As a result of digitisation, documents and contracts are increasingly being signed electronically. But what exactly is the legal status of these electronic signatures? Do they have the same value as the conventional pen-and-paper signature? In this contribution we take a look at the different types of electronic signature and their status in legal transactions[1].
In Belgium, the electronic signing of documents is generally accepted in principle and has even been incorporated into law. Only in exceptional circumstances will a traditional pen-and-paper signature be required. The signing of employment contracts is one of these cases, and another example is the publication of certain decisions in the Annexes to the Belgian Official Gazette (e.g. changes of management, registered office address changes).
Other documents from government bodies sometimes also require a traditional pen-and-paper signature (e.g. applications for subsidies or permits), although the current trend is that more and more of these bodies are switching to accepting electronic signatures.
Specifically, there are three types of electronic signature that can be used, depending on the type of document that needs to be signed.
This form of signing is very simple and quick to carry out, but less verifiable than the other two forms - AES and QES (see below). This is because an SES cannot be clearly assigned to a person, and therefore offers less certainty from an evidentiary perspective. However, the eIDAS Regulation (a European regulation in force since 1 July 2016) does state that an SES cannot be denied legal effect and admissibility in legal proceedings solely on the ground that it does not meet the requirements of a QES (see below).
A classic example of a standard electronic signature is entering a PIN code or password, a scanned signature, or clicking on an ‘I agree’ button.
Standard electronic signatures can generally be used in the following cases (although the list does not claim to be complete):
An AES requires additional steps for user authentication: the signatory is asked to provide a valid document to confirm his or her identity, as well as a unique passcode after the signing process.
Advanced electronic signatures also require a digital certificate to be generated and attached to the digital envelope as part of the signing process.
An AES therefore requires a number of technical checks which demonstrate that the signature is authentic and that the document to be signed remains unaltered. This means that it offers more guarantees in terms of authenticity and integrity than an SES, and in most cases will suffice as evidence in court.
An example of an advanced electronic signature is signatures provided using the software products DocuSign, Adobe Sign and SignHere.
Although the AES offers more guarantees than an SES, it too is not legally equivalent to a handwritten signature and does not necessarily have to be recognised in other EU Member States or in other third countries.
This form of electronic signature includes the most extensive identification process. A QES is a specific implementation of an electronic signature that has met certain specifications set by a government body, including the use of a secure signature creation device, and has been certified as ‘qualified’ by that government body or by a government-appointed private party.
The QES requires the person’s identity to be verified before signing. A certified trust service provider then issues an electronic certificate bearing the signatory’s name. This allows the signatory to then generate qualified signatures (one or more times, depending on the type of certificate).
The QES is legally equivalent to a handwritten pen-and-paper signature.
A QES also shifts the burden of proof concerning the signature’s validity or invalidity from the signatory to the disputing party.
Finally, the eIDAS Regulation requires every Member State to accept the validity of a QES, even if it has been carried out in another EU Member State.
Although this means that the QES is equivalent to a handwritten signature on paper, there are still documents for which the law requires a paper version, such as:
The European Commission has published a list of qualified trust service providers in each Member State, in accordance with the eIDAS Regulation.
One of the best-known examples of a qualified electronic signature in Belgium is Itsme, but qualified electronic signatures can also be carried out in Belgium through other service providers such as GlobalSign and ZetesConfidens.
Although an electronic signature is valid in principle, this does not mean that a challenge to it is unthinkable. The validity of an electronic signature can still be disputed. An SES is easier to dispute than an AES or QES, of course, which is why its use other than in an informal/familiar context is not recommended.
If a document with an electronic signature is printed on paper (‘materialised’), the electronic signature loses its legal status. This is because the functions of authenticity and integrity are lost through the act of printing.
Certain technologies are now available that make it possible to request the original electronic signature on the basis of the original digital document, e.g. via a QR code, and therefore allow a ‘materialised signature’ to perform the functions of an AES. This is also known as a hybrid signature.
However, this sometimes makes the electronically signed documents unusable. For example, they are not accepted by the registries of the business courts, as everything is still filed in paper form there.
It goes without saying that when different parties have to sign the same document, it is best for everyone to sign it in the same way (whether electronically or by hand).
However, it is possible to have an agreement validly signed with different signatures (both handwritten and electronic), by signing in so-called counterparts. This means that each party signs its own copy of the same, identical agreement, after which the signature pages are exchanged between all parties. In this way, each party has access to the agreement with the other parties’ signature pages, which together form a single original.
It is best in this situation to include a ‘counterparts clause’ in the agreement so that the signature pages with the signatures of your contracting parties together with the text of the agreement itself can be considered an original copy.
An SES is sufficient for the most common agreements and transactions. Of course, certain organisations or third parties may request an AES, in which case common service providers can be used such as DocuSign, Connective or Adobe.
Where a QES is required, the signatory will need to use signing software from one of the trusted QES certificate service providers of the Member State in question (see list via the link provided earlier).
| Standard electronic signature (SES) | Advanced electronic signature (AES) | Qualified electronic signature (QES) | |
| Signature valid in principle | Yes | Yes | Yes |
| Authenticity of signature and integrity of document checked | No | Yes | Yes |
| Assimilation principle (equivalence to physical signature) | No | No | Yes |
| Automatic recognition in other Member States? | No | No | Yes |
[1] Source: https://www.vlaanderen.be/informatiemanagement/informatie-digitaliseren/de-elektronische-handtekening
[2] Article 7:74 Companies and Associations Code
[3] Article XII.16 of the Code of Economic Law