Legality of eSignatures in Netherlands

IN THIS PAGE

  • Background
  • What is an eSignature
  • Forms of electronic signature
  • Overview regulations of the eSignature in the Netherlands
  • Summary
  • Validity standards of an eSignature
  • Documents that can be signed
  • Summary limitation of use
  • How does BoldSign help
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Background

Electronic signatures have transformed the document authentication process, streamlining the signing of agreements both within the Netherlands and internationally. These digital tools facilitate the rapid and environmentally friendly execution of documents, contributing to a reduction in paper consumption and the acceleration of business dealings. Nonetheless, it iscrucial to grasp the key factors when implementing electronic signatures within the Netherlands.
Individuals should opt for an electronic signature service that complies with Dutch law, particularly the Dutch Civil Code, to ensure its legal validity is in par with handwritten signatures. However, some documents may need a wet-ink signature, and legal requirements vary by location.
Ensuring the security of electronic signatures is paramount. The chosen eSignature provider should offer robust security measures, including encryption, user authentication, and an audit trail, to safeguard against unauthorized access and ensure the integrity of the documents. Services such as BoldSign provide these security assurances, helping users meet compliance and security standards.
Although electronic signatures are advantageous and widely accepted, adherence to legal regulations, ensuring security, and choosing an easy-to-use service are essential for successful deployment in the Netherlands.

What is eSignature

Under the regulations of the Netherlands concerning electronic signatures, a signature is considered electronic when it consists of electronic data that is connected or logically related to other electronic data, serving as a means of authenticating identity. In the Netherlands, these electronic signatures are legally recognized on most documents, provided they can be unequivocally linked to the person signing. There is proof to confirm their legitimacy, safeguarding against tampering or falsification. It is also essential that the act of signing indicates deliberate consent to the conditions of the document. Once these conditions are met, electronic signatures are deemed legally equivalent to their handwritten counterparts, with exemptions.

Forms of electronic signature

An eSignature can be any electronic mark linked to an electronic document or process. This includes:
  • Logging into an app to authorize actions
  • Handwriting a signature on a tablet
  • Typing a name in an email
  • Clicking an acknowledgment on a website after authentication
  • Attaching a scanned handwritten signature
  • Using a voice command as a verbal agreement

Overview of regulations of eSignature in the Netherlands

The Netherlands, a member state of the European Union, operates with the electronic signature regulated by the Electronic Identification and Trust Services Regulation [eIDAS]1.
The eIDAS Act operates alongside the E-Commerce Directive [2000/31/EC], which sets out an array of transactions that member states may exclude from being completed by the electronic signature model. In fulfilling its obligations as a member state of the European Union, the Netherlands has implemented the regulation under Section 3.15a of the Dutch Civil Code2.
Generally, the code decrees that an eSignature has the same legal validity as a handwritten signature , also called as a wet-ink signature. This is subject to conditions that the method used for its authentication is sufficiently reliable and is regulated (at the federal level) by:
  • Dutch Civil Code
  • Telecommunications Act
  • Regulation (E.U.) No 910/2014 of the European Parliament
eSignatures under the regulation are only classified as one. However, under the eIDAS, the Netherlands, being a member state, is categorized into three categories:
  • Standard (Simple) electronic signature
  • Advanced electronic signature
  • Qualified electronic signature
A standard electronic signature is any data in electronic form attached to or logically associated with other data in electronic form and which is used by the signatory to sign.
An advanced electronic signature is an electronic signature meeting Article 26 of the eIDAS standards. It decrees that an advanced electronic signature should be:
  • Uniquely linked to the signatory.
  • Capable of identifying the signers.
  • Generated through means that the signers can keep in their sole control.
  • Attached to the data it relates to, so that any subsequent change to the data is detectable.

Uniquely linked to a person

A secure electronic signature must be uniquely connected to the person using it. The signature must be uniquely created with methods that only the signer has access to, like a private key and confidential info, to verify their identity.

Use and incorporation remain in their sole control

The person using the secure electronic signature must have sole control over the means of creating the signature. Typically, this requires managing a key pair or two-factor authentication, with the signer exclusively holding the private key to prevent unauthorized signature forgery.

Identify the person using the technological process

The process used to create the signature must be capable of identifying the person signing. This may include the use of a biometric signature, a Personal Identification Number (PIN), an email address, or even a company registration number.

