How disputed electronic signatures would be treated in seven different European countries. We asked the lawyers at Bird & Bird.
Electronic signatures are increasingly being used across Europe. But Europe is not one unified jurisdiction even though the eIDAS (Electronic Identification, Authentication and Trust Services) EU regulation was set up in an attempt to unify the market. While there are similarities in laws, customs and culture, the courtroom set-ups, legal systems and handling of disputes can be extremely different depending on the country. This applies to the legal effects of electronic signatures across Europe. That is why Signicat commissioned a report from international law firm Bird & Bird, on specifically how five European countries would treat disputed electronic signatures. Before you delve into that report, however. You should know some basic, and not so basic, concepts.
eIDAS - Defines electronic signatures as admissible in court
eIDAS defines the types of electronic signatures available. It also makes basic stipulations on the admissibility of electronic documents and electronic signatures as evidence. But eIDAS does not specify how electronic signatures should be judged in different courtrooms. The level of acceptance in a courtroom can differ depending on the type of electronic signature used. Complementary to eIDAS are rules for use of electronic signatures for different purposes. Such rules are usually set by national legislation and only in a few cases by EU legislation. Consequently, situations arise where a purpose requires a qualified electronic signature in one country, but only an electronic signature or no signature at all in another country.
The three types of electronic signatures
Under eIDAS, an electronic signature is a rather ill-defined concept and can practically mean any electronic signing of a name. For example, an email signature is one of three types of electronic signature.
The other two, advanced electronic signature (AES) and a qualified electronic signature (QES) are both uniquely linked to the signer, and require the signer to be reliably identified and have sole control of the signing tool. They also must make sure that nothing in the signed document can be changed without it being detected, effectively mandating the use of cryptographic mechanisms.
A QES has two extra requirements: The sole control requirement is enhanced to require use of a qualified signature creation device to protect the signing means, and the identification requirement is enhanced to require a qualified certificate as strong proof of identity. QES is the highest level of signature that can be requested.
eIDAS states that a QES shall have the equivalent legal effect of a handwritten signature. However, eIDAS also states that no electronic signature shall be denied legal effect and admissibility as evidence solely because it is in electronic form. This means that in the absence of specific national requirements demanding use of QES or AES or otherwise impeding use of specific mechanisms, any electronic signature can be used in court.
It matters how a document was signed
It is completely up to the legal systems of each EU member state to set a ‘proof-value’ to electronic signatures, meaning the value it has as proof within the courtroom. The three levels of signature; electronic, advanced, and qualified, have different values of proof.
Let’s say you enter a courtroom due to a dispute from one of the parties to a contract in relation to the signature used. In every country across Europe, an electronic signature is accepted as proof in a court. But as it is a very simple mechanism, it can be easily disputed.
However, with advanced and qualified signatures, what is taken into account is the level of trust in their security measures and the means used to ensure that the correct person is signing. An eID used to identify the signer, for example NemID in Denmark or BankID in Norway, has a level of trust associated with it—low, substantial or high. The courtroom places trust in these levels and not necessarily in the individual actors in the dispute. The higher the quality of the signature and the eID, the higher the proof-value will be. For example, if you walk into a courtroom in Norway with a contract signed with an AES, this will be considered trustworthy, as it is uniquely linked to the signer through the eID. There must be extremely good evidence to try to prove this signature is not technically valid. In general, if all the requirements of a signature have been met specific to that document, it can create a much better case.
When they say: “It wasn’t me!”
The court must also consider claims like “Yes, it is my signature, but I did not intend to sign that document”, meaning the signer claims to have been misled or tricked into signing. In the broader perspective this means that the entire signing process and the context of the signed document can be considered by the court. If the court is convinced that the signer has been fooled and never intended to sign the document, then not even a QES would be considered as legally binding; just as the court would disregard a handwritten signature for the same reasons. The ability to document the process of signing and the actions taken by the signer in the course of this process may be important additional evidence.
Find out how the legal tradition affects the use of electronic signatures
It is up to the legal systems of each member state to set the proof-value of electronic signatures, but there are different legal traditions in each country which may affect this. For example, Dutch law requires certain documents to be notified by a notary even if there is a signature present.
There are also differing levels of digital maturity in the written laws which control the legality of electronic signatures in courtrooms. For example, in Germany and Sweden, some paper-based documents may be requested for the transaction to be declared legal in a courtroom, whereas in other countries digital documents are accepted.
These can all influence the legal effects of electronic signatures in a court of law.
Three useful terms to better understand the report
Free evaluation of proof - This means that to dispute a case, you can file any type of evidence, electronic or paper, in court and the judge is free to assess the value of that evidence and whether it establishes the facts of the case. In other words, the courtroom is free to judge evidence as it pleases.
Non-repudiation - The assurance given with an electronic signature which makes it difficult to deny the authenticity of the signature on the document. However, it is still possible to dispute this by arguing that the signing key was stolen, or the signer was tricked into signing the document.
Enforcement - This refers to how electronic signatures are legally enforced. In most countries, a court order is required for enforcement. In other countries, such as Norway, the signature can be enforced by itself in some situations such as agreements on extradition of chattel, without first obtaining a court order.
Read the report and we will help you conclude
The following report from Bird & Bird sets out to assess these differing legal effects of electronic signatures across European countries, whether it is necessary to use an advanced electronic signature, and whether Signicat Signature fulfils these requirements. The report begins with detailed descriptions of the various attributes in relation to electronic signatures and continues with a country-by-country analysis. From Germany to the Netherlands, from Belgium to Denmark, Sweden, Norway and Finland, the legal effects in courtroom situations and disputed signatures are assessed in each nation and the enforcement of contracts is put in the spotlight.
Legal effects of electronic signatures in Europe
Memorandum on Signicat Signature
Signicat AS (hereinafter referred to as “Signicat”) has requested Bird & Bird to assess two overall matters in relation to their product Signicat Signature and the eIDAS-regulation (hereinafter referred to as “eIDAS”).
