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The EU has set ground rules for the member states. Electronic signatures are widely used in both the public and private sectors across the European Union. The EU Regulation (No 910/2014), also known as eIDAS, was passed by the European Parliament and the Council on July 23, 2014. This regulation, which pertains to electronic identification and trust services for electronic transactions in the internal market, took effect on July 1, 2016. It provides an EU-wide legal framework for electronic signatures and other trust services. The eIDAS regulation applies directly in all 27 EU Member States, eliminating the need for individual national implementation.

EIDAS groups esignatures into 3 large categories

  1. Electronic Signature: Also known as a “simple” electronic signature, it is defined as “any data in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign.” A signatory, a natural person who creates an electronic signature, can create this in several ways, such as typing their name into an electronic document, email, or using an online e-signing platform.

  2. Advanced Electronic Signature (AdES): This is an electronic signature that meets additional requirements outlined in Article 26 of eIDAS. It must be:

    • uniquely linked to the signatory,
    • capable of identifying the signatory,
    • created using a private key that the signatory can use with high confidence under his sole control, and
    • linked to the signed data in a way that any subsequent changes in the data are detectable.
  3. Qualified Electronic Signature (QES): This is an advanced electronic signature created by a qualified electronic signature creation device (QESCD) and based on a qualified certificate for electronic signatures issued by a qualified trust service provider (QTSP).

Are they legal and are they considered acceptable?

  • An electronic signature's legal impact and acceptability as evidence in court proceedings cannot be dismissed solely because it is digital or fails to meet the QES criteria.
  • A QES has the same legal weight as a handwritten signature.
  • A QES based on a certificate issued in one EU Member State is acknowledged as a qualified electronic signature in all other EU Member States.
  • A QES is reciprocally recognized in all EU Member States and the UK. A certificate provided by a QTSP in any EU Member State is acknowledged as a qualified certificate throughout the EU and the UK. A QES based on a qualified certificate is assumed to be authentic, thus setting the benchmark for electronic signatures.
  • A simple electronic signature and an AdES cannot be dismissed in terms of legal impact or acceptability as evidence solely due to their digital nature. This is referred to as the non-discrimination principle.

QES

eIDAS imposes a thorough regulatory and audit system on QTSPs to ensure they follow stringent security standards. This involves submitting a conformity assessment report to a supervisory body in an EU member state and proving that the QTSP and their QESCD comply with the requirements stipulated in eIDAS (Articles 20 and 24, eIDAS). The regulatory system is more taxing for QTSPs than for TSPs who provide electronic signatures. This bolsters trust in QES and the qualified certificates that support them.

Every EU Member State publishes and maintains a national trusted list of QTSPs and the qualified trust services they offer (Article 22, eIDAS). According to eIDAS, national trusted lists hold constitutive effect. This implies that the electronic signature is only a QES if the QTSP is listed in a trusted list. The European Commission operates a Trusted List Browser (https://esignature.ec.europa.eu/efda/tl-browser/#/screen/home) which allows customers to confirm that a QTSP is listed in a national trusted list.

The European Union’s Electronic Identification, Authentication and Trust Services (eIDAS) has not entirely standardized electronic signature laws across the EU and the UK. Recital 49 of eIDAS is crucial in determining when and if customers can use an electronic signature for their transactions. It states that aside from QES – which is equivalent to a handwritten signature – the legal impact of electronic signatures is still determined by national law. This means individual EU Member States and the UK can restrict the use of an electronic signature for specific transactions (like wills or property transfers) or demand a higher level of signature (such as an AdES or QES) for transaction approval.

Moreover, public registries (like property or probate registries) are free to demand a handwritten signature for registration purposes.

Germany Specifically

The two German laws that regulate esignatures are:

  1. The Vertrauensdienstegesetz (VDG) or the German Trust Services Act which implements the eIDAS Regulation and facilitates the use of electronic trust services per the eIDAS Regulation.

  2. The Bürgerliches Gesetzbuch (BGB) or the German Civil Code which, among other things, dictates when the written form can be replaced by electronic form.

Esignatures cannot be used for:

  • - Deeds
  • - Notarized documents
  • - Termination of employments
  • - Marriage contracts
  • - Wills
  • - Property Transfers
  • - Adoption paperwork
  • - Debt agreements/acknowledgements
  • - Agreements with local governments.

The following elements of compliance available within BoldSign can be used to comply with Germany’s eSignature laws:

  • Secure and unique signing link: A secure and unique link to sign a document is sent directly to the signer's email address. This helps to ensure that the document is only accessed by the intended signer and that it cannot be tampered with.
  • Password protection: Senders can specify a password that needs to be entered before viewing and signing a document. This adds an additional layer of security to the signing process.
  • Audit trail: The IP address of the signer along with timestamps for all major events in the signing process are recorded in an audit trail. This provides a record of who signed the document, when they signed it, and from where they signed it.
  • Digital signature: The final signed document is digitally signed with an AATL compliant certificate. This ensures that the document cannot be tampered with without invalidating the signature.
  • Consent: Signers are asked to confirm their intent to sign electronically and are also informed that they have an option to opt out. This helps to ensure that the signer is aware of the implications of signing electronically and that they have given their consent to do so.
  • Custom terms: There is an option to get your signers to agree to a custom set of terms. This can be useful for adding additional security or ensuring that the signer understands the terms of the document.

Disclaimer: Information on this page is intended to help businesses understand the legal framework of electronic signatures for this particular country. However, Syncfusion, its  officers, directors, stockholders, affiliates, attorneys, accountants, employees or agents cannot provide legal advice. You should consult your own personal attorney regarding your specific legal questions. Laws and regulations change frequently, and this information may not be current or accurate. To the maximum extent permitted by law, Syncfusion  provides this material on an “as-is” basis. Syncfusion disclaims and makes no representation or warranty of any kind with respect to this material, express, implied or statutory, including representations, guarantees or warranties of merchantability, fitness for a particular purpose, or accuracy.’

Syncfusion makes no warranties of any kind, including but not limited with respect the information or the product, whether express, implied, statutory or otherwise. To the maximum extent permitted by law, Syncfusion disclaims all conditions, representations and warranties, whether express implied or statutory with respect to this information without limitation any implied warranty of merchantability, fitness for a particular purpose, accuracy or currentness of this information.

Syncfusion nor their officers, directors, stockholders, employees, affiliates, attorneys, accountants or agents, shall be entitled to indemnification, express or implied, contractual or statutory, equitable or otherwise, under this Agreement.