Track down any alterations made after signing

It is essential to preserve the authenticity of the signed document. Modifications made to the document post-signature should be identifiable. This is commonly accomplished through an audit trail. Audit trails record the signer’s IP address, timestamps of key signing events, and location, providing proof of identity, timing, and signature place.
A qualified eSignature is an advanced digital signature generated using a certified device designed specifically for creating electronic signatures, and it relies on a certified electronic signature certificate.
Article 323 of the eIDAS sets out a set of validation standards to be met by a qualified eSignature. These are:
  • Statutory compliant certificate at the time of signing.
  • A certified trust service provider issued a certificate that was valid at the time of signing,
  • Signature validation data aligns with the data provided to the relying party.
  • The distinctive collection of information identifying the certificate’s signatory was accurately conveyed to the entity depending on it.
  • In instances where a pseudonym was employed during the signing process, its use is transparently communicated to the entity, depending on it.
  • The digital signature originates from an instrument designed to create qualified electronic signatures.
  • The integrity of the signed data is intact. 
  • The requirements provided for in Article 26 were met at the time of signing.

Requirement for the validity of an eSignature under the Dutch Civil Code

Under the Dutch Civil Code, an eSignature is sufficiently reliable to the extent of its legal validity where: 
  • It is uniquely linked to the signatory.
  • Capable of identifying the signatory.
  • It was created using electronic signature creation data in the sole control of the signatory.
  • They are linked to the data in it to the extent that any alterations are detectable.
  • Based on a qualified certificate
  • Generated by the use of safe equipment for producing electronic signatures.

Summary

Types of signatureStatutes and sections of relevant lawsUnique featuresLegal Validity
Simple Electronic Signature Federal Civil Code Article 3:15a Telecommunication Act [1998] As read with Electronic Identification and Trust Services Regulation Electronic data is affixed to another to identify the signer.
  • Valid based on evidentiary weight.
Advanced in Electronic Signature Electronic Identification and Trust Services Regulation. EU. Article 26 (Regulation (E.U.) No 910/2014)
  • Uniquely linked to the signatory,
  • Capable of identifying the signatory,
  • Created using means that the signatory can maintain their own control .
  • Attached to the data it relates to so that any subsequent change to the data is detectable.
Qualified Electronic SignatureElectronic Identification and Trust Services Regulation. Article 32 & 26 (Regulation (E.U.) No 910/2014)
  • Created by a qualified electronic signature creation device.
  • Based on a qualified certificate for electronic signatures.
  • Meets all requirements for an advanced eSignature.
  • Deemed valid in all other states within EU unless the contrary is substantiated in court.

Validity standards of an eSignature

Articles 6.227a, 6.227b, and 6.227c of the code outline special considerations to be met by a party in the electronic execution of a contract. They are

  • Consent from both parties.
  • Guarantee of the authenticity of the electronic contract.
  • Documentation remains accessible to both parties.
  • Easy to establish the identity of the parties therein.
  • Ability to track alterations on the document.
  • Easy to determine the time of conclusion of the agreement.

Consent from both parties:

It is a fundamental principle that all parties involved must give their consent willingly and knowingly for the contract to be considered valid and binding. Consent implies that each party understands the contract terms and agrees to them without coercion, fraud, or undue influence. This is achieved through a prompt notification as to the use of BoldSign to append an electronic signature.

Guarantee of the authenticity of the electronic contract:

Authenticity in electronic contracts refers to the assurance that the contract is genuine, not forged. Ensuring that the electronic document is the original agreement and not an altered version is essential. This can be established through two-step authentication on the signed document.

Easy to establish the identity of the parties therein:

Identifying the parties involved in an electronic contract is crucial for enforcing the agreement and for any legal proceedings that may arise. Electronic contracts must have mechanisms in place that can easily and accurately establish the identity of each party. This can be done through digital certificates, two-factor authentication, or identity verification services that link the electronic signature or consent to a specific individual or entity. Such measures help prevent identity theft and fraud in electronic transactions.

Track alterations on the document:

Tracking alterations in an electronic document is essential to maintaining the contract’s integrity and preventing fraudulent activity. BoldSign incorporates features like version control, audit trails, and timestamping, allowing any document changes to be recorded and monitored.