In this memorandum the following has been assessed based on the factual information provided by Signicat in section 1.1 below:
- Whether Signicat Signature fulfils the requirements as an ‘advanced’ electronic signature in relation to eIDAS.
- Whether it is necessary to use an ‘advanced’ signature in order for the signature to be accepted as proof in legal proceedings.
This memorandum is given for the sole benefit of Signicat. Signicat may publish the memorandum on their website but the memorandum may not be relied upon by others.
1.1 Signicat Signature
Signicat Signature is a system where Signicat provides an electronic signature based on another electronic identification system.
This means that when Signicat Signature is used, the signatory authenticates him-/her-self through the use of another electronic identification system (hereinafter referred to as an “eID”), e.g. NemID in Denmark or BankID in Norway.
The document is then signed/approved by the signatory and sealed by Signicat leading to a “package” containing proof of identification and the signed document.
Thus, use of Signicat Signature means that the business providing the electronic document for signing can accept a number of different eIDs in the same context, depending on which eID is available to the signatory.
Regulation 910/2014 of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market (hereinafter referred to as the “eIDAS” or the “Regulation”) became effective on 1 July 2016 and replaced the earlier directive on electronic signatures.
The Regulation is as such technology neutral which is important when introducing new technology in relation to electronic identification and signatures, but sets up requirements for electronic signatures, electronic seals etc.
The Regulation apply to a) Electronic identification schemes that have been notified [to the Commission] by a Member State, and b) Trust service providers that are established in the Union.
2. Status of Signicat Signature under eIDAS
2.1 Electronic signature
An electronic signature is defined in the eIDAS 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”
The definition is broad and covers even electronic handwritten signatures made e.g. with a Stylus or similar. The requirements are indisputably fulfilled by the Signicat Signature since it is data in electronic form; the electronic data is attached to other data, i.e. the document in the ‘package’, and the data in electronic form is being used by the signatory to sign the document in question.
2.2 Advanced electronic signature
In order to qualify as an advanced electronic signature, the electronic signature needs to further comply with the following:
- it must be uniquely linked to the signatory
- it must be capable of identifying the signatory
- it must be created using electronic signature creation data that the signatory can, with a high level of confidence, use under his sole control, and
- it must be linked to the data signed therewith in such a way that any subsequent change in the data is detectable.
Both requirements a) and b), i.e. the requirements on the advanced electronic signature being uniquely linked to the signatory and being capable to identify the signatory, depend on the eID being used by the signatory in relation to Signicat Signature.
The ‘package’ produced with Signicat Signature contains proof of identification and the signed document and hence links the two. But the proof of identification contained in the package is a proof of which eID has been used by the signatory, and hence this relation depends on the eID.
If the eID being used is uniquely linked to and identifies the signatory, then requirements a) and b) will be fulfilled when using Signicat Signature.
In relation to requirement c), the signature creation data, when making use of Signicat Signature, is the eID being used by the signatory which - at least in relation to Signicat Signature – is under the sole control of the signatory – the fulfilment of requirement c) also depends on the eID being used. If the eID provides a high level of confidence of the electronic signature creation data being under the sole control of the signatory, then this requirement will be fulfilled in relation to Signicat Signature.
Regarding requirement (d); Linkage between the electronic signature and the signed document in a tamper-proof way is in the Signicat Signature solution ensured through packaging both proof of identification and the document and then sealing the package.
The seal used in Signicat Signature is, as far as we understand, tamper-proof as it makes use of a combined hashing of both proof of identity and the signed document based on XAdES.
Based on the above, in the opinion of Bird & Bird, the Signicat Signature solution can provide for advanced electronic signatures, provided though that the eID being used by the signatory within Signicat Signature fulfils requirements a)-c) above.
3. Proof in legal proceedings
3.1 Overall non-discrimination
The eIDAS regulations set up principles for recognition of electronic signatures in legal proceedings in the EU.
The first principle is that an electronic signature shall not be denied legal effect and admissibility in legal proceedings, due to the fact that the signature is in electronic form or due to the electronic signature not being a qualified electronic signature.
This means that all electronic signatures shall be recognised and be admitted as (part of) a proof in legal proceedings in all of the EU.
It is, however, a matter of national law in each of the EU member states to decide which legal effect, i.e. value as proof, such electronic signatures shall have in legal proceedings.
Only in relation to qualified electronic signatures, the eIDAS sets a specific value, namely that qualified electronic signatures shall have the same legal effect as a handwritten signature in each member state. But it should be noted that even the value of a handwritten signature in legal proceedings vary from member state to member state, e.g. a number of member states require certain documents to be notified by a notary, even when appropriately signed.
Hence, for all electronic signatures – which as mentioned above – is a very broad definition, it is fully up to the legal systems of each member state to set a ‘proof-value’ to electronic signatures.
Therefore, it is not required for an electronic signature to be of the advanced type in relation to the electronic signature to be presented as proof in legal proceedings anywhere in the EU. Due to the requirements placed on advanced electronic signatures, fulfilling these will, however, raise the value as proof.
3.2.1 Legal effects of signatures in general
Under German civil law, there are relatively few rules requiring a signature for a certain legal consequence to take effect, e.g. for a certain agreement to be valid and enforceable. In business practice, signatures constitute an established method of confirming, controlling and proving business actions of contracting parties. Even though in most business transactions a signature may not be required by law, it still can have evidentiary value.
However, certain agreements and disposals become legally valid and binding only if the relevant obligor’s or, respectively, disposing party’s corresponding declaration of intent has been issued in writing (schriftliche Erteilung). This applies in particular to the acknowledgor’s declaration of acknowledgement (Anerkennungserklärung) in respect of any abstract acknowledgement of debt (abstraktes Schuldversprechen). Also, certain declarations and agreements with consumers require written form. A smaller group of agreements and declarations cannot be given by mere written form but require notarization (e.g. transfer of real estate or shares in a German limited liability company (Gesellschaft mit beschränkter Haftung)).
