The types of electronic signatures are regulated by the European Union in a directly applicable regulation, the eIDAS regulation, under the same conditions for all Member States. The Regulation distinguishes between three types of electronic signature: (simple) electronic signature (ES or SES), advanced electronic signature (AES) and qualified electronic signature (QES).

It can be decided in which processes the different electronic signatures can be used by examining whether the legislation for each process contains requirements for the formality of documents. We show some examples of formality requirements below.

For example, a civil law juridical act shall qualify as written if it has been signed by the party making it. However, a juridical act shall also be considered written if it has been presented in a form that allows for the content being properly recalled in and for the person who made the statement and the time when the statement was made being identified.

Similarly, a legal act of employment law shall be construed to have been made in writing if executed by means of an electronic document with facilities for retrieving the information contained in the legal act unaltered, and for identifying the person making the legal act and the time when it was made.

In summary, an electronically signed contract, even with a simple electronic signature, if it has the required content and form elements, is perfectly legal and accepted in the same way as a paper-based contract. Accordingly, a simple (ES) or advanced electronic signature (AES) is sufficient to fulfil the written requirement.

However, it is also important to pay attention to the rules of proceedings if we expect the signed document to be used (e.g. in a contract lawsuit). According to our Code of Civil Procedure and case law, for a document to be considered written in court and to have full probative value, a qualified electronic signature or an advanced electronic signature or stamp based on a qualified certificate (QES) is required. Of course, if the document does not have a QES-certified signature, it may still be validly created, only the associated burden of proof may be more onerous.

As you can see from the above, before a business introduces an electronic signature, it is recommended to think about what processes the business wants to use it in and what type of signature is needed because of the probative value.

Please read further: AVDH