Ease in determining the time of conclusion of the Agreement:

The time at which an agreement is concluded is essential for legal reasons, such as determining when rights and obligations begin, assessing deadlines, and establishing the relevant period for statutory limitations. In electronic contracts, the time of conclusion can be easily determined by using timestamp services that record the exact date and time when the contract was signed or when all parties gave consent.

Public key infrastructure

The Kingdom of the Netherlands has established a Public Key Infrastructure to oversee electronic transactions within its territory. This provides users engaging in digital communications with pairs of cryptographic keys; each pair consists of a private key and a matching public key. These key pairs are associated with one or more certificates that confirm the identity or attributes of the certificate holder and the key. The system’s trust is built upon a hierarchical structure of certificates, with the root certificate at its apex. This root certificate, trusted due to authentication by a respected authority, is the primary certificate within the chain. To ensure that electronic services are delivered effectively and thoroughly, a reliable infrastructure is critical, offering assurances that parallel those found in conventional, physical services4. Other active recognized trust service providers are5:
Stay updated with the list by frequently reviewing the active trust service providers for each country within the European Union(eIDAS Dashboard (europa.eu))

The scope and limitations of eSignature transactions

The use of electronic signature isn’t legally recognized for all document types. Some transactions are appropriate for eSignatures, while others aren’t. Below is a brief analysis and a summary table of these transactions.

Documents that can be signed

Electronic signatures can be employed to affix signatures and provide countersignatures on a diverse array of documents, such as:
  • Human resources
  • Procurement
  • Non-disclosure agreements (assuming they are contracts, not formal deeds)
  • Software license agreements
  • Public petitions
  • Internal correspondences
  • Educational field, etc.

Cases where only a qualified eSignature & wet-ink signature are authentic

Under Article 25 of the eIDAS6, qualified electronic signatures are deemed to bear the same legal validity granted to wet-ink signatures; as such, the following can only be signed in either a wet-ink signature or a qualified electronic signature:

  • Contracts relating to the purchase of immovable property7.
  • Transactions through the eHerkenning (mostly involving/with a government entity)8.

Exempted transactions

While the Dutch Civil Code lacks a conclusive provision on the transactions that are exempted from electronic transactions, it is required that one be cautious when dealing with certain transactions as below:

  • Contracts required by law to be completed by a judge’s intervention.
  • A government body or a professional fulfilling a public task. Art. 627.
Article 40 of the Dutch Notaries Act 9 opines that transactions related to public notaries can only be completed physically and not by electronic means.

In the same context, in reference to deeds, the Dutch laws categorized deeds into two: [authentic deeds and non-authentic deeds/private deeds]10. Authentic deeds are understood to entail deeds drafted by a civil notary. Authentic deeds are such as11:

  • Mortgage deeds
  • Nuptial agreements
  • Deeds of incorporation
  • Final will and testament
  • Deeds where ownership of real estate is transferred

Summary of limitations of use

Sample transactions that can be completed in eSignatureExempted transactions [Article 40 of the Dutch Notaries Act Dutch Civil Code]
  • New hire documentation
  • Invoice processing
  • Purchase orders
  • Internal compliance and correspondence
  • NDAs letters of intent (assuming they are contracts, not formal deeds)
  • Human resources
  • Procurement
  • Insurance policies
  • Educational field
  • Offer letters
  • Mortgage deeds
  • Nuptial agreements
  • Deeds of incorporation
  • Final will and testamentary documents
  • Deeds where ownership of real estate is transferred
  • Purchase of immovable property
  • Contracts required by law to be completed by a judge’s intervention.
  • A government body or a professional fulfilling a public task