3.2.2 Legal effect of electronic signatures in particular
Under German civil law, an electronic document with a qualified electronic signature can replace a written form requirement prescribed by statute. In the case of a contract, the parties must each provide a counterpart with a qualified electronic signature.
An advanced electronic signature may only replace the text form. Text form (if prescribed by statute) is a readable declaration, in which the person making the declaration is named and which is made on a durable medium. A durable medium is any medium that (i) enables the recipient to retain or store a declaration included on the medium that is addressed to him personally such that it is accessible to him for a period of time adequate to its purpose, and (ii) that allows the unchanged reproduction of such declaration.
A legal transaction that lacks the form prescribed by statute is void. In case of doubt, the same applies to a lack of the form specified by agreement.
3.2.3 General principle of free evaluation of proof
In civil and administrative procedural rules in Germany, the court is to decide, in general at its discretion and conviction, and taking account of the entire content of the hearings and the results obtained by evidence being taken whether an allegation as to fact is to be deemed true or untrue (principle of free consideration of evidence).
The principle of free consideration of evidence applies to electronic documents (including those without signatures, basic electronic signature or advanced electronic signature). However, the provisions on the evidentiary value of private (physical) documents apply accordingly to private electronic documents that are provided with a qualified electronic signature. Private documents signed by the issuer constitute full proof that the declarations contained therein have been made by the issuer. In this regard, the principle of free consideration of evidence does not apply.
The appearance of the authenticity of a declaration in electronic form, which results from the verification of the qualified electronic signature in accordance with eIDAS (Article 32 of Regulation (EU) No 910/2014), can only be shaken by facts which give rise to serious doubts that the declaration was made by the person responsible. Such serious doubts about authenticity can be justified by unauthorised use of the signature key (theft of the signature creation device and spying on the PIN; deliberate disclosure and unauthorised use) or errors in the allocation of certificates (allocation errors, failure to block, expiry of algorithms).
In contrast to the qualified electronic signature, the advanced electronic signature is not verified by a qualified trust service provider. Therefore, documents signed with an advanced electronic signature have only the evidentiary value of “evidence taken by visual inspection”.
Due to the susceptibility to manipulation of electronic documents which are not signed with a qualified electronic signature, they are in any case unsuitable for providing proof of the contested genuineness and authorship of a statement if contested by the opposite party.
In Germany, the enforcement of electronically signed documents (as well as any other documents other than certain notarial documents) can only be enforced once having first obtained a court ruling. There are no private documents in Germany which can be enforced on their own.
3.3 The Netherlands
3.3.1 Legal effects of e-signatures in particular
In the Netherlands, e-signatures are governed by article 3:15a of the Dutch Civil Code (“DCC”) and the eIDAS Regulation ((EU) 910/2013).
The Netherlands has used its right to define the legal effect of electronic signatures other than qualified electronic signatures, in accordance with recital 49 and Article 25 of the eIDAS Regulation.
Under Article 3:15a of the DCC, an advanced electronic signature and other electronic signatures, as defined in the eIDAS Regulation, have the same legal effect as a handwritten signature, provided that the method for signing that has been used is sufficiently reliable, considering:
- The purpose for which the electronic signature has been used.
- All other circumstances of the case.
Because different purposes and circumstances require different degrees of reliability, it is not possible to established in general whether a particular variant of the electronic signature is sufficiently reliable. It depends on the specific purpose and circumstances of the case whether a simple signature would suffice or whether an advanced or qualified electronic signature would be more appropriate. Relevant circumstances could, inter alia, be the economic importance of the document and the need to secure the integrity of the document (i.e. in case of a legal or medical advice).
When the reliability of an advanced or other electronic signature is challenged by another person, the signatory will need to prove that it was indeed their signature.
In addition to the above, in the Netherlands, the legislator has clarified that parties are, in principle, free to contractually agree on the level of reliability of advanced electronic signatures and other electronic signatures. Parties can, inter alia, agree on whether the condition included in Article 3:15a DCC is met. Please note, however, that this does not apply to qualified electronic signatures, because the legal effect of the qualified electronic signature the is regulated in the eIDAS Regulation.
Under Article 3:15a DCC, such party agreement is a circumstance that will be taken into account by a Dutch court in judging the reliability of the method used for signature. In the event of a dispute, the court will assess the given criterion: when the method for signing that has been used is sufficiently reliable, in view of the purpose for which the electronic data were used and all other circumstances of the case, an electronic signature is equated to a handwritten signature.
3.3.2 General principle of free evaluation of proof
In the Netherlands, the principle of free evaluation of proof applies, unless otherwise provided for by law. The value of a signed document or any other evidence is, in principle, to be freely evaluated by the court.
22.214.171.124 Legal Acts
Under Dutch law, legal acts can often be validly performed electronically as orally or in writing, unless otherwise provided for by law. Such exceptions are those cases where the law requires legal acts to be performed in writing or require a deed. For each case where an exception applies, it must be determined whether Dutch law stipulates that this legal act can also be performed digitally/electronically. Below, we will focus on signed documents and, more specifically, contracts/agreements.
126.96.36.199 Signed documents
In the Dutch Code of Civil Procedure, two kinds of “signed documents meant to serve as evidence” are distinguished.
- A (notarial) deed (“authentieke akte”), which produces compelling evidence against anyone of the statements made by the official within the scope of his authority concerning his observations and operations. Such documents cannot be drawn up digitally.
Consequently, notarial deeds, documents that require legalization of the signature, or documents for the purpose of execution of Dutch notarial deed (e.g. power of attorney) require the involvement of courts, notaries, public authorities or professions exercising public authority and cannot be concluded electronically.
- A signed documents meant to serve as evidence between parties (“onderhandse akte”) has 'imperative' power of evidence. This, in principle, means that a court must accept that the statements made in the signed documents between two parties are true as between those parties. This imperative power of evidence can, however, be rebutted.
