notary public. Documents in the area of personal and real securities from civil and commercial law can only be formally submitted with an electronic signature as of January 01, 2022.
Electronic signatures in French procedural law
In the context of legal disputes before French courts, documents with SES can theoretically be used as evidence. Case law is currently still reserved. In contrast, AES are generally admitted in court to provide evidence, at least with regard to ordinary contracts. The probative value of an SEQ is equivalent to that of a handwritten signature (Art. 1366, 1367 Cciv). The authenticity of an SEQ is presumed unless the disputing party provides evidence to the contrary.
Status quo under German law
Similar to French law, under German law the contracting parties are free in most cases to determine the form of the contract and type of signature. In principle, any form of electronic signature can be used as a signature. The parties may also agree to use a specific type of electronic signature.
However, no type of electronic signature is sufficient for legal transactions that by law require notarization (Section 128 of the German Civil Code, BGB for short). This applies, for example, to real estate purchase contracts (Section 311b BGB).
If the law requires written form, a handwritten signature is required (Section 126 BGB). This can be replaced by the parties with a QES (Section 126a BGB). In this case, each party to the contract must provide an identical document with its QES. An SES or AES, on the other hand, does not satisfy the written form requirement.
The German Civil Code also prohibits the use of electronic signatures, e.g., for the termination of an employment relationship or a dissolution agreement (section 623 BGB), a declaration of surety (section 766 BGB), a promise of debt (section 780 BGB), or an acknowledgement of debt (section 781 BGB). In these cases, the written form is limited to the handwritten signature in accordance with § 126 BGB. This cannot be replaced by a QES either.
Electronic signatures in procedural law
The evidentiary value of the different types of electronic signatures depends on their respective level of security and reliability.
On the occasion of the eIDAS Regulation, the German legislator specifically regulated the probative value of electronic documents with QES in section 371a (1) of the German Code of Civil Procedure (ZPO). According to this, the prima facie case for the authenticity of a declaration made electronically can only be shaken by facts that give rise to serious doubts as to whether the declaration was made by the person responsible. In addition, Section 416 of the German Code of Civil Procedure (evidential value of private documents) applies mutatis mutandis to electronic documents with QES in accordance with Section 371a (1) of the German Code of Civil Procedure. It is therefore presumed that the document originates from the person who signed it. If the presumed signatory wishes to shake this presumption, he must demonstrate and prove that his QES has been compromised.
Electronic documents that have only been provided with an SES and an AES are considered to be objects of the prima facie case (Section 371 of the Code of Civil Procedure). Evidence is taken by presenting or transmitting the file to the court. Electronic documents with SES or AES are then subject to free evaluation of evidence by the court (Section 286 ZPO).
It remains to be seen whether the tolerance and spread of electronic signatures in legal transactions will ultimately reach broad consumer circles. At least in the modern business world, the qualified electronic signature is already a solid and largely equivalent substitute for the handwritten signature.
Equating QES with the written form also opens up a wide field of applications for smart contracts and the use of blockchain technology for contracting: Blockchain-based smart contracts are possible, for example, that use an interface to a trust service provider to obtain QES from the contracting party. In this way, smart contracts gain legal certainty and can also be applied to contracts with a statutory written form requirement. The same procedure can be applied to transactions via non-fungible tokens (NFTs).
Our experts at the Oppenhoff French Desk will be happy to advise you on all legal and tax issues relating to your activities in Germany.