Regulations on the legality and enforceability of Electronic Signatures: The European Union

Which laws govern electronic signatures in the European Union?

The European Union’s Regulation (EU) N°910/2014 on electronic identification and trust services for electronic transactions in the internal market (also known as the eIDAS Regulation) was adopted on July 23, 2014, and is applicable right away to all member states. This Regulation aims to ensure electronic signatures’ legal standing and their acceptability as evidence in court proceedings. However, any issues pertaining specifically to the conclusion, validity, or enforceability of such agreements are a matter of national EU Member State Laws.

Find out what qualifies as an electronic signature in the European Union-

There are three types of electronic signatures defined by the eIDAS Regulation:

• Electronic signature refers to “data in electronic form which is attached to or logically associated with other data in electronic form and is used by the signatory to sign” (Article 3.10).
• A “trusted electronic signature” meets specific requirements in verifying the signer’s identity, securing the signature, and ensuring tamper resistance. In this regard, eIDAS requires an advanced signature to meet the following criteria (Article 3.11):
• Uniquely linked to the signer;
• Capable of identifying the signer;
• The signature is created using signature creation data that is under the sole control of the signer;
• Linked to the signed data so that any subsequent changes can be detected.

Asymmetric public key cryptography (PKI) systems meet the requirements of this definition mainly in practice. However, eIDAS does not give this type of electronic signature a legal standing that is different from “simple” electronic signatures.

In EU member states, a “qualified electronic signature” is the only electronic signature level that is legally recognized as equivalent to a written signature (Article 25.2). A qualified electronic signature is regarded as an advanced electronic signature created by an eligible signature creation gadget and established on a suitable certificate for electronic signatures. An electronic signature must meet advanced requirements and be backed by a qualified certificate issued by a trust service provider listed on the EU Trusted List and certified by an EU member state. The trust service provider must vow the authenticity of the signature. A qualified signature creation device must ensure (Annex II):

• Data confidentiality for the creation of electronic signatures;
• Creating an electronic signature can only occur once using the data used for creation;
• With currently available technology, the electronic signature creation data cannot be derived, and the signature cannot be forged;
• The legitimate signatory can protect the electronic signature creation data against unauthorized use reliably.

The e-Commerce Directive, 2000/31/EC, outlines a broad framework for Member States to ensure that any legal prerequisites linked to contractual processes will not obstruct electronic contracts or render them legally invalid due to their nature as a digitally formed agreement. Consequently, certain EU Members have eliminated any formal rules obstructing digital measures for concluding and enforcing contracts. In other cases, implemented general policies synonymous with conventional methods for finalizing contracts (“functional equivalence”).

How can electronic signatures be used?

A given type of transaction or agreement does not require a specific electronic signature under the eIDAS Regulation. Considering the listed general principles, each EU Member State may specify in their laws when a transaction (i) cannot be signed electronically or (ii) requires a different form of electronic signature for validity or enforceability, such as an advanced or qualified electronic signature.

Are electronic signatures prohibited for any transactions?

Electronic signatures may be restricted in some cases in EU Member States concerning documents executed electronically. With certain categories of contracts, the e-Commerce Directive explicitly permits EU Member States to deviate from these rules. It does not apply to certain activities outside of its scope (such as gambling or representing a client in court and defending their interests).

Special attention must be paid when utilizing electronic signatures for real estate contracts, except rental agreements. And for those agreements which require legal intervention from the court system, public authorities, or professions exercising public authority; suretyships offered and collateral securities are given by people acting outside their business role; and family law or succession law. Particularly for these types of contracts, additional formalities may be required under local laws, which cannot be met electronically.

Is consent required for electronic signatures in the European Union?

Under EU law, no such requirement exists. Local laws may require analysis when applicable.

What factors led to the enforcement of digital signatures in the European Union?

It is generally the party invoking the validity of an electronic signature that has the burden of proof regarding its authenticity and integrity under local law. In EU law, a qualified electronic signature automatically has the exact lawful effect as a handwritten signature only if it takes the form of a qualified electronic signature.

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