In accordance with the requirements included in Article 156a of the Dutch Code of Civil Procedure, such documents can be drawn up digitally (provided that the conditions of Article 6:227a of the DCC, as set out below, are met) and should be signed by electronic signature, in accordance with Article 3:15a of the DCC (as set out above).
A contract (or agreement) is a ‘a signed documents meant to serve as evidence between parties’. Under Dutch law, in principle, all contracts can be concluded electronically. Limitations only apply if Dutch law stipulates that a specific contract must be concluded on paper (i.e. that require a handwritten signature). Article 6:227a DCC, however, stipulates that contracts that are required “to be concluded on paper” by law, can also be concluded by electronic means, provided that the all of the following circumstances apply:
- The contract is and remains accessible for the parties.
- The authenticity of the contract is sufficiently guaranteed (by electronic signature).
- The moment on which the contract was formed can be determined with sufficient certainty.
- The identity of the parties can be assessed with sufficient certainty.
In the Netherlands, the enforcement (i.e. via enforcement order) of documents (i.e. including electronically signed documents) other than (notarial) deeds (“authentieke akten”), court orders and as other documents designated by law as enforceable titles, can only be enforced once having first obtained a court ruling.
3.4.1 Applicable law
- The recognition of electronic signatures in legal proceeding is governed by article 1322, paragraph 2 of the Belgian Civil Code, introduced by the Act of 20 October 2000 implementing the use of means of telecommunication and electronic signature in judicial and extrajudicial proceedings. This provision attributes to any type of electronic signature the same legal effect as a handwritten signature, provided that certain conditions are met (see below).
- The aforementioned article was initially completed by the Act of 9 July 2001 establishing certain rules related to the legal framework for electronic signatures and certification services (the "Act of 9 July 2001"), which transposed the Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures (the "Directive 1999/93/EC") into Belgian law. The Act of 9 July 2001 determined the legal value of three different types of electronic signatures: (i) the ordinary electronic signature, (ii) the advanced electronic signature and (iii) the qualified signature. It also introduced the assimilation and non-discrimination principles mentioned in point 3.1 above.
The Act of 9 July 2001 has eventually been abolished by the Act of 21 July 2016 implementing and completing the eIDAS Regulation and repealing Directive 1999/93/EC. Since the main objective of this Act was to establish a legal regime for providers of electronic archiving services in the Belgian Code of Economic Law, it will be of no added value within the framework of the present contribution.
In conclusion, the eIDAS Regulation should be applied together with article 1322, paragraph 2 of the Belgian Civil Code in order to determine the legal the probative value of a specific type of electronic signature under Belgian law.
3.4.2 Legal Effect
Article 1322, paragraph 2 of the Belgian Civil Code attributes to any electronic signature the same legal effect as a handwritten signature, provided that it is (i) attributable to the author of the signature and (ii) able to maintain the integrity of the content of the signed document. This means that the electronic signature must allow identification of the author of the signature and must ensure that the signed document cannot be subject to any future amendments.
It follows from the foregoing that an ordinary or advanced electronic signature should fulfil the aforementioned conditions in order to have the same legal effect as a handwritten signature. It is generally considered by Belgian legal doctrine that an advanced electronic signature is more likely to be assimilated with a handwritten signature given that it relies upon a technically more reliable process allowing to maintain the integrity of a document more easily. Therefore, a party who wants to invoke the advanced electronic signature to prove the contents of the agreement to which it is linked shall be in a more comfortable position from a legal point of view.
As for the qualified signature, i.e. an advanced signature created by a qualified electronic signature creation device and based on a qualified certificate for electronic signatures, article 25, paragraph 2 of the eIDAS Regulation provides that such signature shall have automatically the same legal effect as a handwritten signature, meaning that it will not need to be evaluated in the light of the article 1322, paragraph 2 of the Belgian Civil Code in order to attribute probative value to the document to which it is linked.
A document of which the electronic signature does not comply with the requirements of article 1322, paragraph 2 of the Belgian Civil Code shall only serve as a "presumption" or as "prima facie written evidence".
As a side note, it should be specified that article 1322, paragraph 2 of the Belgian Civil Code is only applicable to so-called "private" (i.e. non-notarised) documents invoked by a party to prove the rights and obligations arising from the agreement it contains. As a consequence this article shall not be applicable to (i) any authentic deed which will lose its authentic character if signed electronically (article 1317 of the Belgian Civil Code) and (ii) any document invoked by a party in court to prove unilateral undertakings which also needs to be hand-signed in order to be attributed any legal effect (article 1326 of the Belgian Civil Code).
If a party wants to enforce an electronically signed document, it will need to obtain a court order first. In this regard, it should be noted that the court will be free to only attribute the same legal effect to the electronic signature as a handwritten signature if it deems, at its sole discretion, that such signature complies with the requirements of article 1322, paragraph 2 of the Belgian Civil Code.
While it may seem that the court has a discretionary power in this respect, the eIDAS Regulation imposes some restrictions on such power dependent on the qualification of the electronic signature. First it will have no discretion when the electronic signature is defined as a qualified electronic signature in which case the court will be obliged to attribute the same legal effect to the electronic signature as a handwritten signature.
Second, in the hypothesis that the electronic signature cannot be defined as a qualified electronic signature, the court will not be able to deny the electronic signature legal effect purely because of their electronic form or on the grounds that it does not comply with the requirements of a qualified electronic signature. This means that an electronic signature must in all cases be declared admissible in court.
A court must assess the qualification of an electronic signature by examining the technical process upon which it relies before evaluating its probative value in the light of article 1322, paragraph 2 of the Belgian Civil Code.
3.4.4 In casu
The Signicat Signature will be attributed under Belgian law the same legal effect (i.e. value of proof) as a handwritten signature if it complies with the requirements of article 1322, paragraph 2 of the Belgian Civil Code (identity and integrity). This compliance is evaluated on a case-by-case basis by the Belgian courts.
