Legality and enforceability of electronic signatures in the European Union*

In the European Union, electronic signatures are regulated by Regulation (EU) N°910/2014 on electronic identification and trust services for electronic transactions in the internal market, which was adopted on July 23, 2014 (eIDAS). The eIDAS Regulation is directly applicable in all EU Member States and does not need to be transposed in EU Member States laws. Furthermore, while it aims to ensure the legality of electronic signatures and their admissibility as evidence in legal proceedings, the conclusion, validity, and enforceability of electronic agreements remain a matter of national EU Member State laws.

The eIDAS Regulation creates three tiers of electronic signatures discussed below and states that any electronic signature shall not be denied legal effect and admissibility as evidence in legal proceedings solely because it is in electronic form or that it does not meet the requirement of a qualified electronic signature. A qualified electronic signature under EU law shall be granted the same legal standing as a handwritten signature in all EU jurisdictions.

The eIDAS Regulation defines three types of electronic signatures:

• An electronic signature means “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” (Article 3.10) and thus covers the broad category of all electronic signatures.
• An “advanced electronic signature” is a type of electronic signature that must meet specific requirements providing a higher level of signer identification verification, security, and tamper-sealing. In this regard, eIDAS requires that an advanced signature is (Article 3.11):
  • uniquely linked to the signer;
  • capable of identifying the signer;
  • created using signature creation data that the signer can use under their sole control;
  • linked to the signed data in such a way that any subsequent change in the data is detectable.

In practice, mainly asymmetric public key cryptography (PKI) systems meet the requirements of this definition. It must, however, be emphasized that eIDAS does not confer specific legal standing to this type of electronic signature that would be different from “simple” electronic signatures.

• A “qualified electronic signature” is the only electronic signature level to have special legal status in EU member states, being legally recognized as the equivalent of a written signature (Article 25.2). A qualified electronic signature is regarded as “an advanced electronic signature that is created by a qualified signature creation device and which is based on a qualified certificate for electronic signatures” (Article 3.12). It must meet advanced electronic signature requirements and be backed by a qualified certificate issued by a trust service provider that is on the EU Trusted List and certified by an EU member state. The trust service provider must verify the identity of the signer and vouch for the authenticity of the resulting signature. A qualified signature creation device must ensure (Annex II):
  • The confidentiality of the electronic signature creation data;
  • The electronic signature creation data used for electronic signature creation can practically only occur once;
  • The electronic signature creation data used for signature creation cannot be derived and the signature is protected against forgery using currently available technology;
  • The electronic signature creation data used for signature creation can be reliably protected by the legitimate signatory against use by others.

Additionally, Directive 2000/31/EC (‘e-Commerce Directive’) which sets out a general framework for Member States by which they must ensure that the legal requirements applicable to the contractual process neither create obstacles for the use of electronic contracts nor result in such contracts being deprived of legal standing and validity on account of their having been made by electronic means.

On the basis of this provision, EU Member States have in some cases removed formal requirements preventing the use of electronic means to conclude and enforce contracts under their local laws, and in other cases introduced general provisions to assimilate electronic means to traditional means for concluding and enforcing contracts (“functional equivalence”).

Yes. First, the electronic signature created by the airSlate process is in electronic form. Second, the electronic signature can be attached by the signatory to other electronic data. Lastly, the data is used by the signatory to sign as it captures the intent of the signatory.

The airSlate electronic signature would likely not qualify as an advanced electronic signature and it would not qualify as a qualified electronic signature. Further, EU Member States are free to regulate different types of electronic signatures.

The eIDAS Regulation does not indicate what type of electronic signature is necessary for a given type of transaction or a given type of agreement. Taking into consideration the listed general principles, each EU Member State may explicitly specify in their laws when a particular transaction (i) cannot be signed electronically or (ii) needs a different form of electronic signature such as an advanced or qualified electronic signature for reasons of validity or enforceability.

Specific obstacles to using electronic signatures may exist in EU Member States in some cases regarding documents executed in electronic form. For instance, the e-Commerce Directive expressly permits EU Member States to deviate from the above rules in relation to specific categories of contracts and does not govern certain activities which are out of scope of the legislation (such as gambling or the representation of a client and defense of their interests before a court). Generally, specific caution concerning the use of electronic signatures should apply for (a) contracts that create or transfer rights in real estate, except for rental rights; (b) contracts requiring by law the involvement of courts, public authorities, or professions exercising public authority; (c) contracts of suretyship granted and on collateral securities furnished by persons acting for purposes outside their trade, business or profession; and (d) contracts governed by family law or by the law of succession. These contract types, in particular, may require additional formalities to be met under local laws which may not be done in electronic form.

There is no such general requirement under EU law. Where relevant, an analysis may need to be provided under local laws.

As a general rule, the burden of proof regarding the authenticity and integrity of an electronic signature under local law shall lie with the party invoking its validity. It is only if an electronic signature takes the form of a qualified electronic signature that EU law states that such a signature shall automatically have equivalent legal effect as a handwritten signature.

Last updated: May 2021