Unique case laws in the Netherlands on eSignatures

The Van Gansewinkel Nederland case - District Court the Hague, 8 May 2018, ECLI:NL: RBDHA:2018:6370. 
The present case addressed the criteria for determining the authenticity of an electronic signature as outlined in Article 3.15a of the Dutch Civil Code. The court’s decision highlights the importance of ensuring that a signature and the completion certificate can verify the identity of the signer and that the signer has sole and secure access to it. This, therefore, leaves all digital signature users with the task of ensuring that the identity of the signer is identifiable to be valid.
To ensure an electronic signature’s validity while complying with legal requirements, an individual should be able to adopt best practices such as:
  • Establishing the legitimacy and authorization of the signatory: This involves implementing stringent procedures to authenticate the identity of individuals signing on behalf of themselves or an entity. For businesses, this step may include verifying the individual’s position within the company and their delegated power to sign documents, ensuring they have the proper authorization to enter into binding agreements on the company’s behalf.
  • Obtaining an unambiguous agreement for using electronic signatures: It is critical to secure informed consent from all parties involved before utilizing it. This means explaining the implications of an electronic signature, its intended use, and the legal equivalency to a handwritten signature, thereby ensuring that all parties are fully aware and agreeable to the electronic signing process.
  • Ensuring the integrity of the signed document post-execution: Once a document has been signed electronically, measures must be taken to safeguard it from any unauthorized alterations. This can involve the use of digital instruments that lock the document’s content and track any attempts at modifications, thereby maintaining the document’s integrity and ensuring it remains legally enforceable.
  • Maintaining a detailed log of the electronic signing activity: Keeping a robust and clear audit trail is essential for validating the signing process. This record should include timestamps, IP addresses, signer authentication methods, and any other relevant information that documents the entire signing event. Such records are crucial for providing evidence of the legitimacy of the signing process and can be invaluable in the event of a legal dispute or audit.

How does BoldSign help

The following elements of compliance available within BoldSign can be used to comply with the Netherlands 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 ensures that the document is only accessed by the intended signer and cannot be tampered with.
  • Password protection: Senders can specify a password that needs to be entered before viewing and signing a document. This adds another layer of security to the signing process.
  • Audit trail: The IP address of the signer and timestamps for all significant events in the signing process are recorded in an audit trail. This provides a record of who signed the document, when, and where.
  • Digital signature: The final 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 informed that they could opt out. This ensures that the signer is aware of the implications of signing electronically and has given their consent.
  • Custom terms: Get your signers to agree to a custom set of terms. This can be useful to ensure additional security or that the signer understands the terms of the document.

Disclaimer: The information on this page is intended to help businesses understand the legal framework of electronic signatures for this particular country.

However, Syncfusion’s officers, directors, stockholders, affiliates, attorneys, accountants, employees, or agents cannot provide legal advice. You should consult your personal attorney regarding your specific legal questions. Laws and regulations are subject to frequent changes, and the 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 to 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 of any implied warranty of merchantability, fitness for a particular purpose, accuracy, or currentness of this information.

Syncfusion nor its officers, directors, stockholders, employees, affiliates, attorneys, accountants, or agents shall be liable for indemnification, nor does this create an express or implied, contractual or statutory, equitable or otherwise, under this Agreement. The officers, directors, stockholders, affiliates, attorneys, accountants, or agents will not have any liability in any form.

1 Electronic Identification and Trust Services Regulation
2 Dutch Civil Code
3 The Electronic Identification and Trust Services Regulation
4 Ministry of the Interior and Kingdom Relations[ https://www.logius.nl/english/pkioverheid] accessed on 18th April 2024
5 European Commission (eIDAS Dashboard) “Trusted List Netherlands – Trust Servce Provider [ eIDAS Dashboard (europa.eu)] accessed on 18th April 2024
6 Regulation (Eu) No 910/2014 of the European Parliament and of the Council, S. 4, Art. 25 [ https://eur-lex.europa.eu/eli/reg/2014/910/oj]
7 Dutch Civil code Book 7 Art. 2 [ http://www.dutchcivillaw.com/civilcodebook066.htm]
8 Netherlands Enterprise Agency, RVO, Business. Gov.nl “Applying for eHerkenning” [https://business.gov.nl/regulation/applying-for-eherkenning/] accessed on 18th April 2024
9 Notaries Act of 3 April 1999
10 kees cappon, dutch notaries: do they have a future? how the historical foundations of the civil law can help survive a modern crisis, 4 j. civ. l. stud. (2011) [https://digitalcommons.law.lsu.edu/jcls/vol4/iss2/16]
11https://www.bing.com/ck/a?!&&p=1f093d0c13600263jmltdhm9mtcwnti3njgwmczpz3vpzd0xotvln2fhns00n2nllty0ogutmze3ny02otvmndy0oty1mgemaw5zawq9nte4mq&ptn=3&ver=2&hsh=3&fclid=195e7aa5-47ce-648e-3177-695f4649650a&psq=the+netherlands+international+estate+planning+guide&u=a1ahr0chm6ly93d3cuawjhbmv0lm9yzy9nzwrpyuhhbmrszxi_awq9mjzbqtk3neqtnjaxqi00nzeylui5mdqtrui5mdrdntq5qumy&ntb=1

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