In the hypothesis that the Signicat Signature qualifies as an advanced electronic signature, and taking into account the remarks in this respect set out in point 2.2, the Signicat Signature is likely to be found compliant with the requirements of article 1322, paragraph 2 of the Belgian Civil Code and shall therefore be able to attribute probative value to the document it is linked to as well as render such document enforceable in court.
3.5.1 General principle of free evaluation of proof
In civil procedural rules in Denmark, the value of a certain piece of proof, e.g. a signed document, is to be freely evaluated by the court.
The use of electronic signatures will be accepted in Danish courts – which is now also a requirement of eIDAS. The value of the proof may, however, vary from case to case.
Where a party denies ever having entered into the agreement, this can usually happen in one of two ways, i.e. the party either denies that the document is signed or that the party is not the signatory.
In such situations, having made use of an advanced electronic signature would be beneficial since, due to the characteristics of the advanced electronic signature, it would entail a) a unique link to the signatory, b) identification of the signatory and that c) the signature would – to a high degree of confidence – have been under the sole control of the (given) signatory.
This would create such an assumption that only the given signatory could in fact have signed the document which d) is linked to the signature that it would be up to the signatory to introduce proof that it was in fact not him which had signed the document – a burden of proof which would be hard to satisfy, except in very rare cases.
As mentioned above in section 2.2, the value of the advanced electronic signature as proof – and even if the electronic signature is in fact advanced or not – would in relation to a)-c) be based on the eID having been used for the signature. The higher the requirements in relation to the eID used – the eIDAS operates with assurance levels of eIDs being either low, substantial or high – the more non-repudiable the advanced electronic signature would be as proof.
In Denmark, previously, there have been requirements in the Administration of Justice Act making it impossible, or at least difficult, to enforce electronically signed documents without having first obtained a court ruling.
However, changes in the Administration of Justice Act have made such enforcement easier. These changes have led to a) out-of-court settlements and promissory notes, which state that they can be enforced without having obtained a court order and which have been signed electronically, are now enforceable directly in the Bailiff's court. The same is the case with b) credit purchase agreements containing a statement of retention of title and which are electronically signed, in which case a retention can be enforced through the Bailiff's court.
It is not stated in the Administration of Justice Act that the electronical signature, used in relation to the document which is now to be enforced, is to be of a certain type. However, based on the preparatory work for the change in the Administration of Justice Act, the requirement in relation to the electronical signature used is that it should be based on the so called OCES-standard, or with a security level equivalent thereto. OCES is a Danish standard (Offentlige Certifikater til Elektronisk Service) and is the basis for the Danish NemID.
The intention in the preparatory work most likely was to state that signatures, which were to be accepted for making documents enforceable directly in the Bailiff's court, were to be advanced electronical signatures.
If Signicat Signature is based on a NemID-eID, the requirement would be fulfilled since the security would be as/equivalent to the NemID-signatures and hence with the security level of OCES. This could also be the case when using other eIDs than NemID, but this must be evaluated on an eID by eID basis.
Further, previously, it was required that the original document was presented in the Bailiff's court which was interpreted as the document with the handwritten signature. This has also been changed in relation to out-of-court settlements and promissory notes, meaning that when enforcing such documents, a written representation of the document must be presented in the Bailiff's court. Such representation of the document shall be an exact representation of the document having been electronically signed by the signatory.
If an objection on the contents of the representation of the signed document is made, it will be up to the party claiming that the representation is correct to show this. I.e. by forwarding documentation on the tamper-proof attributes of the electronic signature used. This has been underlined by recent case law which confirms that the Baliff's court may enforce electronically signed documents.
3.6.1 Legal effects of signatures in general
Under Swedish private law, there are relatively few rules requiring a signature in order for a certain legal consequence to take effect, e.g. for a certain agreement to be valid and enforceable. This is in contrast to administrative law, where signature and written form requirements are more common, e.g. when submitting applications to Swedish authorities. In business practice, signatures constitute an established method of confirming, controlling and proving business actions of contracting parties.
Even though, in light of the above, in most business transactions a signature may not be required by law, it still can have evidentiary value.
In this context, it should be noted that an act of denying to sign a certain document may be criminalised (with a fine or imprisonment for up to six months), provided that such an act jeopardises evidence (Sw. fara i bevishänseende). Since 2013, this criminal sanction also applies to an act of denying signing an electronic document if the certificate of such document may be reliably controlled.
3.6.2 Legal effect of electronic signatures in particular
As far as electronic signatures are concerned, there are no specific rules which would in general restrict or deny electronic signatures legal effect.
The legislator has deemed electronic signatures of high quality to be at least as secure as traditional, hand-written signatures. However, it has not been considered appropriate to introduce a general rule that gives electronic signatures the same legal value as handwritten signatures.
From the now abolished Act on Qualified Electronic Signatures (2000:832)(the "Signature Act") followed as a main rule that if any other law required a handwritten signature, a qualified electronic signature would be deemed to fulfil such a requirement, provided that such law did not explicitly prohibit electronic signatures.
Pursuant to the eIDAS regulation, it is now clarified that a qualified electronic signature shall have the equivalent legal effect of a handwritten signature. In Sweden the most common method for electronic signatures is probably advanced electronic signatures.
3.6.3 Free evaluation of evidence
Under civil procedural law, the principle of free evaluation of evidence applies. This means that all types of evidence are permitted and judges are free to assess and evaluate the evidentiary value of adduced evidence.
Consequently, electronic signatures are admissible as evidence in Swedish courts, which now also follows explicitly from eIDAS regulation.
The government has hitherto declared that there is no need for special evidentiary rules concerning electronic signatures.
