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Coronavirus - Electronic signatures- Germany

  • Germany
  • Banking and finance
  • Coronavirus - Country overview

05-05-2020

  • Depending on the requirements imposed by the underlying legal transaction there are different types of electronic signatures available
  • The electronic signature can generally replace the traditional wet ink signature
  • The qualified electronic signature (QES) has the highest evidential value

During the Coronavirus crisis, working in an office equipped with printing and scanning devices is not always guaranteed. For this reason, the process of signing contracts using the “pdf signing” process, which has become common in transactions, can no longer be carried out without further aid. Thus, the focus is shifting on possibilities of a paperless, digital and legally secure alternative signing process in the form of an “electronic signature”.

1. Types of electronic signatures

Since July 2016, the so-called eIDAS Regulation (Regulation (EU) No. 910/2014) („eIDAS”) sets out rules regarding electronic signatures in the European Union. The regulation has replaced the previous Directive 1999/93/EC on electronic signatures and is directly applicable in all EU member states. 

The eIDAS defines the electronic signature as “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”.

According to the regulation the following types of electronic signatures may be used:

| Simple electronic signature: The signatory inserts its signature into an electronic document, either as text, picture or manually using the touchpad.

| Advanced electronic signature: The signature is created using electronic signature creation data that the signatory can use under its sole control and which is linked to the data in such a way that any subsequent change is detectable.

| Qualified electronic signature („QES“): An advanced electronic signature that is created by a qualified electronic signature creation device (chip card or signature program). This device is based on a qualified certificate which is issued by a qualified trust service provider.

The signatory needs a computer, smartphone or tablet to use an electronic signature.

2. Legal effect of the electronic signature

2.1. Replacement of the traditional written form signature - “wet ink”

Electronic signatures are generally recognized and enforceable under German law. In accordance with section 126 para. 3 of the German Civil Code (“BGB”), the written form (i.e. the handwritten name signature) can be replaced by the electronic form if statutory law does not require a notarial certification or explicitly excludes the electronic form. The electronic form is, amongst others, explicitly excluded for the following legal transactions: Termination of an employment contract (Kündigung eines Arbeitsverhältnisses, section 623 BGB), issuance of a declaration of surety (Erteilung einer Bürgschaftserkärung, section 766 sentence 2 BGB) and the issuance of a declaration of acknowledgement of debt (Erteilung einer Schuldanerkenntniserklärung, section 781 sentence 2 BGB).

If the parties to a contract have agreed on the written form, the electronic form must also be specifically agreed upon.

If the written form is required by statutory law, it can be replaced by a qualified electronic signature, section 126a BGB. Thus, the QES has the same legal effect as a written form signature.

Even if the written form is not required by law, we recommend agreeing on the written form when concluding important contracts (e.g. facility agreements, sale and purchase agreements, security agreements or agreements with a high contract volume) because of the higher evidential value, accordingly the QES as its equivalent would be advisable as well, see also section 2.2 below.

2.2. Enforceability and evidential value

In general, electronic signatures hold the same evidential value as the traditional manual signatures they replace. Following this, the different types of electronic signatures hold different evidential values.

Both the advanced and the qualified electronic signature offer the advantage that they contain features which establish the identity of the signatory. Accordingly, these types of electronic signatures facilitate the proof that a contract was executed by a specific person. It is therefore advisable to use at least advanced electronic signatures in legal transactions.

The additional advantage of the QES lies in the mandatory use of a qualified certificate which is issued either by the Federal Network Agency (Bundesnetzagentur) or the equivalent supervisory agency in another EU member state, which leaves almost no doubt about the identity of the signatory and the date and time of the signature.

If an electronic document does not have a QES, the authenticity of the document is subject to the free assessment of evidence by the court.

Thus, the QES has the highest evidential value. 

3. The eIDAS

The eIDAS creates a common legal framework for secure electronic authentication by establishing rules which are recognised throughout the EU, including rules for electronic signatures (simple, advanced and qualified) and trust service providers (simple, advanced and qualified).

3.1. Trust Service Providers

Concerning the question which provider can be used as trust service provider, especially as a qualified trust service provider which can issue a qualified certificate necessary for the QES, the EU maintains the so-called “Trusted Browser List”.

These trust services have been awarded the status of “qualified” trust service provider by the supervisory authority of an EU member state. If a trust service provider is established in an EU member state and qualified as a trust service provider there, this service can also be used for electronic signatures in all other member states in accordance with the internal market principle contained in Art. 4 eIDAS R. They may use the EU trustmark.

In Germany, the Federal Network Agency (Bundesnetzagentur) acts as supervisory authority. Presently, in addition to D-Trust GmbH, Deutsche Telekom AG, DGN Deutsches Gesundheitsnetz Service GmbH and medisign GmbH, the Federal Notary Chamber (Bundesnotarkammer) is also accredited as a trust service provider.

Eversheds Sutherland LLP for example uses the provider DocuSign, which is located in France and subject to supervision in France. DocuSign is one of the largest trust service providers and is used by, amongst others, major international law firms and banks.

3.2. Liability according to eIDAS

The trust service providers are liable for any deficiencies in the compliance with the obligations imposed by the eIDAS.

If a trust service provider violates its obligations under the eIDAS, it is liable in accordance with Art. 13 eIDAS. The trust service provider also bears the burden of proof that it has not acted intentionally or negligently. Other than that, the trust service providers are liable in accordance with the domestic liability law. The liability also extends to commissioned third parties as for own actions.

4. Practical advice concerning the QES

Section 126a BGB stipulates that only a QES can replace the written form when required by statutory law. The QES has higher security requirements than the advanced electronic signature (see above).

The qualified certificate needed for the QES is an electronic certificate which links electronic signature validation data with a natural person, confirms at least the name or pseudonym of this natural person and is issued by a qualified trust service provider.

Qualified certificates for electronic signatures must meet the requirements set out in Annex I of the eIDAS: They must therefore contain, inter alia, the name of the signatory, beginning and end date of validity of the certificate, as well as the advanced electronic signature or advanced electronic seal of the trust service provider issuing the certificate. In order to create equivalent conditions for the electronic form to the written form, qualified certificates may only be issued for natural persons.

To guarantee these conditions, trust service providers use as part of the authentication process for QES services, which shall prove the identity of the signatory beyond doubt, for example ID Now.

ID Now checks the identity of the signatory by means of a live video recording with ID card control which shall ensure that no unauthorized person signs the document.