Swedish case law does not present uniform and consistent procedural principles, where one party objects that a signature, irrespective of whether it is a hand-written or electronic one, has been forged. However, in light of relatively recent case law (2017) the burden of proof, with a low evidentiary requirement, would most likely be placed with the debtor. This means that a debtor would need to prove that a signature has been forged, e.g. submit evidence that supports this statement.
It should be noted that under Swedish procedural law, the burden of proof is often placed with the party that is best suited to secure and preserve evidence. In this case, i.e. where a debtor claims that their signature has been forged, it has been contested whether a debtor or creditor ought to prove whether a contract has been validly executed. On the one hand, it has been established in a case from 1976 that the burden of proof ought to be placed on the creditor, as it is the creditor that has an interest in preserving evidence in relation to the execution of the contract, whereas a debtor may find it difficult to prove a "negative action" (i.e. that the debtor has not signed the contract). On the other hand, courts have held that signatures placed on commercial documents in the majority of cases must be deemed authentic, which is why placing the burden of proof on the creditor would be overly burdensome and entail unnecessary transaction costs. In a recent case from an appellate court (2015), it has been further emphasized that where a debtor has a strong interest in the contract, it is the debtor that must prove that it has not signed the contract.
Furthermore, it should be noted that according to a leading legal expert in the field, where a debtor maintains that a document is indeed genuine but that its text has been altered (content-forgery), the debtor retains the burden of proof in substantiating this.
To the best of our knowledge, the courts have yet not examined a civil case where validity of an electronic signature would be contested.
However, some guidance as to how evidence might be evaluated when assessing authenticity of electronic signatures might be found in the preparatory works to the now obsolete Signature Act. The following parameters have been deemed to be of significance in evidence evaluation; (i) the extent to which the systems are verifiable, (ii) the type of information that has been validated by the electronic signature, (iii) the type of legal document concerned, (iv) the circumstance that is to be proved and (v) the relationship of the parties concerned.
Further, additional guidance may be found in the UNCITRAL Model Law on Electronic Commerce, which the Swedish Supreme Court has referred to in several decisions. In article 9 (2) UNICTRAL it is specified how evidence evaluation of electronic signatures is to be performed
"Information in the form of a data message shall be given due evidential weight. In assessing the evidential weight of a data message, regard shall be had to the reliability of the manner in which the data message was generated, stored or communicated, to the reliability of the manner in which the integrity of the information was maintained, to the manner in which its originator was identified, and to any other relevant factor.”
In light of the above, we are of the opinion that the more advanced electronic signature system is used, the more difficult it will be for a debtor to prove that there has been e.g. a "system failure" resulting in the signature being forged. Further, we believe that if a debtor submitted that the debtor's encryption key has been wrongfully used by an unauthorised person, the burden of proof would be placed on the debtor seeing as the debtor is presumed to have control over own encryption keys. Refuting this presumption will in practice be rather difficult to achieve.
In Sweden, the Enforcement Authority ("KFM") is responsible for the enforcement of both public and private claims. In general, enforcement of a claim is to be based on one of the statutory deeds (i.e. enforcement title (Sw. exekutionstitel)) set out in the Enforcement Code (1981:774), e.g. a court order, an arbitral award, an out-of-court settlement confirmed as enforceable by court (Sw. stadfäst förlikning) or bailiff's order/decision. In simplified terms, this means that enforcement measures may only be taken by KFM when a certain obligation, e.g. for a debtor to make a payment to a creditor, is stipulated in an enforcement title, e.g. a court order.
It should be noted that parties cannot agree that a certain document, e.g. an agreement, is to form the basis for an enforcement action, i.e. that a certain document is to be enforceable. When applying for enforcement, the original or - if deemed sufficient by KFM - a certified copy of the enforcement title is to be submitted.
However, when an applicant bases its enforcement claim on bearer bonds (Sw. löpande skuldebrev) and other negotiable promissory notes (e.g. bill of lading; Sw. konossement), i.e. documents which upon demonstration entitle the holder of the document (creditor) to payment from the debtor, such a negotiable document must be submitted in the original. This is because a negotiable document, in addition to providing evidence with regard to a certain claim/debt, constitutes a freely transferable current asset. Consequently, once the payment has been made, the payment must be recorded on the e.g. bearer bond and once the debt has been settled the creditor is to return the bearer bond to the debtor.
In light of the above, as far as electronic bearer bonds are concerned, KFM has pronounced (2014) that electronic bearer bonds may not form the basis for an enforcement claim, as it is impossible for KFM to verify and determine (i) whether the submitted electronic document constitutes the original bearer bond and (ii) whether any payment has been recorded on the submitted document. This statement has been contested by Swedish lower courts.
Some lower courts have deemed electronic bearer bonds to constitute merely evidence (certificate) of a claim ("ordinary" promissory notes, Sw. enkelt skuldebrev), i.e. not a transferable asset entitling to payment upon demonstration, and remanded the cases to KFM for enforcement in line with rules on ordinary promissory notes. Other courts have considered it impossible to determine whether the submitted electronic document is in fact the original one declaring it unenforceable. In a recent judgment (November 2017), the Supreme Court has stated that bearer bonds can be electronic provided that the electronic bearer bonds fulfils the same requirements which apply to a physical bearer bond.
KFM has discussed the judgement in a memo (November 2017) and states that there are no (to their knowledge) technological solutions which would allow an electronic bearer bond to fulfil the same features of a physical bearer bond (i.e. facilitating verification of the originality of submitted electronic bearer bonds). Consequently, electronic bearer bonds should by the KFM not be deemed to constitute a valid ground for an enforcement claim.
In simplified terms, electronic bearer bonds are thus (yet) most likely not enforceable as negotiables ("traditional" paper bearer bonds) under Swedish enforcement law.
With regard to other electronic documents and electronic enforcement titles, these presumably might be submitted (forming the basis for enforcement claim), where KFM finds that a certified copy suffices. Nonetheless, it is unclear whether a certified copy may be presented and submitted electronically. This has recently been discussed in the aforesaid governmental report dated November 2016. In this report it has been proposed that - in order to facilitate electronic filing of enforcement applications - the statutory requirement stating that an enforcement title is to be submitted in the original or certified copy should be repealed in relation to all documents except bearer bonds and other negotiable documents.
3.7.1 Applicable law
The use of electronic signatures will be accepted in Norwegian courts.
EIDAS1 is incorporated as Norwegian law through the Act on Electronic Trust Services (15 June 2018 #44).
Pursuant to eIDAS Article 25 as implemented in Norway, Norwegian courts may not deny legal effect and admissibility of electronic signatures as evidence in legal proceedings solely on the grounds of the electronic form or that the signature does not fulfill the requirements for qualified electronic signatures. However, the assessment of whether the signature is valid and can be enforced depends on the courts' free evaluation. The validity of an electronic signature will thus vary from case to case.
Further, electronic signatures shall be considered as equivalent to handwritten signatures with regards to statutory requirements for signature of documents, which shall be communicated electronically, if the technological solution for the electronic signature ensures notoriety, cf. the Courts Act (13 August 1915 #5). The same applies for statutory requirements for signature of written court decisions. Qualified electronic signatures shall have the equivalent legal effects as handwritten signatures cf. eIDAS Article 25.
When a party denies having entered into an agreement, this is typically based on one of two allegations, 1) that the party denies that the document is signed or 2) that the party is not the signatory. In such situations, it would also in Norway as in Denmark, be a benefit to have used an advanced electronic signature. This is due to the characteristics of an advanced electronic signature, which in Norway corresponds with the Danish definition of advanced signature. It would entail:
- a unique link to the signatory;
- identification of the signatory;
- that the signature would – to a high degree of confidence – have been under the sole control of the (given) signatory and
- that the signature will be linked to the signed data in such a manner that subsequent changes in the data will be traceable
This would create an assumption that only the given signatory could in fact have signed the document which is linked to the signature. It would be up to the signatory to present proof that it was in fact still someone else who had signed the document – a burden of proof which would be very hard to satisfy. Moreover, it would create an assumption that the signed agreement is in fact the final version that the parties agreed on.
As mentioned above in relation to Denmark; the value of an advanced electronic signature as proof would in relation to a)-d) above be based on the eID having been used for the signature. The higher the requirements in relation to the eID used – the eIDAS operates with assurance levels of eIDs being either low, substantial or high – the more non-reputable the advanced electronic signature would be as proof.
1 Regulation (EU) No. 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC
For enforcement of electronically signed documents, the Legal Enforcement Act (26 June 1992 # 86) provides different rules for the different basis for enforcement.
Electronically signed agreements on security for unpaid purchases (Nw. salgspant) may be enforced without first obtaining a court order, pursuant to the Legal Enforcement Act Section 9-2. However, enforcement of such agreements require that the agreement has legal protection pursuant to Section 3-17 of the Mortgages and Pledges Act (8 February 1980 #2). For agreements on security for unpaid purchases by consumers, such legal protection require that the technological solution for the electronic signature ensures notoriety, cf. the Mortgages and Pledges Act Section 3-17 (1).
Electronically signed agreements on extradition of chattel (Nw. løsøre) and on eviction from property may also be enforced without first obtaining a court order, pursuant to the Legal Enforcement Act Section 13-2 (4). However, enforcement require that the Execution and Enforcement Commissioner finds that the parties have entered into a legally binding agreement.
For enforcement of instruments of debt (Nw. gjeldsbrev) without first obtaining a court order, electronic signatures are not considered sufficient, according to the Supreme Court's interpretation of the Legal Enforcement Act Section 7-2 a) in Rt-2010-604. The original document with the handwritten signature is still the only document for instruments of debt that may be enforced without first obtaining a court order. Under the process of implementing the eIDAS in Norwegian Law, it was discussed whether the requirement for handwritten signatures, as interpreted by the Supreme Court, should be changed. Instead of changing the requirements for enforcement of instruments of debt, new provisions for enforcement of certain certificates of indebtedness were introduced.
As of 18 March 2017, electronic signatures are considered valid for enforcement of certain electronic certificates of indebtedness (Nw. gjeldserklæring), cf. the Legal Enforcement Act Section 7-2 g). The certificate must in the favor of a financial service institution mentioned in Sections 1-6 (1) or 7-2 of the Financial Institutions Act of 10 April 2015 no. 17, the certificate must be payable to a fixed amount and declaring that payment may be enforced without a lawsuit. Electronic signatures are also considered valid for enforcement of electronic declarations of surety (Nw. elektronisk erklæring om kausjonsansvar) on certain maturity terms or for ordinary guarantors, if it declares that payment may be enforced without a lawsuit, the declaration of surety is made for such electronic certificates of indebtedness as mentioned above and to a financial service institution as mentioned above, cf. the Legal Enforcement Act Section 7-2 g).
3.8.1 Applicable law
The use of electronic signatures is accepted in Finnish courts. However, the final value of certain piece of proof is eventually assessed by the Finnish courts in accordance with the Code of Judicial Procedure (4/1734).
The recognition of electronic signatures in legal proceedings in Finland is governed by the Act on Strong Electronic Identification and Trust Services (617/2009, "the Act 617/2009") and the Act on Electronic Services and Communication in the Public Sector (13/2003, "the Act 13/2003"). The amendments due to the eIDAS regulation came into effect on 1 July 2016.
The Act on Strong Electronic Identification and Trust Services lays down general principles on strong electronic identification and electronic signatures, as well as on the offering of these services to service providers using them and to the general public.
The Act on Electronic Services and Communication in the Public Sector applies to the lodging of administrative, judicial, prosecution and enforcement matters, to the consideration and to the service of decisions of such matters by electronic means, unless otherwise provided by statute. The Act applies, where appropriate, also to other activities of the authorities. Judicial matters mean matters considered by general courts, administrative courts and special courts.
3.8.2 General principles
The use of electronic signatures is accepted in Finnish courts.
In accordance with Article 25 of eIDAS regulation, the legal validity of an electronic signature cannot be denied solely on the grounds that it was concluded electronically. Having said this, there are still some documents that may be subject to additional formal requirements under Finnish law, for example, some contracts related to real estate. In such cases, electronic signatures may not alone be sufficient.
To prove a valid contract or other document, parties sometimes have to present evidence in court. In such case, electronic signatures may be beneficial with respect to proving the identification of the signatory and creating an assumption that the signatory has in fact signed the document. Evaluation of evidence in Finnish courts is based on the principle of free evaluation of evidence. This principle gives courts a wide discretion in consideration of evidence and, as such, entails the notion that form of technical presentation does not bear any pre-defined legal effect in this consideration. It could be argued that it is actually easier to prove that an electronic signature is authentic than a handwritten signature, since electronic signature is traceable including a unique link to the signatory. In fact, an electronic signature can prove the existence, authenticity and valid acceptance of a document. Such records are admissible as evidence under Code of Judicial Procedure.
According to Section 9 of the Act on Electronic Services and Communication in the Public Sector, documents delivered in an electronic form to a public authority do not have to be supplemented with signature. This rule has been confirmed by the legality control for example in decision (3355/6/06, dated 26 June 2008) by the Parliamentary Ombudsman and decision (3666/4/10, dated 20 October 2011) by the Deputy Parliamentary Ombudsman.
Note that, in case there is a doubt on the originality or integrity of the document, the authority in question may request further proof, which might also include a version of the document bearing an electronic signature. A precondition is, though, that the electronic document contains reliable sender information and there is no reason to suspect the originality or ntegrity of the document.
The Act 13/2003 clarifies that in the lodging and consideration of a matter, the required written form is also met by an electronic document delivered to the authorities (Sec. 9). A decision given by an authority may also be signed electronically. The electronic signature of an authority must meet the requirements set out in the eIDAS regulation, i.e. signature shall be an advanced electronic signature or given by using such a method that the originality and integrity of the document can be verified (Sec. 16). In situations of verifiable electronic service of a decision to a party, the party or the representative of the party shall identify himself/herself at the time of retrieval of decision by using a secure and verifiable identification method (Sec. 18). It is not stated in the Act 13/2003 that the electronic signature used in relation to the document which is now enforced, is to be a certain type. Thus, primarily, there is no predetermined standard or security level for electronic signature to be used. In practice, of course, the higher the requirements in relation to electronic signature, the more non reputable it is as proof. Finally it is up to a court to assess the final value of certain piece of proof.
So what is the European standard for electronic signatures?
Does Signicat Signature fulfil the requirements as an ‘advanced’ electronic signature in relation to eIDAS? The report assessed the legal effects of electronic signatures across Europe and how each European country deals with a disputed signature on a courtroom level.
AES: Know exactly who signed what and when
While there are some local differences, the report found that the main European standard for electronic signatures is advanced electronic signatures (AES). These are incredibly beneficial as they cover most of the requirements for electronic signatures across European countries:
- They have a unique link to the signer.
- They use the identification of the signer in the signing process.
- There is a high degree of confidence that the signature has been under the sole control of the signer, and no one else can use the signature.
Qualified Electronic Signatures needed in a minority of situations
Most countries will only need a document to be signed using an AES to be considered enforceable in court. A qualified electronic signature (QES) is only recommended to enforce a minority of legal situations. These situations typically request a ‘handwritten signature’ or ‘wet ink’. Even in these situations, there is no explicit, legal requirement in any country for a QES to be used, as under the eIDAS Regulation, any document signed with any type of electronic signature cannot be rejected as legal evidence before any European court of law.
Therefore, choosing an electronic signature is mainly based on choice and risk assessment. A QES can be more costly and complex to use, as it requires the signature key to be in a qualified electronic signature creation device (QSCD) and secure hardware be used to ensure the safety of the cryptographic key which is used to sign. It should only be used in very specific cases where a QES is absolutely required. An AES is far easier and quicker to implement technically, as it does not depend on any specific device, nor any qualified accreditation prior to using the signature.
An AES is therefore preferable to use across European countries, as it fulfils the requirements to be legally binding. And a signer can sign with a high level of confidence that it will hold up if ever disputed in court.
Qualified Electronic Signatures needed in a minority of situations
Exceptions to the rule by country
While an AES is preferable to use, there are some countries where more is required from the signature:
Belgium follows a tiered legal model. This means the QES is given special legal status as the most authentic and trustworthy of signatures, because it is considered equal to an original handwritten signature. This doesn’t mean that any non-QES signature can’t be submitted in court, but if an AES is used, it will need additional evidence to support it and will be evaluated on a case-by-case basis. This additional evidence must prove the validity of the signature, that the signature can be attributed to the signer, and that the security of the signed document is ensured.
For some legal transactions, a written, physical form is required for documents such as certain rental agreements. The German Civil Code states that only a QES can be used when substituting the written form for an electronic form.
However, these transactions are specific and an AES can be used for most other transactions with a high level of certainty.
An AES can be used to sign most documents. However, bearer bonds and other electronically signed debt cannot be enforced and the original physical bearer bond must be submitted in evidence.
Despite these small exceptions, an AES is perfectly acceptable to use across countries. The report creates trust in advanced electronic signatures and answers the main questions set out:
- Whether it is necessary to use an ‘advanced’ signature in order for the signature to be accepted as proof in legal proceedings - it is not necessary to use advanced signatures as all electronic signatures can be admitted as proof in legal proceedings. However, it is highly recommended to use an AES due to the higher proof-value attached to the signature.
- Whether Signicat Signature fulfils the requirements as an ‘advanced’ electronic signature in relation to eIDAS - Signicat Signature does fulfil the requirements as it is uniquely linked to the signer, can identify the signer and is created with the assurance that the signature is under the sole control of the signer.